Holder, Raymond v Searle, Bradley William (No 3)

[1997] FCA 1164

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 187 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE OF ORDER:	24 SEPTEMBER 1997
WHERE MADE:	BRISBANE

THE COURT RULES THAT the objection to admissibility of the contents of Mr E Pertsch’s affidavit be overruled.

Note:              Settlement and entry of orders is dealt with in Order 36 of The Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 188 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE OF ORDER:	24 SEPTEMBER 1997
WHERE MADE:	BRISBANE

THE COURT RULES THAT the objection to admissibility of the contents of Mr E Pertsch’s affidavit be overruled.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 189 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE OF ORDER:	24 SEPTEMBER 1997
WHERE MADE:	BRISBANE

THE COURT RULES THAT the objection to admissibility of the contents of Mr E Pertsch’s affidavit be overruled.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 187 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 188 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 189 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE:	24 SEPTEMBER 1997
PLACE:	BRISBANE

EX TEMPORE REASONS FOR A RULING ON EVIDENCE (No 4)

Objection is taken by Mr Couper QC, counsel for Mr Searle, to part of the contents of an affidavit sworn by Mr Eric Pertsch and filed 12 September 1997 directed at proof of ownership of copyright in a film, “Dark Man II:  The Return of Durant”.

In that affidavit Mr Pertsch swears that he is the President of Universal Productions Canada, a division of Universal Studios Canada Ltd (‘Universal Canada’).  He says that he first joined Universal Canada in 1969 and his duties include responsibility for a variety of legal matters at Universal Canada, including principal responsibility for the carriage of these proceedings.  He says that Universal Canada produces and distributes cinematograph films, and that:

“7. The legal and business files of Universal Canada, which are regularly maintained in the ordinary course of our business, contain agreements relating to the production and distribution of cinematograph films, including the film [“Dark Man II:  The Return of Durant”] …

7.1 If Universal Canada makes (produces in its own right) a cinematograph film or direct-to-video or television film, the details of such production are recorded in a central filing location.

7.2 Universal Canada produced DARKMAN II:  THE RETURN OF DURANT as an in-house production.  Therefore, no production agreement was executed as evidenced by Annexure “C” a true copy of the Distribution Rights Clearance Memo.

7.3 Universal Canada in the course of its business has a system for recording all licenses granted to individuals and corporations to manufacture and/or distribute or sell or hire laser video discs of cinematograph films in which Universal Canada is interested as copyright owner either in the United States or elsewhere in the world.  All licenses granted are filed in our business records.

8. I am the person who has access to the records of Universal Canada in relation to copyright ownership of cinematograph films for the purpose of enforcing Universal Canada’s copyright interests.  These records form part of the records belonging to Universal Canada and are kept in the course of and for the purpose of our business.  Universal Canada’s records record the date that a cinematograph film was first screened in the United States and the date upon which a particular cinematograph film was released in the video cassette and laser video disc formats, if at all.  Having caused a search of the relevant Universal Canada records to take place, I can state the following:

8.1 Universal Canada was the maker (producer) of the cinematograph film entitled DARKMAN II:  THE RETURN OF DURANT.  Annexure “D” is a true copy of the Principal Star Talent Agreement in relation to the cinematograph film entitled DARKMAN II:  THE RETURN OF DURANT.

8.2 The cinematograph film entitled DARKMAN II:  THE RETURN OF DURANT was produced as a “direct-to-video” production.  Annexure “E” is a true copy from Universal Canada’s business records recording the date of release of the video cassette on 11 July 1995.”

Objection is taken, in particular, to the statement in paragraph 8.1:

“Universal Canada was the maker (producer) of the cinematograph film entitled DARKMAN II:  THE RETURN OF DURANT.”

Reliance is placed on the judgment of Foster J in Polygram Records Inc v Raban Footwear Pty Ltd (1996) 35 IPR 426. In that case an issue was whether the applicant, Polygram USA, owned the copyright in certain recordings. It was suggested that copyright in the relevant recordings had passed from Casablanca to Polygram USA. In a paragraph of an affidavit, a Mr Russell had asserted that Polygram recordings were included in the assets transferred to Polygram USA and, in particular, Mr Russell stated that his knowledge of the inclusion of the Polygram recordings in the assets transferred is based on his:

“... access to the books and records of Polygram (USA) and Casablanca Records Inc.”

Foster J concluded that, in that part of the paragraph to which I have referred, Mr Russell was attempting to adduce evidence of the contents of one or more documents. His Honour concluded that, given that there had not been compliance with the requirements of s 48 of the EvidenceAct 1995 (Cth), Mr Russell's evidence, in the objected respect, was inadmissible.

It was similarly submitted that, in this particular case, Mr Pertsch essentially is giving secondary evidence of the contents of documents that he has inspected, without those documents being proved in compliance with s 48 of the EvidenceAct.

In my opinion, this is not a case in which Mr Pertsch is giving secondary evidence of the contents of documents, attempting to base his opinion on inspection of those documents.  He, as President of Universal Canada, asserts as a fact that Universal Canada produced the cinematographic film, “Dark Man II:  The Return of Durant”, as an in-house production.  This is a statement of fact, in my opinion.

The statement is not one that is derived, or must of necessity have been derived, solely in reliance of inspection of documents, which documents are not in evidence before the Court.  The impermissible basis for admissibility identified by Foster J in the Polygram case (supra) does not, in my opinion, apply here. The documents exhibited in Mr Pertsch's affidavit seem to me to be within s 48 of the EvidenceAct, but the fact in issue is not sought to be proved by the contents of those documents alone.  The documents in my view are exhibited to corroborate the factual claim by Mr Pertsch that Universal Canada made the film, “Dark Man II:  The Return of Durant”. 

It is perhaps not irrelevant to observe that, in relation to the Principal Star Talent Agreement, (annexure D to Mr Pertsch's affidavit), the agreement appears to have been signed on behalf of Universal Productions Canada by the deponent, Mr Pertsch, and that two further documents in that annexure similarly have been initialled or signed by Mr Pertsch on behalf of the producer of that film.  These indicate, in my opinion, that Mr Pertsch was personally involved in aspects of the production of the film, and is speaking from personal knowledge, and not solely on the basis of inspection of documents.

For these reasons then, the objection to the admissibility of the contents of, in particular, paragraph 8.1 of Mr Pertsch's affidavit is overruled.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:            24 September 1997

Counsel for the Applicant:	Mr J Jerrard, QC and Mr D Boddice
Solicitor for the Applicant:	Director of Public Prosecutions
Counsel for the Respondent:	Mr S Couper QC
Solicitor for the Respondent:	McLaughlins
Date of Hearing:	24 September 1997
Date of Judgment:	24 September 1997