Wilson v Australian Copyright Council S151/2002 [2002] HCATrans 567 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S151 of 2002

B e t w e e n -

PAUL WILSON

Applicant

and

AUSTRALIAN COPYRIGHT COUNCIL

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 12.31 PM

Copyright in the High Court of Australia

MR P. WILSON appeared in person.

GAUDRON J: I hold a certificate from the Registrar who has been informed by the solicitor for the respondent that it submits to the order of the Court save as to costs. Yes.

MR WILSON: Your Honours, I would like to just say that I am the owner of the copyright that is the subject matter, your Honour, and I attended the Australian Copyright Council on 30 August 2000 and there was three illegal copies taken of my works, your Honour, and - - -

KIRBY J: We have read the papers.

MR WILSON: Yes, sir.

KIRBY J: We know the nature of the case that you are bringing.

MR WILSON: So if I may just read out what I have here, your Honour. On 3/8/01, your Honour, before my court date on 13/8/01 of the appeal, I informed Justice Wilcox that the works had - whilst in the custody of the exhibit room, there was a breach of section 50 that was taken, your Honour, of my works and, your Honour, there are proceedings in the Federal Court regards that matter, your Honour.

KIRBY J: Yes, but you turned up at the Australian Copyright Council. You were making your complaint. You offered them copy of your copyrighted material. They took copies. You then made a big fuss. They then destroyed the copies.

MR WILSON: No.

KIRBY J: You say they still breached your copyright, but they say, "He was making a complaint to us and we thought we would take a copy, but when he didn't want it we destroyed it and we had an implied licence, even if we didn't have express authority, to take the copy that we did and anyway, he hasn't suffered any damage".

MR WILSON: Your Honour, they did not have any permission in the first time.

KIRBY J: They did not have express permission, but if you go to people and ask them to do things they will normally - - -

MR WILSON: Well, your Honour - if that was the case, your Honour, they would have taken one copy, your Honour. They took two. They did not destroy them, your Honour. If your Honour just lets me read this I can - it will explain it to yourself if you have read all the information, your Honour.

The Full Court was informed, your Honour, that we were both relying on incorrect transcripts, your Honour, that have been materially changed. It is shown up in the application - in the supplementary book. There is page 142, 143 and 144 of 20/3/01, your Honour. The transcripts do show up that also there is page 144 and 142 dated 30/3/01, your Honour, and I was not at court then, your Honour, and both transcripts were picked up at different days, your Honour. So the transcripts have been materially changed.

The Full Court was also informed, your Honour, of - there is an exhibit A13. It had been changed and it had been swapped for a clearer version, your Honour. I had been trying to obtain some information off the Copyright Council and the courts and other things, your Honour, but all I have is that the exhibit A13 was changed, your Honour.

The Full Court was also informed, your Honour, that there was a letter dated 21/9/2000 handed to Mr Banki at his office, not at the Australian Copyright Council office, your Honour. I informed Justice Emmett on 2/3/01 that there was that letter that was going to be brought into evidence, your Honour, and it was handed up on 20/3 at A10 instead of the correct letter that was addressed to Mr Banki. It was at A10 and I handed it up with, "I said I've got that here".

I also attended six long call-overs, your Honour, till 2/3/01. That was the date before the hearing was made and right up to the moment till I finally revealed my trump card, my trump card in the second letter that was addressed to Mr Banki which is, as I said, 21/9/2000, when at that time Justice Emmett yelled twice, very, very loudly at the perpetrators, Baulch and Whiting, that were behind me sitting up in the court, your Honour, and after that immediately the judge set the date for 20/3/02 for the hearing.

Your Honour, I would like to take you to page 18, or page 13 of the justice's decision and I will take you down to No 48 which is the last judgment that the justice gives, your Honour, and regarding section 48 of his Honour's reasons, your Honour, there was not one - there was not two, your Honour, but there was three unauthorised copies taken without permission.

KIRBY J: Yes, well he finds that the only copies made were the two copies. He says that he accepts that you genuinely believe you "had a cause for complaint", but he "does not consider that the evidence justifies" that conclusion and he finds. Judges have to make findings.

MR WILSON: Yes, sir.

KIRBY J: They have to resolve issues of dispute and he finds only two copies were made and that they:

were given to Mr Wilson, and that Mr Wilson went away with the only copies that were made on that day.

MR WILSON: That is not correct, your Honour.

KIRBY J: Well, you say it is not correct, but that is what the judge - - -

MR WILSON: Yes, well I am just about - I am trying to explain it to your Honour. There were not one, not two, but there were three copies of my works taken by the Council. There is no good reason to have taken any of the copies, your Honour. They were written from the very top of the page to the very bottom of the page from edge to edge. There is no reason - if it was photocopied, your Honour, it does not give a good photocopy.

