Australasian Performing Right Association Limited v Sweat 1000 Bondi Junction Pty Limited

(a) First, I will set out the claims APRA makes in the further amended statement of claim (FASC), and the defence the respondents filed.

(b) Second, I will identify and discuss the principal provisions of the Act that are relevant to identifying the rights APRA claims the respondents have infringed, and the manner in which they are alleged to have infringed those rights.

(c) Third, I will set out the effect of the evidence concerning the nature of APRA's business, its operations, and its records. This is necessary for two reasons.

(i) The first is that APRA seeks to prove its ownership of, or authority to enforce, the public performance rights in particular musical and associated literary works, and the alleged infringement of those rights, largely by reference to what may be described as experiential evidence given by Mr Mallett, who occupies the position of Head of Music Licensing and Operations, and by reference to testimonial assertions and opinions contained in documents that were created by persons whom APRA has not called to give evidence. This evidence was read or admitted without objection of Mr Turner; but that fact alone does not relieve me from considering whether the evidence, had it been objected to, was admissible and, if not, whether that should affect the weight I should give it. [1] For reasons that will appear later, evidence of the nature of APRA and its operations is relevant to determining the admissibility and weight of the evidence on which APRA relies.

(ii) The second reason it is necessary to set out the effect of the evidence concerning the nature of APRA, its operations, and its records is that, in addition to claiming that each of the respondents infringed APRA's public performance rights in relation to musical (and associated literary) works it has identified, APRA also claims that each of the S1 companies infringed, and Mr Turner authorised their infringement of, APRA's public performance and communication rights in works that comprise the APRA Repertoire that APRA has not been able to identify. As will appear later, the basis on which APRA makes this claim is that it is the assignee and exclusive licensee of a significant proportion of such rights in Australia.

(d) Fourth, I will set out evidence concerning the establishment and nature of the businesses the S1 companies conducted, and Mr Turner's role in those businesses. In that section of my reasons I make findings relevant to whether Mr Turner authorised one or more of the S1 companies to infringe APRA's copyright.

(e) Fifth, I will identify the evidence relating to each musical work APRA alleges was performed in public at the S1 premises of which it claims it is the owner or exclusive licensee.

(f) Sixth, I will consider whether APRA has established its case based on infringement of the particular musical and associated literary works against the S1 respondents, and Mr Turner's alleged authorisation of any such infringement.

(a) Each of the S1 respondents, and each of three other S1 companies, is the proprietor of a business at the locations specified in the FASC (these being the "S1 premises" or "S1 studios" I identify above).

(b) Mr Turner is and at all relevant times was the sole director of each of the S1 companies, and was responsible for the day-to-day management of those companies.

(c) Copyright subsists in:

(i) the literary and musical works identified in paragraph 7 of the FASC (Identified works); and

(ii) each of the works that comprise the APRA Repertoire that are not otherwise identified (Unidentified works).

(d) APRA is the owner of the copyright in each of the Identified and Unidentified works, in respect of its application to the performance of each of those works in public.

(e) At the times and dates specified in the FASC, one or more of the Identified works was or were performed at the premises of which the S1 respondents are proprietors, in circumstances where APRA had not granted to any of the S1 respondents, or to anyone else, a licence for the public performance of the Identified works. For these reasons, each of the S1 respondents infringed APRA's copyright in one or more of the Identified works.

(f) During the periods specified in the FASC, Unidentified works were performed at each of the S1 premises, in circumstances where APRA had not granted to any of the S1 companies, or to anyone else, a licence for the public performance of any of the Unidentified works. For these reasons, each of the S1 companies infringed APRA's copyright in those works.

(g) Mr Turner, as the sole director and controller of each of the S1 companies, authorised the infringements alleged in (e) and (f).

(h) Each of the S1 respondents, and Mr Turner engaged in the conduct that constituted the alleged infringement of APRA's public performance right in the Identified and Unidentified works knowing they did not have APRA's licence to do those acts, being in a position to prevent the unlicensed performance of the Identified and Unidentified that comprise the APRA Repertoire; and having obtained a substantial benefit by not paying any licence fee.

(a) say that all but S1 Coogee are "insolvent and have been wound up";

(b) do not know and cannot admit those parts of the FASC that allege APRA holds copyright right in the Identified and Unidentified works;

(c) say that the recordings APRA made of music played at the S1 premises were made illegally;

(d) deny APRA was entitled to licence music that was played at any of the S1 premises, alleging there is "[n]o evidence of what platform (there are multiple) or whose platform has been provided", and that, in any event, "[c]ontractor trainers were responsible for music";

(e) deny Mr Turner authorised any infringement of copyright, given there was no infringement and, in any event, "[c]ontractor trainers were responsible for music"; and

(f) deny the other allegations.

1. In his affidavit, Mr Turner deposed as follows:

(a) S1 did not always play music at the studios "due to various reasons such as the demographic, trainer choice, council restrictions, neighbouring complaints etc";

(b) the contractor trainer can select the music based on his or her own personality, and when music is played, it is at the discretion and control of the contractor trainer; and

(c) APRA's evidence does not prove whose music platform was being used, nor what music platform was being used.

1. Mr Turner set out the essence of the respondents' defence in his closing oral submissions:[2]

With respect, we submit this case is misguided. The respondents did not play any music themselves, nor did they authorise or permit any act of copyright infringement. The music, if it was played at all, was chosen and played at the sole discretion of independent contractors who were engaged to deliver fitness services, not to perform or reproduce musical works.

The respondents had no control over and gave no direction about whether music was used during a session. Furthermore, no evidence has been presented to prove that any music played was unlicensed or that any infringement occurred, let alone that Sweat 1000 or myself performed or authorised it.

1. The respondents have in effect put APRA to proof of each element of the causes of action on which it relies; and Mr Turner affirmatively alleges that music was not always played at any of the S1 premises; and whether music was played was at the discretion of the trainer.

COPYRIGHT IN MUSICAL AND LITERARY WORKS AND ITS PROTECTION

1. Copyright is a set of exclusive rights persons own in different types of subject matter. The subject matter in which such rights are capable of existing, the nature of those exclusive rights, and the circumstances in which such rights come into existence, are prescribed by the Act. The subject matter that is relevant to this proceeding are musical works and literary works; and the relevant right is the public performance right.

1. A "musical work" is a subset of the class of "works" s 10(1) of the Act defines as "literary, dramatic, musical or artistic work[s]". The Act does not define "musical work", but its meaning may be ascertained by reference to two things. The first is the notion of music itself; it is the "combining [of] sounds for listening to".[3] The second thing is that the music must be "in some material form". That is, there must be some data or information that reside in a physical medium which, when accessed in a particular way, produces a combination of sounds for listening to; that is, music. The data or information might comprise musical notation that is recorded on paper or some other media that is visible. In that case, the music is accessed by a person reading the notation and producing the music that is represented by the notation by voice or by some instrument or instruments. The data or information, however, may not be visible, but nevertheless reside on some device which may be accessed by a machine that uses the data and information to produce music.
2. The requirement that music be in a material form arises from the conditions s 32(1) and s 32(2) of the Act specify must be satisfied before copyright subsists in works, including musical works.

(1) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:

(a) was a qualified person at the time when the work was made; or

(b) if the making of the work extended over a period - was a qualified person for a substantial part of that period.

(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

(a) copyright subsists in the work; or

(b) if copyright in the work subsisted immediately before its first publication - copyright continues to subsist in the work;

if, but only if:

(c) the first publication of the work took place in Australia;

(d) the author of the work was a qualified person at the time when the work was first published; or

(e) the author died before that time but was a qualified person immediately before his or her death.

1. Subsection 32(1) refers to a work having been "made". That must be read with s 22(1) of the Act which provides that a work is "made" when it is "first reduced to writing or to some other material form"; and "material form", in relation to a work (or adaptation of a work), is defined in s 10 of the Act to include "any form (whether visible or not) of storage of the work or adaptation". Thus, it is the combination of "made", in s 32(1), and the meaning of "made" given by s 22, that results in the requirement that a musical work be information or data which is recorded in some material form.

1. The word "made", when used in relation to a work, implies that the work is the product of human activity. That, in turn, implies that the person who has undertaken the activities that produced the work is the "author" of the work. That is, for the purpose of s 32 of the Act, the author of the work "is the person or persons who bring the work into existence in its material form".[4] Further, under s 35(2) of the Act, and subject to s 35, the author of a musical work is the owner of such copyright as may subsist in the musical work by virtue of Part III of the Act.

1. Copyright in a musical work does not arise only because a person has made the musical work. A number of other conditions must be satisfied. First, the musical work must be "an original . . . musical . . . work". "Original", when used in relation to a work, means that the work must originate from the "independent intellectual effort" of the person who made the work, and that it was not merely copied from another work.[5] For this reason, the "author" of a work (that is, the person who made a work) and the "original work" (the work that originates from the author) are correlative. This point was made by Isaacs J in Sands & McDougall Pty Ltd v Robinson:[6]

. . . the two expressions "author" and "original work" have always been correlative; the one connotes the other, and there is no indication in the Act that the Legislature intended to depart from the accepted signification of the words as applied to the subject matter. Indeed, the circumstance of reciprocal connotation is the key to the meaning of the enactment. We find in the Oxford Dictionary, vol. I p. 571, col. 1, "author" defined as "the person who originates or gives existence to anything."

1. Second, the author of the musical work must be a "qualified person" at the time he or she made the work, and, where the first publication of the work has taken place in Australia, at the time it was published. "Qualified person" is defined in s 32(4) of the Act, to mean an Australian citizen, or a person resident in Australia. This must be read with reg 4(1) of the Copyright (International Protection) Regulations 1969 (Cth) (Regulations),[7] which provides:[8]

Subject to these Regulations, a provision of the Act that applies in relation to a literary, dramatic, musical or artistic work or edition first published, or a sound recording or cinematograph film made or first published, in Australia (an Australian work or subject-matter applies in relation to a literary, dramatic, musical or artistic work or edition first published, or a sound recording or cinematograph film made or first published, in a Berne Convention country, a Rome Convention country, a UCC country, a WCT country, a WPPT country or a WTO country (a foreign work or subject-matter)

(a) in the same way as the provision applies, under the Act, in relation to an Australian work or subject - matter; and

(b) as if the foreign work or subject - matter were made or first published in Australia.

1. Among the rights that comprise the copyright in musical works is the exclusive right to "perform the work in public". This directs attention to two things: the "performance" of the musical work; and the performance of the musical work "in public".

1. The Act does not define the word "perform" in general; but s 27(1) provides that a reference in the Act to "performance" "shall . . . be read as including a reference to any mode of visual or aural presentation, whether the presentation is by the use of reception equipment, by the exhibition of a cinematograph film, by the use of a record or by any other means", and that a reference in the Act "to performing a work or an adaptation of a work has a corresponding meaning". The expression "reception equipment" is defined in s 10(1) to mean "equipment whose operation, either alone or together with other equipment, enables people to hear or see a work or other subject - matter that is communicated". Thus, a "performance" of a musical work would include the use of a machine, being "reception equipment", to access data or information that resides in some medium that constitutes the musical work; and on accessing the data and information, using them to produce an aural representation of the data and information; that is, to produce music.
2. What is said above must be read with s 27(4) of the Act, which provides:

Without prejudice to the last two preceding subsections, where a work or an adaptation of a work is performed or visual images are caused to be seen or sounds to be heard by the operation of any equipment referred to in the last preceding subsection or of any equipment for reproducing sounds by the use of a record, being equipment provided by or with the consent of the occupier of the premises where the equipment is situated, the occupier of those premises shall, for the purposes of this Act, be deemed to be the person giving the performance or causing the images to be seen or the sounds to be heard, whether he or she is the person operating the equipment or not.

1. The Act does not define "in public"; but a number of authorities have considered the notion denoted by those words. It would be sufficient to refer to the following passage from the judgment of Gummow J in Re Australasian Performing Right Association Limited v Commonwealth Bank of Australia:[9]

The phrase in para 31(1)(a)(iii) of the 1968 Act is "to perform the work in public" not before "members of the public" or "a public audience" or "the general public". Running through the authorities I have discussed is the notion that for the purposes of this performing right a performance will be "in public" if it is not "in private", and the perception of an antithesis between performances which are in public and those which are "domestic" or "private" in character. In determining whether a performance answers the latter description, the nature of the audience is important. In coming together to form the audience for the performance were the persons concerned bound together by a domestic or private tie or by an aspect of their public life? Their "public life" would include their presence at their place of employment for the supply of a performance to assist the commercial purposes of their employer.

Looked at in that way, the reasoning in the authorities supports the proposition in Mr Wei's work, to which I have already referred, that if a performance occurs as an adjunct to a commercial activity the performance is likely to be regarded as public, indeed, in the learned author's view "almost certainly" so. When the facts of the present case are then considered against this background, the answer appears.

The judgments to which I have referred do not purport to expound the meaning of the statutory phrase by which the performing right is conferred, with a precision sufficient to point clearly to a result once the facts have been found in any given case. What the Courts have been endeavouring to do is to give the statutory grant a reasonable construction in favour of the grantee, given the general considerations underpinning copyright law. I referred to his aspect of the matter earlier in these reasons.

1. Subsection 196(1) of the Act provides that copyright is personal property and, subject to s 196 "is transmissible by assignment, by will and by devolution by operation of law". Subsection 196(2) provides that an assignment of copyright may be limited in any way, including the ways specified in that subsection. Subsection 196(3) provides that an "assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor".

1. The Act not only prescribes the conditions that must be satisfied before copyright may subsist in a musical work; s 115(1) of the Act confers on the owner of the copyright the right to bring an action for an infringement of the copyright. Subsection 36(1) provides that the copyright in a literary, dramatic, musical, or artistic work "is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright". Subsection 13(1) of the Act provides that a reference in the Act to an act comprised in the copyright in a work or other subject-matter "shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do". Subsection 36(1) must be read with s 36(1A) of the Act, which provides:

In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:

(a) the extent (if any) of the person's power to prevent the doing of the act concerned;

(b) the nature of any relationship existing between the person and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

1. The High Court recently considered the notion of "authorises" in Real Estate Took Box Pty Ltd v Campaigntrack Pty Ltd;[10] and it would be convenient to reproduce the following passage from the Hight Court's judgement:[11]

In Roadshow Films Pty Ltd v iiNet Ltd [No 2], Gummow and Hayne JJ comprehensively traced the history of the concept of authorisation in s 36(1). Importantly, that history reveals that for at least a century it has been recognised that authorisation extends beyond its conventional meaning commonly associated with agency, by which one person's acts are attributed to the "authorising" person.

