THE COURT ORDERS THAT:
PENAL NOTICE
TO: Global Gaming Supplies Pty Ltd
TO: Anthony Edward Andrews
IF YOU (BEING A PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
TO: Global Gaming Supplies Pty Ltd
Anthony Edward Andrews
This is a 'search order' made against you on 30 June 2006 by Justice Allsop at a hearing without notice to you after the Court was given the undertakings set out in Schedule B to this order and after the Court read the affidavits listed in Schedule C to this order.
THE COURT ORDERS:
INTRODUCTION
(a) the application for this order is made returnable immediately.
(b) the time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 2pm on 4 July 2006.
2. Subject to the next paragraph, this order has effect up to and including 5 July 2006 ('the Return Date'). On the Return Date at 9.30am there will be a further hearing in respect of this order before Justice Rares.
3. You may apply to the Court at any time to vary or discharge this order, including, if necessary, by telephone to the judge referred to in the immediately preceding paragraph (phone No. (02) 9230 8491) or to the Duty Judge (through the security desk phone No. (02) 9230 8000 or (02) 9230 8025).
This order may be served only between 9:00am and 2:00pm on a business day.
In this order:
(c) 'applicant' means the person who applied for this order, being Aristocrat Technologies Australia Pty Ltd.
(d) 'independent computer expert' means each of the persons identified as independent computer experts in the search party referred to in Schedule A to this order.
(e) 'independent solicitor' means each of the persons identified as independent solicitors in the search party referred to in Schedule A to this order.
(f) 'listed thing' means any thing referred to in Schedule A to this order.
(g) 'premises' means any and each of the premises identified in Schedule A to this order, including any vehicles and vessels that are under the respondent's control on or about the premises or that are otherwise identified in Schedule A.
(h) 'search party' means the persons identified or described as constituting the search party in Schedule A to this order.
(i) 'thing' includes a document.
(j) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation.
(k) Aristocrat Artwork means the artwork depicted on the insert panels of any Aristocrat Gaming Machines or the reel strips of any Aristocrat Games.
(l) Aristocrat EPROMs means EPROMs onto which have been burnt Aristocrat Game Software with the licence of the Applicant.
(m) Aristocrat Games means the Games listed in Schedule 1.
(n) Aristocrat Game Materials means Aristocrat Artwork, Aristocrat EPROMs and Aristocrat Game Software.
(o) Aristocrat Gaming Machines means Gaming Machines on which Aristocrat Games have been installed.
(p) Aristocrat Game Software means the computer programs and associated literary works created for the purpose of being installed on Gaming Machines for the playing of Aristocrat Games.
(q) Game means an electronic game for use or an electronic gaming machine.
(r) Gaming Machine means a cabinet, display unit, machine or other device on which Games are installed.
(s) Infringing Aristocrat Game Materials means any artwork, EPROM or software (including any associated literary work) reproducing the whole or a substantial part of any Aristocrat Artwork, Aristocrat EPROM or Aristocrat Game Software, that is made without the licence of the Applicant,
(t) any requirement that something be done in your presence means:
(A) in the presence of you or of one of the persons described in (6) below; or
(B) if there is more than one of you, in the presence of each of you, or, in relation to each of you, in the presence of one of the persons described in (6) below.
6. This order must be complied with by you by:
(a) yourself; or
(b) any director, officer, partner, employee or agent of yourself; or
(c) any other person having responsible control of the premises.
7. This order must be served by, and be executed under the supervision of, the independent solicitor.
ENTRY, SEARCH AND REMOVAL
8. Subject to paragraphs 10 to 20 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.
9. Having permitted members of the search party to enter the premises, you must:
(a) permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete;
(b) permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;
(c) disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;
(d) disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;
(e) do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;
(f) permit the independent solicitor to remove from the premises into the independent solicitor's custody (including, if necessary, warehouse premises rented by the independent solicitor for this purpose):
(i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things;
(ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above;
and for that purpose permit, if so directed by the independent solicitor, such vehicle or conveyance to be brought onto the land on which the premises are located together with such persons as may reasonably be required to enable the physical removal of things;
(g) permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.
9A. The members of the search party who are employees of the applicant may only do the following things permitted by paragraph 9(b):
(a) inspect the listed things; and
(b) test the listed things,
and only under the direction of the independent solicitors.
RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL
10. This order may not be executed at the same time as a search warrant (or similar process) is executed by the police or by a regulatory authority.
