IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction
CIVIL ACTION NO. 0310 OF 2000
ass=MsoNormal align=center style="text-align: center; margimargin-top: 1; margin-bottom: 1">
Between :
FIJI VIDEO LIBRARY ASSOCI
Plaintiff
- and -
ATTORENERAL &
MINISTER OF JUSTICE
COMMISSIONER OF POLICE
SOUTH PACIFIC RECORDING LTD.
Defendants
Mr. K. Bulewa for the Plaintiff
Mr. S. Banuve for the 1st Defendant
Mr. K. Keteca for the 2nd Defendant
Mr. H. Nagin for the 3rd Defendant
JUDGMENT
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> On the 10th of August this Court granted on ral application of plaintiff’s counsel an interim injunctionction against the defendants restraining each of
them, their servants and agents, from entering or removing anything from shops belonging to members of the Plaintiff Association.
The injunction was granted until 15th August 10.00 a.m. and formal papers were ordered to be filed and served by fax and personally on the defendants by 4.00 p.m. on 12th August with liberty reserved to the defendants to apply on 24 hours notice.
On 14th August as ordered, the plaintiff filed papers seeking an extension of the injunction `for 3for 3 months to 15th November 2000'. The third defendant company (`SPR’) on the same day filed papers seeking the dissolution of the injunction. Both applications were listed for chamber argument and heard
together on the 15th August. I remind myself that the plaintiff Association at the inter partes hearing for extension bears the burden of satisfying the Court that the injunction should be extended.
It is convenient that I should refer briefly to the background to this application which has its genesis in the bringing into force
by Legal Notice No : 143 dated 24th November 1999, of the Copyright Act 1999 (`the Act’) and, in particular, of Section 30(2)(c) of the Act (which relates to copying of audio-visual works) which came into force on 1st July 2000.
Section 30(2)(c) of the Act in clear terms prohibits the unlicensed copying production of audio visual sual works which, despite its rather technical definition,
would include such popular items as cinematographic films and video tapes.
By its Originating Summons filed on 7th August, the Plaintiff Association seeks the following declarations :
`(a) that opy Cght ictt Act 199t 1999 was in contravention of sections 26, 29, 38 and 40 of the Constitution (Amendment) Act
1997, now superseded by sections 7, 10, 19 and 21 of the Fundamental Rignd Fr Decr00.
(b) &bsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &nbssp;&nnbsp;;&nbssp; Th ThatCopyright Act 1999 is fundamentally bad law beingbeing in contravention of section 44 of thof the Cone Constitustitution tion
(Amen(Amendment) Act 1997, and does not promote peace, order and good government of the nation as a whole.
ass=Level1 stylestyle="text-align: justify; text-indent: 0cm; margin-left: 0cm; margin-top: 1; margin-bottom: 1"> (c) &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbsp;;p;bssbspnn&nbssp;&nsp; n>Tha Copyright
Ac9 i999 i999 is funs fundamendamentallytally bad bad law blaw becausecause it e it creates situations of unlawful monopolistic
practices in contrion oexistaw, the Fair Fair Trad Trading Decree 1992.
(d) &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &&;&sppsp;bbnbspp;&nbbsp;
and the plaintiff Associaseeks an interim injunction pending the ruling or judgment of the Court.
There are before the Court the following affidavits :
(1) &bsp; &nbbp;&nnbsp; &nbbsp; Tpan>Three (ree (3) affidavits deposed by Solomoni Leweniqila who claims to be the Vice President of the Plaintiff Association ; and (2) nbsp; &nbbp;&nnbp;& &nbbsp; Apan>An affidavit from Ravindra Patel a director of `SPR’.
It appears from the plaintiff’s affidavits and annexures since about mid- March 1999 and as recent as 1212th July 2000 the Plaintiff Association has vigorously campaigned on behalf of its membership for the non-implementation of the Act and for an extended grace period to allow its members time to re-organise their businesses in order to fully comply with the Act with a minimum of disruption. Suffice it to say that the authorities were unsympathetic and the Act duly came into force as gazetted.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Matters were finally brought to a head (so to speak) with xecution by the police of a search warrant on the Nadi premises of Kanti’s Video Club, a member of the plaintiff Association on the morning of 10th August.
