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

[2010] HCATrans 118

[2010] HCATrans 118

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 ACN 000 026 513

Sixth Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

AUSTRALIAN BROADCASTING CORPORATION

Second Defendant

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 6 MAY 2010, AT 9.39 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, who are also respondents on the summons for joinder by the radio parties.  (instructed by Gilbert + Tobin Lawyers)

HIS HONOUR:   Yes, what is the date of that summons?

MR COBDEN:   30 April, your Honour.

HIS HONOUR:   Thank you.

MS K.M. RICHARDSON:   If the Court pleases, I appear for the Commonwealth.  (instructed by Australian Government Solicitor)

MR J.C. SHEAHAN, SC:   May it please the Court, I appear with my learned friend, MR C.A. MOORE for the Australian Broadcasting Corporation.  (instructed by Minter Ellison Lawyers)

MR A.J. MEAGHER, SC:   May it please the Court, I appear with MR M.A. DARKE for Consolidated Broadcasting System (WA) Pty Ltd, the Commonwealth Broadcasting Corporation Pty Ltd and Commercial Radio Australia Limited, the applicants on the summons.  (instructed by Minter Ellison Lawyers)

HIS HONOUR:   This is the summons filed on 30 April.  Which of your clients is the commercial body, if I might call it that?

MR MEAGHER:   Commercial Radio Australia Limited.  The other two are commercial broadcasters and have been since 1920s or 1930s.

HIS HONOUR:   Right.  Why should they have an interest above the Commercial Radio Australia Limited interest?

MR MEAGHER:   The question as to whether they should be joined as parties they would have an interest in the sense that their rights are directly ‑ ‑ ‑

HIS HONOUR:   So would dozens of other broadcasters.

MR MEAGHER:   That is so, but if your Honour is proposing ‑ ‑ ‑

HIS HONOUR:   Why would it not be enough if one of you is to get in that the party that gets in is the overall body?

MR MEAGHER:   That would be enough, your Honour.

HIS HONOUR:   All right.  Now, before we get to that, the first question that arises, I think, concerns you, Ms Richardson.  I have been looking at your written submissions dated yesterday.  I have been looking at the way in which the ICM litigation fell out, you will remember.

MS RICHARDSON:   Yes, your Honour.

HIS HONOUR:   You will remember that, I think, six members of the Court in the end held that there was no acquisition so they did not need to get into whether there were inadequate terms.

MS RICHARDSON:   Yes, your Honour.

HIS HONOUR:   Rule 27.07.4 of the High Court Rules provides that “A party may plead and demur”, which I have certainly seen done in these cases.  You might not be able to answer this but is it the Commonwealth’s position as you see it likely, is it the Commonwealth’s position on the further amended statement of claim there is no case made out for there being any acquisition on 1 May 1969?

MS RICHARDSON:   Certainly, I envisage a defence that the Commonwealth would put.  We only received this draft pleading yesterday.

HIS HONOUR:   I understand.

MS RICHARDSON:   I have had limited access to talk to the Solicitor‑General, but that is certainly a defence that we would anticipate.  We have considered the position of demurrer and that is not the approach that the Commonwealth is proposing to take.  Rather, we will consent to put on a defence.

HIS HONOUR:   Very well.  What is your attitude to that, Mr Cobden?

MR COBDEN:   I am not quite sure what my learned friend was proposing but ‑ ‑ ‑

HIS HONOUR:   She is proposing, I think at the moment, not to demur to anything but to plead to everything.

MR COBDEN:   Yes.  Your Honour, in that case we would need to explore the special case issue on the question of the just terms side.  We have put our case as your Honour sees.  We do not see that there is a valuation exercise that will arise, but presumably we have to see what the Commonwealth says by way of defence and then explore the question of the special case ‑ ‑ ‑

HIS HONOUR:   All right.

MR COBDEN:   As to which the Commonwealth says perhaps a little less pessimistically before - and we remain optimistic that parties will be able to agree.

HIS HONOUR:   Yes, well a question would arise as to the range of the special case, I suppose, as it were.

MR COBDEN:   Yes.

HIS HONOUR:   It may be that the special case is limited in some way so that there are issues which conceivably would have then to be litigated, depending upon an adverse answer.  A favourable answer would produce another result.

MR COBDEN:   Yes, quite so.

HIS HONOUR:   All right.  Is there anything you want to say, Mr Sheahan, on this question of where we go from here?

MR SHEAHAN:   Just one thing very briefly, your Honour.  We think that the matter can proceed in the direction of the special case, but we really think that is on the footing of an understanding of paragraph 64 of the revised amended statement of claim.  As it is now articulated, we understand it ‑ ‑ ‑

HIS HONOUR:   Just a minute – 64?

MR SHEAHAN:   Paragraph 64, which is the just terms plea so far as it affects my client.

HIS HONOUR:   Yes.

MR SHEAHAN:   We really see that as articulating a case that any statutory cap is inconsistent with just terms for the reasons that are spelt out.

HIS HONOUR:   Yes, any statutory cap.

