Audio-Visual Copyright Society Ltd v Foxtel Management Pty Ltd & Ors (No 3) [2005] ACopyT 1

COPYRIGHT TRIBUNAL OF AUSTRALIA

Audio-Visual Copyright Society Ltd v Foxtel Management Pty Ltd & Ors (No 3) [2005] ACopyT 1 COPYRIGHT TRIBUNAL – rulings on objections to evidence – Tribunal not bound by rules of evidence – applicability of rules of evidence generally and of provisions of Evidence Act 1995 (Cth) in particular Copyright Act 1968 (Cth) s 164 Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 cited AUDIO-VISUAL COPYRIGHT SOCIETY LTD v FOXTEL MANAGEMENT PTY LTD & ORS CT 3 of 2002

THE TRIBUNAL: LINDGREN J (PRESIDENT), PROFESSOR DENNIS PEARCE AND MS ANGELA BOWNE SC (MEMBERS) 21 APRIL 2005 SYDNEY

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968

IN THE COPYRIGHT TRIBUNAL

File No. CT 3 OF 2002

APPLICATION BY: AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED

FOXTEL MANAGEMENT PTY LIMITED

FIRST RESPONDENT

OPTUS VISION MEDIA PTY LIMITED

SECOND RESPONDENT

AUSTAR ENTERTAINMENT PTY LIMITED

THIRD RESPONDENT

THE TRIBUNAL: LINDGREN J (PRESIDENT), PROFESSOR DENNIS PEARCE AND MS ANGELA BOWNE SC (MEMBERS)

DATE: 21 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT (No. 3) (Rulings on objections to evidence) 1 On 9 September 2001, pursuant to s 135ZZT of the Copyright Act 1968 (Cth) ('the Act'), the Attorney General declared the applicant, Audio‑Visual Copyright Society Limited, trading as 'Screenrights', to be the collecting society for all relevant copyright owners for the purposes of Part VC of the Act. Part VC creates a statutory licence to retransmit free‑to‑air broadcasts. 2 Foxtel Management Pty Limited ('Foxtel'), Optus Vision Media Pty Limited and Austar Entertainment Pty Limited ('the Retransmitters') are retransmitters. Section 153M of the Act makes them parties to Screenrights' application. Screenrights applies under s 135ZZM(1) of the Act for a determination by the Tribunal of the amount of equitable remuneration payable to Screenrights by the Retransmitters. 3 The Retransmitters have called Patrick Raymond Delany as a witness. He is employed by Foxtel as 'Executive Director – Content Product Development and Delivery'. That is a senior executive position. Mr Delany is not a director of Foxtel. 4 Mr Delany proposes to testify, inter alia, in accordance with a five-paragraph written statement. Screenrights objects to two parts of the statement. The Tribunal made a 'confidentiality order' in relation to the statement, but it is not confidential that Mr Delany's testimony, if allowed to be given in accordance with the two parts objected to, will be directed to showing: · that the board of directors of Foxtel has considered the amount of 'equitable remuneration' as being of a certain dimension only, and has 'therefore not focused on larger figures'; and · that he is 'very confident' that if the Tribunal were to fix the amount of equitable remuneration above a certain level mentioned in the statement, Foxtel's board of directors would resolve to take a certain course. 5 Section 164 of the Act provides that in proceedings before the Tribunal, the procedure of the Tribunal is, subject to Act and the regulations, within the Tribunal's discretion, and that the Tribunal is 'not bound by the rules of evidence'. Similarly, s 4 of the Evidence Act 1995 (Cth) (the 'Evidence Act') makes it clear that the Evidence Act does not apply to the Tribunal. But these provisions do not show that the rules of evidence and the provisions of the Evidence Act may not prove useful guidance for the Tribunal. 6 A statutory provision that an administrative tribunal is not bound by the rules of evidence does not signify that the tribunal must, over objection, supinely receive any evidence that is tendered before it: cf Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 ('Pochi') at 492-493. Indeed, if the tribunal concludes that certain evidence tendered is not 'evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding', the tribunal will not be at liberty to reach a decision in reliance on that evidence, and, therefore, objection to it having been taken, the tribunal should not admit it; cf Pochi at 492-493, and cases which Brennan J's statement of principle Pochi has been followed or cited with approval, such as Rodriguez v Telstra Corp Ltd [2002] FCA 30 at [25]; Hehir v Financial Advisers Australia Pty Ltd [2002] QSC 092 at [18]; Vouris, Re; Epromotions Australia Pty Ltd v Relectronic-Remech Pty Ltd (in liq) (2003) 177 FLR 289 at [129]-[131]. The words quoted in the last sentence constitute the familiar definition of 'evidence that is relevant in a proceeding' found in s 55(1) of the Evidence Act. (We acknowledge that, because of the absence of pleadings, it may sometimes, particularly at an early stage of a hearing, be less clear before an administrative tribunal than before a court, what the 'facts in issue' are.) 7 Similarly, in our view the Tribunal can, within its statutory discretion as to its procedure, refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: '(a) be unfairly prejudicial to a party; or (b) be misleading or confusing, or (c) cause or result in undue waste of time' (cf Evidence Act, s 135). 8 In so far as Mr Delany, a non‑director, purports to state in general and conclusory terms that Foxtel's board of directors has 'always considered' the amount of equitable remuneration to be of a certain general dimension and has not focused on larger figures, we are clearly of the view that we would not be assisted at all by that evidence. In the absence of minutes or other evidence of the proceedings at meetings of the board of directors, or of evidence of the basis of Mr Delany's knowledge of the board's deliberations, this part of Mr Delany's testimony would carry no weight for us. 9 The passage in which Mr Delany states that he is very confident that the Board would take a certain course is also rejected. Mr Delany's confidence is not relevant to the quantification of 'equitable remuneration' or to any subsidiary fact in issue in this proceeding. 10 In the result, the words 'both' and 'and the Board' and 'that we' in paragraph 3, and the whole of paragraph 4, of Mr Delany's statement are rejected. 11 [The remainder of the statement, upon being adopted by Mr Delany, was admitted as Confidential Exhibit R29.]