The relevant search warrant under Section 103 of the Criminal Procedure Code was issuedhe Nadi Magistrate CourtCourt on the basis of information laid by a named police corporal `that there is reasonable ground for suspecting that certain property namely pirate video tapes and recording apparatus in respect
of which an offence has been committed (or which is necessary to the conduct of an investigation into an offence) is in a certain shop, dwelling house and premises at Main Street, Nadi Town of Arun Kumar ...’
The warrant also authorised `the presence of the owners, agent arvant of the company SPR’ during its execution.
At the hearing of the chamber application plaintiff’s counsel by way of a preliminary argument urged the not to hear the defendantsdants
who were alleged to have contemptuously ignored the Court’s ex-parte injunction which it is claimed was communicated by fax to the defendants and also orally to the police officers who were executing
the search warrant. On hearing counsel for the 2nd and 3rd defendants I was satisfied however that all counsels ought to be heard on the substantive application.
Mr. Bulewa then proceeded to argue the extension application. He began by replying to an assertion in Ravindra Patel’s affidavit that the plaintiff Association was not a registered body and was therefore `not entitled to bring this action’ .
The general rule in this regard is conveniently summarised in para.279 of Vol.6 of Halsbury's Laws of England (4th edn) which reads :
`An unincorporated members club, not being a partnership or legal entity, cannot sue or be sued in the club name, nor can the secretary
or other officer of such club sue or be sued on behalf of the club, even if the rules purport to give him power to sue and provide
for his being sued, unless this is permitted by statute.’
Mr. Bulewa`general rule’
, argued that this defect in the Summonsmmons is a procedural matter that is not fatal to the issuance of the proceedings and could
be easily rectified or regularised either by the formal registration of the plaintiff Association (under what particular statutory
provision is not entirely clear) or reconstituting the action as a representative one under Or.15 r.14 of the High Court Rules 1988.
In this latter regard the above paragraph cited from Halsbury> plainly recognises :
`Where numerous persons have the same interest in the proceedings, the proceedings can be begun and, unless the Court orders otherwise,
continued by or against one or more of the club members as
representatives of the other members or some of them.’
Mr. Bulewa further relied upon the judgment of the majority in the
Queensland Court of Appeal in M & M Civil Engineering Pty. Ltd. v. SCTC (1987) 2 Qd R.401 wherein it was
`Held : ... that the members of the management committee of the respondent were the only cont applicants but the descrdescription of the
respondent in its application by its club name was a procedural irregularity capable of amendment and not a fundamental or incurable
flaw in the application.’
Having carefully considered the above judgment I am satisfied that it is easily dguishable on the facts from the present case. In
the b>M &M case there was a pre-existing partly performed contractual relationship between the parties prior to the action and three members
of the club formally applied for and were appointed representatives of the club during the course of the proceedings albeit sometime after the particular order being challenged was made. Neither of these features is present in this case.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> I also cannot ignore the fact that the plaintiff Association has had an official letterhead wht has used in its various cous correspondence
since March 1999 (i.e. over 12 months) and yet is unable to produce to the Court a certificate of registration or incorporation or any evidence that it is in the process of obtaining the same nor has leave been sought by anyone under Or.15 r.14(3) to commence these proceedings in a representative capacity.
The absence of legal personality in this case has particular significance having regard to the nature of the declarations sought and,
more especially, in the present application, to the ability of the plaintiff Association to furnish an enforceable undertaking in
damages as is the almost universal practice where an interlocutory injunction is granted.
It is also unclear how the mere bringing into force of the Act specially ts of the plaintiff Association adversely as to render its its membership capable of swung.
In the circumstances I uphold the third defendant’s submission that the piff Association has no locus standi to issue ssue the Originating Summons and a fortiori to apply for interlocutory relief.
If however I should be wrong in so holding on this preliminary issue, then I turn to consider the application to extend the injunction.
In doing so I am guided by the principles enunciated in the leading case of : American Cyanamid Co. v. Ethicon [1975] UKHL 1; (1975) 1 ALL E.R. 504. In this regard the threshold requirement which the plaintiff Association must demonstrate or establish is that it has an arguable
case `that there is a serious question(s) to be tried’.
