Phonographic Performance Company of Australia Limited & Ors v Commonwealth of Australia & Anor

[2010] HCATrans 314

[2010] HCATrans 314

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, 25 NOVEMBER 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.  (instructed by Gilbert + Tobin Lawyers)

MS K.M. RICHARDSON:   May it please the Court.  I am led by MR S.B. LLOYD, SC.  I appear for the Commonwealth.  (instructed by Australian Government Solicitor)

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

MR M.A. DARKE:   If your Honour pleases, I appear for the proposed third, fourth and fifth defendants.  (instructed by Minter Ellison Lawyers)

MR COBDEN:   Your Honour was aware, I think, from a communication I sent through the Deputy Registrar that we have made great progress, but we have just hit a hurdle very late in the piece.  The Commonwealth, on the last occasion, your Honour ‑ ‑ ‑

HIS HONOUR:   There was some problem on archival material, was there?

MR COBDEN:   Yes, there was, your Honour.  There is some archival material which the Commonwealth and the ABC’s great industry has revealed from the National Film and Sound Archives but which was incapable of ordinary photocopying.  It is too fragile to be handled for that purpose.  Some inspection was undertaken of it, batches of documents were identified and special archival copying took a bit of a while because quotes had to be obtained and appropriately qualified copiers had to be engaged.  That has now been done and the flow of documents begins to us all tomorrow from those.

We, PPCA, have in the meantime provided an interim response to the Commonwealth’s version which we have agreed with a great deal, but also put in some areas of disagreement.  We then propose to review very thoroughly the fragile documents which will come to us and put forward a further version.  I think it is fair to say there is a very encouraging and significant degree of agreement.  The proposal was then, your Honour, to have one further working meeting of counsel to thrash out exactly what we could to bring a document back to your Honour that is as close to agreement as can be achieved.

We had suggested that we might be able to do that by 10 December, in other words, file the document that follows the process of the meeting and our revision and then come back later in the year.  If we could be coming back earlier in the new year, your Honour, then perhaps it will allow a little more time for that ‑ ‑ ‑

HIS HONOUR:   I think it would be more sensible.

MR COBDEN:   It would be, yes, your Honour.

HIS HONOUR:   If it is to stay in the Court, I would really want it to get in the listings for May if possible.

MR COBDEN:   Yes, your Honour.

HIS HONOUR:   It would be at least a two‑day case, I suspect.

MR COBDEN:   A good two days, yes, your Honour.  One could see that it could go to the third.

HIS HONOUR:   Three days, that is right.  So the sooner that May situation can be clarified the better, but on the other hand, it has to be realistic.  I was thinking of coming back on the third or fourth week of January.

MR COBDEN:   Yes, your Honour.  Certainly for our side we can have sufficient people here.

HIS HONOUR:   Shall I say Thursday, 20 January 2011?

MR COBDEN:   Yes, your Honour.

HIS HONOUR:   Does that seem convenient?  Let me know if it is not.

MR LLOYD:   Your Honour, I would ask if we could have the week in February after the Court’s sittings in February because I will not be back on 20 January.  My client has asked if we could have the period, whatever is convenient to the Court, in February, the earliest February date.

HIS HONOUR:   That is running into the problems with May, you see.  You have a very able junior, if I may say so.

MR LLOYD:   I am sure she is, your Honour, but my client for their infinite wisdom briefed me to deal with the fact matter and then we anticipated from the Court’s previous orders that it would be done by now.  So we have been ready to go and we remain ready to do work in the next week or two, but 20 January is not suitable for us.

HIS HONOUR:   This matter has been in the Court for months and it has to stop.

MR LLOYD:   I accept that, your Honour, but ‑ ‑ ‑

HIS HONOUR:   We have tried to meet the convenience of counsel, but the rule when I was at the Bar was if the High Court wants something done at a date, it is done.

MR LLOYD:   I hear what your Honour says.  As I say, my instructions are not to agree to any date short of February.

HIS HONOUR:   Very well.  Do you have any trouble, Mr Moore?

MR MOORE:   No, your Honour.

HIS HONOUR:   Do I need to make any further directions as to what is to happen in the meantime or can that be done between you?

