Australian Broadcasting Commission v A/asian Performing Right Association Ltd [1973] HCA 36

High Court of Australia Barwick C.J. Gibbs and Stephen JJ. Australian Broadcasting Commission v A/asian Performing Right Association Ltd [1973] HCA 36

ORDER Appeal allowed with costs. Declaration and order of the Supreme Court set aside and in lieu thereof order that the suit be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 14 Barwick C.J.

On 8th December 1964 these parties entered into an agreement in writing whereby the Australasian Performing Right Association Ltd. ("the Association") licensed the Australian Broadcasting Commission ("the Commission") to use certain musical works for public performance over the Commission's radio and television network. The Association is the agent of the owners of the performing right in certain of such musical works and itself the owner of such right in other of such works.

Clause 2 of the agreement is in the following terms:

In consideration of the said licence the Commission shall pay the Association:

(a) in respect of the financial year commencing 1st July 1963, a per capita payment of 1.99 pence based on the population of the Commonwealth as at 31st December 1963, as set in the report of the Commonwealth Bureau of Census and Statistics;

(b) in respect of the financial year commencing 1st July 1964, a per capita payment of 2.1 pence based on the population of the Commonwealth as at 31st December 1964, as set out in the report of the Commonwealth Bureau of Census and Statistics;

(c) in respect of the financial year commencing 1st July 1965, a per capita payment of 2.2 pence based on the population of the Commonwealth as at 31st December 1965, as set out in the report of the Commonwealth Bureau of Census and Statistics;

(d) in respect of the financial year commencing 1st July 1966, a per capita payment of 2.3 pence based on the population of the Commonwealth as at 31st December 1966, as set out in the report of the Commonwealth Bureau of Census and Statistics;