Copyright Agency Limited v University of Adelaide

[1998] ACopyT 3

COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968

IN THE COPYRIGHT TRIBUNAL	CT 4 of 1997
REFERENCE BY:	COPYRIGHT AGENCY LIMITED under section 153C of the Copyright Act 1968
THE UNIVERSITY OF ADELAIDE, THE AUSTRALIAN NATIONAL UNIVERSITY, AUSTRALIAN CATHOLIC UNIVERSITY, UNIVERSITY OF BALLARAT, BOND UNIVERSITY, UNIVERSITY OF CANBERRA, CENTRAL QUEENSLAND UNIVERSITY, CHARLES STURT UNIVERSITY, CURTIN UNIVERSITY OF TECHNOLOGY, DEAKIN UNIVERSITY, EDITH COWAN UNIVERSITY, THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA, GRIFFITH UNIVERSITY, JAMES COOK UNIVERSITY OF NORTH QUEENSLAND, LA TROBE UNIVERSITY, MACQUARIE UNIVERSITY, THE UNIVERSITY OF MELBOURNE, MONASH UNIVERSITY, MURDOCH UNIVERSITY, THE UNIVERSITY OF NEW ENGLAND, THE UNIVERSITY OF NEW SOUTH WALES, THE UNIVERSITY OF NEWCASTLE, NORTHERN TERRITORY UNIVERSITY, THE UNIVERSITY OF QUEENSLAND, QUEENSLAND UNIVERSITY OF TECHNOLOGY, ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY LIMITED, SOUTHERN CROSS UNIVERSITY, SWINBURNE UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF SYDNEY, UNIVERSITY OF TASMANIA, UNIVERSITY OF SOUTHERN QUEENSLAND, UNIVERSITY OF SOUTH AUSTRALIA, UNIVERSITY OF TECHNOLOGY - SYDNEY, VICTORIA UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF WESTERN AUSTRALIA, UNIVERSITY OF WESTERN SYDNEY, UNIVERSITY OF WOLLONGONG (“UNIVERSITIES”) Respondents
TRIBUNAL:	BURCHETT P
PLACE:	SYDNEY
DATE:	3 JULY 1998

EX TEMPORE REASONS FOR DECISION

In this matter I am asked to make an order by way of direction in respect of the obtaining of evidence which the applicant desires to obtain from employees of universities about aspects of their operations.  A copy of a letter which I am told was sent to the head of a computer department has been tendered to illustrate the nature of the complaint which the University is making.  It is suggested that this letter would have mystified the recipient as to the nature of the proceeding in the Tribunal and thereby have led to problems.  In fact, apparently, the recipient of the letter ultimately declined to give evidence after speaking with someone at the University.

I have read the letter and I should say at once that I can see nothing inappropriate in it, and nothing mystifying.  It would surprise me that someone holding the position of head of a computer department would really be in any doubt as to the nature, either of the proceeding, or of what was being sought by the solicitor who wrote the letter.  In fact, I think the letter indicates an openness of approach which is entirely commendable.  I wish I could be confident that all evidence in all cases is obtained equally openly.

I do accept what Mr Cobden says on behalf of the Universities about the rather special nature of the Universities and the openness of access that they commonly provide, but I do not think that it is a consequence of that that a restrictive order should be made about the gathering of evidence in the manner indicated by this letter.  I have been assured by Mr Catterns, a particular objection having been raised to the fact that the letter does not use the expression "adversarial proceeding", that in future anyone approached will be told the proceeding is of that nature.  But the fundamental point is that there is no property in a witness; that a party is perfectly entitled to approach people, who can give evidence, to do so, and indeed, the party who approaches a witness employed by an organisation on the other side is actually placing quite a lot of dependence on the honesty and fearlessness of the witness, who could always be interviewed the moment his affidavit is served.  That gives the employer an inevitable advantage which lawyers and courts are very well aware of, but which, fortunately, the honesty and fearlessness of many witnesses neutralises. 

I do not think it is necessary to add anything further.  I think there is no reason to impose any restriction, but I note the voluntary one that I have already mentioned, which Mr Catterns informed the Tribunal is to be implemented in future. 

I make orders in accordance with the directions submitted by Mr Catterns. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Burchett P.

Associate to the President:

Dated:            18 August 1998

Counsel for the Applicant:	Mr D K Catterns QC
Solicitor for the Applicant:	Banki Haddock Fiora
Counsel for the Respondents:	Mr R Cobden
Solicitor for the Respondents:	Baker & McKenzie
Date of Hearing:	3 July 1998
Date of Decision:	3 July 1998