Washington v Qantas Airways Limited

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WASHINGTON v QANTAS AIRWAYS LIMITED [2013] FCCA 778
Catchwords:
CONSUMER LAW – Applications in a Case for discovery – whether confidentiality is a consideration in ordering discovery – relevance – Applications in a Case granted in part.

Legislation:  

Competition and Consumer Act 2010 (Cth), ss.18, 29 of Sch.2
Copyright Act 1968 (Cth)
Evidence Act 1995 (Cth), ss.76, 79
Federal Circuit Court of Australia Act 1999 (Cth), s.45
Federal Circuit Court Rules 2001 (Cth), r.14.01
Federal Court Rules 2001 (Cth), Pt.20

NAQR v Minister for Immigration [2002] FMCA 271
DSM Nutritional Products, LLC v Suntory Holdings Limited [2013] FCA 474
Index Group of Companies Pty Ltd v Nolan [2002] FCA 608
Cadbury Pty Ltd v Amcor Ltd (No 2) [2009] FCA 663
NAK Australia v Starkey ConsultingPty Ltd [2008] NSWSC 1136
Applicant: MEGAN ALEXANDER WASHINGTON
Respondent: QANTAS AIRWAYS LIMITED
(ACN 009 661 901)
File Number: SYG 449 of 2013
Judgment of: Judge Nicholls
Hearing date: 21 June 2013
Date of Last Submission: 21 June 2013
Delivered at: Sydney
Delivered on: 16 July 2013

REPRESENTATION

Counsel for the Applicant: Mr SW Balafoutis
Solicitors for the Applicant: Gilbert & Tobin
Counsel for the Respondent: Ms C Cochrane
Solicitors for the Respondent: Allens

ORDERS

  1. The respondent give discovery in relation to the following classes of documents by 4pm on 9 August 2013:

    (a)Amended Category 13: “Documents recording or referring to the amount paid by Qantas for the right to reproduce or communicate any recording of a performance by a musical artist for performing a third party’s copyright works on its YouTube Channel.”

    (b)Further Category 14: “Documents recording the terms of any agreement between Qantas and Daniel Johns under which:

    (i)Qantas commissioned Daniel Johns to compose and record the piece of music known as ‘Atlas’ for its use, including for advertising itself or its good or services; and

    (ii)Daniel Johns agreed to sponsor, endorse or affiliate himself with Qantas or Qantas’ goods or services.”

  2. Access to the discovered documents in “Further Category 14” is restricted to the applicant, her solicitors and any counsel briefed in the matter.

  3. The applicant’s Application in a Case, made on 18 June 2013, is otherwise dismissed.

  4. The applicant give discovery in relation to the following classes of documents by 4pm on 9 August 2013:

    (a)Category 7: “Documents recording any other agreements with third parties dated on or after 1 January 2009 under which the Applicant received a payment for:

    (i)sponsoring, approving or affiliating herself with a third party or its goods or services; or

    (ii)providing a testimonial relating to the third party or its goods or services.”

    (b)Category 8: “Documents recording any other agreements with third parties dated on or after 1 January 2009 under which the Applicant or her representatives agreed that the Applicant’s performance would be recorded, including without limitation details of any express terms in those agreements regarding the purposes for which the recording of the Applicant’s performance might be used.”

  5. The respondent’s Application in a Case, made on 18 June…

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Details
Case
[2013] FCCA 778
Decision Date

CaseChat Overview and Summary

In *Washington v Qantas Airways Limited*, heard in the Federal Circuit Court of Australia, the applicant, Megan Alexander Washington, alleged that Qantas Airways Limited engaged in misleading or deceptive conduct and made false or misleading representations in contravention of sections 18 and 29 of the Australian Consumer Law. Ms Washington also contended that Qantas breached their agreement and, in contravention of the Copyright Act 1968 (Cth), engaged in unauthorised use of a recording of her performance. The proceedings concerned applications made by both parties for discovery of specific documents.

The court was required to determine the scope of discovery to be ordered in relation to documents concerning the amount Qantas paid for the right to reproduce or communicate recordings of musical artists performing third-party copyright works on its YouTube channel, and documents relating to any agreement between Qantas and Daniel Johns concerning the composition and recording of the song "Atlas" and any sponsorship or endorsement arrangements. The court also considered discovery related to agreements where Ms Washington received payment for sponsoring, approving, or affiliating herself with third parties or their goods and services, or for providing testimonials, and agreements where her performance was recorded, including the purposes for which such recordings might be used.

