Roadshow Films Pty Ltd & Ors v iiNet Limited

[2011] HCATrans 311

[2011] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S288 of 2011

B e t w e e n -

ROADSHOW FILMS PTY LTD (ACN 100 746 870)

First Appellant

UNIVERSAL CITY STUDIOS LLLP

Second Appellant

PARAMOUNT PICTURES CORPORATION

Third Appellant

WARNER BROS ENTERTAINMENT INC

Fourth Appellant

INC DISNEY ENTERPRISES

Fifth Appellant

INC COLUMBIA PICTURES INDUSTRIES

Sixth Appellant

TWENTIETH CENTURY FOX FILM CORPORATION

Seventh Appellant

PARAMOUNT HOME ENTERTAINMENT (AUSTRALASIA) PTY LTD ACN 003 914 609

Eighth Appellant

BUENA VISTA HOME ENTERTAINMENT

Ninth Appellant

TWENTIETH CENTURY FOX FILM CORP (AUSTRALIA) PTY LTD ACN 000 007 036

Tenth Appellant

UNIVERSAL PICTURES (AUSTRALASIA) PTY LTD ACN 087 513 620

Eleventh Appellant

VILLAGE ROADSHOW FILMS (BVI) LTD

Twelfth Appellant

UNIVERSAL PICTURES INTERNATIONAL

Thirteenth Appellant

UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP

Fourteenth Appellant

RINGERIKE GMBH & CO KG

Fifteenth Appellant

INTERNATIONALE FILMPRODUKTION BLACKBIRD VIERTE GMBH & CO KG

Sixteenth Appellant

MDBF ZWEITE FILMGESELLSCHATT MBH & CO KG

Seventeenth Appellant

INTERNATIONALE FILMPRODUKTION RICHTER GMBH & CO KG

Eighteenth Appellant

INC NBC STUDIOS

Nineteenth Appellant

DREAMWORKS FILMS LLC

Twentieth Appellant

WARNER BROS INTERNATIONAL TELEVISION DISTRIBUTION INC

Twenty First Appellant

%TWENTIETH CENTURY FOX HOME ENTERTAINMENT INTERNATIONAL CORPORATION%

Twenty Second Appellant

WARNER HOME VIDEO PTY LTD% ACN 002 939 808

Twenty Third Appellant

PATALEX III PRODUCTIONS LTD

Twenty Fourth Appellant

LONELY FILM PRODUCTIONS GMBH & CO KG%

Twenty Fifth Appellant

SONY PICTURES ANIMATION INC%

Twenty Sixth Appellant

UNIVERSAL STUDIOS INTERNATIONAL B.V.

Twenty Seventh Appellant

SONY PICTURES HOME ENTERTAINMENT PTY LTD ACN 002 489 554

Twenty Eighth Appellant

GH ONE LLC

Twenty Ninth Appellant

GH THREE LLC

Thirtieth Appellant

BEVERLY BLVD LLC

Thirty First Appellant

WARNER BROS ENTERTAINMENT AUSTRALIA PTY LTD ACN 003 773 411

Thirty Second Appellant

TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC

Thirty Third Appellant

SEVEN NETWORK (OPERATIONS) LTD ACN 052 845 262

Thirty Fourth Appellant

and

IINET LIMITED (ACN 068 628 937)

Respondent

Summons

GUMMOW ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 NOVEMBER 2011, AT 9.25 AM

Copyright in the High Court of Australia

____________________

MR J.M. HENNESSY, SC:   May it please the Court, I appear for the appellants.  (instructed by Gilbert + Tobin Lawyers)

MR R.P.L. LANCASTER, SC:   May it please the Court, I appear with MR C.J. BURGESS for the respondent.  (instructed by Herbert Geer Lawyers)

HIS HONOUR:   I have prepared some short minutes.  If they could be worked off to bring them into line with what now is the position of the parties that appears from the correspondence.  Is that possible?

MR HENNESSY:   Yes, your Honour.

HIS HONOUR:   What needs to be done?

MR HENNESSY:   Your Honour, I have had an opportunity to discuss the proposed short minutes with my learned friends.  Your Honour, proposed orders (1) and (2) we do not seek to have made.  My clients’ position is that they will not press claims of confidentiality in respect of the items referred to in these proposed orders (1) and (2).

HIS HONOUR:   Right.  So (1) and (2) can go out, can they?