I am also mindful of the refinements to the Cyanimid/b> principles that were enunciated in the decision of the the House of Lords in Factortame Ltd. v. Secretary of State (No.2) (1990) UKHL 13; (1991) 1 ALL E.R. 70 in which the court was faced with an application for the grant of injunction where legislation was being challenged and the Court
Held (so far as relevant for present purposes) :
`In determining whether an interlocutory injunction should bnted in a case where the public authority was seeking to enforce the law
against some persoperson and ... that person sought an interim injunction to restrain the action of the authority (on the ground
that the relevant law was, for some reason, invalid) the court should exercise its discretion according to the balance of convenience
since it was doubtful whether an adequate remedy in damages on either side would be available. In doing so the court should take
into account, in particular, the importance of upholding the law of the land in the public interest, bearing in mind the need for
stability in society and the duty placed on certain authorities to enforce the law in the public interest. However, the Court should
not restrain an apparently authentic law unless it was satisfied, having regard to all the circumstances, that the challenge to its
validity was prima facie so firmly based as to justify such an exceptional course being taken.’
In seeking to fulfil this `threshold requirement’ and justify the extension os `exceptional courseourse’, Mr. Bulewa advanced three (3) arguments as follows : Firstly, he argued that there was irregularity in the gazette notice bringing the Copyright Act and Section 30(2)(c) into force in so far as, the decision nominating the respective commencement dates was taken in breach of the rules of natural justice
and presumably, the plaintiff Association’s legitimate expectations in that regard.
In particular, counsel drew the Court’s attention to numerous letters and submissient by the plaintiff Association to various government
offi officials, none of which, it is said, was ever replied to. In this respect there are three (3) relevant letters and one (1) undated submission which collectively seek a deferment of the commencement date of the Act and, in particular, `... a three (3) year moratorium be placed on those Sections of the Copyright Act pertaining to only foreign video and audio tapes copies of which are already in the possession of members (of the plaintiff Association)’.
Before dealing with the nature of the power being exercised by the Minister in nominating a commencement for the Copyright Act it should be pointed out that, despite the absence of any acknowledgment of the plaintiff Association’s letters and submission, there
can be no doubting that the appointed commencement date for audio-visual works i.e. 1.7.2000 is significantly different from that which applied to other works protected under the Act i.e. 1.1.2000. To put it another way the plaintiff Association’s letters and submissions although not acknowledged in writing (the entitlement
to which is of considerable doubt), were nevertheless, sufficient to persuade the relevant Minister to agree to defer the commencement date for audio visual works (which was of primary concern to the plaintiff Association) for a
further six (6) months in addition to the eight (8) months that had elapsed since the Act received the presidential assent.
I turn next to consider the nature of ower that was exercised by the Minister in gazetting the commencement dates. The powe power is conferred by Section 1(2) & (3) of the Copyright Act in the following terms :
`(2) &nnbsp; Act commences ones ones on a date or dates appointed by the Minister by notice in the Gazette ;
b>
& p;   &nbp; &nnbsp; p;&nsp; &nsp; The Mer sty appointpoint different dates for the commencement of different provisions.’
Furthermore the power was exercised by way of a Commencement Notice signethe Minister and pubd published in the Fiji Islands Gazette, the body of which reads :
p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `In exercise of the powers conferred on me by Section 1(3) of the Cght Act 1999, I appoint 1st January 2000 as the the date for the commencement of the Act, except that Section 30(2)(c), (which relates to copying of audio-visual
works) commences on 1st July 2000.’
In Halsburys Laws of England (4th the learned editors in Vol.1 para.4 conveninveniently identified the various organs of government as comprising : `... the legislature, the executive or administration and the judiciary’ and, after identifying the various functions of government as : `legislative ; executive or administrative ; judicial and ministerial’, the learned editors state : `Broadly, legislative acts entail the formulation, making and promulgation of new rules of law which are of general application’.
There is not the slightest doubt in my mind that the Minister in gazetting the commencement dates of the Act which is of general application, was performing a `legislative act’ albeit one delegated to him in the Act itself. In so doing it is trite that `there is no right to be heard before the making of legislation whether primary or delegated, unless it is provided by statute’ [(see : Administrative Law (4th edn.) by Wade at p.482)]. In short, Parliament does not have to act judicially.
