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Can’t buy me time

Malcolm Campbell ||

This was a procedural decision made in the course of a substantive action for copyright infringement brought by members of the Universal Music Group against Mr Clive Palmer. It arises out of the 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”.

In practice, the decision gives guidance on when evidence in-person can be insisted upon (and not) and further cements the position in Aon on the overarching purpose of case management.

As set out by the court, ‘the undisputed evidence is that the song was composed and written by Dee Snider, the lead singer of the American heavy metal band, Twisted Sister. While the respondent, Clive Palmer, initially disputed the applicants’ copyright, agreed facts filed in the proceeding include the facts that copyright in the song is held by the second applicant, Songs of Universal, Inc. and that the first applicant, Universal Music Publishing Pty Ltd is the exclusive licensee. Evidence has been filed disclosing that inquiries were made of Universal Music Publishing on behalf of the UAP, of which Mr Palmer is the registered officer, about licensing the song for a “re?recording with local talent”, that Mr Palmer declined to pay the licensing fee, and that he went on to authorise or arrange the production of a recording of “Aussies Not Gonna Cop It” and videos which incorporated it. Mr Palmer denies that the recording and videos use a substantial part of the Twisted Sister song. He also raises a defence of parody or satire.’

The proceeding was set down to be heard over five days from 19 October 2020. However, on 7 October 2020, he attempted to have the trial vacated primarily on the basis that due to COVID 19 restrictions he could not give his evidence in person.

Her Honour rejected Mr Palmer’s arguments on the following bases:

  1. There had been no material change in circumstances since the last directions hearing
  2. Contrary to Mr Palmer’s assertion, there can be no doubt that Mr Palmer would have been aware that his credit was likely to be an issue in the proceeding from the outset
  3. The submission that, where issues of credit arise, it is in the interests of justice that the trial be adjourned until witnesses may give evidence in person, ‘is at least an overstatement’
  4. Case management considerations weigh against vacating the trial.

In person evidence

Mr Palmer relied on the decision in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)[2009] FCA 1306 (13 November 2009) (Buchanan J) at [78]. Her Honour rejected that argument saying that his reliance on that decision ‘is to some extent misplaced.’

In that case Buchanan J expressed concerns about the effectiveness of taking oral evidence by video link. But he was particularly concerned about doing so “on an unwilling cross-examining party, rather than the reverse”: Campaign Master at [77]. At [78] his Honour said:

I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross?examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party….

Her Honour noted that:

  • here, it is the cross-examiner who opted for cross-examination by video link so Mr Palmer would not be disadvantaged by this method of proceeding;
  • even if the remarks in Campaign Masters have more general application, they were not made in the context of the current extraordinary circumstances; and,
  • the technology is different from the technology with which the earlier cases were concerned.

Case management

In rejecting Mr Palmer’s submissions on the basis of case management, her Honour relied on the following observation of French CJ Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5] and [27]:

There is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

The mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond the particular effects on the court in which those delays occur. In that connection, there have been a number of cases … in which it has been accepted … that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.

Her Honour also identified that In the same case at [100] the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) approved the following statement from French J (as he then was) in Bomanite Pty Ltd v Slatex Corp Aust Pty Limited (1991) 32 FCR 379 at 392:

Non compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.

If you have any questions about any of the information in the above blog, please do not hesitate to contact a highly skilled member of Coleman Greig’s Intellectual Property Team, who would be more than happy to assist you.


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