Authorisation also includes circumstances in which one person is so involved in the infringement that the infringer can be said to act with the "permission" of the authorising person or to have been "sanction[ed], approve[d], [and] countenance[d]" by the authorising person. But, as Gummow and Hayne JJ emphasised in Roadshow Films Pty Ltd [No 2], beyond the conventional cases involving acting with authority, the conduct of a person that will amount to sufficient involvement in the infringement so as to amount to authorisation is not to be identified by deconstructing the dictionary definitions of notions such as "sanction", "approve" and "countenance". The sufficiency of involvement in the infringement so as to amount to authorisation requires close focus upon all the facts. As Gibbs J said in University of New South Wales v Moorhouse:

"[W]hether one person authorizes another to commit an infringement depends upon all the facts of the case so that a decision on a particular set of circumstances may be of no assistance in other cases."

This question of fact as to whether a person's involvement in an infringement amounts to authorising the doing by another of any act comprised in a copyright work owned by a third party is decided with regard to the factors mandated by s 36(1A) of the Copyright Act. The types of language used in other cases to describe conduct that might constitute such authorisation, such as the words "permission" or "sanction, approve, countenance", are therefore just verbal descriptions of types of conduct that fall within the reach of s 36(1).

1. This passage does not expressly say, but it necessarily implies, that a person can only be held to have authorised another person's conduct that constitutes an act comprised in the copyright that subsists in a work if, at the very least, the person knew of the conduct. Gibbs J (as his Honour then was) so observed in University of New South Wales v Moorhouse:[12]

[T]he word "authorize" connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done.

1. Section 119 confers a right of action for infringement on the exclusive licensee, and relevantly provides that:

except against the owner of the copyright, the exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, by virtue of section 115 or 115A if the licence had been an assignment, and those rights and remedies are concurrent with the rights and remedies of the owner of the copyright under that section . . .

1. To succeed in its causes of action for infringement of copyright, therefore, APRA must:

(a) identify the musical (and associated literary) works in which APRA alleges copyright subsists and of which it alleges it is the owner or exclusive licensee;

(b) prove it is the owner or exclusive licensee of the performance rights in the works it identifies pursuant to (a);

(c) prove that one or more of the S1 respondents performed in public one or more of the works identified pursuant to (a); and

(d) in relation to its claims against Mr Turner, prove that Mr Turner authorised one or more of the S1 respondents and other S1 companies to perform in public one or more of the works referred to in (a).

1. As I noted at the beginning of these reasons, APRA is a company limited by guarantee, whose members comprise Australian and New Zealand authors, composers, music publishers, and other persons, who are owners of copyright in literary and musical works. APRA currently has over 119,000 members.[13] Applications for membership are commonly received from composers and authors, music publishers, and other persons who may hold or have an interest in copyright in a musical work.[14]
2. In Re Application by Australasian Performing Right Association Ltd the Australian Competition Tribunal (ACT) described the nature of APRA's business as follows [15]

APRA is a voluntary collecting society. Its members are either original music composers or lyricists or their heirs or assignees. In these reasons we adopt the term "writer" in relation to musical works to include both the composer of the music and the author of any associated lyrics. Under APRA's framework of collective administration, writers and music publishers (who have acquired copyright rights from writers) assign copyright in the performing rights in musical works to APRA. APRA licences the use of the musical works on conditions and against fees which it determines as appropriate, collects the fees and distributes them amongst its members. APRA monitors the public performance use of the works and takes appropriate action to enforce copyright rights.

[There are] four aspects of APRA's collective administration system:

• Input Arrangements - the terms upon which membership of APRA is granted, and the assignment of copyright performing rights by members to APRA;
• Output Arrangements - the licensing arrangements between APRA and the users of musical works;
• Distribution Arrangements - APRA's arrangements pursuant to which it distributes fees collected from licensees to its members, and in particular a distribution rule that purports to guarantee that composers receive at least fifty per cent of the distribution in respect of works composed by them; and
• Overseas Arrangements - reciprocal arrangements entered into between APRA and similar overseas collecting societies pursuant to which each grants the other exclusive rights to licence works in their repertoires within their respective geographical areas.

1. The ACT made the following observations about the extent to which APRA holds performing rights in musical and associated literary works, and APRA's licensing of those rights:[16]

Central to the collective administration system is the expectation that writers will in practice assign copyright in the performing right to the collecting society. The society, as owner, then has the capacity to licence performing rights to users. The long established activities of APRA in the Australian music industry has resulted in it becoming the owner of the performing rights in almost all musical works in this country, and through its affiliations with overseas collecting societies, as assignee, controls virtually all the worldwide repertoire of musical works. The collecting societies in other countries are in a similar position. This control plainly has the potential to restrict competitive negotiations as to the terms and conditions of use of the copyright work and may affect both access to the material and the price to be paid for it. Dissatisfaction between the groups of users and collecting societies is commonplace. In 1932 a Royal Commission was established in Australia to enquire into and report on the exploitation of performing rights. The Commissioner, the Hon Mr Justice Owen, in his report published 24 May 1933 concluded that the evidence before the Commission established that APRA was "to all intents and purposes, a super-monopoly controlling or claiming to control most of the music which users in public must use and is able to dictate its own terms"..

1. The ACT also referred to the economic rationale of collecting societies such as APRA:[17]

The authors of a study by the World Intellectual Property Organization (WIPO) entitled "Collective Administration of Copyright and Neighboring Rights", Geneva 1990, observe:

"As early as at the time of the establishment of the international copyright system, there were, however, certain rights - first of all, the right of public performance of non-dramatic musical works - that could, only with difficulty, be exercised individually, and since then, with the ever newer waves of new technologies, the field in which individual exercise of rights is impossible or, at least, impractical, has been constantly and rapidly widened. There are ever more cases where individual owners of rights are unable to control the use of their works, negotiate with users and collect remuneration from them."

The study observes that a possible solution to these practical difficulties is a non-voluntary licensing system. However, the study continues:

"There is a much more appropriate option, namely the collective administration of exclusive rights.

In the framework of a collective administration system, owners of rights authorize collective administration organizations to administer their rights, that is, to monitor the use of the works concerned, negotiate with prospective users, give them licenses against appropriate fees and, under appropriate conditions, collect such fees and distribute them among the owners of rights. This can be considered as the definition of collective administration.

. . . .

Although a collective administration system serves primarily the interests of owners of copyright and neighboring rights, such a system also offers advantages to users who, thus, can have access to the works needed by them in a simple manner, and - because collective administration decreases the costs of negotiations with users, of monitoring users and of collecting fees - fairly cheaply."

1. To become a member of APRA, the applicant must fall within the class of persons article 6 of APRA's Articles of Association identifies as "eligible for admission to membership of" APRA.[18] These are "any composer, author or publisher of a copyright work", or a person "who owns or controls . . . the Performing Right in a copyright work or any interest in such Performing Right", and any executor, trustee, or beneficiary of a deceased member. The expression "Performing Right" is defined in article 3 as follows:

"Performing Right" shall mean and include, subject to the exceptions set out below, the rights in relation to a copyright work of performing in public, broadcasting (including televising), and causing to be communicated or transmitted to the public other than by way of performing in public or broadcasting but including transmission to subscribers to a diffusion service, in all parts of the world, by any means and in any manner whatsoever, and the right of authorising any of the said acts, but shall not include the right of performing in public, broadcasting (or televising), or causing to be communicated or transmitted to the public other than by way of performing in public or broadcasting but including transmission to subscribers to a diffusion service or of authorising any of the said acts, in relation to any of the following classes of works performed in the following manner, unless performed by means of a cinematograph film:

(i) dramatico-musical works performed in their entirety;

(ii) in the case only of a public performance, any works or excerpts therefrom, performed in a dramatic context;

(iii) oratorios and large choral works (that is, choral works written to exceed 20 minutes duration), performed in their entirety;

(iv) the whole or any part of any music and of any words associated therewith composed for or used in conjunction with a ballet, if accompanied by a visual representation of that ballet or part thereof.

1. Each of the expressions and words "dramatico-musical work", "dramatic context", "ballet", and "cinematograph film" is further defined.
2. An applicant for membership must complete an online application form. The form identifies criteria that determine the eligibility of the applicant to become a member. All relate to "your music". The criteria are the music having been performed live in public, broadcast on radio or television or both, available for paid download, and available for sale on CD, DVD, or vinyl. An applicant is ineligible for membership if he or she has signed to a music publisher for the applicant's entire catalogue.[19] The form also requires the applicant to provide information that includes the bands or groups the applicant belongs to, any other name or pseudonym by which the applicant is known, and the genre of his or her music.
3. The applicant must then agree to two things. The first is to a "grant of authority". The application form states that to become a member of APRA, the applicant must be formally elected to its board; but, until that occurs, the applicant's signing a grant of authority will allow APRA to act on behalf of the applicant until the board meeting occurs and the applicant is elected a member. The online application form contains two separate documents, one titled "APRA Grant of Authority", and the other titled "AMCOS Grant of Authority"; and provision is made for the applicant to signify his or her agreement to each of the grants by clicking "I agree".
4. The second thing to which the applicant must agree is an "Assignment of Rights (Assignment)". That is a reference to a document which can be viewed on the application form. Clause 2 provides:

Subject to any reservation or assignment under Article 17 of APRA's Constitution, the Member assigns to APRA all Performing Rights in all Copyright Works which have been composed or written by the Member (whether alone or jointly with another composer or writer) at any time whether before or after the date of this Assignment until the Member ceases to be a member of APRA, and all Performing Rights (including parts of, shares of and interests in Performing Rights) in all Copyright Works which are now owned or are acquired or become owned by the Member until the Member ceases to be a member of APRA.

1. The expression "Performing Rights" is defined to mean:

[T]he rights, for the world, in relation to a Copyright Work of:

1. performing in public; and

2. communicating to the public, including broadcasting but does not include the following classes of works performed and or communicated in the following manner:

3. Dramatico-musical Works performed or communicated in their entirety;

4. the performance in public in whole or in part of any musical work in a Dramatic Context;

5. the performance or communication to the public of oratorios and large choral works (that is choral works that exceed 20 minutes duration); and

6. the performance or communication to the public in whole or part of it, unless performed or communicated by means of a Cinematograph Film.

1. The expression "Copyright Work" is defined to mean:
   1. any musical work whether existing before or after the date of this agreement;
   2. any adaptation of any musical work; and
   3. any song, lyric or other literary or dramatic work which has been written for the purpose of accompanying or being associated with any musical work.
2. APRA's board of directors does not consider an application for membership until after a share of the fees collected by APRA is shown to be due to the applicant, or the applicant otherwise shows that his or her works are being communicated to the public or performed in public.[20]

1. In addition to taking assignments or public performance and communication rights from persons who become members, APRA holds the exclusive rights to licence such rights under two reciprocal agreements APRA made with two affiliated companies. One is incorporated in Germany, Gesellschaft für musikalische Aufführungs-und mechanische Vervielfältigungsrechte (GEMA); and the other is a company incorporated in Sweden, Föreningen Svenska Tonsättares Internationella Musikbyrä (STIM).[21] Further, APRA has agreements with over 180 affiliated bodies carrying on public performance licensing, including in the United States of America, the United Kingdom, Republic of Ireland, Germany, France and Sweden. Under these agreements, APRA obtains its rights with respect to the public performance of the works belonging to the members of these affiliated bodies.[22]

1. Members and prospective members notify APRA of the works in which they claim copyright subsists by making an online registration.[23] The person seeking to register his or her works is requested to identify the "Work type" (of which there are 7, including "General"); "Registration type" ("Performing", "Mechanical" or "Both"); "Work details" (which include the title, style, duration, language, first release date, and other information); "Performers"; and "Ownership". The member or prospective member is required to provide information that includes the "Writer contribution shares", the "IP Name number or Right Holder lookup advanced search", the writer or writers "you are claiming for", the "publisher/s by IP Name number or Right Holder lookup". Each registration contains the title of the work, the name of the composer or author, the name of the music publisher, and the percentage share of fees to be distributed by APRA to each of the interested parties.[24]

1. According to Mr Mallet, APRA "maintains comprehensive records of the musical and literary works within the APRA Repertoire in respect of the power to grant licences for the performance in public".[25] Mr Mallet further says:[26]

The APRA Repertoire presently consists of more than 10 million works. The APRA website contains a free "works search" section to assist interested parties to identify whether a work is wholly or partly within APRA's Repertoire, although APRA does not represent it to be definitive. APRA also offers a premium service wherein, for a fee, APRA staff conduct additional search to clarify the status of a work and identify rightsholders.

1. APRA also has access to an online database of title information and sharer information maintained by the International Confederation of Societies and Authors and Composers (CISAC) to which 112 international societies and client rights management entities contribute. The database holds information on more than 70 million international works.[27] Mr Mallett says:[28]

In the course of its business of public performance and communication licensing, and distribution of sums to composers, lyricists and publishers, APRA depends on the accuracy of the Title Information and Sharer Information in relation to the APRA Repertoire. I am not aware of any successful challenge to the accuracy of those records, other than in the case of correction of clerical errors and the occasional resolution of disputes between members in relation to Sharer Information.

1. On 1 July 2019 APRA, by itself and on behalf of AMCOS, and PPC, launched a joint licensing initiative under the name "OneMusic Australia" (now "OneMusic") under which APRA grants and administers licences on behalf of APRA, AMCOS, and PPCA. AMCOS is the assignee of what its articles of association describe as the "Mechanical Reproduction Right", which they define as follows:[29]

"Mechanical Reproduction Right" shall mean the right in relation to a copyright work of reproduction in a material form and without limiting the generality of the foregoing, shall include the right of making a sound recording of the work, making records of any sound recording of the work, incorporating the work into the sound track of a cinematograph film, making copies of any films which incorporate the work in the sound track, and the right of authorising any of the said acts.