This is clearly illustrated by the case of Bates v. Lord Hailsham of St. Marylebone (1972) 1 W.L.R. 1373 where the Lord Chancellor by Order under the Solicitors Act 1957 (U.K.) abolished the basis of scale fees for conveyancing transactions that had been in use for nearly 90 years and affected a profession of about 26,000 solicitors spread all over England, and where the plaintiff, a member of an association of solicitors which was not consulted, sought a declaration and an injunction
in order to postpone the making of the Order and to allow wider consultation. Megarry J. in refusing the declaration and injunction said at p.1378 :
`Let me accept that in the sphere of the so-called quasicial the rules of natural justice run, and that in the administrative or executive
field thld there is a general duty of fairness. Nevertheless those considerations do not seem to me to affect the process of legislation,
whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted
in the process of enacting that legislation ; and yet they have no remedy ... I do not know of any implied right to be consulted
or make objections, or any principle upon which the courts could enjoin the legislative process at the suit of those who contend
that insufficient time for consultation and consideration has been given.’
Needless to say `the mere fact that the plaintiffs requested a hearing and the rio give evidence, cannot pert per se impose any legal obligation upon
(the Minister), and cannot convert an otherwise administrative (or legislative) act into a judicial one’ per Gresson J. in Low v. Earthquake & War Damage Commission (1959) N.Z.L.R. 1198 at p.1208. A fortiori where the particular act complained of is the ministerial act of bringing into force an Act of Parliament.
Before leaving this submission however, some mention should be about the form of proceedings adopted by the plaintiff Asff Association
to challenge the Minister’s decision, namely, by way of Originating Summons seeking declarations and an injunction, which State Counsel says ought to have been brought by way of an application for judicial
review.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Although counsel for the plaintiff Association sought to dismiss this objection as a mere procedural technicality, I cannot agree.
In the leading case of O’Rev. Mackman [1983] UKHL 1; (1982) 3 W.L.R. 1096 where the appellant sought to challenge deci decisions of the prison board of visitors made in November & December 1976 by way of an Originating Summons issued in 1980 claiming a declaration, the House of Lords in dismissing the appeal :
p class=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> `Held : that since all the remedies for the infringement of rights protected by public law cbe obtained on an applicatiication for judicial
review, as a general rule it would be contrary to public policy and an abuse of the process of the Court for a plaintiff complaining
of a public authority’s infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in
each case the only claim made by the plaintiff was for a declaration that the board of visitors’ adjudication against the plaintiff
was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded
to statutory tribunals.’
In the present case the Minister’s decision was gazetted in ber 1999 and no less than eight (8) months have have expired since then and a whole month since Section 30(2)(c) of the Act came into force. Clearly this latter decision was not something of which the plaintiff Association did not have any prior notice or
warning and there can be no question of their being taken by surprise. No explanation has been given for the delay in issuing the
present proceedings for remedies that, by their very nature, are discretionary, or, for the particular form of proceedings adopted.
Lord Diplock in the Mackman case said at p.1105 :
`... as compared with an action for a declaration commenced by writ or Originatummons, the procedure under Order 53 ... provided for
the .the ... decision-making statutory tribunal ... protection against claims which it was not in the public interest for courts
of justice to entertain ...’
and at p.1106 :
`The public interest in good administration requires that public authorities and third parties shoot be kept in suspense as t as to
the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer than is
absolutely necessary in fairness to the person affected by the decision.’
In the present case the plaintiff Associanot only knowingly allowed Section 30(2)(c) of the Act to come into force wite without challenging it for a whole month, in addition, they now seek to have it `kept in suspense’ for a further `3 months ... or such other period as the Court deems just’.
On this score alone the plaintiff Association’s Originating Summons must be considered an abuse of process and ought to be struck out for want of proper form. This ground is ex facie unarguable and is accordingly struck out.
Mr. Bulewa’s second art is that in the absence of a functioning Copyright Trib Tribunal the fundamental rights of the plaintiff Association under the 1997 Constitution to have access to `an independent and impartial tribunal’ are being breached and accordingly the authorities ought to be restrained from enforcing the Act so long as the Copyright Tribunal remains unmanned and inoperative.
Counsel for the first defendant whilst accepting that no appointments have as yet been made to the Copyright Tribunal, nevertheless submits that the remedy (if any) lies not in the indefinite suspension of the Act in its entirety, but, in a Writ of Mandamus directed to the appropriate authority to appoint the members of the Copyright Tribunal.
