Holder, Raymond v Searle, Bradley William (No 4)
[1997] FCA 1165
•24 SEPTEMBER 1997
| IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 187 of 1996 |
BETWEEN: | RAYMOND HOLDER |
AND: | BRADLEY WILLIAM SEARLE |
JUDGE: | SPENDER J |
DATE OF ORDER: | 24 SEPTEMBER 1997 |
WHERE MADE: | BRISBANE |
THE COURT RULES THAT:
The objection to admissibility of Mr J M Grossman’s affidavit be upheld.
The contents of Mr J M Grossman’s affidavit be struck out from the words “Having searched TriStar’s records” in paragraph 8 to the conclusion of paragraph 8.26.
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 |
AND: | BRADLEY WILLIAM SEARLE |
JUDGE: | SPENDER J |
DATE OF ORDER: | 24 SEPTEMBER 1997 |
WHERE MADE: | BRISBANE |
THE COURT RULES THAT:
The objection to admissibility of Mr J M Grossman’s affidavit be upheld.
The contents of Mr J M Grossman’s affidavit be struck out from the words “Having searched TriStar’s records” in paragraph 8 to the conclusion of paragraph 8.26.
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 |
AND: | BRADLEY WILLIAM SEARLE |
JUDGE: | SPENDER J |
DATE OF ORDER: | 24 SEPTEMBER 1997 |
WHERE MADE: | BRISBANE |
THE COURT RULES THAT:
The objection to admissibility of Mr J M Grossman’s affidavit be upheld.
The contents of Mr J M Grossman’s affidavit be struck out from the words “Having searched TriStar’s records” in paragraph 8 to the conclusion of paragraph 8.26.
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 |
AND: | BRADLEY WILLIAM SEARLE |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 188 of 1996 |
BETWEEN: | RAYMOND HOLDER |
AND: | BRADLEY WILLIAM SEARLE |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 189 of 1996 |
BETWEEN: | RAYMOND HOLDER |
AND: | BRADLEY WILLIAM SEARLE |
JUDGE: | SPENDER J |
DATE: | 24 SEPTEMBER 1997 |
PLACE: | BRISBANE |
EX TEMPORE REASONS FOR RULING ON EVIDENCE (No 3)
Objection is taken to part of an affidavit by Joel M Grossman which was sworn on 3 July 1997. Mr Grossman's affidavit is directed to the question of establishing copyright in a company, TriStar Pictures Inc, (‘TriStar’) in five films, viz, “Cops and Robbersons”, “It Could Happen to You”, “Legends of the Fall”, “Mary Shelley's Frankenstein” and “Mixed Nuts”.
It is, of course, crucial to the prosecution of the three offences with which the Court is presently concerned that the prosecution establish copyright in the laser video disks the subject of those charges.
Mr Grossman deposes that he is a Senior Vice-President, Assistant Secretary and Deputy General Counsel of TriStar. He says:
“I first joined TriStar in 1989 and my duties include responsibility for a variety of legal matters for TriStar, including principal responsibility for the carriage of these proceedings.”
Objection is taken to a number of assertions which are contained within paragraph 8 and its subparagraphs of Mr Grossman's affidavit. Paragraph 8 is as follows:
“8. I have access to the business records of TriStar in relation to copyright ownership of cinematograph films. These records form part of the records belonging to TriStar and are kept in the course of and for the purpose of our business. The business records also record the date that a cinematograph film was first publicly screened in the United States. I also have access to TriStar’s business records of the date the laser video disc was first sold in the United States. Having searched TriStar’s records I can state the following:
8.01 TriStar was the maker (producer) of the cinematograph film entitled COPS AND ROBBERSONS. Annexure “C” is a true copy of an agreement relating to the production of this film.
8.02 The cinematograph film entitled COPS AND ROBBERSONS was produced between 8 March, 1993 and 18 May, 1993. Annexure “D1” through “D2” are true copies from TriStar’s business records of the production dates.
8.03 The cinematograph film entitled COPS AND ROBBERSONS was screened commencing on 15 April, 1994.
8.04 The laser video disc NTSC format of the cinematograph film entitled COPS AND ROBBERSONS was first sold in the United States. The date of such sale was 14 December, 1994.
