Australian Olympic Committee Inc v The Big Fights Inc & Ors [1997] FCA 1205

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 49 of 1997

BETWEEN: AUSTRALIAN OLYMPIC COMMITTEE INC

First Applicant

AND: THE BIG FIGHTS INC

First Respondent

PETER WHITCHURCH PRODUCTIONS PTY LIMITED (ACN 000 213 258)

Second Respondent

BECK HOLDINGS PTY LIMITED (AcN 000 166 594)

Third Respondent

FILMWORLD PTY LIMITED (ACN 008 565 222)

Fourth Respondent

LYNETTE JUNE BENSON

Fifth Respondent

DIANE YVONNE TALBOT

Sixth Respondent

JUDGE: LINDGREN J

DATE: 20 OCTOBER 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore) (application for leave to amend) INTRODUCTION In this proceeding the applicant ("AOC") seeks relief based upon its contention that it is the owner of the copyright throughout the world in the cinematograph films of the Melbourne Olympic Games held in 1956, identified and set out in a schedule to the application ("the Films"). It is convenient to refer to the copyright in the Films, notwithstanding the fact they were made prior to the introduction in the Copyright Act 1968 (Cth) of copyright protection in respect of films as such. The AOC moves for leave to amend. The amendments sought include the addition of a second applicant and of a seventh respondent. The application is opposed. The AOC does not seriously dispute that if its application is granted, there must be a vacation of the hearing dates. On 26 June 1997, the parties were given leave to "approach the Court for a hearing date after the applicant has filed and served any such affidavits or has indicated that it does not intend to do so". The parties have been in agreement that there is an element of urgency touching the matter. However, no motion for expedition has been brought. Although the Films are, as a result of interlocutory skirmishes, now stored satisfactorily, apparently they need to be treated in a way which will better preserve them. Neither party is willing to outlay the substantial money involved in this procedure until resolution of their dispute to be litigated in this proceeding as to their respective rights in the Films. Some ten days ago my Associate was able to advise the parties that by reason of a change of circumstances, I could hear the case today and tomorrow. By consent, it was fixed for hearing accordingly. I have referred to "the parties" but the major protagonists are the AOC and The Big Fights Inc, a United States corporation, although each is supported by other parties to the proceeding shortly to be mentioned. FACTUAL BACKGROUND The factual background is complex but I need not give more than a cursory account of it for present purposes. Mr Garnsey QC, who has come into the case recently for the AOC, and who, with Ms Baird of counsel, appears for the AOC today, has helpfully outlined the general nature of the case made by the AOC and the history of the matter but no affidavits have been read and nothing that I say is intended to be a finding. The late Peter Whitchurch ("Mr Whitchurch") was centrally involved in the making of the Films. Apparently he was employed for the purpose by the Organising Committee for the XVIth Olympiad ("OCOG"). Both parties derive whatever title they have ultimately from OCOG. The Big Fights Inc derives whatever title it has, more immediately, from the second respondent, Peter Whitchurch Productions Pty Ltd ("the Company"). John Whitchurch ("John") is the son of the late Mr Whitchurch and Ms Benson, the fifth respondent, and Ms Talbot, the sixth respondent, are his daughters, that is to say, John's sisters. In one way or another the three have claimed to be involved in the Company. The family is divided with John on the one side and Ms Benson and Ms Talbot on the other. Ms Benson and Ms Talbot support the claim of The Big Fights Inc, while John supports the claim of the AOC. The notice of motion which the AOC has filed in Court this morning seeks leave to amend by adding parties and amending its application and statement of claim. While maintaining as its primary position that it owns the copyright in the Films, the AOC would wish to be able to rely on "fall back" alternative positions. It is to this end that leave to amend is sought. First, the AOC wishes to add John as a second applicant. Secondly, it wishes to add the Australian Securities Commission ("ASC") as seventh respondent. Mr Farr has appeared for the ASC this morning. He was made aware of the motion to join the ASC only shortly prior to today's hearing and seeks time to give proper consideration to the motion. Explanation in anything like a satisfactory manner of the alternative analyses of the facts which the AOC might wish to advance would take much time and space. OCOG was incorporated as a company limited by guarantee. It was wound up on or about 25 October 1957. The AOC's primary case is that pursuant to cl 9 of OCOG's Memorandum of Association, OCOG's copyright in the Films thereupon became vested in the Australian Olympic Federation (to which the AOC is the successor). But it wishes to be able to argue in the alternative that if the copyright has, in consequence of the dissolution of OCOG, now devolved upon the ASC, the ASC is bound to transfer the copyright to the AOC. By an amended application which the AOC seeks leave to file, it would seek an order compelling the ASC to execute an assignment of any right, title or interest it may have in or to the Films, or any of them, to the AOC. The desire to join John as second applicant also reflects a case which the AOC wishes to be able to argue, in the alternative to its primary case that it already owns the copyright. Again, a satisfactory explanation of the involvement of John would take some time to relate. The AOC claims that in 1960 OCOG purported to grant certain rights in respect of the Films to the late Mr Whitchurch. Mr Whitchurch died on or about 17 October 1981 appointing his widow, Elsie Mavis Whitchurch, and his son, John, as executors of his will, and leaving his estate to his widow. Mrs Whitchurch died on or about 11 September 1986 appointing her son John and Ms Benson as executors and leaving her estate to the three children equally. It appears that this morning John has entered into a deed with the AOC transferring, or agreeing to transfer and to seek to compel Ms Benson to transfer, to the AOC any right, title and interest which is available through the estates to be transferred to the AOC. The Big