11. You are not required to permit anyone to enter the premises until:
(a) the independent solicitor serves you with copies of this order and any affidavits referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and
(b) you are given an opportunity to read this order and, if you so request, the independent solicitor explains the terms of this order to you.
12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not exceeding two hours from the time of service or such longer period as the independent solicitor may permit):
(a) may seek legal advice;
(b) may ask the Court to vary or discharge this order;
(c) (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and
(d) may gather together any documents that passed between you and your lawyers for the purpose of obtaining legal advice or that are otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container.
13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant's solicitors, any thing handed to the independent solicitor in accordance with subparagraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the Return Date.
During any period referred to in paragraph 12 above, you must:
(a) inform and keep the independent solicitor informed of the steps being taken;
(b) permit the independent solicitor to enter the premises but not to start the search;
(c) not disturb or remove any listed things; and
(d) comply with the terms of paragraphs 25 and 26 below.
15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court.
16. Before removing any listed things from the premises (other than things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's solicitors a copy of the list signed by the independent solicitor.
17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner, employee, agent or other person acting on your behalf or on your instructions.
18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance.
19. The applicant's solicitors and the independent solicitor must not allow the applicant in person to inspect (subject to Order 9A above) or have copies of any thing removed from the premises nor communicate to the applicant information about its contents or about anything observed at the premises until 4:30pm on the Return Date or other time fixed by further order of the Court.
COMPUTERS
20. (a) The search party must include a computer expert who is independent of the applicant and of the applicant's solicitors (`the independent computer expert').
(b) Any search of a computer must be carried out only by the independent computer expert.
(c) The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
(d) The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises and/or away from the premises for listed things and may copy the listed things electronically or in hard copy or both.
(e) The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the Return Date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
(f) The independent solicitor must, at or prior to the hearing on the Return Date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties.
(g) If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty.
(b) You are also entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged.
(c) Upon communicating any objection under paragraph (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant's solicitor communicates to the independent solicitor that the applicant proposes to contest the objection:
(i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the Return Date.
(ii) on the Return Date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection.
INSPECTION
22. Prior to the Return Date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to:
(a) make copies of the same; and
(b) provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.
PROVISION OF INFORMATION
Subject to paragraph 24 below, you must:
(a) at or before the further hearing on the Return Date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to:
(i) the location of the listed things;
(ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
(iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
(iv) details of the dates and quantities of every such supply and offer;
(b) within 7 working days after being served with this order, make and serve on the applicant an affidavit setting out the above information, and annexing copies of all order forms, invoices, delivery notes, accounts, receipts and correspondence (including email correspondence) relating to the transactions referred to in sub-paragraph (a) above and which verifies that it sets out all such particulars known to each respondent and that all such documents have been so annexed.
24. (a) This paragraph (24) applies if you are not a corporation and you wish to object that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty.
(b) This paragraph (24) also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them or make them liable to a civil penalty.
(c) You must, at or before the further hearing on the Return Date (or within such further time as the Court may allow), notify the applicant in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection.
(d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken.
(e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection.
PROHIBITED ACTS
25. Except for the sole purpose of obtaining legal advice, you must not, until 4:30pm on the Return Date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.
26. Until 4:30pm on the Return Date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court.
COSTS
27. The costs of this application are reserved to the Judge hearing the application on the Return Date.
INTERLOCUTORY INJUNCTION
28. Up to and including 4:30pm on the Return Date or other time fixed by further order of the Court, you must not, whether by your servants, agents, or otherwise, do any of the following:
(a) reproduce or authorise the reproduction of the whole or any substantial part of any Aristocrat Game Materials without the licence of the Applicant;
(b) manufacture, assemble, sell, offer for sale, supply, offer to supply, distribute or import any Infringing Aristocrat Game Materials or any Gaming Machine which includes or incorporates any Infringing Aristocrat Game Materials;
(c) authorise, direct or procure any other company or person to engage in the conduct described in (a) or (b) above.
[2]
Premises
The premises located at:
18 Edman Close, Florey ACT 2615; and
22A Rickety Street, Mascot NSW 2020
including any vehicle or vehicles under a respondents' control on or about those premises.
