Phonographic Performance Company of Australia Limited & Ors

[2010] HCATrans 242

Replacement Transcript

[2010] HCATrans 242

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

J ALBERT & SON PTY LIMITED

Sixth Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

AUSTRALIAN BROADCASTING CORPORATION

Second Defendant

Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 9 SEPTEMBER 2010, AT 9.40 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.  (instructed by Gilbert + Tobin Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with MS K.M. RICHARDSON for the first defendant.  (instructed by Australian Government Solicitor)

MR C.A. MOORE:   If it please the Court, I appear for the Australian Broadcasting Corporation.  (instructed by ABC Legal Services)

MR M.A. DARKE:   If your Honour pleases, I appear for the applicants on the summons for joinder dated 30 April 2010.  (instructed by Minter Ellison Lawyers)

HIS HONOUR:   Yes, thank you.

MR COBDEN:   Your Honour, since the last occasion, as your Honour may be aware, defences were filed by the Commonwealth and the ABC and in accordance with the directions we filed and served a draft special case and we also provided, as I indicated on the last occasion, I think some 15 volumes of materials from the National Archives and we have had a round table meeting of all parties, including the radio parties, if I can call them that – Mr Darke’s clients.

HIS HONOUR:   That is Mr Darke’s clients?

MR COBDEN:   Yes, your Honour – and had a discussion on the special case and there is a process that has been agreed to go forward, if it is convenient to the Court, in which a considerable amount of further work will be done by, particularly, the parties to my right and then come back to us and, I think, the submissions filed by the Commonwealth indicate that there is a – expressed it as “with which we agree, cautiously optimistic that the matter can proceed by way of special case”.  There has been a timetable proposed in the submissions filed by the Commonwealth, your Honour, the structure of which we agree with.

HIS HONOUR:   It sounds as if it would be a fairly bulky stated case, is it?

MR COBDEN:   Yes, your Honour.  There would be additions to what we would file, rather than subtractions, although there will maybe be some subtractions as well.  My learned friend, the Solicitor, has just informed me that, for example, if I may say so, not only the National Archives but there is a Film and Sound Recording Archive which apparently contains some useful material the Commonwealth has been exploring.

HIS HONOUR:   Yes, there is.

MR COBDEN:   So there would be a significant amount of material, your Honour, but, as we say, we are cautiously optimistic.  We had, for our part, nursed an optimistic hope of a hearing this year but, as your Honour sees ‑ ‑ ‑

HIS HONOUR:   It will not happen, I do not think.

MR COBDEN:   No, your Honour.  There is a timetable proposed with which we can all fit.

HIS HONOUR:   What about the status of Mr Darke’s clients, the radio parties?

MR COBDEN:   They will press that position in due course, your Honour, but they have said they would not be pressing it today and so that summons would be stood over, if that is convenient to the Court.

HIS HONOUR:   What was the date of your summons?

MR DARKE:   30 April 2010.

MR COBDEN:   There was a short set of proposed orders at the end of the Commonwealth’s submissions, your Honour.  I think the only other thing I might need to report on, your Honour, is the question of the repertoire on

which the case might proceed.  We are also isolating a small number of recordings that will fit the various facts that the parties might wish to put forward.

HIS HONOUR:   Right.

MR COBDEN:   That is also under way, your Honour.

HIS HONOUR:   Very well.  Yes, thank you, Mr Cobden.

MR COBDEN:   May it please the Court.

HIS HONOUR:   It would be more convenient if, looking at the proposed orders, that date of 24 November, which is a Wednesday, became 23 November and the proceeding were listed for directions on the 26th.  Is that convenient?  That is the Friday.  Otherwise we run into the December sittings.

MR COBDEN:   Would your Honour pardon me just for a moment?  A number of the parties are involved in a Federal Court review of a copyright tribunal case on that day.  Is there any possibility – obviously, at your Honour’s convenience ‑ ‑ ‑

HIS HONOUR:   Well, Thursday, the 25th.

MR COBDEN:   Yes, your Honour.

MR GAGELER:   I am sorry, your Honour, to cause any difficulty.  Would the following week be convenient?

HIS HONOUR:   That is in the middle of the December sittings, unless you all want to come to Canberra.  The Solicitor might already be there.

MR GAGELER:   Canberra ‑ ‑ ‑

MR COBDEN:   Always a pleasure to go, your Honour.

MR GAGELER:   It does not matter where it is.

MR COBDEN:   Yes, the 26th, your Honour, your Honour’s original date.

HIS HONOUR:   The 26th.

MR COBDEN:   Yes, may it please the Court.

HIS HONOUR:   I will say 9.15, so that should get you to the Federal Court.  What time is the matter in the Federal Court – 10.15, I suppose.  I make orders in accordance with the amended proposal so that:

1.The amended proposed special case will be filed and served by the defendants on or before 15 October.

2.The plaintiffs file and serve the further proposed special case on or before 23 November.

3.The summons for joinder filed on 30 April be stood over until the next directions hearing.

4.The proceedings will be listed for further directions before me on Friday, 26 November at 9.15 –

Just let me check that.  No, I cannot do that either.  We will have to go back to the 25th.  What was the problem with the 25th?

MR GAGELER:   Your Honour, I have a problem, but it does not matter.  We will be represented.

HIS HONOUR:   You have ample assistance.

MR GAGELER:   I certainly have.

HIS HONOUR:  

4.The proceedings will be listed for further directions on Thursday, 25 November at 9.30.

MR COBDEN:   Your Honour, 9.30 will be convenient on the 25th.

HIS HONOUR:  

5.Costs of today will be costs in the cause.

I will now adjourn.

AT 9.49 AM THE MATTER WAS CONCLUDED