8.05 TriStar was the maker (producer) of the cinematograph film entitled IT COULD HAPPEN TO YOU (formerly known as COP TIPS WAITRESS). Annexure “E1” through to “E2” are true copies of agreements relating to the production of this film.
8.06 The cinematograph film entitled IT COULD HAPPEN TO YOU was produced between 2 August, 1993 and 31 October, 1993. Annexure “F1” through “F2” are true copies from TriStar’s business records of the production dates.
8.07 The cinematograph film entitled IT COULD HAPPEN TO YOU was screened commencing on 29 July, 1994.
8.08 The laser video disc NTSC format of the cinematograph film entitled IT COULD HAPPEN TO YOU was first sold in the United States. The date of such sale was 28 February, 1995.
8.09 TriStar was the maker (producer) of the cinematograph film entitled LEGENDS OF THE FALL. Annexure “G1” through to “G3” are true copies of agreements relating to the production of this film.
8.10 The cinematograph film entitled LEGENDS OF THE FALL was produced between 14 June, 1993 and 23 September, 1993. Annexure “H1” through “H2” are true copies from TriStar’s business records of the production dates.
8.11 The cinematograph film entitled LEGENDS OF THE FALL was screened commencing on 25 December, 1994.
8.12 The laser video disc NTSC format of the cinematograph film entitled LEGENDS OF THE FALL was first sold in the United States. The date of such sale was 27 June, 1995.
8.13 TriStar was the maker (producer) of the cinematograph film entitled MARY SHELLEY’S FRANKENSTEIN. Annexure “I1” through to “I5” are true copies of agreements relating to the production of this film.
8.14 The cinematograph film entitled MARY SHELLEY’S FRANKENSTEIN was produced between 12 September, 1993 and 25 February, 1994. Annexure “J1” through “J2” are true copies from TriStar’s business records of the production dates.
8.15 The cinematograph film entitled MARY SHELLEY’S FRANKENSTEIN was screened commencing on 4 November, 1994.
8.16 The laser video disc NTSC format of the cinematograph film entitled MARY SHELLEY’S FRANKENSTEIN was first sold in the United States. The date of such sale was 6 June, 1995.
8.17 TriStar was the maker (producer) of the cinematograph film entitled MIXED NUTS (also known as PERE NOEL and LIFESAVERS). Annexure “K” is a true copy of an agreement relating to the production of this film.
8.18 The cinematograph film entitled MIXED NUTS was produced between 14 February, 1994 and 5 May, 1994. Annexure “L1” through “L2” are true copies from TriStar’s business records of the production dates.
8.19 The cinematograph film entitled MIXED NUTS was screened commencing on 21 December, 1994.
8.20 The laser video disc NTSC format of the cinematograph film entitled MIXED NUTS was first sold in the United States. The date of such sale was 25 July, 1995.
8.21 There is no record in TriStar’s business records of any license having been granted by TriStar to any person or corporation in Australia to manufacture laser video discs of any cinematograph film in respect of which TriStar is interested as copyright owner in the NTSC format in Australia. TriStar had, to my knowledge, at all material times a policy of not granting any NTSC format licenses for manufacture in Australia.
8.22 There is no record in TriStar’s business records of any license having been granted to any person or corporation to import laser video discs in the NTSC format in Australia. TriStar has, to my knowledge, a policy of not granting any NTSC format licenses for importation into Australia.
8.23 There is no record in TriStar’s business records of any license having been granted to any person or corporation to sell or hire laser video discs in the NTSC format that had been so imported into Australia. TriStar has, to my knowledge, a policy of not granting any NTSC format licenses for sale or hire in Australia.
8.24 Annexure “M” is a true copy of a record from TriStar’s computerized business records of the screening commencing dates for COPS AND ROBBERSONS, IT COULD HAPPEN TO YOU, LEGENDS OF THE FALL, MARY SHELLEY’S FRANKENSTEIN and MIXED NUTS.
8.25 Annexure “N” is a true copy of a record from TriStar’s computerized business records of the home video and laser disc initial sales dates for COPS AND ROBBERSONS, IT COULD HAPPEN TO YOU, LEGENDS OF THE FALL, MARY SHELLEY’S FRANKENSTEIN and MIXED NUTS.
