case_text: Copyright in a literary work is infringed where a person, not being the owner of the copyright and without licence, does or authorises the doing in Australia of any act comprised in the copyright (s 36(1) of the Act). The owner of the copyright in a literary work has the exclusive right to do the acts set out in s 31(1)(a) of the Act. These acts relevantly include ' to reproduce the work in a material form ' (s 31(1)(a)(i)) and ' to communicate the work to the public ' (s 31(1)(a)(iv)). An ' infringing copy ' is defined in s 10(1) to mean, relevantly, a reproduction of the work, or of an adaptation of the work '. Infringement by reproduction is usually said to require first, a "sufficient degree" of similarity between the two works and, secondly, that there is a "causal connection" between the two works ( Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57 at [173]-[174] per Crennan J; Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 at 531 per Hill J; Desktop at [220] per Lindgren J). A reproduction of the whole or a substantial part of the work is an infringement (s 14(1)(b)) of the Act). 182 Where the manner of presentation is the basis for the attraction of copyright, it may be that a presentation of the same information in different form would not infringe ( Victoria Park per Dixon J at 511). In such circumstances there may not have been a taking of a "substantial part", which is assessed by reference to the quantity and the quality of what is taken and the inter-relationship between them ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [70] per Lindgren J, cited in Gold Peg at [170]). It is a question of fact and degree (Crennan J in Gold Peg at [190]; also emphasised by McHugh and Kirby JJ in dismissing an application for special leave to appeal from the Full Court in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2005] HCATrans 842). A defendant may rework the work of a plaintiff, capturing the ideas used or facts referred to but in a way that does not infringe because it is not a substantial reproduction. It may constitute a new original work. The taking of a substantial part of a copyright work will vary depending on the nature of the work and the degree of originality of the original work ( Skybase at 532 per Hill J, with whom French J agreed). The ' originality of that part of the work taken by the alleged infringer ' is critical ( Desktop at [409] per Sackville J). 185 In Gold Peg , Crennan J discussed the assessment of infringement. The first inquiry was to look to the similarities between two works, " which is a question of degree, taking into account the originality and essential nature of the elements which are found " (at [174]). The second inquiry was whether there had been actual copying. Her Honour considered it "instructive" whether the products would compete in the market. If actual copying were found, the next step was to ask whether a "substantial part" was copied (at [179]). The taking of a substantial part may occur in circumstances where quite small portions of a work are taken (at [188]); it is a question of quality rather than quantity. The quality of what is taken reflects the importance which the part taken bears in relation to the copyright work as a whole. It is not relevant to have regard to the importance that the part taken forms of the defendant's work (at [189]). Justice Crennan considered the factors relevant to determining substantial part to include originality, whether the purpose of the taking was to save labour and the effect of the taking in the market for the plaintiff's work (at [191] [192]). 186 The Weekly Schedule and the IceGuide are each similar in the time and title content for Nine programs but are not similar in the totality of the information included nor in the form of presentation of the data. Ice did not copy the whole of the information for insertion into the IceGuide but there has been the taking of time and title information from the Aggregated Guides by checking and updating of the IceGuide. Ice staff access those guides and choose whether to replace the time and/or title information in the starting template for each day with information from the Aggregated Guides.


case_outcome: cited

case_text: While the second cross-claim would not prolong the existing application by Nine, permitting Ice to file the second cross-claim would prolong the proceedings between the parties. The injustice to Nine if the second cross-claim were filed would, it seems to me, to be out of proportion to the injustice to Ice if leave is refused ( Incentive Dynamics Pty Ltd (In Liquidation) v Robins [1998] FCA 1046 per Mansfield J). Ice contends that, if leave is refused, it could commence separate proceedings under s 202. That is, of course, a matter for Ice. Such a right lessens the injustice that Ice might otherwise suffer if it were totally precluded from exercising its rights under the section. 238 In the circumstances and in the exercise of my discretion, I decline to grant leave to Ice to file the second cross-claim. 239 For the reasons I have given, the application should be dismissed. For convenience only, a summary of my findings follows.