Listed Things
(i) things which are, or appear to be, Infringing Aristocrat Game Materials;
(ii) gaming machines, components for gaming machines, EPROMs, computers, computer hardware and other machines, any digital storage media including without limitation computer disks or diskettes, CD-ROMs or USB drives, computer programs, artwork panels, manuals, documents and similar articles which are, or appear to be, or to include or to incorporate, Infringing Aristocrat Game Materials;
(iii) originals or copies of invoices, receipts, order forms, delivery notes, bank statements, correspondence or other documents or items which relate, or appear to relate to, the copying, assembly, acquisition, importation, purchase, sale, supply, distribution or to the proceeds of sale or distribution of Infringing Aristocrat Game Materials;
(iv) equipment (including EPROM duplicators, CD-R copiers and other computer equipment) is or which appears to have been (or intended to be used for) making Infringing Aristocrat Games Materials; and
(v) any electronically stored information (including, without limitation, emails) which relate or appear to relate to the copying, assembly, acquisition, importation, purchase, sale, supply or distribution or proceeds of sale of Infringing Aristocrat Game Materials.
Search Party
The independent solicitors:
(a) Alexandra Duchen, Level 60, Governor Phillip Tower, 1 Farrer Place, Sydney NSW 2000; and
(b) Malcolm Brennan, Level 9 St George Centre, 60 Marcus Clarke Street, Canberra ACT 2601.
The applicant's solicitor or solicitors:
(a) Robert Arnold, 50 Bridge Street, Sydney NSW 2000;
(b) Elisabeth Coffey, 50 Bridge Street, Sydney NSW 2000;
(c) Nathan Shepherd, 50 Bridge Street, Sydney NSW 2000; and
(d) Melanie Howlett, 50 Bridge Street, Sydney NSW 2000.
Independent computer experts: Rodney David McKemmish and Jason Forsyth
4. Other members of the search party: Dieter Polaczek, Shaun Harrison, Marc Mayo and Malcolm Layton, employees of the applicant in the capacity of technical experts.
[3]
A. Undertakings given to the Court by the applicant:
A1. The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
A2. The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
A3. The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date or other time fixed by further order of the Court.
A4. The applicant will insure the things removed from the premises against loss or damage against fire or acccident under reasonable or usual terms for an amount that reasonably appears to the applicant to be their full value.
A5. The applicant undertakes that employees of the applicant identified in paragraph 4 under the heading "Search Party" in Schedule A and any other employees of the applicant directed by the independent solicitor to assist in the removal of things from the premises, will be directed not to disclose to any other representatives of the applicant any information or the content of any document acquired during or as a result of the execution of this order without leave of the Court.
B. Undertakings given to the Court by the applicant's solicitor
B1. The applicant's solicitors will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.
B2. The applicant's solicitor will provide to the independent solicitor for service on the respondent copies of the following documents:
(a) this order;
(b) the application for this order for hearing on the Return Date;
(c) the following material in so far as it was relied on by the applicant at the hearing when the order was made:
(i) affidavits (or draft affidavits)
(ii) exhibits capable of being copied (other than confidential exhibits);
(iii) any written submission; and
(iv) any other document that was provided to the Court.
(d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; and
(e) the originating process, or, if none was filed, any draft originating process produced to the Court.
B3. The applicant's solicitor will answer to the best of his or her ability any question as to whether a particular thing is a listed thing.
B4. The applicant's solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
B5. The applicant's solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
B6. The applicant's solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date, or other time fixed by further order of the Court.
B7. The applicant's solicitor will not disclose to the applicant (other than members of the search party) any information that the solicitor acquires during or as a result of execution of the search order, without the leave of the Court.
B8. The applicant's solicitor will use best endeavours to follow all directions of the independent solicitor.
C. Undertakings given to the Court by the independent solicitor
C1. The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking B2 of the above undertakings by the applicant's solicitor or solicitors.
C2. Before entering the premises, the independent solicitor will:
(a) offer to explain the terms and effect of the search order to the person served with the order and, if the offer is accepted, do so; and
(b) inform the respondent of his or her right to take legal advice.
C3. Subject to undertaking C4 below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court.
C4. At or before the hearing on the Return Date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondent or the respondent's solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.
C5. The independent solicitor will use best endeavours to ensure that members of the search party act in conformity with the order and that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent, and will give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.
C6. The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
C7. The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date, or other time fixed by further order of the Court.
D. Undertakings given to the Court by the independent computer expert
D1. The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is execute in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
D2. The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
D3. The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4:30pm on the Return Date.
D4. The independent computer expert will use best endeavours to follow all directions of the independent solicitor.