1. PPCA is the licensee of persons who hold the communication right specified in s 85(1)(c) of the Act "in relation to a sound recording", and s 86(c) in relation to cinematograph films, and the public performance right specified in s 85(1)(b) of the Act "in relation to a sound recording", and s 86(b) in relation to cinematograph films.[30]
2. OneMusic administers around 30 published licence schemes, each covering a distinct set of circumstances in which music is publicly performed by means of radio, television sets, background music systems, or live performance. These include the playing of music at hotels, restaurants, and shops. One particular licensing scheme concerns fitness centres, and OneMusic names the licence it offers pursuant to this scheme as the Fitness Centre and Fitness & Wellbeing Instructors Licence (Fitness Licence).

1. There is in evidence the forms by which an application for a Fitness Licence could have been made from 1 September 2020 to 31 August 2024. [31] I need only refer to the latest of those forms. It has three parts. Part A requests information about the person applying for the licence. Part B is headed "Licence Fees and Your music use". It begins by describing the agreement:

This is an agreement for a licence to Perform in Public, Communicate, Reproduce Licensed Music and/or Exhibit Music Videos at Your Fitness Centre or by a Fitness and Wellbeing Instructor for the Approved Usage as selected by You below.

1. The expressions that begin with capitals are words or expressions that are defined in the section headed "Definitions" or in Part C, which contain the terms of the Fitness Licence, if granted. Part B provides three pricing options, each based on a price "per Member per year". The differences between the prices depends on the different means by which the music may be reproduced, whether the music will be played solely as background music, or whether the music will also be played during classes.

1. APRA has a process by which it investigates whether any person has been publicly performing or communicating to the public any of the APRA Repertoire without APRA's licence (unlicenced business). The process begins by APRA instructing a compliance officer to visit the premises of the unlicensed business, take a recording of any music that is being played at the premises, and prepare a report of the visit. The APRA Legal Services Team (LST) then determines whether the recording made at the unlicensed premises (evidence recording) contains musical works that fall within the APRA Repertoire. The LST does so after it instructs the APRA Quality Assurance Team (QAT) to produce a "verification report" for each recording it receives. The process by which a verification report is prepared is as follows:

(a) A QAT member listens to the evidence recording for the purpose of identifying the title or artist of any music that is recorded in the evidence recording. The QAT member does this by using his or her own knowledge of music, or by use of a music recognition facility; referring to information that may be contained in the compliance officer's report; and conducting online searches of lyrics.

(b) If the QAT member identifies a title or artist of one or more works, he or she uses this information to locate Reference Recordings of those musical works, being official releases of musical works sourced from official channels such as artist or record company websites, samples on digital music stores, music streaming services and official artist or record company presences on online video services or social media platforms.

(c) If the QAT finds a reference recording, the QAT member listens to it, and then listens to the music that is recorded on the evidence recording. If the QAT member concludes the musical work recorded in the reference and evidence recordings are the same, the QAT member will search for the musical work in the APRA Repertoire to determine whether the musical work is listed and, if so, ascertain the title information and share information associated with that work.

(d) The QAT member then prepares and sends a verification report to the LST.

1. By around the middle of 2020 Mr Turner decided to establish a fitness business under the name of "SWEAT1000", or "S1 Training", or both. Mr Turner arranged to incorporate or otherwise acquire a shelf company, being S1 Coogee. S1 Coogee commenced its business on about 7 November 2020. This appears from the message posted on 7 November 2020 to the Facebook account "S1 Training Coogee" that "We have lift off".[32] That post was preceded by other posts of the "SWEAT1000 Timetable", and the services S1 Coogee provided. These included two professional trainers per class, 45-minute classes, and "Cardio + Core + Resistance".[33]
2. By no later than early 2021 Mr Turner decided to expand the S1 Training business into a franchise. Mr Turner opened an Instagram account in the name of "S1 Training Australia", to which he posted messages about his plans. In a message posted on 10 April 2021,[34] Mr Turner said that "SWEAT 1000" was proud to announce Mr Ryan as "our new equity partner and Ambassador". Mr Turner said that he looked forward "to franchising our Premium Group Training concept throughout Australia and the World", and that "[f]ranchising opportunities for Australia will be open to the public in late Qtr 2, 2021. Please DM [direct message] us if you are interested in the meantime". On 16 April 2021 Mr Turner posted a message: "SNEAK PEAK - The SWEAT1000 Traffic Chopper scouting communities to franchise in".[35] In a message he posted on 24 April 2021 Mr Turner asked: "Looking for a franchise? Looking for your passion? Looking for a solid partner? Looking to change lives? Looking to be your own boss?", and he invited interested persons to "DM us now . . . @sweat1000_australia @therealbeauryan @sweat1000_coogee";[36] and on 11 October 2021 Mr Turner posted the following:[37]

NOW FRANCHISING

... Be your own boss

.... A fun and thriving industry

... A balanced lifestyle and no suits necessary

... High margins

... Low start up, circa $250k

... 300 members = circa $500k pa

The HOT territories will go first so HURRY.

Join our other studios operating or in the pipeline from Coogee Beach, Bondi Junction, Mona Vale, Caringbah, Miranda, Port Melbourne, Prahran and many more under confidentialities....

@therealbeauryan and the whole SWEAR TEAM are looking for passionate and experienced partners to grow our franchise globally.

Join the family now and fill out an application form on our website or DM us.

1. On 24 October 2021 Mr Turner posted a message in which he says he founded the business, and in which he said the following:[38]

Don't miss out on the [sic] joining the smartest fitness franchise network in Australia.

Our business is founded by Kieran Turner who is an experienced CEO of 12+ years who has spent his life training in gyms after work to de stress from his corporate roles, since school in 1994.

. . . .

Kieran has set up a smart, scaleable [sic] and fun business that he plans on "going global".

If you are thinking about a fitness franchise you should join one that is designed by a proven business and fitness professional . . .

Send us an application via our website or DM us or email Kieran direct - kieran@sweat1000.com.au

1. In time, Mr Turner acquired or incorporated the S1 companies, and opened training studios at particular locations for each of them. Thus, on 5 October 2021 Mr Turner posted on the S1 Training Bondi Junction Facebook account the following:[39]

SWEAT BONDI JUNCTION will be launching on 23 October with our FITTER training block.

FITTER is a bit faster and is 3 rounds of 10 stations, but our foundations of SWEAT 1000 programming remain the same:

Mon + Tues: Cardio, Core, Upper Body

Tues + Fri: Cardio, Core, Lower Body

Wed: Tabata

Sat: Hybrid

Sun: Enduro

Everyday: INFRARED SAUNA

1. On 28 November 2021 Mr Turner posted "[w]e are so excited to take possession of our newest site", this being at Prahran;[40] on 14 May 2022 Mr Turner posted that at "7 am today we [S1 Training Prahran] open our doors";[41] on 30 January 2022 Mr Turner posted that S1 Caringbah has launched;[42] on 27 June 2022 Mr Turner posted "S1 Training Mona Vale" was launching on 9 July 2022;[43] on 13 August 2022 Mr Turner posted "S1 Mona Vale launched today";[44] on 16 September 2022 Mr Turner posted that S1 Port Melbourne was launching "tomorrow 17.09.22";[45] and on 16 December 2022 Mr Turner posted S1 Training Cardiff was opening on 17 December 2022.
2. On 16 May 2023 Mr Turner posted that "we are a little over 2 years old and have grown internally to 8 studio's [sic] across NSW and VIC",[46] these being the studios at Coogee, Bondi Junction, Mona Vale, Caringbah, Cardiff, Prahran, Port Melbourne, and Mill Park.
3. In evidence given under cross-examination, which I accept, Mr Turner accepted he founded the S1 companies "and the S1 business";[47] "S1 was a bit of a passion project for" him; Mr Turner "started it, and [he] grew it, and [he] controlled it";[48] Mr Turner was the "CEO" and sole director of each of the S1 companies;[49] Mr Turner created and introduced SBELL equipment to be used in the S1 companies, and he caused such equipment to be sent to each S1 studio;[50] he arranged for sound equipment to be installed in the S1 studios;[51] and he created the social media accounts for each S1 company.[52]

1. There is in evidence screenshots of posts made to Instagram or Facebook accounts that were associated with each of the S1 companies;[53] and they manifest a uniform business centred around what Mr Turner described as "our Premium Group Training concept". Each S1 company offered persons membership which entitled the member to participate in scheduled exercise sessions that followed the same programs, using the same types of equipment; and the material Mr Turner posted conveyed a uniformity of experience no matter which S1 training studio a person decided to patronise. On 9 April 2022, for example, Mr Turner posted to the S1 Training Australia Facebook account the following message:[54]

Our Programs are written by experts, backed by science and delivered by passionate and qualified professionals.

All this is displayed to our members by multiple LED screens around the studio so you don't have to think, just work!

Come and try one of our locations at Coogee, Bondi Junction or Caringbah.

Jump online and book a 3 day free trial ...

Plus we have another 20+ studios confirmed and in the pipeline... The next is Prahran in Victoria and Mona Vale in Sydney's northern beaches....

The S1 network is growing faster than any other premium group training brand in Australia without franchising!

1. Another example is the following post Mr Turner made to the S1 Training Australia Facebook account on 22 July 2022:[55]

We offer 6 diverse programs, 3 of which are progressive training blocks:

FITTER ... BETTER... STRONGER - from volume based to strength based training BLOCKS THAT LAST 4 WEEKS EACH. We blend cardio with core and isolated resistance. Tweaking sequencing, tempo's, work/rest times, exercises and weight used forces the body to change accordingly.

TABATA - a fast paced no nonsense traditional cardio burn ...

HYBRID - a fun total session that has something for everyone. Less steel and more bands, slam balls, battle ropes and sweat ...

ENDURO - longer rounds for those looking to fine tune their endurance. You may be able to run for an hour in the park but try 90 seconds in our stations for 45 minutes and see how they compare ...

We run, row, ride, hit, lift & sauna

. . . .

Come and try us out - a premium HIT environment that focuses on strength and conditioning for lean muscle and fatloss.

1. The uniformity of the S1 Training businesses is supported by other evidence. First, there is a document headed "SWEAT 1000 Phone Script".[56] Mr Turner created the document; and in evidence given under cross-examination Mr Turner accepted that the document was a "sort of example of the script that people, presumably salespeople, would . . . speak to when they were talking to potential members".[57] The document includes the following:

What do you know about SWEAT1000? Let me explain what we do - We are a new Team HIIT concept with top of the line Technogym equipment and exercise that focuses on cardio, core and resistance.

We offer 46 classes a week, 7 days a week and our classes run for 45 minutes.

. . . .

You can book all your classes at www.sweat1000.com.au under the timetable tab and use your log in details that you just gave me.

1. This script represents that at any S1 studio, a member would be exposed to the same workout concept using particular types of equipment; and such classes would be conducted over the same period of time, at the times represented by a timetable that could be accessed through one webpage, and at the same range of prices.
2. Second, there is a proforma document titled "S1 Studio Assessment Report" (Assessment Report).[58] It contains five tables, each with two columns, and each containing particular matters under five headings. The headings are "Studio Presentation", "Service & Performance Standards", "Marketing", "Operations" and "Other". Each of the matters identified in each of the columns is a criterion that is required to be satisfied at each S1 studio; and the purpose of the Assessment Report is to enable a person who inspects any S1 studio to assess the extent to which each criterion had been satisfied. The person completing the document is required to determine that question by assigning a numerical score to each criterion. For example, in the table headed "Studio Presentation", the criteria include digital screens being in working order, out of order equipment being taken off the floor where able, equipment maintenance schedule being in place, and "no unapproved equipment". In addition, under the heading "Other", the Assessment Report included "Trainer music provider licence" as a criterion.

1. In evidence given under cross-examination, Mr Turner in effect asserted that each of the S1 studios was conducted by the trainers as subcontractors, over whom Mr Turner did not, or was not inclined to, exercise any control. Thus, Mr Turner said that he did not need to intervene: "It was a simple business. They ran it. They're contractor trainers", and "They run their own business".[59] Mr Turner also said that, although he created SBELL equipment, and introduced it to the S1 studios, "if the contractors say they're crap, they're crap"; they "don't have to take my SBELL - the pieces of equipment"; and if "they don't want to use the SBELLs, they don't have to".[60] Mr Turner gave evidence to the same effect when he was asked about the criterion "Trainer music provider licence" specified in the Assessment Report. I will set out that evidence later in these reasons.
2. I do not accept Mr Turner's evidence. First, it is inconsistent with other evidence Mr Turner gave under cross-examination, in which he suggested that persons employed by the S1 companies managed the S1 Studio, and that "contractor trainers" reported to managers:[61]

Yes. So each of the S1 companies are run by you?---No. I don't run any of the companies. I just set it up.

Well, you just agreed to me a minute ago, Mr Turner. It's a small start-up business, isn't it?---Yes, yes.

Yes. And it's mostly run by you, isn't it?---Well, I'm the only real person at the top, and below me is just the studios that have the contractor trainers operating the studios on a day-to-day basis.

Sure. And so those - - -?---I don't own them, obviously.

Sure. I understand that. You're very busy. I appreciate that, but the contractors report to you, don't they?---We normally had an employee they were reporting to otherwise.

Okay. And they're the managers - the studio managers of each of the gyms?---Yes, studio manager or regional manager.

1. Second, the documentary evidence shows that S1 companies did not engage trainers to run each studio as his or her own business. And here there are two items of evidence. The first is a document headed "Trainer Payment Tiers", which identifies three tiers of trainers, and the pay and expectations attached to each tier. [62] It would be useful to reproduce the document in full:

Trainer Payment Tiers:

We have tiered our Trainer Salaries to show what is expected to progress to the next level. SM should communicate these expectations to Trainers so that they can understand what value they need to deliver, and how they will be reviewed to reach next salary tier. As trainers gain more group training experience, it is crucial SM communicates the other metrics needed to progress.

Level 1:

$30/hr + Comms + '30 plus person class bonus' at $15 extra per such class; 0-12 months group training experience; Cert 111; regularly sells at or below benchmarks memberships; occasionally promotes 51 monthly on personal platforms e.g., Meta, TT, Linkedln, Bio, wears apparel, refers friends etc.; occasionally goes above and beyond normal duties; and occasionally cares for members like family.

Level 2:

$35/hr + Comms + '30 plus person class bonus' at $15 per such class; 12-24 months group training experience; Cert IV; regularly sells above benchmark memberships; promotes S1 weekly on personal platforms e.g., Meta, TT, Linkedln, Bio, wears apparel, refers friends etc.,; regularly goes above and beyond normal duties; and regularly cares for members like family.