8.26 TriStar has a policy of registering all copyright in cinematograph films with the United States Copyright Office. A Certificate of Registration is obtained which forms part of TriStar’s business records. Annexure “O” is a true copy of the Certificate of Registration for COPS AND ROBBERSONS. Annexure “P” is a true copy of the Certificate of Registration for IT COULD HAPPEN TO YOU. Annexure “Q” is a true copy of the Certificate of Registration for LEGENDS OF THE FALL . Annexure “R” is a true copy of the Certificate of Registration for MARY SHELLEY’S FRANKENSTEIN. Annexure “S” is a true copy of the Certificate of Registration for MIXED NUTS.”
[emphasis added]
The admissibility of business records in Australia depends upon the application of ss 170 and 171 of the Evidence Act (1995) (Cth) (‘the Act’).
Section 48 of the Act deals with the proof of contents of documents. That section relevantly provides:
A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one of the following methods:
...
(e) tendering a document that :(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and
(ii) is or purports to be a copy of, or an extract from or a summary of, the docuemnt in question, or is or purports to be a copy of such an extract or summary;
...
A ‘document in question’ is defined in s 47(1) as a reference to a document the contents of which it is sought to adduce evidence.
Section 170 of the Act provides:
(1) Evidence of a fact that is, because of a provision of this Act referred to in the Table, to be proved in relation to a document or thing may be given by a person permitted under section 171 to give such evidence.
TABLE
Provisions of this Act Subject matter
Section 48 Proof of contents of documents
....
(2) Evidence may be given by affidavit or, if the evidence relates to a public document, by a written statement.
Section 171(1) provides:
“Such evidence [in s 170] may be given by:
(a) a person who, at the relevant time or afterwards, had a position of responsibility in relation to making or keeping the document or thing;”
...”
In my judgment, the affidavit does not demonstrate that Mr Grossman is a person within s 171(1)(a) and, for that reason, the basis of his evidence concerning business records of TriStar means his evidence is inadmissible.
However, the objection goes to much more than a technical deficiency in Mr Grossman's affidavit.
It seems to me that a person within s 171(1)(a) could depose to the fact (if it be the case) that the annexures to Mr Grossman's affidavit are copies of TriStar's business records and subject to relevance, those documents would be admissible. Further, if satisfactorily proved, it seems to me that the documents annexed to Mr Grossman's affidavits might be relevant o the question of ownership of copyright in the five films earlier identified.
There are, however, some exceptions to the generality of that statement. In my opinion, the question of the screening commencement of the film, “Mixed Nuts”, is not relevant to establishing the date on which any copyright in that film commenced (except in the limited sense that publication must have been before or on that date); similarly in relation to the screening dates of other films the subject of a claim to copyright. So also, it seems to me, the first selling date of a particular laser video disk format of any of the five films, being later on the evidence, than the first publication in the United States of the work on which it is substantially based, is irrelevant.
It seems to me that a competent person (i.e., one within s 171(1) of the Act) could give evidence of a negative search of the records of TriStar concerning the grant of any licence in respect of any film in respect of which TriStar had a copyright or was the copyright owner, but Mr Grossman is not such a person, or not shown to be such a person.
As to paragraph 8.24, in my opinion, even if the business records of TriStar were properly proved showing the screening commencing dates of certain films, that is not a relevant consideration for the commencement of copyright in those films.
The same position applies in relation to the contents of paragraph 8.25 as applies to paragraph 8.24.
The final matter is in relation to the contents of paragraph 8.26. It seems to me that there is a fundamental misunderstanding or misconception of the relevance of registration of copyright in the United States. In my view of the CopyrightAct1968 (Cth), the question of the subsistence of copyright in a film is to be determined by the requirements of that Act and the fact that there has been a certificate of registration under United States law in respect of the copyright in a cinematographic film in the United States Copyright Office is not relevant to the question of whether a person has copyright in a cinematographic film for the purposes of the CopyrightAct1968.
For these reasons, the objection is upheld. The contents of Mr Grossman's affidavit are accordingly struck out from the words “Having searched TriStar’s records” in paragraph 8 down to the conclusion of paragraph 8.26.
I have made it plain that it might be competent for somebody else to give evidence concerning business records. That would depend on compliance with the requirements of the Act. The present affidavit of Mr Grossman does not so qualify him to give such evidence.
| I certify that this and the preceding six (6) 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 |
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