Reference by APRA AMCOS (Set Aside Application)

[2023] ACopyT 4

COPYRIGHT TRIBUNAL OF AUSTRALIA

Reference by APRA AMCOS (Set Aside Application) [2023] ACopyT 4

File number:

CT 1 of 2021

The Tribunal:

PERRAM J (PRESIDENT)

Date of decision:

5 December 2023

Catchwords:

PRACTICE AND PROCEDURE – application to set aside summonses – where summonses were agreed between the parties – whether material change of circumstances since summonses issued

Cases cited:

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Reference by APRA AMCOS (Summons) [2023] ACopyT 3

Reference by APRA AMCOS (Summonses) [2022] ACopyT 4

Number of paragraphs:

5

Date of hearing:

5 December 2023

Counsel for the Applicants:

Mr M Hall SC, Ms R De Stoop and Ms M Evetts

Solicitor for the Applicants:

Banki Haddock Fiora

Counsel for Stan Entertainment Pty Ltd:

Ms A Campbell

Solicitor for Stan Entertainment Pty Ltd:

MinterEllison

Counsel for Netflix, Inc:

Mr B Cameron

Solicitor for Netflix, Inc:

Simpsons Solicitors

COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968

IN THE COPYRIGHT TRIBUNAL

CT 1 of 2021

REFERENCE BY:

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED ABN 42 000 016 099

AUSTRALASIAN MECHANICAL COPYRIGHT OWNERS’ SOCIETY LIMITED ABN 78 001 678 851

Applicants

TRIBUNAL:	PERRAM J (PRESIDENT)
DATE OF ORDER:	5 DECEMBER 2023

THE TRIBUNAL ORDERS THAT:

1.The application to set aside categories 1 and 3 of the summons to APRA AMCOS dated 22 June 2023 and category 1 of the summons to APRA AMCOS dated 8 August 2023 be dismissed.

2.The return date of the two summonses referred to in order 1 be varied to 15 February 2024.

REASONS FOR DETERMINATION
(REVISED FROM TRANSCRIPT)

PERRAM J (PRESIDENT):

1. This is an application to set aside certain agreed categories in two summonses previously issued by the Tribunal.  I accept that the Tribunal has the power to set aside agreed categories in the way which is sought.  The relevant principles to be applied to the application of that power are those set out in the decision of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (‘Brimaud’) at 46. They include, relevantly, that there should be a material change of circumstances since the original order was made. I am not persuaded that there has been a material change in this case.

2. Mr Hall SC, who appeared with Ms De Stoop and Ms Evetts for APRA AMCOS, put the material change submission on two bases.  First, he contended that the process of complying with the categories had turned out to be more burdensome and expensive than had been anticipated at the time that the categories were agreed.  Secondly, he submitted that the Tribunal’s decision in Reference by APRA AMCOS (Summons) [2023] ACopyT 3, given on 7 September 2023, had been a relevant change of circumstances as well. I do not accept that these are relevantly material changes.

3. As to the unanticipated increase in the expense and burden of the categories, litigants are often confronted with the consequences of having made forensic choices.  That assumed states of affairs do not come to pass in litigation is an everyday occurrence and I do not think they can be described as a material change in circumstances.  Secondly, I do not accept that the Tribunal’s earlier decision involved any departure from the principles which had been applied by the Tribunal to that date.  As I indicated in [1] of the reasons, I just applied the principles I had set out in an earlier decision of the Tribunal, Reference by APRA AMCOS (Summonses) [2022] ACopyT 4 at [2]-[20]. Mr Hall drew particular attention to passages in the Tribunal’s decision, which he submitted demonstrated perhaps a change in the position of the Tribunal. This was at [7], where I said this:

   I do not think that the materials sought by Stan and Netflix are of sufficient relevance to the function to be performed by the Tribunal to justify the corresponding burden that would be imposed on APRA AMCOS, particularly given the way the categories are currently framed. 

4. There, I was discussing the position of the internal ruminations of APRA AMCOS in relation to comparable bargains.  The categories which are sought on the present application do not bear that character.  Consequently, I do not accept the submission made that there has been a material change for the purposes of Brimaud.  Even if I had concluded that there had been a material change in circumstances, I would not have concluded, at the requisite standard for determining whether to set aside a summons category, that the categories sought were irrelevant such that in light of the burden caused by them they should be rejected. 

5. Another reason for rejecting the application, if the power had arisen, would have been the fact that the present circumstance arises from a consent order.  There is an interest, both for the parties and for the public, in ensuring, within reasonable limits, that agreements which are registered in the course of the interlocutory steps which lead to an eventual reference are honoured. For those reasons I dismiss the application.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Determination of the Tribunal constituted by the Honourable Justice Perram (President).

Associate:

Dated:       13 December 2023