[4]
Name of Deponent Date affidavit made
Heather Ann Tropman 30 June 2006
Garry David Coster 28 June 2006
Robert Anthony Arnold 30 June 2006
NAME AND ADDRESS OF APPLICANT'S SOLICITORS
The Applicant's solicitors are:
Baker & McKenzie Solicitors
50 Bridge Street
Sydney NSW 2000
Tel: 9225 0200
Fax: 9225 1595
[5]
4 PLAY
5 DRAGONS
5:1 THE FIELD
50 LIONS
6 PACK
7's
9 LIVES
A FISTFUL OF FREE GAMES
ACE
ACE IN THE HOLE
ACE OF CLUBS
ACES
ACES II
ACTION ACES
ACTION PACKED
ACTION REPLAY
ACTION TIME
ADONIS
AFRICAN DUSK
ALCHEMIST
ALCHEMY
ALOHA
AMAZON
AMAZON QUEEN
ANTONY & CLEOPATRA
APACHE GOLD
ARABIAN NIGHTS
ARCTIC WINS
ARISHINKO
ASTRONAUT
ATLANTIS
AUTUMN MOON
AVALANCHE
AZTEC CHIEF
AZTEC GOLD
AZTEC QUEEN
BANKER (THE)
BEAR ESSENTIALS
BEST & FAIREST
BETCHA
BIG 5 (THE)
BIG APPLE (THE)
BIG BEN
BIG CATS
BIG DEAL
BIG HEARTED
BIG RED
BIG TIME
BIRD OF PARADISE
BIZZY BEE
BIZZY BEE II
BJ BLITZ BLACKJACK
BLACK BRUMBY
BLACK PANTHER
BLACK PEARL
BLACK RHINO
BLACKJACK
BOB AND DOLLY
BOBBY DAZZLER
BONUS
BONUS POKER
BONUS WHEEL
BOOKMAKER
BOOMERANG
BOOSTER BUCKS
BOOT SCOOTIN'
BRAZIL
BRING HOME BACON
BRONZED AUSSIE
BUCCANEER
BUMBLE BUGS
BUMPER CATCH
BUNGEE CHOOK
BURNING DESIRE
BUSHRANGER
BUTTERFLY
BUTTERFLY DELIGHT
BUZZARD BUCKS
CAESAR'S RANSOM
CALYPSO
CALYPSO KING
CANYON ROSE
CAPITAL BONUS
CAPITAL GAIN
CAPTAIN COMBO
CARNIVAL
CAROUSEL
CASH CAROUSEL
CASH CAT
CASH CHAMELEON
CASH CROP
CASH FLOW
CASH SPLASH
CASHCADE
CASHIER (THE)
CASHMAN TONIGHT
CASINO ROYALE
CELTIC WARRIOR
CENTRE STAGE
CENTURION
CHAIN REACTION
CHAMPION
CHARIOT CHALLENGE
CHECKMATE
CHICKEN
CHIEFTAIN
CHOY SUN DOA
CLOCKWISE
CLOWN BINGO
COLOSSUS
COME ALIVE
CONQUEST
COOL CASH
CORAL RICHES
CORAL RICHES II
CORRIDA DE TOROS
COSMIC CASH
COUNTDOWN
CRAZY BALLS
CRAZY JOKER
CRITTERS
CRUSADER
CRYSTAL SPRINGS
CUCKOO
CURRENCY MARKET
DAILY DOUBLES
DARK HORSE
DELTA GOLD
DELTA QUEEN
DESERT BLOOM
DESERT GOLD
DIAMOND DOVE
DIAMOND EYES
DIAMOND FEVER
DIAMOND TOUCH
DIAMONDS & PEARLS
DIAMONDS FOREVER
DINOMIGHT
DINOSAUR
DIXIE
DOLLAR ACTION
DOLLAR DROP
DOLLAR KING
DOLLAR TREE
DOLLARADO
DOLLARS
DOLPHIN TREASURE
DOLPHIN TREASURE DELUXE
DOUBLE ACTION
DOUBLE ACTION 2 UP
DOUBLE AGENT
DOUBLE BARREL
DOUBLE DEAL
DOUBLE DECKER
DOUBLE DOLPHINS
DOUBLE FEATURE
DOUBLE TAKE
DOUBLE TIME
DOUBLE UP
DOUBLE WILD BAR
DOUBLET
DRAGON
DRAGON LORD
DRAGON'S EYE
DRAW CARD
DRAW POKER
DREAM BOAT
DREAM CATCHER
DREAM WEAVER
DUO
DYNAMITE JACK
EACH WAY INCAS
EACH WAY NUDGER
EAGLE ROCK
EASY STREET
EIGHT BALL
EL DORADO
EMERALD CITY
EMPRESS
ENCHANTED FOREST
ENCHANTRESS
ENDEAVOUR
ENTERTAINER (THE)
EXCALIBUR
EXOTICA
EXPLORER
EXTRA 2 BALL BINGO
EXTRA!