KIRBY J: It may not.

MR WILSON: I did not need a photocopy. I never asked for a photocopy. The Copyright Council went ahead and they took copies of their own volition, your Honour, not of mine.

KIRBY J: We live in a world of bureaucracy and it is usual when you come to official bodies that they take copies and it is often very useful to do that because people later come along and make all sorts of allegations.

MR WILSON: Your Honour, I never spoke to anybody. I spoke to somebody on the phone and they said to me to come down there. I came down there. I was downstairs. They took the copy upstairs. I never told them to make a copy. They then bought the copies down and if - your Honour, please let me go on because you said to me that copies were destroyed. They were not destroyed, your Honour.

KIRBY J: Well, they say here - his Honour finds they gave you the two copies that were taken.

MR WILSON: Might I just go on, your Honour. It says here especially - I would not have them take a copy of it when I was not there. They took them whilst I was - while they were upstairs, your Honour.

KIRBY J: Why did you not keep it in a locked valise?

MR WILSON: The people in the Copyright Council that morning told me to come down and bring my works down there. I bought the works down there, your Honour. Carmel Whiting took it upstairs, your Honour, and it was - that was when they - - -

KIRBY J: If you did not want it copied you should have kept it in your pocket.

MR WILSON: No, I did not want it copied. Well, the lady asked me for it because I had been speaking to the lawyer on it earlier in the morning, your Honour, and - - -

KIRBY J: It all seems a bit of a storm in a teacup.

MR WILSON: When I found the copies that you said that were destroyed, your Honour, I found one on a desk upside down and I found another underneath the desk in a bin. Now, I was sitting here and I was writing a letter. Now, the lady walked up beside me on her table - I was on a table beside her - on her table she put one upside down like that and she had slipped another one under the - into the bin, your Honour.

KIRBY J: Throwing it out.

MR WILSON: Beg yours?

KIRBY J: Throwing it out.

MR WILSON: I was sitting there, your Honour. She came from 20 feet down there from upstairs up to me, put one under the desk in a bin, turned another one upside down on me. She was not throwing it out, your Honour. She would have handed it to me and said, "Well, look, here you go", because when I did find the one copy that was upside down - - -

KIRBY J: She was protecting the confidentiality of it. She had turned it upside down.

MR WILSON: There was no one else around, your Honour, except some people that were earlier down the front. The only reason that she gave it to me was because I said to her, I said, "What about the copy?" I meant the copy that they had upstairs because they had taken the time, they had had it there for the time to do the edging, your Honour. When I said that to her she gave me the one on the table. I complained about it. I said, "This is no good whatsoever", because it had been put through the copier. Some of them - they said they put it through two copiers. One was an automatic machine and one was a filler machine, your Honour. They are made exactly the same. If you got it through an ordinary one you would not have a light page. You would not have a dark page. You would not have one side on, one that is missing little bits here or there, and both of the copies were exactly like that, your Honour. No way in the world was I going to get any copies. They hid them from me. They purloined them, and there was still a copy left upstairs, your Honour.

The reason that Mrs Whiting hid them under the table was that she had two lawyers upstairs telling them - giving her a message to me. Now, they were - they sent her down on a dummy run to hand me two copies that they took so that they could explain why they took so long with them upstairs to do the edging, your Honour, and that was a reason that one was under the table because she did not trust them. She was going to try and keep a copy for herself because she did not trust them upstairs because they were sending her on a dummy run to come down and give me a stupid excuse of the two copies.

KIRBY J: Well, I say again to you, Mr Wilson, in the range of matters that this Court, the highest Court in Australia, has to deal with - - -

MR WILSON: Yes, sir.

KIRBY J: - - - it all seems a bit of a storm in a teacup. We only give special leave on special cases.

MR WILSON: Yes, sir. Well, I have still got some more reasons, your Honour. This is still on No 48. It says there the judge says as well regards "impropriety". He says that there was no impropriety, your Honour. I say it is shown up in exhibit A13. That is the exhibit that I said had been changed and a clearer copy was put in place and on page 24 of 2/03 in the transcripts, your Honour - I think it will be in the supplementary, your Honour, page 24, page 24 of 2/03, it says where Mr Darke from Minter Ellison wants a copy of 7A. The only reason he wants 7A is to fix up 13A, your Honour, which is an exhibit that he handed in. He handed up exhibit A. He said it was the original and Mr Darke wanted a copy of 7A, but he already had a copy in 13A. But the reason is that he could not read it, your Honour.