In any event Counsel for `SP> argues that the Copyright Tribunal is limited in its functions under the Act to receiving, considering and determining proposed licensing schemes and existing licensing arrangements to ensure compliance with
the Act and, in this case, no relevant licensing scheme proposed or extant is being challenged by the plaintiff Association and accordingly,
there is no civil dispute concerning the same that could be referred to the Copyright Tribunal even if it was functioning. Certainly no declaration has been sought in that regard and no `civil dispute’ has been properly raised in the plaintiff’s affidavits in support.
I am satisfied that defence counsel’s submissions are sound in both respects and are accordingly upheld. Needless to say the rather
limited and non-exclusive nature of the Copyright Tribunal weighs heavily against any suggested breach of the plaintiff Association’s constitutional or fundamental rights in this regard.
The third limb of Mr. Bulewa’s argument complains about the manner in which the police are conductearches and seizures at thet the business premises of the plaintiff
Association’s members which counsel characterised as being `indiscriminate fishing expeditions’. This, it is claimed, is evidenced by the undisputed evidence that a large number of the video tapes seized from Kanti’s Video Club, are supported by genuine retail invoices of `SPR’ (not provided to the Court).
In this latter regard counsel for `SPR’, without sighting the particular invoices and in the absence of affidavit evidence, highlighted the obvious, when he said, that the
mere existence of a legitimate invoice does not conclusively negate or disprove the commission of an offence of unlawful copying
of copyright material since a legitimately purchased copy may itself be illegally duplicated.
Counsel for the 2nd defendant who was affected by this submission opposed it on two (2) grounds. Firstly, counsel argued tued that the injunction was an unwarranted interference with police investigations and enquiries
into the alleged commission of offences against the Act and had the potential of enabling illegal activities to continue unabated and whatsmore, with the apparent sanction of the Courts, and counsel rhetorically asks, if the members of the plaintiff Association were/are
in fact operating their businesses entirely within the law, then there would be no reason for them either to fear police investigations
or to seek to prevent searches of their premises. Indeed, police enquiries may well establish the legitimacy of their operations.
Furthermore State counsel submits no injunction can be grantainst the State [see : Crystal Ctal Clear Video v. A.G. and Commissioner of Police Suva Civil Action No. 331 of 1988 (unreported)] and the provisions of Section 15 of the Crown Proceedings Act (Cap.24) which reads (as far as relevant) :
p class=MsoNormal stal style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-right: 36.0pt; margin-top: 1;
margin-bottom: 1"> `(1) &nnbsp;ny avil ivil proceeroceedings by or against the Crown the court shall, subject to the provisions of this Act, have
power to make all such orders as it hasr to in prings between subjects, and otherwise tose to give give such such appropriate relief
as the case may require :
Provided that -
(a) &nnsp;&&nsp;;&nspp;&nssp; where in any proceedings against the Crown any such relief is sought as might in proceedings between sub be gd by f injon orific rmance,
the court shall hall not gnot grant rant an inan injunctjunction oion or make an order for specific performance, but may in lieu
thereof make an order declaratory of the rights of the parties.’
(2) &nbssp;&nnbsp; nbsp;nbsp; &nbss;&nbbs;&nnbsp; &nsp; The Couat shot in a in any civil proceedings grant njunction ... against any officer of the Crown if the effect of granting the injunction
...n ... would be to give any relief against the Crown whichd not been obtained ined in proc proceedings against the Crown.’
Faced with the above provisions Mr. Bulewa valiantly sought to rely on the decision of the Houseords in Factortatortame (No.2) op.cit where the Court granted an interlocutory injunction against the Secretary of State after having obtained a ruling of the European Court of Justice to the effect that a national court was required to set aside a rule of national law which it considered was the sole obstacle preventing
it from granting interim relief in a case before that court concerning community law.
That decision however, is so plainly distinguishable from the present case that it is only necessary fer to the judgment of Lord Bridge of Harwick where his lordship explains the paramountcy of Community law over national (U.K.) law (ibid at p.107/108) :
`If the supremacy within the European Community of Community law over the national law of memtates was not always inherenherent in
the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined
the Community. Thus whatever limitation of its sovereignty Parliament accepted when it enacted the European Community Act 1972 was
entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when
delivering final judgment, to over-ride any rule of national law found to be in conflict with any directly enforceable rule of Community
law.’
