Phonographic Performance Company of Australia Limited & Ors v Commonwealth of Australia & Anor [2011] HCATrans 2

[2011] HCATrans 2

[2011] HCATrans 002

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 Hearing

GUMMOW ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 JANUARY 2011, 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 appear for the first defendant.  (instructed by Australian Government Solicitor)

MR C.A. MOORE:   May it please the Court, I appear with my learned friend, MR R.A. YEZERSKI, for the second defendant.  (instructed by ABC Legal Services)

MR M.A. DARKE:   May it please the Court, I appear for the applicants on the summons.  (instructed by Minter Ellison Lawyers)

HIS HONOUR:   Yes, Mr Cobden.

MR COBDEN:   Your Honour, we have provided some short minutes of orders which are by consent, subject to your Honour’s view, of course.  Yesterday we filed, towards the end of the day, a draft special case which was agreed between the parties save for two very small matters, that is to say, the last sentence in paragraph 139(d) is to be struck out.

HIS HONOUR:   Just a minute, paragraph 139.

MR COBDEN:   Which is on page 33, your Honour. 

HIS HONOUR:   The last sentence of 139(d)?

MR COBDEN:   Yes, “There was a practice”.

HIS HONOUR:   Yes, I see that.

MR COBDEN:   We have agreed to delete that.  In relation to one paragraph, which is paragraph 216, your Honour, that is to be replaced by a paragraph which is – unfortunately calculations have to be performed which have been agreed in principle between us and the Commonwealth and the other parties, but that will need a little tidying up ‑ ‑ ‑

HIS HONOUR:   How will this engage Mr Darke’s clients?

MR COBDEN:   Mr Darke’s clients, your Honour, have agreed to this special case and then, as your Honour may have seen from the short minutes of order, and we indicated, I think, in a short letter, we have resolved the summons between ourselves and Mr Darke’s clients and we will seek leave to add Mr Darke’s clients, the Commercial Radio Association Limited, as the third defendant.  That will dispose of, your Honour, the joinder.

HIS HONOUR:   Yes.  Does anything have to be said in the special case about the origins of the third defendant?

MR COBDEN:   It is already there, your Honour. 

HIS HONOUR:   Where is that?

MR COBDEN:   Towards the end, paragraph 249 and onwards.  We deal with the history of the industry agreements and, conveniently, it is CRA, as an abbreviation, 249, 250, as indicated in 251.

HIS HONOUR:   Yes, right.

MR COBDEN:   They were already referred to in the pleading and in an amended pleading which we have referred to in the short minutes of order.  We move them up to the beginning and recite their history, now, with CRA as the third defendant. 

HIS HONOUR:   All right.  Now, paragraph 74.  You remember the fate of Mr Enderby.  You have to remove the words “from overseas”.

MR COBDEN:   Yes.

HIS HONOUR:   He memorably said “most of our imports came from overseas”.

MR COBDEN:   Yes, I do remember, your Honour. 

HIS HONOUR:   Now, in paragraph 77, that reference to “1925”, is that a typo or does it mean circa?

MR COBDEN:   Circa 1925, I think, your Honour.  I think the best we could do is circa 1925, yes. 

HIS HONOUR:   Yes, okay.  Now, in paragraph 100, and this occurs elsewhere, on page 24 it says, “in brief summary – see the terms of the Act.

MR COBDEN:   We do not want to usurp the provisions of an Act which the Court may, in due course, have to construe conceivably in some way, but the historical position that we have put there is pretty much generally agreed – is agreed by all the ‑ ‑ ‑

HIS HONOUR:   Is it enough to say “in brief summary”, leave out the imperative?

MR COBDEN:   Yes, your Honour.

HIS HONOUR:   That occurs in other places too, I think.

MR COBDEN:   We will attend to all of those, your Honour.

HIS HONOUR:   Yes, okay.  For example at the top of page 25.

MR COBDEN:   Yes, your Honour.

HIS HONOUR:   Now, how bulky are these supporting materials going to be?

MR COBDEN:   Your Honour, they presently occupy a single‑spaced, single‑sided copy about seven lever arch folders which will turn into, I think, about 10 bound volumes, unless we were to copy any of them double‑sided. 

HIS HONOUR:   That brings me to the next question.  Is there any possibility of any interveners that you would not expect?

