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High Court of Australia Transcripts |
Last Updated: 3 June 2010
Replacement Transcript
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S23 of 2010
B e t w e e n -
PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED ACN 000 680 704
First Plaintiff
EMI MUSIC AUSTRALIA PTY LIMITED ACN 000 070 235
Second Plaintiff
SONY MUSIC ENTERTAINMENT AUSTRALIA PTY LIMITED ACN 107 133 184
Third Plaintiff
UNIVERSAL MUSIC AUSTRALIA PTY LIMITED ACN 000 158 592
Fourth Plaintiff
WARNER MUSIC AUSTRALIA PTY LIMITED ACN 000 815 565
Fifth Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Directions hearing
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 28 APRIL 2010, AT 9.36 AM
Copyright in the High Court of Australia
__________________
MR R. COBDEN, SC: May it please the Court, I appear with my learned friends, MR J.K. KIRK and MS A. RAO, for the plaintiffs and also for J Albert & Son Pty Limited which is seeking to be added as a plaintiff. (instructed by Gilbert + Tobin Lawyers)
MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MS K.M. RICHARDSON for the defendant. (instructed by Australian Government Solicitor)
MR J.C. SHEAHAN, SC: May it please the Court, I appear for the Australian Broadcasting Corporation, the proposed second defendant. (instructed by Australian Broadcasting Corporation)
MR M.A. DARKE: If your Honour pleases, I appear for 2day FM Sydney Pty Limited, Nova 96.9 Pty Limited and Commercial Radio Australia Limited. We intend to seek to be joined as defendants or to seek, in the alternative, leave to intervene in this Court or, if the matter is remitted, in the Federal Court in due course.
HIS HONOUR: But you are not doing that at the moment?
MR DARKE: No, your Honour.
HIS HONOUR: All right. Now, is there any opposition to the Albert interest being joined as a plaintiff?
MR COBDEN: No, your Honour.
HIS HONOUR: I would not have thought so. Any opposition to the ABC being joined as second defendant?
MR COBDEN: No, your Honour.
HIS HONOUR: Yes, all right. Well, those parties can be joined respectively as sixth plaintiff for Albert & Sons, will it not?
MR COBDEN: Yes, it will, your Honour.
HIS HONOUR: And the second defendant for the Corporation.
MR COBDEN: Yes. As we do not apprehend that there is any opposition to our amendment of the pleading in the way we have sought to - - -
HIS HONOUR: Well, we will see about that.
MR COBDEN: Yes, your Honour.
HIS HONOUR: I think it would be best if I heard first, actually, from the Solicitor and then from Mr Sheahan and then I will come back to you.
MR COBDEN: Yes, your Honour.
HIS HONOUR: I have had your written outline.
MR GAGELER: Your Honour, we are looking ahead to where the matter might go and we see in the proposed amended pleading in paragraphs 63 and 64 a particularised allegation of want of just terms. The terms of the particulars suggest to us a very large factual inquiry. Indeed, they turn the otherwise relatively bland allegations in paragraphs 63 and 64 into very large factual propositions in respect of which the Commonwealth would not be in any position to either admit the allegation or agree substantially to underlying facts.
We read that in conjunction with paragraph 60 which appears to us, again in the particulars rather than in the body of the pleading, to give a range of potential dates of the alleged acquisition, as we read it, any day and everyday from 1 May 1969 to the present is alleged and that underlying all that, as we see it, is some ambiguity as to whether the property rights in respect of which the complaint is being made is the right that was said to have existed under the 1911 Act, there being some acquisition of property said to have occurred in respect of the transmogrification of that right to a
right under the 1968 Act or whether it is said that the right under the 1968 Act itself is the property and the limitation on that right which was there from the beginning - - -
HIS HONOUR: That would be section 85(c), would it be, exclusive right “to broadcast the recording”?
MR GAGELER: Yes, which is, of course, what was conferred on 1 May 1969.
HIS HONOUR: By virtue of section?
MR GAGELER: Section 89 read with section 220. So what one had - - -
HIS HONOUR: Yes, 220.
MR GAGELER: Yes.
HIS HONOUR: Well, just stopping there for a minute. The exclusive right under 85(c), whether one treats it purely as springing up on 1 September 1969 or as rooted in section 220, which I suppose it has to be, that is then given effect to - that exclusive right - by, is it, section 101?