EYES OF THE TIGER
FABULOUS 4
FABULOUS 50'S
FAIR GO
FANCY FREE
FANTASTIC
FANTASY FORTUNE
FAST FORTUNE
FAVOURITE ONE
FEVER PITCH
FIND THE LADY
FIRE DANCER
FIREBALL
FIVE LINE JACKPOT
FIVE LINE SPECIAL
FIVE REEL WINNER
FLAME OF OLYMPUS
FLAMING ARROW
FLAMINGO
FOLLOW THE STARS
FORMULA ONE
FORTUNE
FORTUNE HUNTER
FORTUNE TELLER
FOUR REEL FUN
FOUR REEL SPECIAL
FOUR SCORE
FOUR UP
FREE BEE
FREE BEE 5 cent
FREE KICK
FREE 'N EASY
FREE THROW
FREEWAY
FRONTIER
FULL HAND
FUNMAKER
GAMBLIN' JACK
GAME WITH NO NAME! (THE)
GATOR GOLD
GEISHA
GENGHIS KHAN
GENIE GOLD
GENIE MAGIC
GI CLASSIC SPECIAL
GNOME AROUND THE WORLD
GO APE
GO FOR GOLD
GO FOR GREEN
GODDESS OF LOVE
GOLD A GO GO
GOLD AWARD
GOLD BULLION
GOLD CUP
GOLD FEVER
GOLD GALLEON
GOLD MEDAL
GOLDEN APPLE
GOLDEN ARCHER
GOLDEN BOUNTY
GOLDEN CANARIES
GOLDEN CANARIES II (Lucky Devil)
GOLDEN FLEECE (THE)
GOLDEN GATE
GOLDEN GONG (THE)
GOLDEN GOOSE
GOLDEN GOOSESPINS
GOLDEN HARVEST
GOLDEN INCAS
GOLDEN POKER
GOLDEN PYRAMIDS
GOLDEN PYRAMIDS SPECIAL EDITION
GOLDEN RA
GOLDEN TOUCH
GOLDMINE
GOLDMINE II
GONE TROPPO
GOOD FORTUNE
GRAND CHAMPION
GRAND PRIX
GRAND RAPIDS
GRAND RAPIDS II
GRAND SLAM
GREEN & GOLD
GREEN LIZARD
HAPPY DAYS
HAPPY GO LUCKY
HARLEQUIN
HARMONY
HARVEST
HARVEST FESTIVAL
HARVEST TIME
HAT TRICK
HEART OF GOLD
HEART THROB
HEATWAVE
HELEN OF TROY
HI DOLLY
HI FLYER
HIGH CARD
HIGH NOON
HIGH SEAS
HIGH STAKES
HIGHLAND REEL
HIT THE HEIGHTS
HOLD YOUR HORSES
HOLE IN ONE
HOLIDAY
HOLLYWOOD DREAMS
HONEY BEE
HONEY MONEY
HONEY POT
HONEYMOON
HORIZON
HOT $
HOT CANARY
HOT CASH
HOT REELS
HOT SHOT
HOUSE OF HEARTS
HUMDINGER
IDOL RICHES
INCA CHIEF
INCA GOLD
INCA KING
INCA MAGIC
INCA RICHES
INCA ROYAL
INCA SUN
INCA TREASURE
INCA WARRIOR
INDIAN CHIEF
INDIAN DREAMING
INDIAN DREAMING 2ND CHANCE
INDIAN DREAMING II
INDIAN GOLD (Mr Cashman)
INDIAN PRINCESS
IRISH DELIGHT
ISLAND DELIGHT
IT'S TIME
JACK HIGH
JACKPOT SPECIAL
JAILBIRD (Mr. Cashman)
JAILBREAK
JAILHOUSE ROCK
JESTER
JOKER IS WILD (THE)
JOKERS GALORE
JOKERS GALORE II
JOLLY GIANT
JOLLY JOKER
JUMBO 4
JUMBO JACKPOTS
JUMPIN' JOEY'S
JUMPING BEANS
JUNGLE JUICE
K. G. BIRD
KAKADU DREAMING
KARAT PATCH
KEEP YOUR HAT ON
KENTUCKY
KENYAN GOLD
KING GALAH
KING NEPTUNE
KING OF CLUBS
