EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited

REASONS FOR JUDGMENT 1 The applicants, EMI Songs Australia Pty Limited, EMI Music Publishing Australia Pty Limited and Mr Colin Hay (together the Applicants), seek leave to appeal from orders made on 17 March 2010, in proceeding NSD 145 of 2008. Leave is required because, when made, the orders were interlocutory. 2 In proceeding NSD 145 of 2008, Larrikin Music Publishing Pty Limited (Larrikin) claimed relief arising from alleged infringement of copyright on the part of various parties, including the Applicants and Mr Ronald Strykert. Orders were made for substituted service of the originating process on Mr Strykert, who did not participate in any way in the proceeding at first instance. Larrikin has been partially successful and orders have been made against Mr Strykert as well as against the Applicants. If leave to appeal is granted, and the appeal is upheld, that would be for the benefit of Mr Strykert as well as for the benefit of the Applicants. 3 In the application for leave to appeal, Mr Strykert is named as a respondent. However, Mr Stykert has not has not been served with the application for leave. The Applicants have therefore applied for orders under Order 7 Rule 10, which provides that where, for any reason, it is impractical to serve a document in the manner set out in the Rules, but steps have been taken to bring the document to the notice of the person to be served, the Court may order that the document be taken to have been served on that person on a date specified in the order. 4 Attempts have been made to bring the fact of the application for leave to appeal to Mr Strykert's attention. Those steps are outlined in an affidavit of Tanya Gurnett affirmed on 9 August 2010. 5 On 23 April 2010, Ms Gurnett gave instructions for a copy of the relevant documents to be delivered to Mr Strykert care of Music Royalty Consulting Inc in Los Angeles, USA. That company represents music artists and has represented Mr Strykert in the past. Ms Gurnett received an email response on 1 May 2010 indicating that Mr Strykert had left Music Royalty Consulting Inc some 8 months previously. The email response suggested alternative steps. 6 Searches to determine where Mr Strykert may be residing in the United States suggested an address in Montana. On 5 May 2010, Ms Gurnett gave instructions to attempt to deliver the relevant documents to Mr Strykert at that address. However, on 21 May 2010, Ms Gurnett was informed by email that Mr Strykert was no longer living at the address in Montana. 7 On 21 July 2010, Ms Gurnett sent an email, to an email address used by Mr Strykert in 2007, attaching copies of the relevant documents. Ms Gurnett received a response indicating that the email could not be delivered. 8 On 5 August 2010, Ms Gurnett was informed that further searches had located an address for Mr Strykert in Los Angeles. However, it was not possible to deliver the relevant documents to that address. 9 A previous email from Mr Strykert stated that Mr Strykert had received information concerning Larrikin's claims from his accountant, Martin Jurblum. Ms Gurnett has been unable to locate any person by that name despite searches of appropriate databases. Mr Strykert's email also referred to a United States telephone number. On 7 August 2010, Ms Gurnett dialled that number several times and heard an automated message that the wireless customer was not available. In all of the circumstances, it is appropriate to order that the documents referred to in Ms Gurnett's affidavit are to be taken to have been served on Mr Strykert on 7 August 2010. 10 Leave to appeal is not opposed by Larrikin. The orders from which leave to appeal is sought are determinative of rights as between the Applicants and Larrikin. In the circumstances, leave to appeal from the orders of 17 March 2010 should be granted to the Applicants. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Jagot and Nicholas.