Level 3 Master Trainer:

$40/hr + Comms + '30 plus person class bonus' at $15 per such class; 24+ months group training experience; Cert IV or Degree; always sells above benchmark memberships; promotes 51 daily on personal platforms e.g., Meta, TT, LinkedIn, Bio, wears apparel, refers friends etc.; always goes above and beyond normal duties; and always cares for members like family.

1. This document shows that trainers were to be paid a "salary" calculated at hourly rates. None of the expectations attached to the different tiers suggests the trainer was to provide his or her own music, or equipment, or was to conduct the S1 studio to which they were attached in such manner as they considered appropriate.
2. The second document is a "Contractor Agreement".[63] It contains terms on which a "Group Trainer, Contractor" would agree to "represent S1 Training". It specified 22 duties and, in paragraph 23, "[a]ny other duties the CEO feels is necessary". That expressly recognises each trainer was subject to the direction of "the CEO", namely, Mr Turner. In evidence given under cross-examination, Mr Turner accepted that, if he needed to, he could impose further conditions on trainers, but, he added, he "[v]ery rarely would".[64]
3. Third, there is the following evidence Mr Turner gave about the Assessment Report:[65]

Okay. Can you explain what the document is?---It's a check-list for the studio.

Okay?---So should I go back to it?

Yes, please?---What tab was it again?

It is - - -?---18

Tab 18?---18. So it's a check-list. So we would go through this in our weekly meetings for the studios. Sometimes Sam would turn up and do an independent audit, unannounced. Other times we would make the trainer report back themselves on these matters. These are just little check-lists.

HIS HONOUR: Sorry. I didn't quite catch. You said weekly what?---check-lists.

Did you refer to a weekly meeting or not?---Yes. We have a weekly WIP meeting, and these were presented from the trainers themselves, and they would just check-list things that they - you know, if any of these are problems or have turned up, like, you know, are the showers and change rooms clean, for example, they either self-order them - - -

All right?--- - - - because we can't get to the studios - - -

All right. I just wanted to make sure I heard you say weekly meetings?---Sorry.

No. That's all right.

1. "Sam" is a reference to Mr Sam Sheldon, who held the position of "Operations Manager S1 Training | HQ".[66]
2. Shortly after giving this evidence, Mr Turner sought to qualify it:[67]

MS EVERTS: So these were reported in weekly meetings?---Yes. I wouldn't say every week, but I would say on average we go through these, you know, when - say, on a monthly basis.

Right. I think you just told your Honour that you would go through these weekly?---We had a weekly meeting. Sorry.

Yes?---And these would come up, I would say on average, because we couldn't go through all eight of them every meeting in the timeframe that I allowed for the meeting - so it would probably be once a month, get everyone onboard, and then Sam would go and independently audit them as well - - -

Okay?----- without announcement.

Yes. So this was to ensure that the - - -?---Just all the little check-lists are done.

Yes. Just to ensure that the gyms were running the way you wanted them to run?---Look good, everyone is doing their jobs.

Yes. Doing their job, running the gyms the way you wanted them to be run?---Yes.

1. I accept the evidence Mr Turner gave under cross-examination that the Assessment Report served as "a check-list"; that some Assessment Reports were prepared by Mr Sheldon after attending a particular S1 studio unannounced, and sometimes they were completed by a trainer; Mr Turner and Mr Sheldon went through completed Assessment Reports "in our weekly meetings for the studios"; and the purpose of going through the Assessment Reports was to ensure that "all the little check-ins are done", and that everyone was "doing their job", by "running the gyms the way [Mr Turner] wanted them to be run".
2. I therefore find as follows:

(a) Mr Turner established the S1 companies.

(b) Mr Turner did so intending that each company would be part of a franchise fitness business that would trade under the name "SWEAT1000" or "S1 Training" or both, where each S1 company would offer and provide to the public the same concept of training, the same training exercises, the same equipment, the same experience, at the same range of prices.

(c) Mr Turner formulated or at least agreed to the formulation of a set of criteria each S1 studio was required to satisfy, these criteria being the matters specified in the Assessment Report.

(d) With the assistance of an operations manager, during weekly meetings, Mr Turner monitored the performance of one or more S1 companies and trainers by reference to the criteria specified in the Assessment Report. These included the requirement that there be a "Trainer music provider licence".

1. In short, I find that Mr Turner managed the S1 businesses, and in the course of doing so, Mr Turner kept himself informed of the progress of each S1 studio. In particular, Mr Turner kept himself informed of the extent to which each S1 company and trainer met the criteria specified in the Assessment Report, including whether there was in place a "Trainer music provider licence".

The role of music in the S1 business and Mr Turner's knowledge of that role

1. In evidence given under cross-examination, Mr Turner did not accept that music was regularly played during fitness classes at each of the S1 studios.[68] The evidence, however, overwhelmingly supports a finding, and I find, that music was regularly performed at S1 studios, and, moreover, the performance of music was an essential element of the sessions that were conducted at the S1 premises. I also find that Mr Turner was aware of these matters. For these two findings, I rely on the following:

(a) First, as I have already noted, Mr Turner accepted that he arranged for sound equipment to be installed in the S1 studios.[69] The natural inference is that Mr Turner acquired the speakers as an essential piece of infrastructure for each of the S1 studios. It is unlikely that Mr Turner would have done so on the basis that the playing of music would be within the discretion of a trainer.

(b) Second, there are the recordings OneMusic compliance officers made of sessions at studios of S1 Caringbah, S1 Coogee, S1 Prahran, and S1 Bondi Junction to which I refer later in these reasons. They record music being performed throughout the entire sessions.

(c) Third, there are the social media videos of all S1 companies to some of which I refer later in these reasons, all of which record music being performed at S1 premises.

(d) Fourth, there is the "Trainer music provider licence" criterion specified in the Assessment Report. That criterion necessarily implies that music was always to be played at the S1 premises, because the criterion is not made conditional on music being played at the studio. That is, the criterion does not state "Trainer music provider licence (if music is played)".

(e) Fifth, there is the first duty listed in the Contractor Agreement, which required the trainer to "[t]urn up 5 minutes before class and check set up & cleanliness of studio and turn on music and screens". Mr Turner gave the following evidence in relation to this obligation:

And so you see item 1 there. It says:

...turn up five minutes before class and check setup and cleanliness of studio and turn on music and screens.

?---Yes.

And so that's really just - it's kind of - it's just - that's not a new thing, is it? It's just telling the instructors what they've always had to do, which is they need to turn on the music?---No. The music was optional to them, like I was just saying, but the music and screens, as, like, I've kind of alluded to already, the speakers that we installed on the ceiling and the screens were connected, were set up, linked as one unit with the kiosk, and that all was Teambeats. Now, Teambeats shows those exercises that was on the TV screen before, and that orientates the exercises 1 through to 10 with generic tones, like beeps and buzzes, to stop, start, rest, slow down, etcetera. So that's the Teambeats system, which is critical to the operation of the whole 45 minute session, and that's what they need to get on.

Mr Turner's evidence that music was optional does not stand against the express and clear requirement of the Contractor Agreement that the trainer was to turn up five minutes before every class to undertake specific tasks which included turning on the music and screen.

1. That the Assessment report included the criterion that there be provided "Trainer music provider licence" merits further attention. The criterion necessarily implies that music was being performed; and it also it recognises that the performance of such music required a licence.
2. In evidence given under cross-examination, Mr Turner acknowledged that if music was to be performed at any S1 studio, a licence would be required for that purpose; but Mr Turner, in effect, said that the licence was a matter for the "contractor":

And so there's an entry to trainer music provider licence. Do you know when that was included, Mr Turner?---No, I don't.

Okay. You regularly meet and discuss these assessment reports, so you can't recall whether it's been there from the start or - - -?---No, I couldn't recall.

Okay. But it indicates to you, doesn't it, that someone needs a licence to be able to play music at the studios. Is that right?---Well, if they're going to play licenced music, they need to look into licensing as a contractor.

Yes. And so you knew - you had known for some time that a licence was required?---Well, I got a lot of letters from you guys. So I knew that there was questions about the licensing, but I was comfortable with our structure of contractor trainers. And I knew it was their responsibility to provide their own equipment, provide their own licensing, provide their own music, anything like that, because it's the nature of a contractor. It's the definition of a contractor.

Did you - - -?--- I wanted to de-risk my situation.

I understand. Did you ask the trainers to provide those licences when you got those letters from APRA?---No, I didn't interview the trainers, so I didn't ask them, no.

So you just - I mean, when you start to get letters from someone accusing you of copyright infringement and suggesting that you might need to go to court, usually someone would take steps to make sure that they were in the right on that, wouldn't they?---Yes, definitely, definitely.

Yes. And it's - - -?---We talked about it in the meetings. It was - the letters weren't ignored, but we were confident that our structure was safe, that copyright only applies if we provide the equipment, or we consent to it.

Yes?--- And that's clearly not the case here.

But did you ask for the licences? Did you ask to see them?---No, I've never seen the licences. No.

Okay, so you sort of just left it to the instructors to do it?---The licensing for, like the training licences, the music licences, any kind of licence is up to the contractor.

1. I do not accept Mr Turner's evidence to the extent he says or implies that it was the responsibility of "contractors" to obtain a licence. I have not accepted Mr Turner's evidence or assertions that each of the S1 studios was managed by a contractor; and I have already found that Mr Turner managed the S1 business, and in the course of doing so, he kept himself informed of the progress of each S1 studio, and in particular of the extent to which each S1 company met the criteria specified in the Assessment Report. I do accept Mr Turner's evidence that he did not make any inquiry of any contractor to determine whether the contractor had taken a licence to play music; but that is because there were no contractors who managed each S1 studio of whom Mr Turner could make any enquiry. It necessarily follows, and I find, that Mr Turner was aware that music was being performed at each S1 studio; he knew that the performance of music required a licence; and he knew that no licence had been granted for the performance of that music.
2. APRA also relies on various social media posts containing videos that show Mr Turner's participation in fitness sessions conducted at S1 studios where music is being played. These are identified and described in (among other sources) the affidavit of Ms Patel made on 1 October 2024.

EVIDENCE OF MUSIC BEING PERFORMED AT S1 PREMISES

1. In addition to the Contractor Agreement, and the Assessment Report to which I have referred, there are three classes of evidence of musical and associated literary works having been performed at the S1 premises. The first class is the evidence of three APRA compliance officers, Mr Duczynski, Mr Faccin, and Mr Quested, who between them attended four S1 studios.
2. The second class are videos (social media videos) posted on the social media accounts maintained by a number of the S1 companies. The videos were obtained by Ms Patel, a solicitor with APRA's lawyers. Ms Patel has deposed she is a regular user of Instagram, and on the basis of that experience, gives the following evidence about the posting of videos to Instagram:[70]
   1. users may share photos or videos by way of an Instagram 'story', being a form of sharing photos or videos where those photos or videos disappear from the profile on which they were shared after 24 hours, unless they are added to the profile as 'story highlights'; and
   2. when viewing photos or videos which have been shared as 'story highlights':
      1. the length of time since that 'story highlight' was originally shared can be viewed in the top left-hand corner of the screen, and when viewed using a web browser (rather than mobile application), this is typically indicated with a number of weeks, which are expressed in shorthand as "[number] w". For example, if a 'story highlight' was originally posted 86 weeks before it is being viewed by another user, the top left-hand corner of the screen will say '86 w'.
      2. the precise date on which that photo or video was originally shared by the user can be viewed when using a web browser (rather than the mobile application) by hovering the mouse over the "[number] w" in the top left hand corner of the screen, as described in the sub-paragraph immediately above...
3. Ms Patel further deposed that, on visiting the web addresses of the Instagram accounts of the S1 companies, she "made the videos of stories of the S1 Instagram pages"; and in doing so she included in the file name the date on which she made the video, a short description of the Instagram account from which the post was made, and the date each "story highlight" was originally posted, using the methods she describes in the passage of her evidence I quoted.[71]
4. A third class of evidence are verification reports that were created in relation to the music in the recordings Mr Duczynski, Mr Faccin, and Mr Quested made, and in music recorded in the social media videos. These verification reports purport to identify musical works embedded in the recordings Mr Duczynski, Mr Faccin, and or Mr Quested made, or in the social media videos.
5. I have set out earlier in these reasons evidence Mr Mallet gave about the process by which verification reports are prepared in relation to recordings containing music. Mr Mallet gave additional evidence concerning the preparation of verification reports in relation to music that was embedded in the social media videos. After referring to the files that are included in exhibit AJD-1 containing the social media files, Mr Mallet deposed as follows:[72]

(a) On 7 May 2024 the LST received the social media videos who, on 8 May 2024, provided the videos to the QAT.

(b) Members of the QAT were allocated to research the social media videos. They listened to the videos to identify the title or artist or both by using their own knowledge of music, or by listening to the lyrics that were audible and conducting online searches for those lyrics to ascertain the title of the music associated with those lyrics.

(c) If the QAT member identified a title (Identified music), he or she used the title to locate the Reference Recordings, and, if a reference Recording is found, hear that recording and compare it with the Identified music, and if the reference recording and Identified music are the same, the QAT prepared a verification report.

1. At about 12.00 pm on 4 November 2022 Mr Duczynski, whom APRA employed as a casual compliance officer, attended the premises located at Shop 4/332 Oxford Street, Bondi Junction (S1 Bondi Junction premises).[73] In his affidavit, Mr Duczynski says that, on arriving at the S1 Bondi Junction premises, he saw a sign on the front window that read "S1 Training". Mr Duczynski then entered the S1 Bondi Junction premises, which constituted a rectangular room with an entry, and a rear door. Music was playing from a prominent speaker located to the left of the front entrances as well as from other speakers placed around the room. The music continued until Mr Duczynski left the premises.
2. While at the S1 Bondi Junction premises, Mr Duczynski participated in an organised fitness training class led by a single instructor. Four other people participated at the same time. Before he entered the S1 Bondi Junction premises, Mr Duczynski arranged a free trial to attend the fitness centre on those premises. While participating in the class, Mr Duczynski recorded the music on his mobile phone. Mr Duczynski prepared a report after his visit.[74]
3. The recording Mr Duczynski made is in evidence; and I have listened to it.[75] About 10 minutes into the recording, a person who appears to be the trainer describes the exercises the class will perform. After the trainer completes this task, there is a beep, and music can be heard. The music continues to be performed until the class finishes, which occurs 56 minutes into the recording. Throughout the recording, distinct beeps can be heard. I infer that these signify changes in the exercises. The music continued after the class finished, but at a lower volume, and continued to the end of the recording.