MR COBDEN:   We rather think not, your Honour, because, first of all, it has been on foot for some time and of course the Commercial Radio people, being Mr Darke’s clients, represent virtually all commercial radio broadcasters, I think.  We also wrote to – I can provide your Honour with the detail – at the outset of the case the Communications and Media Authority and asked them to communicate it to anybody they thought should be communicated to and also to the Community Broadcasters Association. 

HIS HONOUR:   Right.

MR COBDEN:   We also gave the requisite notices, of course. 

HIS HONOUR:   We want to avoid any last minute interveners if we can.

MR COBDEN:   No.  We rather think that there would not be, your Honour, but we would have to put the order in just to accommodate it. 

HIS HONOUR:   I should not have thought the States would be interested in this matter.

MR COBDEN:   No, your Honour. 

HIS HONOUR:   I cannot be entirely emphatic about the listing date, but it would require at least two days and I think probably three.  Does that seem right?

MR COBDEN:   Yes, I think that is what we agreed on by application, your Honour, yes.

HIS HONOUR:   At the moment I am thinking of the second week in the May sittings, that is 10, 11 and 12 May, but that would have to be confirmed.

MR COBDEN:   Yes, your Honour.

HIS HONOUR:   I think your timetable would fit in with that.

MR COBDEN:   Thank you, your Honour.  Might I indicate one change that we have just agreed which is that in order 8 of the short minutes we sent up to your Honour, if your Honour could change five weeks to six weeks.  In other words, we will provide our written submissions a week earlier and that gives the other parties three weeks, not two.  Thank you, your Honour. 

HIS HONOUR:   Obviously the earlier the Court has all this material the better because it is going to require some preparation before the hearing.

MR COBDEN:   We contemplate preparing and filing the complete special case by the 27th, your Honour.  There is one other matter I do need to mention, your Honour.  You may recall there was – continuing our concern that the ABC had about the way we put our case which was raised some time ago and raised by my learned friend, Mr Moore, on the last occasion.  We have had correspondence about that and we indicated our position in response to a letter from the ABC yesterday and that letter satisfies them.  My learned friend, Mr Moore, had indicated he may wish to put that on the record, that letter, by tendering it or some other method.  We are content with whatever he wishes to do about that, your Honour, but our position has been clarified and that has led the ABC to be able to agree to the special case.

HIS HONOUR:   Thank you.  Just pardon me a moment.  All right.  Well, looking at the short minutes – was there anything you wanted to say, Mr Moore?

MR MOORE:   Your Honour may recall that we were concerned that there was a lack of clarity as to how the PPCA put their case.  That concern was resolved by letter yesterday.  As a result of that, we are content with the position, but we thought your Honour should see how they are now putting the case because it does involve some slight resiling from the position that was put back on 6 May.  If I could hand up a copy of the letter which we received yesterday and also our letter to them which is provided by way of explanation of some of the references in their letter.  We understand that is the basis on which the plaintiffs now put their case and we agree to the special case on the basis that that is their position. 

HIS HONOUR:   I am wondering what the best way is to get this on the papers before the Full Court.  Probably if you annexed the correspondence to your submissions in due course.

MR MOORE:   Yes, we accept that course, your Honour.

HIS HONOUR:   The Full Court will have explained why it has been done in your submissions.  All right.  I will leave these copies in the file for the moment.

MR MOORE:   Thank you, your Honour.

HIS HONOUR:   I will not make a fresh order about it, but you will attend to it. 

MR MOORE:   Yes, your Honour.

HIS HONOUR:   Paragraph 1, the plaintiff be granted leave to join Commercial Radio Australia as third defendant and the summons filed on 30 April by those parties otherwise be dismissed and the cost of the summons be costs in the cause.  In paragraph 6, the questions of law set out in the special case are reserved for consideration by the Full Court.  Paragraph 7, the parties be ready for listing before the Full Court in the May sittings.  Paragraph 8 should be six weeks prior to the hearing.  I think that is it.

MR COBDEN:   I think if that example remains in italics in your Honour’s version in 8, then the dates of 25 would change to 18, or your Honour could strike out the example.

HIS HONOUR:   Just strike out the example.

MR COBDEN:   Thank you, your Honour.  There is an example in 9 as well to be struck out.

HIS HONOUR:   Strike that out as well, and 11.  All right then, well, I give directions in accordance with the short minutes I have initialled, dated and placed with the papers.  Thank you, gentlemen.

AT 9.50 AM THE MATTER WAS ADJOURNED