Universal Music Publishing Pty Ltd v Palmer - [2020] FCA 1472

FEDERAL COURT OF AUSTRALIA
Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472

File number: NSD 161 of 2019

Judgment of: KATZMANN J

Date of judgment: 12 October 2020

Date of publication of reasons: 13 October 2020

Catchwords: PRACTICE AND PROCEDURE — application by respondent on the eve of a trial for the hearing dates to be vacated — where arrangements had been made for hearing to take place through video conferencing software during COVID-19 pandemic — where remote trial protocol has been agreed — where witnesses are in disparate locations in Australia and overseas and all the respondent’s witnesses are in Queensland — where the application is based on the possibility that the Queensland/NSW border will be opened in the near future — where trial preparation is under way, the applicants oppose the application, the respondent’s credit is a significant issue and he consents to paying the applicants’ costs forthwith and on an indemnity basis, whether in the interests of justice to grant the adjournment

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 37M, 47A(1)

Federal Court Rules 2011 (Cth) r 1.32

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504

Australian Securities and Investments Commission v Wilson [2020] FCA 873; 146 ACSR 149

Bomanite Pty Ltd v Slatex Corp AustPty Limited (1991) 32 FCR 379

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152

Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486

Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84

R v Ngo (2003) 57 NSWLR 55

Rooney v AGL Energy Limited (No 2) [2020] FCA 942

Tetley v Goldmate Group Pty Ltd [2020] FCA 913

Division: General Division

Registry: New South Wales

National Practice Area: Intellectual Property

Sub-area: Copyright and Industrial Designs

Number of paragraphs: 39

Date of hearing: 12 October 2020

Counsel for the Applicants: Mr P W Flynn SC with Mr W H Wu

Solicitor for the Applicants: Simpsons Solicitors

Counsel for the Respondent: Mr P Williams

Solicitor for the Respondent: Alexander Law

ORDERS

NSD 161 of 2019

BETWEEN:
UNIVERSAL MUSIC PUBLISHING PTY LTD

First Applicant

SONGS OF UNIVERSAL, INC.

Second Applicant

AND:
CLIVE FREDERICK PALMER

Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

12 OCTOBER 2020

THE COURT ORDERS THAT:
1.The amended interlocutory application filed on 12 October 2020 be dismissed.
2.The respondent pay the applicants’ costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
KATZMANN J:

This is a case about copyright infringement. It arises out of the alleged use by the United Australia Party (UAP) during the last federal election campaign of a substantial part of the music and lyrics of the song “We’re Not Gonna Take It”. The undisputed evidence is that the song was composed and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCA 1472
Decision Date: 12 October 2020

CaseChat Overview and Summary

Universal Music Publishing Pty Ltd sought damages for copyright infringement against Palmer, the application was set down for a trial. Palmer applied on the eve of the trial for the hearing dates to be vacated, citing the possibility that the Queensland/NSW border would be opened in the near future, which would allow his witnesses to attend in person. The application was opposed by Universal Music Publishing Pty Ltd, who argued that the trial was ready to proceed, all witnesses were prepared, and the respondent’s credibility was a significant issue.

The court considered whether it was in the interests of justice to grant the adjournment, despite the fact that arrangements had been made for the hearing to take place through video conferencing software during the COVID-19 pandemic. The court noted that a remote trial protocol had been agreed, witnesses were in disparate locations in Australia and overseas, and all the respondent’s witnesses were in Queensland. The court also considered the respondent’s credit, which was a significant issue in the case, and the fact that the respondent consented to paying the applicants’ costs forthwith and on an indemnity basis.

The court found that it was not in the interests of justice to grant the adjournment. The court noted that the trial was ready to proceed, all witnesses were prepared, and the respondent’s credibility was a significant issue. The court also considered the respondent’s consent to pay the applicants’ costs forthwith and on an indemnity basis. The court dismissed the amended interlocutory application filed on 12 October 2020 and ordered the respondent to pay the applicants’ costs.

The court made an order that the amended interlocutory application filed on 12 October 2020 be dismissed and that the respondent pay the applicants’ costs. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The amended interlocutory application filed on 12 October 2020 be dismissed.

2. The respondent pay the applicants’ costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 161 of 2019
Judgment of:	KATZMANN J
Date of judgment:	12 October 2020
Date of publication of reasons:	13 October 2020
Catchwords:	PRACTICE AND PROCEDURE — application by respondent on the eve of a trial for the hearing dates to be vacated — where arrangements had been made for hearing to take place through video conferencing software during COVID-19 pandemic — where remote trial protocol has been agreed — where witnesses are in disparate locations in Australia and overseas and all the respondent’s witnesses are in Queensland — where the application is based on the possibility that the Queensland/NSW border will be opened in the near future — where trial preparation is under way, the applicants oppose the application, the respondent’s credit is a significant issue and he consents to paying the applicants’ costs forthwith and on an indemnity basis, whether in the interests of justice to grant the adjournment
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37M, 47A(1) Federal Court Rules 2011 (Cth) r 1.32
Cases cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 Australian Securities and Investments Commission v Wilson [2020] FCA 873; 146 ACSR 149 Bomanite Pty Ltd v Slatex Corp AustPty Limited (1991) 32 FCR 379 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84 R v Ngo (2003) 57 NSWLR 55 Rooney v AGL Energy Limited (No 2) [2020] FCA 942 Tetley v Goldmate Group Pty Ltd [2020] FCA 913
Division:	General Division
Registry:	New South Wales
National Practice Area:	Intellectual Property
Sub-area:	Copyright and Industrial Designs
Number of paragraphs:	39
Date of hearing:	12 October 2020
Counsel for the Applicants:	Mr P W Flynn SC with Mr W H Wu
Solicitor for the Applicants:	Simpsons Solicitors
Counsel for the Respondent:	Mr P Williams
Solicitor for the Respondent:	Alexander Law

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	12 OCTOBER 2020