case_outcome: considered

case_text: In Independent Television Publications Limited v Time Out Limited [1984] FSR 64, daily program schedules of programs to be broadcast by channels including the BBC were compiled for publication in weekly format in the TV Times and the Radio Times . It was accepted that ' a great deal of time, energy and skill ' was expended in producing the schedules for the programs ultimately listed in the two publications (at 66). The defendants took the date, title and time of transmission information ' either wholly from ' the published weekly schedules or ' possibly occasionally only checked ' the information they published by reference to those guides (at 67, 73). They published all or some of the information taken from the published schedules in Time Out , together with synopses which were independently drafted. The defendants accepted that sufficient skill and labour was invested in the production of the daily program schedules to justify a claim to copyright but argued that that ' what is being done...is no more than creating information '. Mere information, it was submitted, could not be the subject of copyright protection. The issue for determination was whether the schedules did any more than create information. Mr Justice Whitford rejected the submission that the program schedules were mere information that could not be protected by copyright (at 72). His Lordship also considered that a substantial part of the daily program schedules had been taken but recognised that what constituted a substantial part was a question of degree, depending on quantity taken and the importance of what was taken (at 73). It was accepted that selection on "a very limited basis" would not amount to infringement (at 74). The fact that synopses were added did not negate a finding of infringement. His Lordship emphasised that a person is free to start with a public source and from that source to produce his or her own work which may correspond very closely with the copyright work of the earlier author (at 69). 181 In neither of these two cases was there not only an absence of wholesale copying but also the checking of information against a third party aggregated guide, the checking of a selection of listed items and that selection being of the information for a given entry and the number of entries in the compilation. The cases illustrate that copying is an important factor and that it is a matter of fact and degree to ascertain whether there has been a taking of a substantial part. Each case turns on its own facts. While Independent Television Publications and Wireless League Gazette are examples that have fallen on one side of the line, they are not determinative of these proceedings.


case_title: Kelly v Morris (1866) LR 1 Eq 697

case_text: In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: • A work is original if the work was not copied, but originated from the putative author (at [47]). • A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). • The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young & Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). • ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). • The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). • Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). • If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]). 178 Infringement is not necessarily avoided where material is simply checked with the data subject for verification or where the arrangement is different ( Waterlow Publishers Ltd v Rose (1989) 17 IPR 493 cited in Desktop at [346] per Sackville J). However, the concept that the taking of a single line of a directory for the purpose of saving labour and trouble amounts to an infringement was a ' famous but excessive admonition ' ( Desktop at [405] per Sackville J referring to Kelly at 701 2 per Sir W Page Wood VC). The fact that copyright may exist in a compilation does not mean that it exists in the individual facts referred to therein ( Victoria Park at 498 per Latham CJ and at 511 per Dixon J). The taking of line of a directory will not be sufficient for infringement if it does not constitute a substantial part (s 14(1) of the Act; Waterlow Directories Ltd v Reed Information Services Ltd (1990) 20 IPR 69 per Aldous J at 73, cited in Desktop at [347] per Sackville J). However, copyright in a compilation may be infringed by appropriating ' an undue amount of the material, although the language employed be different or the order of the material be altered ' (Laddie H, Prescott P, Vitoria M, Speck A and Lane L, The Modern Law of Copyright and Designs (3 rd ed, 2000) at paras 3.88 and 3.90, cited in Desktop at [375] per Sackville J).


