We are excited to welcome new author John Leung to our Victorian Courts service!

John is a barrister at the Victorian Bar. He has a broad based commercial practice with a particular interest in professional negligence. Prior to coming to the Bar, John was associate to the Honourable Justice Macaulay of the Supreme Court of Victoria and a solicitor at Allens Arthur Robinson. John is joining our General Editor, Gerard Nash QC, to drive content enhancements to Victorian Courts.

In next month’s release, subscribers can expect to see John’s rewritten chapter on preliminary discovery (order 32 of the Supreme Court (General Civil Procedure) Rules 2005) – a fitting chapter to start with, in light of the recent buzz surrounding the landmark Dallas Buyers Club decision.

So what does it all mean?

The Dallas Buyers Club decision – here is what John has to say…

In what is a watershed moment in Australian internet, copyright and procedural law, on 7 April 2015, Justice Perram of the Federal Court handed down a judgment in Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 ordering six Australian internet service providers (ISPs) to provide the details of 4,726 individuals who allegedly used the ISPs to share (the whole or parts of) the film the Dallas Buyers Club online.

The judgment is most significant for its effect on the way in which copyright holders will be able to run infringement cases in Australia, which is and has been a “worldbeater” at internet piracy. Previously, it was not clear that copyright holders could obtain customer data from ISPs by means of preliminary discovery. This, no doubt proved an impediment for copyright holders seeking to enforce their rights in Australia.

However, in Dallas Buyers Club, Justice Perram required the ISPs to provide, by way of preliminary discovery, details of the holders of accounts that had allegedly been used to infringe copyright. This material is to be provided subject to the imposition of privacy obligations.  Further, his Honour required that the court approve any letter to be sent to account holders, in part to prevent the practice of “speculative invoicing” which has taken hold in the United States.

A second and potentially more far reaching consequence of the decision is that it may set out a blueprint by which prospective plaintiffs can obtain preliminary discovery from a party that holds relevant databases of personal information – whether from a provider of goods or services or some other kind of data aggregator. That said, the information sought by Dallas Buyers Club LLC was able to be identified with a high degree of specificity and it was information that the ISPs plainly possessed. In other circumstances there may be some doubt as to whether prospective plaintiffs will be able to specify the information they seek and substantiate that such material is likely to be held by the other party.  Nonetheless, the decision provides an example of how such applications may be brought in the future.

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