MR COBDEN:   No, we can do that between us, your Honour, and, of course, a very significant amount may well be able to be achieved in this calendar year and we will know precisely the scope of any dispute that is to happen, if there is to be a dispute before your Honour, on the next day.

MR LLOYD:   Your Honour, I wonder if it would be possible, if your Honour is not inclined to put it in February, to make it at least the very end of January?

HIS HONOUR:   No, I will leave at the 20th this time.  I will stand the proceedings over to 20 January 2011 – that includes the summons for joinder – at 9.30 am on 20 January 2011 before me in Sydney.  The costs of today will be costs in the proceedings.

MR COBDEN:   Sorry to rise again, your Honour.  Your Honour just mentioned the question of the application for joinder.  That is stood over without any fuss from time to time, but I apprehend that that would be the last time we will be before your Honour for directions.

HIS HONOUR:   That is right.

MR COBDEN:   I do not know whether the CRA or the radio stations want it to be ventilated on that occasion before your Honour.  That was the way it was done, for example, in Tape Manufacturers.  If that were to be so, your Honour, at least a notice, perhaps, that they did want to do so would be useful so we could prepare to ventilate the matter properly before your Honour.

HIS HONOUR:   What do you suggest?

MR COBDEN:   That the parties who have applied for intervention give notice not later than, perhaps, 10 days before that date that they will or will not seek to argue the intervention on that day.  I think we could all be sensible enough to provide written outlines and the like by arrangement.

MR LLOYD:   I would be content with a direction in those terms, your Honour.

HIS HONOUR:   Thank you.  Any proposed interveners give notice of that intention to the parties on or before 13 January 2011.  Is there anything else?

MR COBDEN:   No, your Honour.

MR MOORE:   Can I raise something, your Honour.  Your Honour may recall that on a previous occasion the plaintiff informed your Honour that their position was that the imposition of any cap would constitute the acquisition of property on unjust terms.  We do not understand the plaintiff to have resiled from that position.  Specifically, we do not understand the plaintiff to seek to establish that the practical effect of the actual cap was to constrain the amount payable in the sense that in the absence of the cap the amount that would have been payable would have been greater in 1969 or at any other time. 

I mention that because a number of the facts that have been inserted into the document by both the plaintiffs and perhaps also by the Commonwealth might be seen, perhaps, only to go to that question and the ABC, in particular, is concerned that the historical record would not permit, even on an agreed basis, a proper explanation of that factual question and certainly not in this Court and so we understand that the case that the plaintiffs wish to bring is merely that perhaps at most the parliamentary intention was to constrain by some means, but not that the actual practical effect of it was to constrain at any particular time.  If we are not of the correct understanding, that may impact on our attitude to the final resolution of the document.

HIS HONOUR:   Yes.  What is the position about that?

MR COBDEN:   Your Honour, this has been ventilated in a letter since the occasion before your Honour.  We have set out our position.  It is somewhat detailed in those letters.  It has also been raised at ‑ ‑ ‑

HIS HONOUR:   What does it come to?

MR COBDEN:   We attack the position as it was in 1968 and that no cap in 1968 would have been acquisition on just terms.  But the position has been somewhat refined in its practical application in discussions and, indeed, in discussions with the Solicitor‑General in round table with all counsel and I am not quite sure what further subtleties have been pressed to me today.  It has been ventilated in correspondence.  We should take it up again amongst ourselves, your Honour.  If there is any difficulty about it, we will mention it.

MR MOORE:   I am always happy to have further discussions, but we are concerned about the issue.  That is why I raised it today.

HIS HONOUR:   If that really is a substantive issue, it may make it inexpedient to proceed by a case, may it not?

MR COBDEN:   The issue was discussed when all counsel ‑ ‑ ‑

HIS HONOUR:   It may have to go off and be tried.

MR COBDEN:   Yes, we accept what your Honour says.

HIS HONOUR:   Your client has to take that on board.

MR COBDEN:   Yes, quite so, and that is what we have been doing, your Honour, but we take this on board again.  There will be a further major meeting between the counsel and we will see what remaining concerns there are.  We propose to meet them, your Honour.

HIS HONOUR:   All right.  Thank you.  I make those orders in the first matter.

AT 9.47 AM THE MATTER WAS ADJOURNED