MR SHEAHAN:   Any statutory cap.  On that basis we think there is some prospect of us being able to put together a special case.

HIS HONOUR:   That is right, is it not, Mr Cobden?

MR COBDEN:   That is, your Honour.  In any statutory cap in the context of this statute, of course, read as a whole.  Yes, your Honour.

HIS HONOUR:   Yes.  Now, I should have asked Mr Sheahan – what is your attitude to the joinder of the Commercial people?

MR SHEAHAN:   We support the joinder of at least one of Mr Meagher’s clients.

HIS HONOUR:   Yes, what do you say about that, Mr Cobden?

MR COBDEN:   On the joinder question, your Honour?

HIS HONOUR:   Yes.

MR COBDEN:   We say that none of them should be joined but that one or all of them, we would not oppose their being interveners in the case.

HIS HONOUR:   Well, interveners are pretty well assimilated to parties, except they do not suffer or obtain costs.

MR COBDEN:   Yes, quite, depending on the ‑ ‑ ‑

HIS HONOUR:   They have a right of appeal, for example.

MR COBDEN:   Depending on the terms of the intervention, of course, your Honour, and I think really what it has come down to, when we look at what our learned friends, Mr Meagher and Mr Darke, say and what we would say in answer to it is the question the extent to which the interveners will be permitted to, as it were, veto the special case.  We say the special case should be negotiated between us and the defendants, primarily the Commonwealth, of course.  That does not mean the Commonwealth cannot turn to the interveners.  That is what Justice Dawson said in Tape Manufacturers on the joinder case.  Of course the failed applicants for joinder will help out the Commonwealth, but it does not mean they need to be parties.  We were just a little troubled by paragraph 15(c) of the submissions on the summons for joinder about the possibility of the radio station parties seeking to introduce irrelevant material into the special case because what they say is that ‑ ‑ ‑

HIS HONOUR:   Sorry, paragraph?

MR COBDEN:   Paragraph 15(c), your Honour.  Paragraph 15 is an answer to a number of points we put up in anticipation and 15(c) says that in answer to our suggestion the case will be “adequately contradicted”, in particular by the Commonwealth, that:

The impact of ss 109 and 152(8) on commercial negotiations between PPCA and CRA (on behalf of broadcasters including Consolidated and CBC) is an issue which may not be addressed adequately unless they are able to participate in the process of agreeing a draft special/stated case or to lead evidence.

As your Honour knows, our case focuses on 1 May 1969 and the impact of those sections on present commercial negotiations is not something that we would see as infiltrating the special case at all.

HIS HONOUR:   Yes, I see that.

MR COBDEN:   That illuminates our concerns, if I can put it that way.

HIS HONOUR:   What do you say about that, Mr Meagher - about 15(c)?

MR MEAGHER:   Could I take your Honour back to the pleading.  It really arises out of ‑ ‑ ‑

HIS HONOUR:   We know what the pleading is designed to do.

MR MEAGHER:   If my friend’s case is that any statutory cap would present the problem then what we refer to there does not arise and we would take the same position as Mr Sheahan, namely that the matter ought be able to be, or is likely to be able to be dealt with by special case which does not involve any serious factual contests.  But what we have written there was concerned to address allegations in paragraphs 52, 60 ‑ ‑ ‑

HIS HONOUR:   Just a minute – 52 ‑ ‑ ‑

MR MEAGHER:   It is the reference to the negotiations and then 60(c), which is an allegation made against the ABC and the commercial broadcasters, that is that the caps have an inherent, indirect effect of restricting payments, even by way of negotiation, and then paragraph 63(b) ‑ ‑ ‑

HIS HONOUR:   “Have”, as I understand it, means “had on 1 May 1969”.  Is that right, Mr Cobden?

MR COBDEN:   Yes, your Honour.

HIS HONOUR:   We are not on the commercial list, Mr Meagher.

MR MEAGHER:   No, I understand that, your Honour.

HIS HONOUR:   We are trying to get to the heart of the matter.

MR MEAGHER:   If that is the way it is put, then the problem that we adverted to will not arise, but that, in our submission, is not a good reason for us not being – one of us being joined as a party.  We obviously do not propose to obstruct the matter, your Honour.  The real point is that we have rights which are directly affected.  At the moment we have a liberty to broadcast without the benefit of a – without having to have a consensual licence and the plaintiffs seek to have that right extinguished or removed.

HIS HONOUR:   Very well. 

MR COBDEN:   I think there are some passages in Levy, your Honour, that directly touch on this point but I will not trouble your Honour with those unless I need to.

HIS HONOUR:   No, I remember Levy all too well.

MR COBDEN:   I did have a couple of things to say about the Commonwealth’s proposed directions which is a convenient set to work from.

HIS HONOUR:   Yes, that is what I was coming to.

MR COBDEN:   Thank you, your Honour.  At page 3 of Ms Richardson’s outline there is a set of proposed directions and we agree with the steps, but we would like to add one but have something to say about the timing.  Is it convenient if I say that now, your Honour?

HIS HONOUR:   Yes.