MR GAGELER: Section 101, yes.
HIS HONOUR: “Subject-Matter other than Works” - section 101, and a defence that would otherwise apply to what would be an infringement under 101 of the exclusive right under 85(c) is then provided - - -
MR GAGELER: By section 109.
HIS HONOUR: Section 109, which I suppose is a defence. It says - - -
MR GAGELER: Yes, it is. It is not infringed, that is right.
HIS HONOUR: Yes. What is happening in this litigation seems to be a complaint that provision of the defence under section 109 in respect of the right conferred by 85(c) through the infringement section in 101 amounts to an acquisition on unjust terms.
MR GAGELER: Yes.
HIS HONOUR: Is that right, Mr Cobden?
MR COBDEN: Section 152 is the provision that provides the terms or the cap on the terms.
HIS HONOUR: Yes. But in terms of Hohfeldian rights it is the impact of 109 on this regime that before 1 September 1969 did not apply to you, so there would be no defence.
MR COBDEN: On 1 May, your Honour.
HIS HONOUR: Yes, 1 May.
MR COBDEN: Yes, that is correct, your Honour.
HIS HONOUR: There would not have been a defence and now there is. So are you complaining that is not sufficiently clear on the pleading as it stands, Mr Solicitor? You may be right. It took me some minutes to try and articulate it.
MR GAGELER: It would seem to us, and I do not necessarily want to make the plaintiff’s case for them, but it seems to that if they have a case, it is a case that focuses upon what happened on 1 May 1969, that is, with the transition from one regime to the other and not what has happened under the 1968 Act since that date. Now, the case they seek to bring is a case that covers the former but also apparently the latter. Now, your Honour, these are - - -
HIS HONOUR: There is also a question – I had better ask Mr Cobden this – how then do you fit your case within the Tape Manufacturers thinking? Tape Manufacturers was decided on the basis that there was a tax, but the proposition that there was an unjust acquisition was not accepted.
MR COBDEN: No, your Honour. Well, there were two unjust acquisitions dealt with in Tape Manufacturers. One was of part of the copyright and the other one was part of the money of the purchases of tapes.
HIS HONOUR: .....talking about the part of the copyright.
MR COBDEN: Yes, your Honour. Quite so, your Honour. What we say is that Tape Manufacturers would now be read in the light of cases such Chaffey where thinking has moved on, as it were, that make the proposition that a – that was in the particular circumstances of Part VC.
HIS HONOUR: Yes, I understand that.
MR COBDEN: Yes, thank you, your Honour.
HIS HONOUR: I think you are foreshadowing that you might need some reconsideration of Tape Manufacturers?
MR COBDEN: Yes, your Honour, in the light of developed thinking, particularly paragraphs 24 and 25 of Chaffey, yes, your Honour.
HIS HONOUR: Do you need leave to do that? I am not saying you would not get it, but do you need leave to do that?
MR COBDEN: It is a different scheme and a different approach to – that was a particular scheme and a particular approach to a particular bundle of rights in the Copyright Act. If we needed leave, we would seek it, your Honour, yes, but I apprehend we would not need it.
HIS HONOUR: Yes. I am just thinking what would happen if this case is tried in the Federal Court, that is all.
MR COBDEN: Yes, your Honour. That is indeed a matter that has exercised our minds. If it please the Court.
HIS HONOUR: Yes, Mr Solicitor.
MR GAGELER: As well as Tape Manufacturers there is the case of Nintendo which would seem to speak fairly directly to the present case as well. But, your Honour, whatever would be the law that would need to be applied in the Federal Court, there are these underlying factual allegations which are unlikely to be the subject of agreement.
HIS HONOUR: Well, I am not sure that they would still be there on this view of the case that has just been put.
MR GAGELER: The view that I just put, your Honour?
HIS HONOUR: No, the view that I have been discussing with you to which Mr Cobden, I thought, assented. Maybe he wants to put it further and in the alternative.
MR GAGELER: Well, I am attempting to deal with the - - -
HIS HONOUR: I do not want to shut anyone out from anything. I am just trying to find out the parameters of it all so I know what is best to be done to get it tried.