The court ordered Qantas to provide discovery regarding payments for the reproduction of musical artists' performances on its YouTube channel and the terms of its agreement with Daniel Johns concerning the song "Atlas" and any sponsorship arrangements, with access to these documents restricted to the applicant, her solicitors, and counsel. Conversely, Ms Washington was ordered to provide discovery concerning agreements where she received payment for endorsements or testimonials, and agreements for the recording of her performances and the intended use of those recordings. The court also varied existing orders to extend the time for both parties to file and serve affidavits.

Orders

Orders of the court

1.

The respondent give discovery in relation to the following classes of documents by 4pm on 9 August 2013:

(a) Amended Category 13: “Documents recording or referring to the amount paid by Qantas for the right to reproduce or communicate any recording of a performance by a musical artist for performing a third party’s copyright works on its YouTube Channel.”

(b) Further Category 14: “Documents recording the terms of any agreement between Qantas and Daniel Johns under which:

(i) Qantas commissioned Daniel Johns to compose and record the piece of music known as ‘Atlas’ for its use, including for advertising itself or its good or services; and

(ii) Daniel Johns agreed to sponsor, endorse or affiliate himself with Qantas or Qantas’ goods or services.”

2.

Access to the discovered documents in “Further Category 14” is restricted to the applicant, her solicitors and any counsel briefed in the matter.

3.

The applicant’s Application in a Case, made on 18 June 2013, is otherwise dismissed.

4.

The applicant give discovery in relation to the following classes of documents by 4pm on 9 August 2013:

(a) Category 7: “Documents recording any other agreements with third parties dated on or after 1 January 2009 under which the Applicant received a payment for:

(i) sponsoring, approving or affiliating herself with a third party or its goods or services; or

(ii) providing a testimonial relating to the third party or its goods or services.”

(b) Category 8: “Documents recording any other agreements with third parties dated on or after 1 January 2009 under which the Applicant or her representatives agreed that the Applicant’s performance would be recorded, including without limitation details of any express terms in those agreements regarding the purposes for which the recording of the Applicant’s performance might be used.”

5.

The respondent’s Application in a Case, made on 18 June 2013 and amended on 21 June 2013, is otherwise dismissed.

BY CONSENT, THE COURT FURTHER ORDERS THAT:

6.

Order 6 on 27 March 2013 is varied so as to extend time by which the applicant is to file and serve any affidavits to 27 September 2013.

7.

Order 7 on 27 March 2013 is varied so as to extend time by which the respondent is to file and serve any affidavits to 8 November 2013.

8.

Order 5 on 10 May 2013 is vacated.

9.

Liberty is granted to the parties to apply to the Court for further directions on three clear days notice.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 449 of 2013

MEGAN ALEXANDER WASHINGTON

Applicant

And

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

Respondent

REASONS FOR JUDGMENT

1.

On 7 March 2013, Megan Alexander Washington (“the applicant”) made an application to this Court pursuant to the Competition and Consumer Act 2010 (Cth) and the Copyright Act 1968 (Cth), alleging that Qantas Airways Limited (“Qantas” and “the respondent”) engaged in misleading or deceptive conduct and made false or misleading representations, in contravention, respectively, of ss.18 and 29 of the Australian Consumer Law (“ACL” – Sch.2 of the Competition and Consumer Act 2010 (Cth)). Further, that the respondent breached the agreement between it and Ms Washington and, in contravention of the Copyright Act 1968 (Cth), engaged in unauthorised use of the recording of Ms Washington’s performance.

2.

On 18 June 2013 orders were made in chambers, by consent, granting leave to both parties to file an Application in a Case in relation to discovery of certain documents. Each party filed an Application in a Case, and evidence in support by way of affidavit, on 18 June 2013. At the hearing of those applications, Qantas, the respondent, filed an amended Application in a Case and Ms Megan Alexander Washington, the applicant, orally amended further category 10 and category 13 of “Schedule A” to her Application in a Case (see further below). It is those Applications in a Case, as amended, that are the subject of the Court’s current consideration.

Background

3.

The applicant, Ms Washington, was engaged to perform a song, “I Still Call Australia Home” (“the song”), at a dinner held by the respondent in November 2010 (Mr Cooley’s affidavit at [7]). The recording of that song was subsequently, and variously, distributed by Qantas on its YouTube channel, website, and in flight entertainment. The applicant alleges that those uses were unauthorised and, further, that the respondent, in contravention of s.18 of the ACL, engaged in conduct that was misleading or deceptive. Further, that in contravention of s.29 of the ACL, the respondent made representations that were false or misleading.

4.

The matter was first before the Court on 27 March 2013 and, on that day, an order was made that “[p]ursuant to s.45(1) of the

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