Seven Network (Operations) Limited (ACN 052 845 262) v TCN Channel Nine Pty Limited (ACN 001 549 560)

[2005] FCA 540

FEDERAL COURT OF AUSTRALIA

Seven Network (Operations) Limited (ACN 052 845 262) v TCN Channel Nine Pty Limited (ACN 001 549 560) [2005] FCA 540

PRACTICE AND PROCEDURE – late amendment of defence permitted

SEVEN NETWORK (OPERATIONS) LIMITED (ACN 052 845 262) AND CHANNEL SEVEN SYDNEY PTY LIMITED (ACN 000 185 246) v TCN CHANNEL NINE PTY LIMITED (ACN 001 549 560), NBN LIMITED (ACN 000 232 486), BRETT MURRAY, D.A.R.E. OPERATIONS PTY LIMITED (ACN 108 345 446), LOOK TELEVISION PRODUCTIONS PTY LIMITED (ACN 008 685 407) AND LOOK FILM PRODUCTIONS PTY LIMITED (ACN 002 486 384)

NSD 466 OF 2005

GYLES J
18 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 466 OF 2005

BETWEEN:

SEVEN NETWORK (OPERATIONS) LIMITED (ACN 052 845 262)
FIRST APPLICANT

CHANNEL SEVEN SYDNEY PTY LIMITED (ACN 000 185 246)
SECOND APPLICANT

AND:

TCN CHANNEL NINE PTY LIMITED (ACN 001 549 560)
FIRST RESPONDENT

NBN LIMITED (ACN 000 232 486)
SECOND RESPONDENT

BRETT MURRAY
THIRD RESPONDENT

D.A.R.E. OPERATIONS PTY LIMITED (ACN 108 345 446)
FOURTH RESPONDENT

LOOK TELEVISION PRODUCTIONS PTY LIMITED (ACN 008 685 407)
FIFTH RESPONDENT

LOOK FILM PRODUCTIONS PTY LIMITED (ACN 002 486 384)
SIXTH RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

18 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The respondents be granted leave to amend the defence.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 466 OF 2005

BETWEEN:

SEVEN NETWORK (OPERATIONS) LIMITED (ACN 052 845 262)
FIRST APPLICANT

CHANNEL SEVEN SYDNEY PTY LIMITED (ACN 000 185 246)
SECOND APPLICANT

AND:

TCN CHANNEL NINE PTY LIMITED (ACN 001 549 560)
FIRST RESPONDENT

NBN LIMITED (ACN 000 232 486)
SECOND RESPONDENT

BRETT MURRAY
THIRD RESPONDENT

D.A.R.E. OPERATIONS PTY LIMITED (ACN 108 345 446)
FOURTH RESPONDENT

LOOK TELEVISION PRODUCTIONS PTY LIMITED (ACN 008 685 407)
FIFTH RESPONDENT

LOOK FILM PRODUCTIONS PTY LIMITED (ACN 002 486 384)
SIXTH RESPONDENT

JUDGE:	GYLES J
DATE:	18 APRIL 2005
PLACE:	SYDNEY

REASONS FOR RULING

1. It is argued that the respondents are fixed with an admission on the pleadings that there has been breach of copyright in the film shown on ‘Today Tonight’ in relation to the film made by or on behalf of the fourth and fifth respondents (the ‘Look film’).  The transcript records the argument.  The Look film is the immediate basis for this proceeding.  It is at the heart of this proceeding.  Its proposed showing is the reason for urgency of the proceeding.

2. It seems to me that the effect of the pleadings on the relevant point is, at least, doubtful.  The pleading of ‘and/or’ means that it is not possible to read most of the paragraphs as being an admission of copying.  The same cannot be said of the amendment made to paragraph 90.3 which, it seems to me, because of its form, would be read as being an express admission of copying.

3. Whilst it is true that there has been no affidavit evidence as to the circumstances of the matter, the correspondence I have seen, consideration of the transcript to which I have been referred, and the timing of the amendment make it entirely likely that it was intended to relate primarily, if not wholly, to the question of substantiality.  Whether that be right or not, the evidence which has been led in the principal case means that it is in the interests of justice that I permit the issue of copying of the film which went to air on ‘Today Tonight’ to be investigated.

4. I understand that in making that ruling, I will open up the need for further consideration of the evidence.  This will place counsel for the applicants in a position where he and those instructing him will have to make decisions as to how to handle this.  But that is the lot of litigation.  I rule that the amendment should be made.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            2 May 2005

Counsel for the Applicants:	RG McHugh, PW Flynn
Solicitor for the Applicants:	Mallesons Stephen Jaques
Counsel for the Respondents:	BR McClintock SC, JM Hennessy
Solicitor for the Respondents:	Gilbert + Tobin
Date of Hearing:	18 April 2005
Date of Ruling:	18 April 2005