MR COBDEN:   Thank you.  Your Honour, we would like to make it happen a little more quickly and 11.1, which is the Commonwealth’s request for particulars, we would think that they probably know what they are going to ask and we would like them to ask it by 13 May rather than 28 May.  That is a week and then we would respond – because we are not sure what they are going to ask – in two weeks.  That is 27 May. 

The Commonwealth has then said it wants quite a long period for its defence up till 30 July.  We would suggest 30 June and add this, your Honour.  We have done very extensive research into the archival materials and we have a wealth of material, including briefing notes, briefing notes to the Department by Sir Nigel Bowen, an opinion of Sir Garfield Barwick’s in the lead up to the – not on just terms but on all the other aspects of the introduction to this section and we are most happy to make all those materials available of the Commonwealth extremely expeditiously so we rather apprehend that they will not need to delve around deeply into the materials because we have done a very deep research of them.

So in the light of that we will provide those materials to the Commonwealth and we would suggest that 30 June might be sufficient time to put on a defence.  Because of the rising level of optimism about a draft special case we would then – I am not going to put it too high – add in a step that we provide the defendants with a draft special case by 14 July – that is an extra step and then come back before the Court at a date convenient but not less than a week after that to give people a chance to look at it and see how optimism levels are sitting.

HIS HONOUR:   All right.  Well, what do you say about that, Ms Richardson, Mr Sheahan?

MS RICHARDSON:   The Commonwealth accepts that if the plaintiffs’ case as they have clarified today is that any cap would be unconstitutional it does seem to simplify matters to some extent.

HIS HONOUR:   It does.

MS RICHARDSON:   That was not apparent to us on the pleading.

HIS HONOUR:   It is now.

MS RICHARDSON:   In terms of timing we are grateful for the proffer from the plaintiffs of their archival material, but even though they have done their task, we would still be required to consider that material for ourselves and that archival material is in various States of Australia and, in particular, may go to questions under the 1911 Act as to the nature of those rights, in practical operation how those payments that may have changed hands or failed to change hands in that period ‑ ‑ ‑

MR COBDEN:   We go back to the Owen Royal Commission – I am sorry.

HIS HONOUR:   What date is the Owen Royal Commission?

MR COBDEN:   1937, I think, your Honour, post‑Cawardine - 1933, I am sorry.

HIS HONOUR:   1933, that is right, yes.

MR COBDEN:   I am sorry to interrupt my learned friend.  I did not make it clear we had actually gone well back into the 1911 Act materials.

MS RICHARDSON:   Even if they have gone that far back, we are still required, in terms of preparing our defence and acting in the Commonwealth’s interests to do that review ourselves.  It is a considerable job and we would note that the plaintiffs have had three attempts at this pleading and three some months and – well, 40 years, as Mr Cobden concedes, and we would like a considerable amount of time – well, an appropriate amount of time, we submit, to prepare our case properly.

HIS HONOUR:   There is an extra step Mr Cobden proposes which is that his side brings in a draft special case.  That seems a good idea, does it not?

MS RICHARDSON:   I am in your Honour’s hands.  We submit that it is premature, but given the concession made today that things may be simpler, I would not say any more on that issue.

HIS HONOUR:   All right.  Mr Sheahan.

MR SHEAHAN:   Your Honour, as to timing a job is better done well than quickly so we would support the Commonwealth on that.  We would ask that if the plaintiffs are going to distribute to the Commonwealth archival material that they give it to us and perhaps to the other defendants as well, if there are other defendants and as far as an extra step, yes there should be an extra step but there does need to be, I think, a couple of weeks between the delivery of the draft special case coming back here so that we can have a useful interchange between each other rather than having it in front of your Honour.

HIS HONOUR:   Thank you. 

MS RICHARDSON:   Your Honour, I should have indicated the Commonwealth will consent to putting on its request for particulars earlier.  That is something that we can do.

HIS HONOUR:   21 May.

MS RICHARDSON:   Thank you, your Honour.

HIS HONOUR:   How soon were you proposing to put on a draft special case after the delivery of a defence?

MR COBDEN:   Two weeks, your Honour.

HIS HONOUR:   Thank you.  This is what I propose:

1.The defendants serve on the plaintiffs any request for particulars by 21 May 2010 and the plaintiffs respond by 4 June 2010.

2.The defendants file and serve any demurrer or defence on or before 16 July 2010.

3.In the absence of any demurrer the plaintiffs file and serve any proposed special case on or before 30 July 2010.

4.Stand over for further directions to 10 August 2010 at 9.30 before me.

5.Stand over to that date the summons for joinder filed on 30 April 2010.

6.Costs of today be costs in the cause.

Is there anything else?

MR COBDEN:   No, your Honour.

HIS HONOUR:   I have not made a specific provision for it, but you had better serve that draft proposed special case on Mr Meagher as well. 

MR COBDEN:   May it please, your Honour.

HIS HONOUR:   Thank you.  I will now adjourn.

AT 10.05 AM THE MATTER WAS CONCLUDED