MR GAGELER: Indeed. Your Honour, I am attempting to deal with the amended statement of claim which was meant to be their attempt, as I thought, to narrow the case and to put it into some sort of order - what we see is an expanded case not in the order that we expected.
HIS HONOUR: Looking at your submissions, (a), (b) and (c) have been covered. Well, I suppose it is a matter for your opponents as to who they join, unless there is an application on those parties themselves – by those parties themselves to be joined which may - - -
MR GAGELER: Which has been foreshadowed, yes. I mean, that is something that could be dealt with in this Court, but equally, if the matter, looking ahead, raises factual issues which will need to be dealt with in the Federal Court anyway, that is something that could be appropriately dealt with there.
HIS HONOUR: The other thing, you have not specifically mentioned it, is the significance of 2004 and the - - -
MR GAGELER: The extension of the - - -
HIS HONOUR: Yes.
MR GAGELER: Well, there is a very strong element about probation and reprobation, your Honour, but I have not been able to slot that into a particular legal doctrine. I am still working on that.
HIS HONOUR: Without that statute a number of these copyrights would have expired.
MR GAGELER: Yes.
HIS HONOUR: What you are foreshadowing is whether the benefit of the extension can be taken without the burden of the compulsory licensing scheme.
MR GAGELER: Exactly, yes. It is something I have thought about but I have not a precise - - -
HIS HONOUR: But we may be hearing some more about that?
MR GAGELER: Either you or a Federal Court judge at the first instance.
HIS HONOUR: No, I mean, in your defence or in your - - -
MR GAGELER: Indeed, yes.
HIS HONOUR: Yes, thank you. Yes, Mr Sheahan?
MR SHEAHAN: Your Honour, our submissions generally accord with those of the Solicitor. We did try and file some brief submissions this morning. Does your Honour have them?
HIS HONOUR: Yes, I have those.
MR SHEAHAN: They focus on the case that is pleaded in paragraph 64, that is, the just terms case against my client, and simply try to highlight the nature of the factual inquiries that are - - -
HIS HONOUR: Well, the practical impact on 1 May 1969 may be quite different to the practical impact at some later time.
MR SHEAHAN: Quite so.
HIS HONOUR: That is what you are emphasising.
MR SHEAHAN: Your Honour, yes, quite so. This difficulty is thrown up by the way they plead in paragraph 60, the timing of the acquisition. As the Solicitor has pointed out, they have a number of alternatives. One is 1 May 1969. The others are a series of dates, practically speaking, every day in between 1 May 1969 and now.
HIS HONOUR: On 1 May 1969 the royalty provisions were in a different form, were they not? No special broadcasting service existed.
MR SHEAHAN: There was no special broadcasting service, that is right.
HIS HONOUR: No community licences either.
MR SHEAHAN: There were many differences between the royalty provisions then and later, many differences. The most signal one perhaps your Honour alluded to which is the increase – well, it is not a royalty provision, but the increase in the term of the licence of the right from 50 to 70 years. So much is complicated by the way paragraph 60 is framed, that is the way they point to the time at which the acquisition occurs and that compounds the difficulties which are pointed to in the way they plead the just terms issue in paragraph 64 for the purposes of my client, paragraph 63 for the purposes of the other broadcasters, although for reasons which are a little obscure to us, they wrap up paragraph 63 in particulars to paragraph 64.
HIS HONOUR: It may be that some of the material that appears as particulars is really alternative pleadings.
MR SHEAHAN: Well, your Honour, that may be right and, I must say, for - - -
HIS HONOUR: In which event, they should be pleaded as such.
MR SHEAHAN: Yes, that is right. For my part, we had the sense – I could be completely wrong – that there was a simple case in here struggling to get out, perhaps in substance along the lines as your Honour articulated earlier, but it has been complicated by a lot of other allegations directed at raising alternative cases involving inquiries into the practical impact of this legislation at different times on particular recording rights and in different context as to what the demand and supply for those rights was.
HIS HONOUR: Did the ABC exist in 1969 in its present form? It is a successor corporation, is it not?
MR SHEAHAN: It was the Commission then, I think.
HIS HONOUR: I think the Act that creates it as the Corporation treats it as a successor to the Commission, does it?
MR SHEAHAN: It does.
HIS HONOUR: If the case were repleaded along the simpler lines, do you have anything to say at this stage as to what the answer would be?
