46Groundless threats of legal proceedings

#### 46 Groundless threats of legal proceedings (1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of EL rights, then, whether or not the person making the threat is the owner of the EL rights, or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threat is unjustifiable, and an injunction against the continuance of the threat, and may recover such damages (if any) as the person aggrieved has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or would constitute, an infringement of EL rights. (2) The mere notification of the existence of any EL right does not constitute a threat of an action or proceeding within the meaning of this section. (3) Nothing in this section renders a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action under this section in respect of an act done in his or her professional capacity on behalf of a client. (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which the defendant would be entitled in a separate action in respect of an infringement by the plaintiff of the EL rights to which the threat relates and, in any such case, the provisions of this Act with respect to an action for infringement of EL rights apply, with the necessary changes made, in relation to the action.