KING OF THE NILE
KING PENGUIN
KING'S RANSOM
KOALA MINT
KOHINOOR MOUNTAIN OF LIGHT
KOOKA BUCKS
L.A. GATOR
LADY LUCK
LADY OF FORTUNE
LET'S PARTY
LIGHTNING
LIGHTNING STRIKE ROULETTE
LINE KING
LION'S SHARE
LOCO LOOT
LONE STAR
LONE WOLF
LOONEY 7'S
LOOSE GOOSE
LORD LEOPARD
LOUIE'S GOLD (Mr. Cashman)
LOVE & MARRIAGE
LOVE BIRDS
LUCK OF THE IRISH
LUCKY BUCKS
LUCKY BUCKS II
LUCKY BUG
LUCKY CLOVER
LUCKY DEVIL
LUCKY STARS
LUCKY STREAK
LUCKY STRIKE
LUCKY STRIKE II
LUXURY LINES
MAGIC KISS
MAGIC MASK
MAGIC TIME
MAGIC TOUCH
MAGICIAN (The)
MAH JONG
MAMMOTH MONEY
MARGARITA MAGIC
MARLIN MAGIC (Lady Luck)
MATILDA
MERCHANT BANKER
MIDAS MILLIONS
MIGHTY MONEY
MINE MINE MINE
MIRROR MONEY
MONARCH
MONEY EXPRESS
MONEY MACHINE
MONEY MAGIC
MONEY MAGICIAN
MONEY MAKER
MONEY MOUSE
MONEY OR THE BOX
MONEY TREE
MONKEY BUSINESS
MOON FESTIVAL
MOON FIRE
MOONLIGHT
MOROCCAN GOLD
MOUNTAIN MONEY
MR CASHMAN
MYSTIC CHIEF
MYSTIC EYES (Mr Cashman)
MYSTIC FOREST
MYSTIC GARDEN
MYSTIC MERMAID
MYSTIQUE
NERDS GONE WILD!
NITRO NELLIE
NUDGER
OASIS
ODDS ON
ODIN'S REIGN
OLD GOLD
ONE FOR ALL
OPEN SESAME
ORCHID MAGIC
ORCHID MIST
OSCAR
OUTBACK JACK
OVERS & UNDERS
OWL CAPONE
PARIS LIGHTS
PARK LANE
PAY DAY
PEACOCK FLUTTER
PEACOCK MAGIC
PELICAN PETE
PENGUIN PAYS
PENGUIN PIRATE
PENGUIN PIRATE II
PESO PALACE
PET SHOP
PHANTOM PAYS
PHANTOM PAYS CLASSIC
PHARAOHS FORTUNE
PHOENIX FANTASY
PIECE OF CAKE
PIRATES
PLAYER'S CHOICE - Favourites
PLAYER'S CHOICE - Original
PLAYER'S CHOICE - Super
PLUM CRAZY
PLUS 4
POMPEII
POW WOW
POWDER KEG
POWER PAY
PRIDE OF AFRICA
PRIZE FIGHT
PROPHECY
PROSPECTOR
PROSPERITY
PUNTER'S CHOICE
PUNTER'S NUDGER
PURE GOLD
PUSHOVER
PUTTING ON THE RITZ
PYRAMID MAGIC
PYRAMID POWER
Q.T. BIRD
QANTASTIC
QUADREEL
QUARTETTE
QUEEN OF HEARTS
QUEEN OF SHEBA
QUEEN OF THE NILE
QUEEN OF THE NILE DELUXE
QUEEN OF THE NILE II
QUEEN OF THE NILE SPECIAL EDITION
QUEENS OF CASH
QUINTETTE
QUIZ NITE
RACING GAME (THE)
RAGTIME
RAINBOW WARRIORS
RAINBOWS END
RAINDROPS
RAMBLING ROSE
RANDOM HARVEST
RAPID JACKPOTS
RAPID JACKPOTS II
RAPID REWARD
RAPID RICHES
RAWHIDE
REBEL YELL
RED BARON
REEL POWER
REEL WINNER
REELIN 'N ROCKIN
RETURN OF THE SAMURAI
RICH RIVER
RIVERBOAT KING
RIVERBOAT QUEEN
RODEO
ROLL UP! ROLL UP!