1. There are two social media videos in relation to the S1 Bondi Junction premises, these being the video files Ms Patel described as "24.05.02 S1 Bondi FB 25 August 2021.webm" (Fire video) (a Facebook video);[76] and "24.05.06 S1 Bondi Insta 3 August 2023.webm" (Makeba video).[77]

1. Verification reports have been prepared in relation to each of the recording Mr Duczynski made, and the Fire and Makeba videos. The verification report for Duczynski's recording identifies eleven works.[78] Mr Mallett, however, says that the verification report identified four titles, these being "Break Up With Your Girlfriend, I'm Bored", "Horny 98' Radio Edit", "What is Love", and "Who do you love".[79]
2. The verification report in relation to the Fire and Makeba videos forms part of a report that analyses 10 social media videos on the S1 Bondi Junction Instagram account, and identifies seven titles.[80] In his affidavit, Mr Mallett only refers to the verification report having identified songs with the titles "Fire" and "Makeba".

1. At about 7.45 am on 12 November 2022 Mr Faccin, whom APRA employed as a casual compliance officer, attended the premises located at 329 Kingsway, Caringbah (S1 Caringbah premises).[81] In his affidavit, Mr Faccin says that, on arriving at the S1 Caringbah premises, he saw a sign on the front window that read "S1 Training". According to Mr Faccin, he entered the premises. He observed the premises comprised a large rectangular room with two entrances. One was a staircase located in between a bathroom and a sauna room, and the other was a direct entrance from the street. Mr Faccin also observed there were six speakers mounted to the ceiling, and dispersed throughout the room (Caringbah Speakers), and two televisions displaying images of the training circuit utilised for the fitness class. Mr Faccin says he heard music playing from the Caringbah Speakers, and that continued until about 8.40 am when Mr Faccin left the premises.
2. Mr Faccin further says that during his attendance, he participated in a fitness training class led by an instructor. Four other people participated in that training session. During the fitness training class, Mr Faccin recorded on his mobile phone the music being played from the Caringbah Speakers.[82] While recording Mr Faccin opened the "Auto-Shazam" feature of an app on his telephone called "Shazam". That is a mobile phone app that uses song recognition technology to detect and recognise any short sample of music. Mr Faccin used the Shazam app to detect and recognise the music he recorded on his mobile phone. After he left the S1 Caringbah premises, Mr Faccin prepared a report in which he listed the songs the Shazam app recognised. These are as follows:

Sweet Nothing (feat Florence Welch) - Calvin Harris

Under Control (feats. Hurts) - Calvin Harris and Alesso

We'll Be Coming Back (feat. Example) - Calvin Harris

Take Me Away (Into the Night) [ Katire J Radio Edit

Open Your eyes (Original '96 Mix) - Bruno Quartier & Etienne Vandewiele

1. In his cross-examination of Mr Faccin, Mr Turner asked him whether there could have been more than six speakers at the S1 Caringbah premises, such as 10-centimetre Bose portable speakers, and whether he observed "portable speakers such as iPhones laying on the cabinets in the studio".[83] Mr Faccin said he did not recall; and he acknowledged that he did not have any evidence that the music he heard came from the mounted speakers. Mr Faccin said, however, that he believed the music was coming from the mounted speakers.[84] Mr Faccin said he recalled seeing exercise screens in the studio depicting different exercises;[85] but he did not recall hearing the beeps that were associated with each exercise, signalling when to start, end, and swap the exercise.[86] Mr Turner put to Mr Faccin that the music was coming from the portable speakers, but the beeps and buzzes were coming from the mounted ceilings.[87] Mr Turner later asked whether Mr Faccin knew that the ceiling mounted speakers did not play music, in response to which Mr Faccin said he did not know.[88] Mr Faccin acknowledged he did not ask the trainer whether the trainer held a music licence. Mr Faccin said that the process he followed was to identify music being played on the premises.[89]
2. I have listened to the recording. There is music playing before the class begins. A person who appears to be a trainer talks to Mr Faccin. The trainer greets other people. About five minutes into the recording, while the music is playing, the trainer begins to explain the exercises that are to comprise the session. About 6.40 minutes: seconds into the recording, there is a loud beep, and it appears that the class begins at that point. The class continues until 46 minutes into the recording when there is a loud beep, signalling the end of the class. The music is continuously performed throughout the recording.

1. There are 9 media videos in relation to the S1 premises at Caringbah, two of which Ms Patel described as "24.05.06 S1 Caringbah Insta 5 February 2022.webm" (One Kiss video);[90] and "24.05.06 S1 Caringbah Insta 30 January 2022.webm" (a Facebook page) (We Like to Party video).[91]

1. The verification report of the recording Mr Faccin made on 12 November 2022 identified 15 songs.[92] In his affidavit, however, Mr Mallet refers to only one musical work, namely, "Take me away (Into the night)".[93]
2. There is a verification report for nine social media videos posted in relation to S1 Caringbah;[94] and it identifies six out of nine songs. In his affidavit, Mr Mallett only refers to the verification report identifying two musical works, these being "One Kiss", and "We Like to Party".[95]

1. At about 9.00 am on 13 November 2022 Mr Quested, whom APRA employed as a casual compliance officer, attended the premises located at 99 Greville Street, Prahran, Victoria (S1 Prahran premises).[96] In his affidavit, Mr Quested says that, on arriving at the S1 Prahran premises, he saw a large sign on the front window that read "S1 Training". On entering, Mr Quested observed that the S1 Prahran premises comprised a large, open rectangular room that was located in an industrial-type building. There appeared to be a bathroom and sauna in the back left corner of the space. Mr Quested also observed a variety of gym equipment throughout the space, and numerous speakers that had been placed around the room. Music was playing from the speakers when Mr Quested entered the premises; and the music continued to be played from the speakers until around 10.00 am when Mr Quested left the S1 Prahran premises. Mr Quested participated in a fitness training session led by an instructor, which was also attended by four other people. During the fitness training session, Mr Quested recorded the music being played from the speakers on his mobile phone.[97]
2. In evidence given under cross-examination, Mr Quested said he could not recall how many speakers he observed; he said that, from memory, the speakers were mounted, but he could not remember whether they were mounted on the ceiling. Mr Quested did not accept that there could have been any portable speakers such as an iPhone. Mr Quested also said that he could hear the music come from the speakers. Mr Turner asked Mr Quested whether he had any "mechanical verification of where the music was coming from". Mr Quested said he did not understand the question. I intervened and asked Mr Turner whether the question he intended to ask was whether the only basis on which Mr Quested said he heard the music came from the speakers was his memory and his hearing. That question was put to Mr Quested, who answered he had a recording of what he heard.[98] Mr Quested said he vaguely remembered hearing "beeps and buzzes coming from the Teambeats workouts on the TV screens".[99] Mr Quested also accepted he did not ask the trainer whether he held a music licence.[100]
3. I have listened to the recording. It begins with Mr Quested recording his name, and stating he is about to enter the premises. As he entered, music is being performed, and the class starts 1.41 minute; second into the recording. The class continues until 39 minutes into the recording. Music is being performed throughout the length of the recording.

1. There are 8 social media videos in relation to the S1 Prahran premises, two of which Ms Patel described as "24.05.03 S1 Prahran Insta 4 July 2022.webm" (Don't You Know video);[101] and "24.05.03 S1 Prahran Insta 2 February 2023.webm" (We Run The Night video).[102]

1. The verification report of the recording Mr Quested made on 13 November 2022 identified 39 songs.[103] In his affidavit, however, Mr Mallet refers to only four musical works, namely, "Daylight", "Don't You Worry Child", "Team", and "Wake me Up".[104]
2. There is a verification report in relation to eight social media videos posted in relation to S1 Prahran;[105] and it identifies eleven titles. In his affidavit, Mr Mallett only refers to the verification report identifying two musical works, these being "Don't You Know", and "We Run The Night".[106]

1. On 11 July 2023 Mr Faccin purchased a single class credit from "S1 Training Coogee" for $35, and, through a website "s1training.com.au/studio/coogee", booked a fitness class scheduled for 13 July 2023 at 51 Dolphin Street, Coogee (S1 Coogee premises). At about 5.55 am Mr Faccin attended the S1 Coogee premises. Mr Faccin noticed the S1 Coogee premises are located in the basement of the Coogee Beach Club, and he observed signage featuring "S1" around the fence line and above the front door to the S1 Coogee premises. On entering the door, Mr Faccin observed the S1 Coogee premises comprised a large rectangular room, and he saw several speakers mounted to the wall at which the front door was located. At about the time he entered the Coogee premises, music was playing from the speakers; and music continued to be played from the speakers up to about 6.43 am, when Mr Faccin left the S1 Coogee premises.[107]
2. Mr Faccin participated in a group fitness class led by an instructor which was attended by about 20 other participants. During the fitness class Mr Faccin recorded on his mobile phone the music that was played, utilising the "Auto-Shazam" feature of the Shazam app. After he left the S1 Coogee premises, Mr Faccin prepared a report in which he listed the songs the Shazam app recognised.[108] These are as follows:

Gangster Trippin (Sultan + Shepard remix)- Fatboy Silm [sic]

You Got The Love (New Voyager Radio Edit)- The Source & Candi Santon

One More Time (As Made famous by Daft Punk)- The Backing Tracks

1. I have listened to the recording Mr Faccin made.[109] About 2:54 minutes:seconds into the recording the trainer begins to give a demonstration of the exercises that will comprise the class. Music is being performed at low volume. At around 7:32 minutes:seconds into the recording, a loud beep can be heard, which signifies the beginning of the class. The music is at a higher volume. The class finishes about 46:05 minutes:seconds into the recording. The end is signified by a beep, at which point the volume of the music is reduced.

1. There are eight social media videos in relation to the S1 Coogee premises, two of which Ms Patel described as "24.05.07 S1 Coogee Insta 7 May 2024(1).mp4" (Bloody Mary video);[110] and "24.05.02 S1 Coogee FB 25 November 2020.webm" (Booty Bounce video).[111]

1. The verification report of the recording Mr Faccin made on 11 July 2023 identified 13 songs.[112] In his affidavit, however, Mr Mallet refers to only two musical works, namely, "How Bizarre" and "Pjanoo".[113]
2. There is a verification report in relation to eight social media videos posted in relation to S1 Prahran;[114] and it identifies 11 titles. In his affidavit, Mr Mallett only refers to the verification report identifying two songs, these being "Don't You Know", and "We Run The Night".[115]

1. There are five social media videos in relation to the S1 Cardiff premises, two of which Ms Patel described as "24.05.03 S1 Cardiff Insta 3 January 2023.webm" (California Love video);[116] and "24.05.06 S1 Cardiff Insta 23 November 2023.webm" (Fade video).[117]
2. There is a verification report in relation to five social media videos posted in relation to the S1 Cardiff premises;[118] and it identifies three titles. In his affidavit, Mr Mallett only refers to the verification report identifying two songs, these being "California Love", and "Fade".[119]

1. There are four social media videos in relation to the S1 Mill Park premises, one of which Ms Patel described as "24.05.06 S1 Mill Park Instagram 30 November 2023.webm" (She Wants to Move video).[120]
2. There is a verification report in relation to four social media videos posted in relation to the S1 Mill Park premises;[121] and it identifies three titles. In his affidavit, Mr Mallett only refers to the verification report identifying one song, being "She Wants to Move".[122]

1. There are 14 social media videos in relation to the S1 Mona Vale premises, two of which Ms Patel described as "24.05.02 S1 Mona Vale Insta 12 April 2024" (Circle Down video);[123] and "24.05.02 S1 Mill Park Insta 2-3 April 2024" (You Don't Know Me video).[124]
2. There is a verification report in relation to 14 social media videos posted in relation to the S1 Mona Vale premises;[125] and it identifies 23 titles. In his affidavit, Mr Mallett only refers to the verification report identifying two songs, these being "Circle Down (Keljet Remix)", and "You Don't Know me (Jax Jones Song)". [126]

1. There are eight social media videos in relation to the S1 Port Melbourne premises, two of which Ms Patel described as "24.05.07 S1 Port Melbourne Insta 22 November 2022" (Secrets video);[127] and "05.03. S1 Port Melbourne Insta 16 September 2023" (TNT video).[128]
2. There is a verification report in relation to eight social media videos posted in relation to the S1 Port Melbourne premises;[129] and it identifies seven titles. In his affidavit, Mr Mallett only refers to the verification report identifying two songs, these being "Secrets", and "TNT". [130]

APRA's ATTEMPTS TO SECURE LICENCES FROM S1 COMPANIES

1. On 16 May 2022 Mr Ewan Jansen, an account manager engaged by OneMusic, sent a letter by email addressed to Mr Turner, as director of the first respondent (S1 Bondi Junction).[131] The letter states, among other things that "OneMusic Australia owns or represents the rights to use virtually any commercially released music from anywhere around the world", so that, if S1 Bondi Junction was using OneMusic's music in its business, it should not delay, and should apply for a "OneMusic licence". The letter further stated that OneMusic was contacting "every fitness business in Australia to ensure that if they play OneMusic Australia's music they have an appropriate licence to do so". Mr Turner did not respond to OneMusic's letter. On 30 May 2022, OneMusic sent a follow up letter to Mr Turner as director of S1 Bondi Junction.[132] The letter stated:

If you are using OneMusic Australia's music at S1 Training Bondi Junction it is time to get the licence process going. So if you want to continue to play and enjoy using our music at S1 Training Bondi Junction, you should immediately enter into a OneMusic Australia licence because using our music without a licence can constitute an infringement of our copyright which, if not rectified, may ultimately lead to legal action.

Of course, if you do not use music, don't think the music you use requires a licence or have stopped using music, please feel free to contact our office to discuss on . . .