MR HENNESSY:   Orders (1) and (2) can go out.  Then turning to proposed order (3), other than deleting numeral “3”, we have no difficulty with proposed order (3).

HIS HONOUR:   Right.  On your side, Mr Lancaster, (4) is okay, I suppose?

MR LANCASTER:   Your Honour, can I dwell on proposed order (3) for a moment.  Your Honours reference to item numbers there has moved from the first column in the annexure to the summons to the second column.  So there may be some confusion there.  It may be clearer if order (3) refers to items 110, 161 and 169.

HIS HONOUR:   Right.  Let me just check that.

MR LANCASTER:   Item 3 we agree should be deleted, 4, 5 and 6 we take from your Honour’s draft to refer to items 110, 161 and 169 of the annexure.

HIS HONOUR:   Yes, that is right.  So it is 110, 161 and 169.

MR LANCASTER:   Then in respect of proposed order (4), after the word “Summons,” at the end of the first line if your Honour would add “the personal email addresses on” page 816.  It is the balance of the pages proposed to be part of the evidence.

HIS HONOUR:   So it would read, “With respect to item 23 listed in annexure A to the Summons, the” ‑ ‑ ‑

MR LANCASTER:   “Personal email addresses”.

HIS HONOUR:   I see, yes.  “On page 816”?

MR LANCASTER:   Yes, and then it just picks up the balance of the order.  The reference again to item 23, to be consistent, should, we think, refer to 178.

HIS HONOUR:   Yes.

MR LANCASTER:   That is otherwise agreed for the respondent.

HIS HONOUR:   All right.  What is the position with interveners in this matter?  They seem to be ‑ ‑ ‑

MR LANCASTER:   They are enthusiastic.

HIS HONOUR:   Amassing in some enthusiastic ranks.

MR LANCASTER:   Yes.  I am not aware of any developments since the filing of submissions for the interveners as to proposed material or anything of that nature.

HIS HONOUR:   What period has this been listed for at the moment?

MR LANCASTER:   Two days.

HIS HONOUR:   How many allies have you got amongst these interveners?

MR LANCASTER:   One or two.

HIS HONOUR:   Allies can be treacherous of course.

MR LANCASTER:   It may depend on your view of who actually helps and who does not, your Honour.

HIS HONOUR:   Yes.  How many allies have you got, Mr Hennessy?

MR HENNESSY:   I think the score is three each.

HIS HONOUR:   Each of you had better try and co‑ordinate them in some way or other in terms of oral addresses.

MR LANCASTER:   Yes, your Honour.  Your Honour, the two days is seriously at risk if each of the interveners wish to have a substantial period, even half an hour, of oral submissions.

HIS HONOUR:   That is right.

MR LANCASTER:   In that respect, is there any flexibility in the dates or should we confer with the interveners on the basis that it is the two days?

HIS HONOUR:   They do not have leave yet, do they?

MR LANCASTER:   No, they do not.

HIS HONOUR:   It is not their task, as Justice Emmett, I think, was pointing out, the Full Court start getting too closely involved with evidentiary matters in the particular case, let alone at this level where there are findings.  So their participation is useful insofar as they are dealing with principle, I suppose.

MR LANCASTER:   Yes.

HIS HONOUR:   It is a question of what could possibly be left after you two have dealt with it. 

MR LANCASTER:   We will certainly raise it with the counsel for the interveners to determine whether we can come to an arrangement.

HIS HONOUR:   Who are the counsel, do you know?

MR LANCASTER:   I do not have the list in my mind, but they include Mr Flynn, who is one of our supporters.

HIS HONOUR:   All right.  I do not think there is much more we can do this morning on that front, but the two days is firm and they are not to be allowed to eat up your time destructively, given those minutes.

MR LANCASTER:   Yes, thank you, your Honour.

HIS HONOUR:   On the summons filed on 9 November 2011 I order:

1.Items 110, 161 and 169 listed in annexure A to the summons not be reproduced in the appeal book.

2.With respect to item 178 listed in annexure A to the summons, the personal email addresses on page 816 of exhibit MMM2 are to be redacted from and pages 1 to 34 are not to be reproduced in the reproduction of that exhibit in the appeal book.

3.The costs of the summons will be costs of the appeal.

MR LANCASTER:   If it please the Court.

HIS HONOUR:   Is there anything else?

MR LANCASTER:   No, your Honour, thank you.

HIS HONOUR:   Thank you, gentlemen.

AT 9.33 AM THE MATTER WAS ADJOURNED