ROMAN HOLIDAY
ROULETTE - LIGHTNING STRIKE
ROUTE 66
ROYAL ASCOT
ROYAL BOUNTY
ROYAL MINT
ROYAL WINNA
RUBY MAGIC
RUSHIN' ROOSTER
SAFARI
SAMURAI
SCATTER MAGIC
SCATTER MAGIC II
SCATTER MAGIC III
SCATTER ROOS
SCATTERBRAIN
SCRATCH 'n MATCH
SEAL THE DEAL
SEVEN UP
SHARP SHOOTER
SHOW ME THE MONEY
SHOWBOAT GAMBLER
SHOWBOAT SPECIAL
SHOWDOWN
SILK ROAD
SILVER & GOLD
SILVER CLOUD
SILVER FALLS
SILVER FLEET(Megastar)
SILVER FOX
SILVER STREAK
SILVER WOLF
SIX REEL WINNER
SKY RAIDER
SNAP SHOT
SNOWBALL
SNOWCAT
SOLID GOLD
SPIN A FORTUNE
SPORTING CHANCE GAMES
SPRING CARNIVAL
SPUN GOLD
ST. MORITZ
STABLE MATES
STABLEMATES
STAR ATTRACTION
STAR DRIFTER
STAR QUEST
STARDUST
STARLITE
STOOGES
STOP THE CLOCK
STRAIGHT ACE
STRIKE A LIGHT
STRIKE ME LUCKY
SUEPR BUCKS IV
SUGAR & SPICE
SUMO SPINS
SUN CHIEF
SUN KING
SUN QUEEN
SUNDANCER
SUNSET PARADISE (Mr. Cashman)
SUPER BLACK PEARL
SUPER BUCKS
SUPER BUCKS II
SUPER BUCKS III
SUPER BUCKS V
SUPER GOLD AWARD
SUPER GOOSE
SUPER HERO
SUPER JACKPOTS
SUPER QUADREEL
SUPER QUARTETTE
SUPER QUINTETTE
SUPER RAPIDS
SUPER SCATTEROOS
SUPER SLOTS
SUPER STAR
SUPER TRIPLE 7'S
SUPER TWO UP
SURE SHOT
SURF SUN FUN
SURPRIZE
SWEET & SOUR
SWEET DREAMS
SWEET REWARD
SWEET SUCCESS
SWEETHEARTS
SWEETHEARTS II
SWEETHEARTS II (Lucky Devil)
SWELL SURPRISE
SYSTEM 7
TAKE FIVE
TALENT SCOUT
TARTAN TREASURE
TEMPTATION
TEQUILA SUNRISE
THAI PRINCESS
THE ORIGINAL INDIAN DREAMING
THE ORIGINAL QUEEN OF THE NILE
THOR
THREE BAGS FULL
THREE COINS IN A FOUNTAIN
THREE LINE 2 UP
THREE WAY WIN
THREEE UP
THUNDER HEART
TIC TAC TOE
TIKI TORCH
TOP 10
TOP BANANA
TOP BRASS
TOP BUCK
TOP DOLLAR
TOP FORM
TOP GEAR
TOP GOLD AWARD
TOP KNOT
TOP SCORE
TOP SHOT
TOP SPOT
TORCH OF THE GODS
TOSS UP
TOTEM
TOUCAN TANGO
TOUCH OF GOLD
TOUCH OF PARADICE
TREASURE
TREASURE (THE)
TREASURE ISLAND
TREASURE TROVE
TRICK OR TREAT
TRIGGER HAPPY
TRIPLE EAGLE
TRIPLE JOKERS
TRIPLE PAYS
TRIPLE POWER
TRIPLE TREAT
TRIPLET
TROJAN HORSE
TROPICAL DELIGHT
TRUMPS
TWIN NUDGER
TWO BOB
TWO FOR ONE
TWO UP
TWO UP DOLLAR
UNICORN DREAMING
VENETIAN NIGHTS
VENICE
VENUS
VIKING QUEST
WAY TO GO
WEE LASSIE
WHACKO
WHALES OF CASH
WHERE'S THE GOLD
WHITE TIGER
WHITE TIGER CLASSIC
WHITE TIGER II (Lucky Devil)
WICKED WINNINGS
WILD (THE)
WILD ACES
WILD AFRICA
WILD AMAZON
WILD AMAZON II
WILD ANGELS
WILD BALL BINGO
WILD BILL
WILD CAT
WILD COUGAR
[6]
WILD COUNTRY
WILD COYOTE
WILD FIRE
WILD FLOWERS
WILD GOOSE
WILD HEARTS
WILD LIFE
WILD ONE
WILD PANTHER
WILD PEACOCK
WILD STAR
WILD THING
WILD WAYS
WILD WEST
WIN
WIN MILLS
WIN STORM
WINDMILLS
WINGS OVER OLYMPUS
WINNER
WINNER'S CHEQUE
WINNERS CIRCLE
WINNING POST
[7]
WINNING STREAK
WINNING WAYS
WISHBONE
WIZARD
WIZARD MISSING
WIZARD WAYS
WONDER WHEELS
WONDERWORLD
WORKERS SPECIAL
WUNDERBIRD
YUKON GOLD
ZORRO
ZORRO II
ZORRO UNMASK
IN THE FEDERAL COURT OF AUSTRALIA
[8]
NEW SOUTH WALES DISTRICT REGISTRY NSD 1271 of 2006
[9]
BETWEEN: ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LIMITED
[10]
REASONS FOR JUDGMENT
1 On reading the affidavits of Heather Ann Tropman, Gary David Coster and Robert Anthony Arnold, and hearing counsel, I am, subject to comments I make in a moment, satisfied that it is appropriate to make orders in the form amended and initialled by me, being based on the power expressly provided for in Order 25B of the Federal Court Rules and dealt with by way of practice note 24 dealing with search orders.
2 The requirements for the grant of the search order set out in Order 25B rule 3 require that the applicant show that it has a strong prima facie case on an accrued cause of action.