As well, P. Banki to me on 3/10/2000 it is incorrect for him to say that exhibit 7A is undated. It is not, the reason being is that it was too light and too faint to read it which his was A13. That is the one that was changed.

KIRBY J: That seems to explain why two copies were taken. One was imperfect and then a second one was taken.

MR WILSON: No, no, no. This is in the works, your Honour.

KIRBY J: One was thrown in a bin.

MR WILSON: This is an exhibit that was handed in, exhibit A It is a letter from me to the chairman, which is exhibit 7A.

KIRBY J: You said earlier that the copy that was taken of your work, the original work - - -

MR WILSON: I am not talking about that any more, your Honour.

KIRBY J: I know you are not. I know you are not.

MR WILSON: I am now talking about 13A. This is on the impropriety. So what happened is that the - I handed up exhibit 7A, then Mr Darke handed up exhibit 13A and it had changed while it was - because exhibit A and 13A are exactly the same and that being because Mrs Baulch who took the copy of A13 for the chairman - she was a perpetrator, your Honour. She was one of the two people that were upstairs and she eventually passed on a copy of A13, that was so faint, to the chairman because it had the truth in it, your Honour, what was written, what had happened to me on 30/8/2000.

You could not distinguish the words. You could not do anything, your Honour, and when it was handed up to me, I looked at it and I described it to the judge. I said, "I cannot read it at all. It's too faint". I then handed it on and it went to the judge. The judge looked at it and he says, "It is illegible". Now, those words are missing in the transcripts, your Honour. They are parts of the words that I say that are missing in the transcripts where they did not put it. There is a whole lot missing out of the transcripts. I described it as too faint. Justice Emmett said it was illegible.

Then, your Honour, on 28/5/02 - this is later on - I wrote to the Council and the Council sent me a letter of the copy of A13. They could not have had it. They handed up the original. It could not be read, could not be photocopied, then they later send me a copy of A13 and this is on the impropriety, your Honour. As well regards the impropriety page 59 of 20/3, Mrs Baulch did say there was nothing of substance in A14, exhibit A14, the facts. "That did not appear", her words, "That did not appear in A9 to me" which is stand to be incorrect, your Honour, as Mr Banki, he had highlighted the facts that it was undated. He had scrubbed out "dated" and put "undated" on there because A13 could not be read.

Mrs Baulch had passed it on - a dummy, an improper photocopy that she took off A7. She had all the time to do it. She did not sign A13, your Honour, she signed mine, but it was a scribble, and in court she says that it was - she did it for her own reasons, your Honour.

On page - did not pass it on to the chairman. Mrs Baulch had never passed that letter, A13, that was taken off A7, to the chairman who it was addressed to till I got in contact with the chairman two weeks later, your Honour, 14 days later. He then sent me a letter. He then sent me a letter that he - said that he would contact the Council and find out what it was about. So it had been two weeks since - - -

GAUDRON J: Now, Mr Wilson, your time is up, I am afraid.

MR WILSON: Your Honour, I have still - - -

GAUDRON J: No. Everybody gets 20 minutes here maximum and you have had your - - -

MR WILSON: Your Honour, I had some really serious things to say - - -

GAUDRON J: Would you please sit down, Mr Wilson. You have not said one word that would justify the grant of special leave.

MR WILSON: Your Honour, that is because I have not finished, your Honour.

GAUDRON J: Would you please take your seat.

MR WILSON: But surely, your Honour, it would not take me 25, 20 minutes to read this if his Honour had not have been - - -

KIRBY J: We have all the papers and we read them before.

MR WILSON: You do not have the information that I have got here, your Honour.

GAUDRON J: Mr Wilson, would you please sit down.

KIRBY J: Well, you should have put them before the Court.

MR WILSON: Your Honour, might I just say one more thing then? There was a witness that was supposed to be bought, your Honour.

GAUDRON J: Thank you, Mr Wilson.

The proposed appeal which you seek to bring seeks only to canvass factual findings and raises no point of principle suitable to attract the grant of special leave. Moreover, there is no error to be detected in the approach taken at first instance or in the Full Federal Court.

Now, given the delay in filing the application, the appropriate order is that the application for extension of time be refused and it is refused. Thank you.

MR WILSON: So that means I have not got any more - you are kidding me, your Honour. Have I got a right of appeal to this?

GAUDRON J: Would you please call matter No 10.

MR WILSON: You know power corrupts. Absolute power corrupts absolutely, your Honour.

GAUDRON J: Call matter No 10, please.

AT 12.53 PM THE MATTER WAS CONCLUDED