Fights Inc, Ms Benson and Ms Talbot contend that at some stage the copyright in the Films was vested in the Company. Ms Benson and Ms Talbot purported, as two of the three directors of the Company (John being the other) to cause the Company to grant rights in respect of the films to The Big Fights Inc. Accordingly, they and The Big Fights Inc refute both the primary and secondary cases of the AOC, and seek to support a "chain of title" from OCOG to Mr Whitchurch to the Company to The Big Fights Inc. REASONING Mr J D Heydon QC who, with Mr R J Horsley of counsel, appears for The Big Fights Inc, Ms Benson and Ms Talbot, opposes the application for leave to amend. He submits that the application should not only be refused but that the proceeding should be dismissed. In the alternative, he would countenance that the proceeding be dismissed with leave for John alone or, as a second preference, for John and the AOC, to launch a fresh proceeding. Finally, no doubt unwillingly, he would contemplate the grant of leave to amend but on terms which he has outlined. Mr Heydon QC has referred to two matters in particular. The first is that as long ago as 11 December 1996, the solicitors for the AOC wrote a letter to John setting out the terms of an agreement which apparently had been reached between them. One term of that agreement was that he, John, was to agree to assign to the AOC all his right, title and interest in the copyright. The point made is that as long ago as 11 December 1996, the very kind of assignment which has been sought to be effectuated by the deed entered into by the AOC and John today, was in contemplation. Why, it is asked rhetorically, should the AOC have leave to amend now, when the very issue of such an assignment was in contemplation so long ago? In similar vein, Mr Heydon QC refers to a letter dated 16 June 1997 from the ASC to Clayton Utz, the solicitors for the AOC, which demonstrates that the question of the role of the ASC was being explored in correspondence, at least to some extent, at that time. Mr Garnsey QC says that there was subsequent correspondence. No doubt there was, but looking at the matter as between the parties, Mr Heydon's point remains that the AOC has left the joining of the ASC until very late in the day, having regard to the fact that at least the possibility of doing so was in contemplation back in June 1997. Notwithstanding the force of the matters put against allowing the amendments, I think that they should be allowed. To do so will allow all matters in issue to be determined in this proceeding. It would be wasteful in terms of time and cost if there had to be two hearings covering very much the same complex factual history. That kind of consideration is so weighty that it often prevails. In my view it does so here. The future of this case is of some concern. Special arrangements were, in effect, made in order to accede to the request of the AOC, and perhaps of The Big Fights Inc as well, for an especially early hearing. I cannot see any possibility of this matter being offered a further two-day hearing in anything like the near future unless, of course, some other case settles. It will be important for the parties to monitor the situation. I do not know the precise nature or strength of the alleged urgency. If either side forms the considered view that an expedited hearing is desirable, a motion to that end should be brought, supported by affidavit. CONCLUSION The orders of the Court are as follows: 1. Grant leave to the applicant to file in Court a notice of motion and supporting affidavit of John Peter Elliott Whitchurch sworn 20 October 1997, without prejudice to the position of any other party. 2. Direct that the notice of motion be returnable instanter. 3. Grant leave to the applicant to file in Court affidavits of Kathryn Margaret Jordan, sworn 20 October 1997, and Karen Leonie Clewett, sworn 16 October 1997. 4. Grant leave to the applicant to join the Australian Securities Commission as seventh respondent. 5. Grant leave for John Peter Elliott Whitchurch to be joined as second applicant. 6. Grant leave to the applicants to file and serve an amended application and amended statement of claim in the form of the documents handed up in Court today, initialled by me and placed with the papers, without prejudice to any respondent's right to raise any limitation defence. 7. Vacate the dates for the final hearing of the matter, namely, 20 and 21 October 1997. 8. Direct the respondents to file and serve defences to the amended statement of claim by 22 October 1997. 9. Direct the parties to give verified discovery by 24 October 1997 of the further documents of which discovery is required as a result of the amendments. 10. Note that the applicants will rely on no further affidavit evidence beyond the affidavits that have been filed to date including those of John Peter Elliott Whitchurch, Kathryn Margaret Jordan and Karen Leonie Clewett, which have been filed in Court today. 11. Direct the respondents to file and serve any affidavits in response to the affidavits referred to in "10." above, and relating to the additional issues raised by the amendments, by 3 November 1997. 12. Order the first applicant to pay the costs of the respondents, including the seventh respondent, of the motion for leave to amend or arising from the amendments or thrown away by the vacation of the hearing dates, and any, some or all of those categories as applicable to the particular respondent. 13. Grant leave to the parties to approach the Associate to Justice Lindgren with a view to ascertaining the availability of further hearing dates. 14. Note that the estimated hearing time remains at two days. 15. Direct the parties, by 7 November 1997, to: (a) exchange lists of the affidavits on which they will rely, with copies to the Associate to Justice Lindgren; (b) exchange lists of objections to affidavits and grounds of objection, with copies to the Associate to Justice Lindgren; (c) exchange lists of each other's deponents who will be required to attend the hearing for cross-examination, with copies to the Associate to Justice Lindgren; (d) supply to the Associate to Justice Lindgren an agreed outline of the predicted course of hearing (including the various elements of the hearing and estimates of the time to be taken by the respective elements), and, failing agreement, their own respective outlines of the predicted course of the hearing.