9. An account be taken of the profits made by the respondent as a result of the infringements referred to in declaration 1 above, and an assessment of the quantum of the interest thereon pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth).
10. Unless the parties agree on the quantum of profits and interest referred to in order 9 above, the proceeding be listed before Nicholas J on a date to be fixed in accordance with order 15(d) for further directions.
11. The respondent pay the applicants' costs in the proceeding to date (except those costs specifically referable to the applicants' ACL claim pleaded in paragraphs 57–60 and 64(a) of the statement of claim), in an amount as agreed or as determined in accordance with the lump-sum costs procedure in the Court's costs practice note GPN-COSTS.
12. The respondent have leave to rely upon the affidavit of Christopher Anderson affirmed 10 May 2021 at the trial of the issues identified in paragraph 15 below subject to any proper objection.
13. The respondent's interlocutory application dated 7 May 2021 be otherwise dismissed.
14. The respondent pay the applicants' costs of his interlocutory application, to be included in the costs referred to in order 11 above.
THE COURT FURTHER DIRECTS THAT:
15. The proceeding be set down for trial on a date to be fixed, in relation to the remaining aspects of the applicants' claims; namely:
- (a) whether the respondent has engaged in actionable conduct under s 116AN(1) of the Copyright Act;
- (b) whether the respondent has engaged in actionable conduct under s 116AO(1) of the Copyright Act;
- (c) if the respondent has engaged in actionable conduct under either or both sections, what remedies should be granted under s 116AQ of the Act,
(together, "the TPM Matters"), and
- (d) unless the parties agree on the quantum of profits and interest, the taking of the account referred to in order 9 above.
16. The applicants are to file and serve any evidence in reply in relation to the TPM Matters on or before 4.00pm on 17 September 2021.