3 I am satisfied on the level of ex parte relief that there is a strong prima facie case on an accrued cause of action in relation to what appeared to be counterfeited goods or goods that breach copyright, being gambling machines, their artwork and associated computer software which appear to have been sold to parties in Peru by at least the first respondent, such transactions involving the second respondent in 2002. There is an explanation in the material as to why this has not been discovered which it is unnecessary to recount.
4 There is material which links the named respondents, though not in a conclusive way in terms of breach of copyright, to various parties who have been found to have breached the same species of copyright in the past in the manufacture and sale of gaming machines, copyright of which is owned by the applicant.
5 I am satisfied, at this level of analysis, that it is likely that the applicant will be able to show its copyright in relation to its gaming machines and the associated aspects of them.
6 There is an issue that may be ventilated in due course as to the necessity for the search to be closely related to the accrued cause of action. I think the better reading of O 25B, and not having had the assistance of opposing counsel, is the one put to me by Mr Cobden that the flexibility and amplitude of O 25B r 3 would be undermined if one read the search order as limited to the precise cause of action known.
7 Very often a wide number of apparent breaches are evident in these sorts of cases. It is not, however, the practice that I am aware of either in this Court, in this country or overseas in like jurisdictions, to limit the terms of the order to searching for and seizing only documents or material directly related to the precise causes of action known. Such a course would tend to make the utility of this procedure doubtful. It is not a procedure lightly to be invoked. Nevertheless, if appropriate foundation is laid for it, it should not be so framed as to make its utilisation overly complex and technical.
8 In those circumstances, I am prepared to make the orders sought with the limitation that one finds on the search in the definition of "Listed Things" in Schedule A. Appropriate provision according to the practice note has been made for independent solicitors and an independent computer expert. I have varied the usual practice note form to allow some participation by employees of the applicant in circumstances of close supervision by the independent solicitor and the computer expert.
9 I have also granted an interlocutory injunction in terms of paragraph 28 of the order up to and including 4.30 pm on the return date. Given the matters that have been proved, I accept Mr Cobden's submissions that this is appropriate.
10 The return date will be 5 July 2006, and the matter will be listed before Rares J, the Duty Judge on that day, at 9.30 am.
11 I have already made an order to the extent that it is appropriate and necessary to Auscript, to take all steps practicable to have the transcript of discussion of counsel this afternoon and my short reasons available by 9 am on Monday, 3 July 2006 so that they can be served.
12 I permit and direct Auscript to release the transcript of the judgment before settling in final form by myself in chambers.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.