1. OneMusic sent to Mr Turner additional emails on 26 July 2022, and 9 August 2022.[133] On 1 September 2022 Ms Giuliano, a director of OneMusic, sent an email to Mr Turner stating that he had been advised a number of times by OneMusic's licensing representative that Sweat 1000 Coogee Pty Ltd requires a OneMusic fitness licence for the public performance of its music. The email stated that the matter "has now been referred to our legal representatives who may begin infringement proceedings". Similar emails were sent to Mr Turner in his capacity as director of each of S1 Coogee;[134] the second respondent (S1 Prahran);[135] the third respondent (S1 Caringbah);[136] and the sixth respondent (S1 Mona Vale).[137] OneMusic sent similar letters to the "Studio Owner S1 Training Mill Park".[138]
2. Mr Turner did not respond to this correspondence. A person by the name of "Helen", however, sent an email to Mr Jansen on 29 June 2022 in response to Mr Jansen's email of 30 May 2022.[139] Helen thanked Mr Jansen for "reaching out", and said that "[w]e use Soundtrack Your Brand for our music". Mr Jansen responded to Helen by email sent on 30 June 2022. He said that, as "SoundTrackYourBrand" is a professional music supplier, there was a cost-saving that went "towards your OneMusic licence requirement for the use of such a service". Mr Jansen said that, as "the OneMusic licence is required for the use of the service (and many others like it), the application here will need to be completed please... ".[140] Helen sent an email to Mr Jansen on 30 June 2022 asking whether that meant that "we could get a licence from you and use the normal Spotify rather than SYB". Mr Jansen responded with an email sent on 1 July 2022 providing a "snip" from OneMusic's website, and summarising its effect as follows:[141]

Effectively, irrespective of the service you choose, it requires our licence due to the music they deliver through it. As Spotify contains predominantly works that require our licence, then yes, we would need to apply a licence which authorises you to use them in the business.

1. On 12 August 2022, Mr Jansen sent an email to the S1 Prahran email address attaching a letter signed by Mr Hollins, who held the position of "Account Resolutions" with OneMusic. That letter was addressed to Mr Turner, as "Director S1 Training Prahran".[142] Helen responded by email sent to Mr Jansen on 12 August 2022, in which she said that she had "passed on your email to our head office in Sydney. They will be in touch".[143]
2. After further correspondence, APRA placed the matter in the hands of its lawyers. APRA's lawyers communicated with Mr Turner by emails sent on 28 March 2023, 7 August 2023, and 23 October 2023.[144]

1. As I noted above, to succeed in its causes of action for infringement of copyright APRA must:

(a) identify the musical (and associated literary) works in which APRA alleges copyright subsists and of which it alleges it is the owner or exclusive licensee;

(b) prove it is the owner or exclusive licensee of the performance rights in the works it identifies pursuant to (a);

(c) prove that one or more of the S1 respondents performed in public one or more of the works identified pursuant to (a); and

(d) in relation to its claims against Mr Turner, prove that Mr Turner authorised one or more of the S1 companies to perform in public one or more of the works referred to in (a).

1. As should be apparent from the evidence to which I have referred, APRA seeks to prove it is the owner or exclusive licensee of the performing rights in musical works it has identified, and in the other works that form part of the APRA Repertoire, and the infringement of those rights, by three broad classes of evidence.

1. The first is what may be described as experiential evidence, being evidence Mr Mallett has given about the nature of APRA's business, the extent of the musical (and associated literary) works the public performance rights of which it is the owner or exclusive licensee, its system of record keeping, and the records it keeps. Such evidence is admissible according to the principles Asprey JA discussed in Connor v Blacktown District Hospital:[145]

To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case . . . In my opinion, evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence."

1. The second class of evidence are documents Mr Mallett describes as a "copy of APRA's computer printout showing the writers and publishers' interests in respect of the musical and literary work for" the musical work to which the document relates. That is a reference to a class of documents headed "CMS Screen Report", each of which records the title of the musical work and the writers.
2. When considered with the (experiential) evidence Mr Mallett gives about the means by which persons apply for membership of APRA, the registration of their works with APRA, APRA's associations with affiliates, APRA's maintaining comprehensive records of the musical and literary works within the APRA Repertoire, and the accessibility of those records, I am satisfied each CMS Screen Report document is a document to which s 69(1) of the Evidence Act 1995 (Cth) (Evidence Act) applies, namely, a document that is or forms part of a record belonging to or being kept by APRA in the course of, and for the purposes of its business, and contains a "previous representation made or recorded in the document in the course of, or for the purposes of," APRA's business. In those circumstances, s 69(2) of the Evidence Act provides that the hearsay rule under s 59(1) of the Evidence Act does not apply if the representation was made either by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
3. Given these findings, I am satisfied that each CMS Screen Report document contains representations of the following classes of asserted facts which, in each case, I find to be true:

(a) Musical (and associated literary) works having the titles stated in the document were created by the persons stated in the document.

(b) At the time the person or set of persons created the works, the person or each of the persons was a "qualified person" within the meaning of s 32(4) of the Act, as extended by reg 4 of the Regulations.

(c) Given (a) and (b) copyright subsists in the works.

(d) The creators of the works, directly or indirectly, assigned the public performance and communication rights in the works either to APRA, or to an overseas company that has licensed those rights exclusively to APRA in so far as they extend to Australia.

1. The verification reports are documents to which s 69(1) of the Evidence Act applies; for it is part of APRA's course of business to collect evidence in relation to suspected infringement of its public performance and communication rights. Subsection 69(2) of the Evidence Act, however, does not apply to the previous representations contained in the verification reports because of s 69(3). There would seem to be little doubt that the representations in the verification reports were prepared or obtained in contemplation of an Australian proceeding, namely, the proceeding APRA commenced against the respondents. That, however, does not mean that the representations contained in the verification reports cannot be treated as evidence of the truth they intend to assert.
2. First, there is evidence Mr Mallett gave of the process by which the author of the verification reports prepared them. This consisted of the authors listening to the music recorded, using their own knowledge to identify the title of the musical work, identify another recording of the musical work that has been performed through a licensed channel, and then compare the two musical works. In short, the verification reports contain first-hand hearsay within the meaning of s 62 of the Evidence Act. Had the respondents objected to the admissibility of the verification reports on the ground of hearsay, I would have determined that objection by reference to s 64(2) of the Evidence Act, which provides:

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

1. It does not appear that APRA gave notice in writing, in the manner required by s 67(1) of the Evidence Act, of its intention to rely on representations contained in the verification reports. It is the case, however, that by filing and serving on the respondents Mr Mallett's affidavit, APRA gave detailed notice of the fact that it intended to rely on the representations contained in verification reports as evidence of the truth of the representations they contains; and the respondents did not suggest they intended to challenge, or at least have a basis for challenging, the truth of the matters asserted by the representations contained in the verification reports.

Identification of musical works performed at S1 studios

1. The FASC identifies 11 musical (and associated literary) works. In his affidavit Mr Mallett identifies a further 14 musical works. I have identified in Schedule 1 to these reasons the evidence in relation to each of these 25 works. APRA's case, however, is not limited to these 25 works. APRA contends that, given its control of the public performance in Australia of musical works, it should be inferred that all of the musical works the S1 companies performed form part of the APRA Repertoire, even though APRA is not in a position to identify those works. That this is APRA's case is apparent from the following exchange with counsel for APRA:[146]

HIS HONOUR: But the fact is - and I will just get - and I understand the structure.

MS EVERTS: Sure.

HIS HONOUR: But the fact is, you've identified specific works through the compliance officers. The second class of specific works is, you've gone through material that you've - social media material, if I can use that.

MS EVERTS: Yes.

HIS HONOUR: And you've identified it, and you can say they're the works that have been played, and that only deals with specific instances of music being played, but you say, on the basis of that . . . and given that APRA owns or has effective rights to millions of works, I can infer two things. Number one is, from the fact that they've been playing music on these specific instances, they regularly play music, and from the fact that they regularly play music and we own millions of works, a very high likelihood that it's works that we control.

MS EVERTS: That's right.

HIS HONOUR: And you can say that without having to specify individual works, and if I - probably not the right thing, and I'm going to use my own language at the moment. And that's because it's an undifferentiated mass upon right that you're entitled to - - -

MS EVERTS: Yes, your Honour. That - yes.

HIS HONOUR: - - - to recover. It's along those lines.

MS EVERTS: Yes.

1. If there were evidence on the basis of which it would be open to find that all, or a substantial proportion, of the musical works the evidence identifies were performed at the S1 studios, formed part of the APRA Repertoire, there would be a rational basis to find that all, or at least a substantial proportion of all other musical works that were publicly performed at S1 studios, but which APRA has not identified, formed part of the APRA Repertoire. I am not satisfied, however, there is such evidence. The basis of my non-satisfaction is the fact that the verification reports identify significantly more titles to musical works than the titles Mr Mallett in his affidavit identifies by reference to the CMS Screen Reports which show the writer's and publisher's interests in musical works. I have already identified the extent to which Mr Mallett did not, in his affidavit, refer to works that are identified in the verification reports, and it would be convenient to set this out again:

(a) The verification report in relation to the recording Mr Duczynski made during his visit to the S1 Bondi Junction premises identified eleven works, but Mr Mallett referred, and exhibited documents only in relation, to four of them.

(b) The verification report in relation to the social media videos for S1 Bondi Junction identified ten works, but Mr Mallett referred, and exhibited documents only in relation, to two of them.

(c) The verification report in relation to the recording Mr Faccin made during his visit to the S1 Caringbah premises identified 15 works, but Mr Mallett referred, and exhibited documents only in relation, to one of them.

(d) The verification report in relation to the social media videos for the S1 Caringbah premises identified nine musical works, but Mr Mallett referred to, and exhibits documents, only in relation to two of them.

(e) The verification report in relation to the recording Mr Quested made during his visit to the S1 Prahran premises identified 39 works, but Mr Mallett referred, and exhibited documents only in relation, to four of them.

(f) The verification report in relation to the social media videos for the S1 Prahran premises identified 11 musical works, but Mr Mallett referred, and exhibited documents only in relation, to two of them.

(g) The verification report in relation to the recording Mr Faccin made during his visit to the S1 Coogee premises identified 13 musical works, but Mr Mallett referred, and exhibited documents only in relation, to four of them.

(h) The verification report in relation to the social media videos for the S1 Coogee premises identified 11 works, but Mr Mallett referred, and exhibited documents only in relation to, two of them.

(i) The verification report in relation to the social media videos for the S1 Cardiff premises identified three works, but Mr Mallett referred, and exhibited documents only in relation to, two of them.

(j) The verification report in relation to the social media videos for the S1 Mill Park premises identified three works, but Mr Mallett referred, and exhibited documents only in relation, to one of them.

(k) The verification report in relation to the social media videos for the S1 Mona Vale premises identified 23 musical works, but Mr Mallett referred, and exhibited documents only in relation, to two of them.

(l) The verification report in relation to the social media videos for the S1 Port Melbourne premises identified seven musical works, but Mr Mallett referred, and exhibited documents only in relation, to two of them.

1. When reviewing this evidence, the question occurred to me whether an inference is available to be drawn that APRA was not, or could not prove it was, the owner or exclusive licensee of the musical works the verification reports identified but to which Mr Mallett did not refer. In these circumstances, on 8 December 2025 I directed my Associate to send the following email to the parties:

I refer to the above-mentioned matter in which his Honour has reserved judgment.

His Honour would appreciate the parties' assistance on the following:

In his affidavit, Mr Mallett identifies a number of verification reports, and he identifies particular musical works by title that are referred to in the verification reports. Mr Mallett also refers to printouts from APRA's records which disclose the writer's and publisher's details.

The verification reports, however, refer to other titles to which Mr Mallett does not refer in his affidavit, and in relation to which Mr Mallett does not refer to printouts.

For example, the verification report for the recording Mr Faccin made at S1 Coogee on 11 July 2023 (exhibit RCM-1, tab 36 (not tab 38)) identifies 13 songs; yet Mr Mallett, in his affidavit, only refers to two songs, "How Bizarre" and "Pjanoo" (at [91]).

Another example is the verification report for the recording Mr Faccin made on 12 November 2022 at the S1 Caringbah premises (exhibit RCM-1, tab 35). That report identifies 15 songs, but Mr Mallett refers to only one song, namely, "Take me away (Into the Night)" (at [89]).

His Honour enquiries whether an inference is available to be drawn from Mr Mallett's not identifying in his affidavit titles that appear in the verification reports that the titles in the verification reports to which Mr Mallett does not refer are titles of which APRA is not the owner of the performing or communication rights, or, at least, APRA is unable to prove that it is the owner.

1. APRA's lawyers responded on 9 December 2025 with the following email:

In relation to his Honour's enquiry, APRA submits as follows:

1. APRA represents (and has the ability to license) the public performance and communication rights of every work within the APRA repertoire by virtue of assignments received from composers, authors, and publishers and its agreements with affiliated international music rights management organisations. By way of further explanation:
   1. In the case of musical works created by members of APRA (being Australian and New Zealand authors, composers, music publishers and other interested parties such as beneficiaries of deceased composers' estates), APRA is the owner of the public performance and communication rights of those members' works by reason of an assignment: Mallett Affidavit [9]-[15].
   2. In the case of works created by overseas authors, APRA has agreements with over 180 affiliated bodies carrying on public performance licensing overseas, pursuant to which APRA obtains rights with respect to the public performance of the works belonging to the members of these affiliated bodies: Mallett Affidavit [23]-[24] (noting the correction that Mr Mallett made in chief at T63.6-22). In some instances, the rights are obtained via assignment. In other limited instances, the rights are obtained via licence. Examples of such reciprocal agreements are referred to in Mallett [27]-[29].
2. By reason of the assignments made directly to APRA and the reciprocal agreements with overseas affiliated bodies discussed above, APRA controls, and therefore has the capacity to license, the public performance and communication rights of more than 10 million musical and literary works: Mallett [31]. This means that APRA, in effect, controls (but does not in all instances own) the public performance and communication rights of practically all commercially available musical works and associated literary works performed throughout Australia.
3. In this proceeding, APRA advanced evidence of the subsistence of copyright in over 30 works that were played at the various S1 premises between 2020 and 2024; and which established that, throughout the course of each fitness class that the compliance officers (including Mr Faccin) attended, at least one or more songs played was owned by APRA: Mallett [23]-[29]; [35]-[66]; [96]-[140].
4. APRA did not adduce evidence about every single song that was identified as being played at the various S1 premises, given (amongst other things):

a. the large number of songs that were played;

1. that there were various affiliated bodies associated with the works of the songs played; and

2. the time and expense that would have been involved in doing so.