There is in this case no jurisprudence or enactment which requires this court to ignore or over-ride the clear tory prohibition expressed
ssed in Section 15 of the Crown Proceedings Act either as a final or as an interim measure.
In my view the correct position ihoritatively declared in the judgment of the House of Lords in Factortame Ltd. Ltd. v. Secretary of State for Transport [1989] UKHL 1; (1989) 2 ALL E.R. 692 where it was :
`Held - (1) The court had no power (in English law)ake an order postponing theg the coming into force of a statute pending a reference to the European Court to determine its validity ;
(2) Moreover, the court had no power to grant an interim injunction against the Crown in judicial review prongs because injunctions
hads had never been available at common law in proceedings on the Crown side and that position has been effectively preserved by
SS.21(2) and 23(2)(b) of the Crown Proceedings Act 1947 (which are in identical terms to our Sections 15(1) & (2) of the Crown Proceedings Act Cap.24).’
This third limb of Mr. Bulewa’s argument is without merit and is accordingly rejected.
Having said that I accept that both the 1997 Constitution as well as the Fundamental Rights and Freedoms Decree 2000 might be considered supreme or paramount enactments that require the courts to declare that any other legislation which contravenes
or is inconsistent with their provisions `is invalid to the extent of the inconsistency’ but the burden of establishing such inconsistency is a heavy one not lightly to be inferred in the face of the well established presumption
of validity of legislation.
As was said by Lord Diplock in F. Hoffman - La Roche v. Secretary of State (1974) 2 ALL E.R. 1128 at p.1153 :
`The jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings
inter partes ... brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi
to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has
been upheld by a judgment of the court, the validity of the statutory instrument and the legality of the acts done pursuant to the
law declared by it, are presumed.’
In the present case not only is there considerable doubt as to the legal status of the plaintiff Association but there is also considerable
doubt about its `locus standi’ in terms of the Act which was plainly enacted to protect an owner’s copyright in his original work. Needless to say the unlicensed or unauthorised copying
and hiring out of copyright- protected materials has always been an offence in this country ever since colonial times [see : Robert Tweedle McCahill v. R. F.C.A Cr.App.No. 96 of 1982 (unreported)] and has merely been continued under the present Copyright Act.
This is not a case of an Act creating new offences or taking away long established common law rights previously enjoyed by the plaintiff Association’s members - No ! the Act as its long title suggests merely consolidated what has always been the law of this country.
As was said by Lord Goff in the Factortame Ltd. (No.2) case when considering the balance of convenience in a case which challenged the validity of subsidiary legislation (op.cit at p.119) :
`... particular stress should be placed on the importance of upholding the law of the land, in theic interest, bearing in minn mind
the need for stability in our society, and the duty placed on certain authorities to enforce the law in the public interest. This
is of itself an important factor to be weighed in the balance when assessing the balance of convenience. So if a public authority
seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity
of that law, matters of considerable weight has to be put into the balance to outweigh the desirability of enforcing, in the public
interest what is on its face the law, and so ... to render it just or convenient to restrain the authority for the time being from
enforcing the law.’
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In this latter regard Mr. Bulewa submitted that the enforcement of the Act, alidity of which is being cing challenged, threatens the livelihood and the continued viability and existence of the members of
the plaintiff Association and their numerous employees, and that is a sufficient countervailing factor `to outweigh the desirability of enforcing (the Copyright Act)’. I cannot agree.
It is difficult to understand how ? the enforcement of the Act couldibly threaten the livelihood of the members of the plaintifintiff Association when such enforcement actions are solely directed
at the detection, investigation and prosecution of criminal offences.
It needs hardly be said that no one, not even the members of the plaintiff Association, has a rio break the law in order toer to earn
a living and the Courts will not and cannot be seen to condone such illegal activities however beneficial to some members of the
community such acts might be.
I am satisfied that `the status quo (qua offences) prior to 1.7.2000'h is urged upon the Court burt by Mr. Bulewa, has not been altered by the Act, and accordingly the balance of convenience in this case clearly favours the enforcement of the Act.
For the foregoing reasons the plaintiff Association’s application to extend and nue the ex-parte injunction granted to it on 1010th August 2000 is refused and the injunction is accordingly dissolved forthwith.
D.V. Fatiaki
JUDGE
At Suva,
30th August, 2000.
HBC0310D.00S
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