MR SHEAHAN: As to what the answer would be?
HIS HONOUR: Yes.
MR SHEAHAN: The answer would be that there is no acquisition.
HIS HONOUR: Because?
MR SHEAHAN: Because what one has, first, is the exercise by the Commonwealth of a power in respect of copyright which intrinsically involves the exercise of a power to create and adjust property rights. Some have rights taken away, some have rights granted. In other words, it is the exercise of a legislative power that is inconsistent with the application of 51(xxxi) to it. Secondly, and this might be putting the same point in a different way, what one has in the change from the 1911 Act to the 1968 Act is a readjustment by the Parliament of competing rights in an area of economic regulation by the Commonwealth in the public interest that is not amenable to the description of or to the application of 51(xxxi). So there is not properly understood an exercise of the power to which that placitum applies.
HIS HONOUR: Yes. Is there anything you want to add to that, Mr Solicitor?
MR GAGELER: No. They are essentially two reasons given towards the conclusion of the judgment in Nintendo. They are both reasons why there would not be scope for the application of section 51(xxxi). There is, of course, the additional question of whether the one per cent cap constitutes a want of just terms or gives rise to a want of just terms in any event.
HIS HONOUR: That could be a factual question.
MR GAGELER: Yes. It is certainly sought to be pleaded that way despite the protestations to the contrary in our learned friend’s written submissions before your Honour.
HIS HONOUR: A factual question with reference to a particular time or times.
MR GAGELER: Certainly if the case were narrowed to look only at the transition from the 1911 Act to the 1968 Act, yes. The way it is currently pleaded is we would be looking at every broadcaster on every day from 1 May 1969 to the present.
HIS HONOUR: Yes, Mr Cobden, what do you want to do?
MR COBDEN: Your Honour, as to the - - -
HIS HONOUR: Can I say to you, if the case remains as what it appears to be its present width, I think it would have to go to the Federal Court.
MR COBDEN: Yes, your Honour.
HIS HONOUR: If you want to contract it in some way, you can have time to do that. Then there would be a question, even on a contracted case, whether the point the Solicitor last made was a good point as to the character of the one per cent cap.
MR COBDEN: I accept that, your Honour. That is where the drafting of the special case in an attempt to agree it would come in. Perhaps our side of the table is more optimistic that the other side of the table about the capacity to agree those matters. For example, many of the matters that Mr Sheahan has put forward in his submission we actually see as being capable of agreement by us almost in the form in which he puts them. So we think that underlying facts may well be able to be agreed. The consequences of them is a matter for debate. But we would accept your Honour’s invitation to –
sorry, I am speaking too fast as usual, your Honour. We would accept your Honour’s invitation and what has fallen from our learned friends.
HIS HONOUR: How long do you need to think about it and reformulate it?
MR COBDEN: Two weeks, your Honour.
HIS HONOUR: Well, that is difficult because we run into sittings and so on. Thursday of next week, is that too much?
MR COBDEN: No, your Honour.
HIS HONOUR: What about the other counsel?
MR GAGELER: I am so sorry, your Honour, I will not be here, but the Commonwealth can be - - -
HIS HONOUR: You have competent assistance.
MR GAGELER: I certainly have.
MR COBDEN: In light of that, your Honour, I will not tire your Honour with answers to the various matters that are raised in the Commonwealth’s submissions.
HIS HONOUR: No, I am not suggesting that for a moment.
MR COBDEN: Thank you, your Honour.
HIS HONOUR: But if it is to go to the Full Court here it has to go in proper shape and if it is to go off to the Federal Court first, well, we have to know why, or understand why.
MR COBDEN: Yes, your Honour.
HIS HONOUR: How about you, Mr Sheahan?
MR SHEAHAN: Thursday suits.
HIS HONOUR: I have said:
MR COBDEN: Just one brief correction, we have been perpetuating an error. It is J Albert & Son Pty Limited. I apologise for that, your Honour.
HIS HONOUR: J Albert & Son. So order 1 should read J Albert & Son Pty Limited be joined as sixth plaintiff?
MR COBDEN: Yes. May it please the Court.
HIS HONOUR: Is there anything else, gentlemen? I will now adjourn.
AT 10.03 AM THE MATTER WAS ADJOURNED
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