3. However, by reason of the evidence adduced by APRA, including that outlined above, APRA submits that:

   1. APRA has established that it is the owner of songs that were played at each S1 premises on a regular basis;
   2. the Court can infer that musical and/or literary works in which copyright subsists and which APRA owns the right to perform in public within Australia were played at each S1 premises on a monthly basis during their operation, thereby requiring a licence from APRA for the entire period that each of the S1 premises operated; and
   3. the Court can infer that, insofar as APRA did not own the rights, APRA nevertheless controlled the public performance and communication rights of most (if not all) of the other songs that were played in each S1 premises over the relevant period, and the Respondents required a licence to play those songs, which they could have obtained from APRA.

4. APRA says that the Court should not draw an inference that APRA does not own the copyright, or cannot prove the copyright, in the works identified in Tabs 35 and 36 of Exhibit RCM-1 which have not been otherwise proven in Mr Mallett's evidence. Instead, APRA submits that the Court can apply the logic set out in the above paragraph 5 to both:

   1. those works identified in Tabs 35 and 36 of Exhibit RCM-1 not otherwise proven in Mr Mallett's evidence; and
   2. the universe of works at-large that would be the subject of an APRA licence, were it to have been entered into.

In support of the matters outlined above, APRA refers his Honour in particular to paragraphs [3]; [4]; [31]-[33]; [50]-[51]; and [87]-[93] of its written closing submissions; and transcript pages 203 to 208 of APRA's oral closing submissions.

1. Mr Mallett did not explain in his affidavit why he exhibited a CMC screen document only in relation to some, but not all of the musical works identified in the verification reports; and it is not open to me to accept the explanation APRA's lawyer has given in his email, because it is not evidence. In any event, the explanations APRA's lawyer gave for not adducing evidence about "every single song that was identified as being played at the various S1 premises" does not sit comfortably with Mr Mallett's evidence that APRA "maintains comprehensive records of the musical and literary works within the APRA repertoire in respect of the power to grant licences for the performance in public";[147] that APRA makes available on its website a free "works search" and that, for a fee, APRA offers a service by which its staff conduct additional research. This evidence might suggest (although I make no finding) that, once the title of a musical work has been identified, the task of determining whether it falls within the APRA Repertoire would only require APRA to interrogate its database.
2. I am not prepared to infer that APRA is unable to prove that the musical works referred to in the verification reports to which Mr Mallett does not refer are works that form part of the APRA Repertoire. I am also not prepared to find that, on the evidence before me, such works do form part of the APRA Repertoire.

1. The position is different in relation to the 25 identified works. I am satisfied, on the basis of the representations contained in the CMS Screen Reports for each of the 25 identified works that copyright subsists in those works; and that APRA is the owner or exclusive licensee of the public performance and communication to the public rights in relation to those works.

Infringement by S1 companies

1. I am satisfied on the basis of the verification reports that the S1 companies identified in Schedule 1 to these reasons performed the musical (and associated literary) works identified in column 1 of each of the tables in Schedule 1 at the dates specified in column 2 of each of the tables in Schedule 1. I am also satisfied that the performance of the musical works at the S1 companies' premises occurred "in public". The music was performed in the course of each S1 company conducting fitness classes in which members of the public, in return for the payment of a fee, participated, and did so under the guidance of trainers associated with the relevant S1 company.
2. In these circumstances, the S1 companies infringed APRA's copyright in relation to the musical works identified in column 1 of each of the tables in Schedule 1 at the S1 studio or premises that was associated with the S1 company (Infringements).

Did Mr Turner authorise the infringement of copyright?

1. To answer this question, it will be necessary to repeat the following findings:

(a) Mr Turner established the S1 companies.

(b) Mr Turner did so intending that each company would be part of a franchise fitness business that would trade under the name "SWEAT1000" or "S1 Training" or both, where each S1 company would offer and provide to the public the same concept of training, the same training exercises, the same equipment, the same experience, at the same range of prices.

(c) Mr Turner formulated, or at least agreed to the formulation of, a set of criteria each S1 company was required to satisfy, these criteria being the matters specified in the Assessment Report.

(d) With the assistance of an operations manager, during weekly meetings, Mr Turner monitored the performance of each S1 company and trainer by reference to the criteria specified in the Assessment Report. These included the requirement that there be a "Trainer music provider licence".

(e) Mr Turner managed the S1 companies, and in the course of so doing, Mr Turner kept himself informed of the progress of each S1 studio and trainer. In particular, Mr Turner kept himself informed of the extent to which each S1 company met the criteria specified in the Assessment Report, including whether there was in place a "Trainer music provider licence".

(f) Music was regularly performed at the S1 premises. The performance of music was an essential component of the exercise sessions that were conducted at the S1 premises.

(g) Mr Turner was aware that music was being performed at each of the S1 premises; he knew that the performance of music required a licence; and he knew that no licence had been granted for the performance of that music.

1. Given these findings, I further find, as follows:

(a) Trainers at each S1 studio turned on and performed musical works during each exercise session that was conducted at that studio pursuant to standing instructions Mr Turner had given that this occur; and Mr Turner had given these standing instructions in his capacity as sole director and CEO of each of the S1 companies.

(b) Given Mr Turner's position of sole director and CEO, and the means by which he managed the S1 companies, and his knowledge that music was being performed during each exercise session that was conducted at each S1 studio, Mr Turner permitted, or otherwise sanctioned, approved, and countenanced each trainer at each S1 studio to perform music on each occasion an exercise session was conducted at that S1 studio.

(c) Mr Turner was in a position to instruct each of the instructors at each of the S1 studios not to perform music, but he decided against doing so.

(d) On the basis of any one of the findings in (a), (b), or (c), Mr Turner authorised the Infringements.

1. This Court has power to make binding declarations of right, whether or not any consequential relief is or could be claimed.[148] Gordon J provided a useful summary of the main principles that govern the exercise of the power to grant declarations in Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2):[149]

The Court has a wide discretionary power to make declarations under s 21 of the FCA. . . .

Consistent with that line of authority, it is necessary to identify considerations relevant to the exercise of the discretion to grant or not grant declarations in a case such as the present. Considerations include:

1. whether the declaration will have any utility;

2. whether the proceeding involves a matter of public interest;

3. whether the circumstances call for the making of the Court's disapproval of the contravening conduct,

Tobacco Institute at 99-100; Australian Competition and Consumer Commission v Powerballwin.com.au Pty Ltd [2010] FCA 378 at [41] and Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 at 437-438.

Consistent with that exercise of discretion, a further question which then arises is whether the declarations sought contain appropriate and adequate particulars of how and why the conduct complained of is a contravention of the TPA: BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167; (2004) 207 ALR 452 at [35], applying the decision of the High Court in Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [90], and Australian Competition and Consumer Commission v Francis [2004] FCA 487; (2004) 142 FCR 1 at [113].

1. I am satisfied there would be utility in granting declarations that the S1 respondents infringed APRA's copyright in the 25 identified works, and that Mr Turner authorised those infringements, and the infringement by the other S1 companies. As I noted on another occasion in relation to similar infringing conduct,[150] the granting of such declarations will communicate to the public the kinds of acts that constitute infringement of copyright of musical (and associated literary) works, and thus deter persons from engaging in such acts; and it will communicate the Court's disapproval of the respondents' acts.
2. I propose, therefore, to grant declarations that the S1 respondents infringed APRA's copyright in the 25 identified works, and that Mr Turner authorised the S1 respondents' and the other S1 companies' infringements.

1. APRA claims a permanent injunction that the respondents be restrained from "performing any works in the APRA Repertoire in public".
2. The granting of an injunction under s 115(2) of the Act is discretionary. Matters that are relevant to the exercise of that discretion include the period over which the infringing conduct has taken place, the flagrancy of the infringement, and other matters which prevent the court from being satisfied there is no substantial risk the respondent will again infringe copyright.[151]
3. There are three matters to consider. The first is the form of the injunction. The expression "APRA Repertoire" does not identify any of the works that fall within the expression's intended denotation, which means that, if made, the person bound by it would be unable to determine whether the performance of any particular musical work would fall within its terms. I consider that the form of the injunction should be framed to reflect the actual practice by which the public performance of musical works is licensed in Australia; and that is through APRA granting blanket licenses to persons who intend to perform musical works in public. The form of injunction, therefore, if it is to be granted, should restrain each of the respondents from performing any music in public (and in the case of Mr Turner, authorising others from doing so) without the licence of APRA, without each respondent:

(a) first giving to APRA 14 days written notice of its (or his) intention to perform in public such works, and

(b) identifying in the written notice the musical and any associated literary works the respondent intends to perform in public in Australia.

1. The second matter arises from the following: none of the S1 respondents, other than S1 Coogee, currently conducts an S1 studio; in August 2024 Mr Turner arranged to deregister each of S1 Bondi Junction, S1 Prahran, and S1 Caringbah;[152] and that, on the application of APRA, these companies were reinstated by 23 January 2025. The question arises whether, in these circumstances, an injunction should be granted against each of the S1 respondents. I am satisfied that an injunction should be granted. For reasons I will set out below, Mr Turner, as the controller of each S1 respondent and the business each conducted, was flagrant in his authorisation of each of the S1 respondents' and the other S1 companies' infringements of APRA's copyright in musical (and associated literary) works; and for such time as the S1 respondents are under Mr Turner's control, they are available to be used by him as potential future vehicles through which Mr Turner, unless restrained, may again infringe APRA's copyright in musical (and associated literary) works that comprise the APRA Repertoire.
2. The third matter is whether an injunction should be granted against Mr Turner. That question is to be answered in the affirmative. Coogee S1 appears to be still operating; and the flagrancy with which Mr Turner has infringed APRA's copyright renders it very likely that, unless restrained, Mr Turner will continue to infringe APRA's copyright.

1. APRA has elected to claim damages rather than an account of profits. As against the S1 respondents, APRA claims as damages the licence fees it says it would have received from each of them. In the case of Mr Turner, APRA claims as damages the sum of the licence fees it says it would have recovered from the S1 companies.

1. A useful starting point for identifying the principles that govern the assessment of damages for infringement of copyright is the judgment of Wilcox J in Autodesk Australia Pty Ltd v Cheung.[153] His Honour began[154] with Lord Wright MR's statement in Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd[155] that the measure of damages in a copyright case "is the depreciation caused by the infringement to the value of the copyright as a chose in action". Wilcox J noted, however, that this formulation must be:[156]

applied with caution because it is potentially misleading. It will usually be difficult, often impossible, for a copyright owner to establish that a particular unauthorised reproduction has caused a diminution in the capital value of a copyright. There may be cases where this occurs, perhaps because of low-quality reproductions or saturation of the market. But, on other occasions, unauthorised reproduction may actually increase the residual value of a copyright.

1. Wilcox J then referred to the following passage from the judgment of Blackburn J in Australasian Performing Rights Association v Grebo Trading Co Pty Ltd & Ors:[157]

The phrase "the depreciation of the value of the copyright as a chose in action" is no more than a convenient label for the various ways of assessing damages which are available in particular cases. In the case before me, the phrase means that the copyright has been less valuable to its owner than it was before the infringement, because it then had the potentiality of generating the income which would have been derived from the lawful performance of these musical works, and it has not in fact generated that income. The difference is the income which should have been generated; that is to say, the fees which the infringers should have paid in order to perform the works lawfully. That amount, for the purposes of this case, is the "depreciation of the value of the copyright".

1. After referring to competing submissions about whether the "licence fee" approach to assessing damages was appropriate in the case before him, Wilcox J said:[158]

The "licence fee" approach to assessment has often been applied. . . . The approach has the attraction of precision. In a case where the court may infer that, presented with a choice between paying the licence fee and not using the work, the infringer would have paid the licence fee, the approach is also a logical one. Ex hypothesi the copyright owner has been deprived of a licence fee. But, where this inference cannot be drawn, it is much more difficult to say that the damage sustained by the copyright owner is equal to a licence fee. No assumption can be made that, if forced to obtain a licence, the defendant would have copied the work, or copied it to the same extent. It seems to me that this case falls within the latter category.

1. I have found that the S1 companies have collectively infringed 25 musical works; but I have also concluded that I am not satisfied that the works that are referred to in the verification reports, but which are not referred to in Mr Mallett's affidavit, form part of the APRA Repertoire. Does that mean that the licence fee approach is to be applied on the assumption that the choice Mr Turner would have faced would have been between paying a licensing fee for the public performance of the 25 musical works, or not publicly performing those 25 musical works? That question is to be answered by reference to three matters:

(a) First, APRA does not licence the public performance of individual works; it provides a blanket licence entitling the licensee to publicly perform any of the musical (and associated literary) works that form part of the APRA Repertoire.

(b) Second, Mr Mallett's evidence, which I accept, is that APRA controls the public performance rights of a substantial proportion of the musical (and associated literary) works that are available to be performed in public in Australia.

(c) Third, as I have found, an essential element of the classes S1 companies conducted at the S1 premises was the performance of music works. Thus, the S1 companies would not have been seeking a licence to perform only 25 works. The S1 companies would have been seeking a licence to perform those 25 works, and such additional number of musical (and associated literary) works that were available to be publicly performed in Australia.

1. In these circumstances, the relevant choice it should be assumed Mr Turner would have had would have been between paying a licence fee for performing the 25 works and such other musical works that comprised the APRA Repertoire, or not publicly performing these works. I am satisfied that, faced with that choice, Mr Turner would have agreed to each S1 company agreeing to licence the public performance of these works on the terms set out in the Fitness Licence. There would have been no alternative, or practical alternative, open to Mr Turner to publicly perform musical works in the course of the fitness classes that were conducted at the S1 premises.

1. In his affidavit of 30 May 2024, Mr Mallett has estimated the licence fees each of the S1 companies would have paid had they each entered into a Fitness Licence with APRA.[159] Mr Mallett's estimates are as follows:

1. The respondents have not challenged Mr Mallett's evidence; and they have made no submission against his calculations. I am satisfied Mr Mallett's estimations of the licence fees that would have been paid by the S1 companies are reasonable estimations of what they would have paid had they each entered into the Fitness Licence, and that APRA, therefore, suffered damage equal to the licence fees Mr Mallett estimated the S1 companies would have paid to APRA, had they each entered into the Fitness Licence. The sum of the licence fees Mr Mallett estimated also represents the damages Mr Turner is liable to pay for his having authorised each of the S1 companies to infringe APRA's copyright in the 25 identified works.
2. I therefore propose to order each S1 respondent to pay damages in an amount equal to the licence fees Mr Mallett has estimated for that company. I also propose to order that Mr Turner pay damages equal to the sum of the licence fees Mr Mallett estimated for each of the S1 companies, namely $86,550.74.
3. APRA also applies for interest. It would be inappropriate to calculate interest on the total licence fees from the time at which each S1 company would have entered into a Fitness Agreement, because APRA would not have suffered damage equal to the total licence fee from that time. It would also be inappropriate, however, to calculate interest only from the end of the period for which Mr Mallet estimated each S1 company would have paid APRA a licence fee under a Fitness Licence; and that would be because each S1 company would have failed to have regularly paid licence fees from the beginning of the period. In those circumstances, I consider it would be appropriate to order that interest be paid in relation to the total licence fees Mr Mallet estimated for two years ending on 19 December 2025, being the day on which I will pronounce orders. I also consider that the interest rate should be 8%, which is slightly less than the average of the rates specified by Federal Court Practice Note GPN-INT.
4. I have calculated interest as follows as follows:

1. Subsection 115(4) of the Act provides as follows:

Where, in an action under this section:

(a) an infringement of copyright is established; and

(b) the court is satisfied that it is proper to do so, having regard to:

(i) the flagrancy of the infringement; and

(ia) the need to deter similar infringements of copyright; and

(ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and

(ii) whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and

(iii) any benefit shown to have accrued to the defendant by reason of the infringement; and

(iv) all other relevant matters;

the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.

1. The principles concerning the assessment of additional damages under s 115(4) of the Act are conveniently set out by Yates J in Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3),[160] and it is unnecessary for me to repeat what his Honour said.
2. I am satisfied that substantial additional damages should be awarded. First, Mr Turner's authorisation of the Infringements was flagrant and, through Mr Turner, so was each of the S1 companies' conduct that constituted the Infringements. APRA first communicated with Mr Turner and, through him, with the relevant S1 company of which he was a director, in May 2022. APRA by itself and though its lawyers continued to communicate with Mr Turner in an attempt to secure his agreement for each of the S1 companies to enter into a licence agreement for the performance of musical (and associated literary) works at the relevant S1 premises. Mr Turner did not respond by contending, for example, that the S1 companies were not publicly performing music in premises or studios they operated; or that APRA had no right to licence the musical works that were being performed at the premises or studios. Mr Turner simply ignored APRA's and its lawyers' communications. Second, the extent of the flagrancy of the Infringements, and the flagrancy with which Mr Turner authorised those Infringements, are such that it is necessary to impose significant additional damages to deter others who may find themselves in the position of the S1 companies and Mr Turner from considering engaging in such flagrant infringing conduct.
3. APRA relies on additional matters it submits are relevant to the assessment of additional damages. These include Mr Turner's having deregistered three of the S1 companies; and the S1 companies having benefited from the Infringements. I do not propose to give any weight to these factors in assessing additional damages.
4. I propose to assess additional damages of $3,000 for each infringement each of the S1 respondents committed, as set out in Schedule 2 to these reasons. As for Mr Turner, he has authorised 25 separate infringements, 20 by the S1 respondents, and five by the S1 companies that are not S1 respondents. The additional damages Mr Turner should pay, therefore, are $3,000 for each infringement, which totals to an additional amount of $75,000.

1. I propose to make declarations, grant injunctions in the form to which I have referred, and enter judgment against each of the S1 respondents and Mr Turner for damages and additional damages pursuant to s 115(2) and s 115(4) of the Act.
2. APRA asked that it be heard on the question of costs. The only order I propose to make on costs, therefore, is that the parties have liberty to apply in relation to costs.

I certify that the preceding one hundred and seventy-two (172) numbered paragraphs and Schedules 1 and 2 are a true copy of the Reasons for Judgment of Judge Manousaridis.

Affidavit of R C Mallett, 30.05.2024, [103]; exhibit RCM-1, tab 37

Affidavit of R C Mallett, 30.05.2024, [103]; Exhibit RCM-1, tab 37

Break Up With Your Girlfriend I'm Bored[161]

[1] See also the observations of Gibbs J in Hughes v National Trustees, Executors and Agency Company of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134, at page 153: "However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows."

[3] Sawkins v Hyperion Records [2005] EWCA Civ 565, at [53] (Mummery LJ).

[4] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(3)] (Gordon J).

[5] IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, at [33]. See also Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479, at page 511, where Dixon J said: "[S]ome original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material."

[6] Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49, at page 55. Isaacs J was considering the Copyright Act 1911 (Cth). See also Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(6)] (Gordon J).

[7] Which was made pursuant to s 184 of the Act.

[8] The expressions "Berne Convention country", "Rome Convention country", "UCC country", "WCT country", "WPPT country" and "WTO country" are each defined in the Copyright (International Protection) Regulations 1969 (Cth).

[9] Re Australasian Performing Right Association Limited v Commonwealth Bank of Australia [1992] FCA 609, at [55]- [57].

[10] Real Estate Took Box Pty Ltd v Campaigntrack Pty Ltd [2023] HCA 38.

[11] Real Estate Took Box Pty Ltd v Campaigntrack Pty Ltd [2023] HCA 38, at [63-[65] (footnotes omitted).

[12] University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, at pages 12-13.

[13] Affidavit R C Mallett, [9] CB80.

[14] Affidavit R C Mallett, [15] CB81.

[15] Re Applications by Australasian Performing Rights Association Ltd [1999] ACompT 3, at [2], [3].

[16] Re Applications by Australasian Performing Rights Association Ltd [1999] ACompT 3, at [57].

[17] Re Application by Australasian Performing Right Association Ltd [1999] ACompT 3, at [50]-[51].

[18] A copy of APRA's articles of association is at CB1210.

[19] Affidavit R C Mallett, [13], exhibit RCM-1, tab 2 CB1007.

[21] Affidavit R C Mallett, [27]. In his affidavit Mallett refers to GEMA and STIM having assigned the right to perform. The agreements, however, refer to the granting of exclusive rights to authorise public performances of musical works.

[23] Affidavit R C Mallett, [21]; Exhibit RCM-1, tab 3.

[24] Affidavit R C Mallett, [22]; Exhibit RCM-1, tab 3.

[29] Affidavit R C Mallett, [72]; Exhibit RCM-1, tab 29.

[30] Affidavit R C Mallett, [72]; Exhibit RCM-1, tab 30.

[31] Affidavit R C Mallett, [76]; Exhibit RCM-1, tabs 31, 32, 33, and 34.

[53] These are exhibits to the affidavit of A J Doctor 30.05.2024, [5].

[70] Affidavit of S S Patel 21.03.2025, [7].

[71] Affidavit of S S Patel 21.03.2025, [8].

[72] Affidavit of R C Mallett, 30.05.2024, [96]-[102].

[73] Affidavit Z D Duczynski 24.05.2024, [4].

[74] Affidavit Z D Duczynski 24.05.2024, [4]-[11]; annexure ZD-1; Exhibit ZD-1.

[76] Contained in File 5 of exhibit AJD-1: see Affidavit R C Mallett 30.05.2024, [104].

[77] Contained in File 17 of exhibit AJD-1: see Affidavit R C Mallett, [106].

[78] Affidavit of R C Mallett, 30.05.2024, [85]; exhibit RMC-1, tab 35.

[79] Affidavit of R C Mallett, 30.05.2024, [87].

[80] Affidavit of R C Mallett, 30.05.2024, [103]; exhibit RMC-1, tab 37.

[81] Affidavit D S Faccin 23.05.2024, [4].

[82] Affidavit D S Faccin 23.05.2024, [9]; Annexure DF-1 CB169.

[90] Contained in File 21 of exhibit AJD-1: see Affidavit R C Mallett, [114].

[91] Contained in File 21 of exhibit AJD-1: see Affidavit R C Mallett, [116].

[92] Affidavit of R C Mallett, 30.05.2024, [90]; exhibit RCM-1, tab 35 (incorrectly identified as "tab 38").

[93] Affidavit of R C Mallett, 30.05.2024, [89].

[94] Affidavit of R C Mallett, 30.05.2024, [113].

[95] Affidavit of R C Mallett, 30.05.2024, [114], [116].

[96] Affidavit D K Quested 22.05.2024, [4].

[97] Affidavit D K Quested 22.05.2024, [4]-[10]; annexure DQ-1; Exhibit DQ-1.

[101] Contained in File 27 of exhibit AJD-1: see Affidavit R C Mallett, [137].

[102] Contained in File 27 of exhibit AJD-1: see Affidavit R C Mallett, [139].

[103] Affidavit of R C Mallett, 30.05.2024, [95]; exhibit RCM-1, tab 35.

[104] Affidavit of R C Mallett, 30.05.2024, [94].

[105] Affidavit of R C Mallett, 30.05.2024, [136]; exhibit RCM-1, tab 57.

[106] Affidavit of R C Mallett, 30.05.2024, [137], [139].

[107] Affidavit D S Faccin 23.05.2024, [13]-[19].

[108] Affidavit D S Faccin 23.05.2024, [22]; annexure DF-3.

[110] Contained in File 19 of exhibit AJD-1: see Affidavit R C Mallett, [119].

[111] Contained in File 7 of exhibit AJD-1: see Affidavit R C Mallett, [121].

[112] Affidavit of R C Mallett, 30.05.2024, [92]; exhibit RCM-1, tab 36.

[113] Affidavit of R C Mallett, 30.05.2024, [91].

[114] Affidavit of R C Mallett, 30.05.2024, [136]; exhibit RCM-1, tab 57.

[115] Affidavit of R C Mallett, 30.05.2024, [137], [139]

[116] Contained in File 22 of exhibit AJD-1: see Affidavit R C Mallett, [109].

[117] Contained in File 22 of exhibit AJD-1: see Affidavit R C Mallett, [111]

[118] Affidavit of R C Mallett, 30.05.2024, [108]; exhibit RMC-1, tab 40.

[119] Affidavit of R C Mallett, 30.05.2024, [109], [111].

[120] Contained in File 23 of exhibit AJD-1: see Affidavit R C Mallett, [124].

[121] Affidavit of R C Mallett, 30.05.2024, [123]; exhibit RMC-1, tab 49.

[122] Affidavit of R C Mallett, 30.05.2024, [124].

[123] Contained in File 24 of exhibit AJD-1: see Affidavit R C Mallett, [127].

[124] Contained in File 24 of exhibit AJD-1: see Affidavit R C Mallett, [129].

[125] Affidavit of R C Mallett, 30.05.2024, [126]; exhibit RMC-1, tab 51.

[126] Affidavit of R C Mallett, 30.05.2024, [127], [129].

[127] Contained in File 25 of exhibit AJD-1: see Affidavit R C Mallett, [132].

[128] Contained in File 25 of exhibit AJD-1: see Affidavit R C Mallett, [134].

[129] Affidavit of R C Mallett, 30.05.2024, [131]; exhibit RMC-1, tab 54.

[130] Affidavit of R C Mallett, 30.05.2024, [132], [135].

[131] Affidavit of R C Mallett, 30.05.2024, [155], exhibit RCM-1, tab 66, CB1397.

[132] Affidavit of R C Mallett, 30.05.2024, [155], exhibit RCM-1, tab 66, CB1403.

[133] Affidavit of R C Mallett, 30.05.2024, [155], exhibit RCM-1, tab 66, CB1408; CB1413.

[134] Affidavit of R C Mallett, 30.05.2024, [156], exhibit RCM-1, tab 67, CB1426; CB1432; CB1437; CB1442; CB1444.

[135] Affidavit of R C Mallett, 30.05.2024, [157], exhibit RCM-1, tab 68.

[136] Affidavit of R C Mallett, 30.05.2024, [158], exhibit RCM-1, tab 69.

[137] Affidavit of R C Mallett, 30.05.2024, [159], exhibit RCM-1, tab 70.

[138] Affidavit of R C Mallett, 30.05.2024, [160], exhibit RCM-1, tab 71.

[139] Affidavit of R C Mallett, 30.05.2024, [157], exhibit RCM-1, tab 68, CB1464.

[140] Affidavit of R C Mallett, 30.05.2024, [157], exhibit RCM-1, tab 68, CB1464.

[141] Affidavit of R C Mallett, 30.05.2024, [157], exhibit RCM-1, tab 68, CB1480.

[142] Affidavit of R C Mallett, 30.05.2024, [157], exhibit RCM-1, tab 68, CB1497.

[143] Affidavit of R C Mallett, 30.05.2024, [157], exhibit RCM-1, tab 68, CB1497.

[144] Affidavit A J Doctor 30.05.2024, [4].

[145] Connor v Blacktown District Hospital [1971] 1 NSWLR 713, at page 721.

[147] Affidavit of R C Mallett, 30.05.2024, [30].

[148] Federal Circuit and Family Court of Australia Act 2021 (Cth), s 141.

[149] Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352 at [66]- [68]. Gordon J stated these principles in the context of an application for default judgment. Her Honour, however, applied authorities that contested cases.

[150] Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690, at [47].

[151] See, for example, Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22 at [178]- [181].

[152] Affidavit A J Doctor 27.02.2025, [11].

[153] Autodesk Australia Pty Ltd v Cheung [1990] FCA 121; (1990) 94 ALR 472.

[154] Autodesk Australia Pty Ltd v Cheung [1990] FCA 121; (1990) 94 ALR 472, at page 475.

[155] Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323, at page 336.

[156] Autodesk Australia Pty Ltd v Cheung [1990] FCA 121; (1990) 94 ALR 472, at page 475.

[157] Australasian Performing Rights Association v Grebo Trading Co Pty Ltd & Ors (1978) 23 ACTR 30, at page 31.

[158] Autodesk Australia Pty Ltd v Cheung [1990] FCA 121; (1990) 94 ALR 472, at pages 476-477.

[159] Affidavit of R C Mallett, 30.05.2024, [161]-[223]; exhibit RMC-1, tab 72; MFI 3.

[160] Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3) [2014] FCA 909 at [37]- [53].