case_text: In determining the subsistence of copyright, it is necessary to consider works such as anthologies and compilations as a whole ( Desktop at [99], [152] and [160] per Lindgren J; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273). In Ladbroke , for example, an argument that copyright attached to individual components of the compilation was rejected by the House of Lords (276-7 per Lord Reid, 284 per Lord Evershed, 285 per Lord Hodson and 291 per Lord Pearce). The relevant compilation was a fixed odds football betting coupon, issued weekly. Their Lordships said that the whole coupon, there considered in the context of a consideration of the originality of the compilation, was to be treated as a single compilation. 45 As noted, s 32 of the Act provides for the subsistence of copyright in original literary works. The test of originality is whether the work was not copied, but originated from the putative author ( Desktop at [160] per Lindgren J). Copyright in a factual compilation is infringed where a person reproduces the copyright work or a substantial part of that work. In this context, '[s] ubstantiality is...determined by reference to the originality of that part of the work taken by the alleged infringer ' ( Desktop at [409] per Sackville J). It follows that, while the subsistence of copyright in the Weekly Schedule is accepted, an understanding of the nature and extent of Nine's skill and labour of authorship of the Weekly Schedule is fundamental to the question of infringement. 46 The extent of an author's contribution to the making of a factual compilation is a question of fact and degree ( Desktop at [160]). In this case, there are two sets of skill and labour exercised by Nine and its employees in the creation of the Weekly Schedule. First, the skill and labour of selecting and arranging the programs to be shown on Nine to attract viewers to programs in the different timeslots and to meet competitors' programs. For the purposes of these proceedings, this is the "antecedent" or "preparatory" skill and labour in the sense discussed in Ladbroke at 287 8 per Lord Hodson and Desktop at [132] and [160] per Lindgren J, [371] and [409] per Sackville J. Secondly, there is the skill and labour of drafting the synopses, selecting and arranging the additional program information such as classifications and consumer advice and recording, weekly, all of the information into documentary form, the Weekly Schedule. 47 Ice accepts that copyright subsists in the Weekly Schedule by virtue of the skill and labour in the scope of selection of programs, the decision to move or replace existing programs, the adjustment of times, program changes, the mode of expression and in the arrangement of the information by Nine. The work of Mr Healy and Ms Wieland and their colleagues at Nine in preparing each Weekly Schedule is not in dispute. Each Weekly Schedule "emanates" from them ( Desktop per Sackville J at [396]). 48 Relatively little information about the preparation and inclusion of synopses by Nine was included in Nine's evidence. Nine devotes skill and labour to producing and preparing synopses for inclusion in the Weekly Schedule. It emerged in cross-examination that Mr Holman, Mr Forrest and occasionally Mr Healy draft synopses for inclusion in the Weekly Schedule. Synopses are also obtained from the producers or publicists for some programs. The synopses are entered into the Nine Database and change each week. They are reviewed by Mr Holman and Ms Wieland before publication of the Weekly Schedule. Ms Wieland may instruct Mr Holman to make amendments to correct typographical or grammatical errors, or to change the description of a program or episode. 51 In Desktop , copyright attached to the compilation by reason of the labour of collecting, verifying, recording and assembling the data and not by reference to the form of the compilation, the alphabetical manner of presentation of the data. The former but not the latter was what originated from the putative author (see, eg Desktop at [438] per Sackville J). In that case, a telephone directory of subscribers in alphabetical order did not permit selection in ordering or expression of the information. Nine submits that, similarly, it is the collocation of information in the Weekly Schedule that is protected. It is the selection of things to be shown in chronological order, as opposed to the order itself, that constitutes the relevant skill and labour to be protected. There must be copying and sufficient resemblance but in such a case, form is not important ( Desktop at [223] per Lindgren J). Nine relies on the fact that copyright protection is medium and technology neutral and that is provided for in the Act (eg, s 21(1A) and s 24). Nine submits that the mere input of material into a database cannot deprive the author of copyright protection. 52 The skill and labour involved in making a factual compilation is likely to vary in each case. As described by Ice, pieces of information are brought together; the selection of that information to the exclusion of other items and the association of pieces of information, one with the other in a line or table creates an intelligible relationship between the pieces of information. The usefulness of the pattern created by the compiler is achieved by the choices that were made and judgment exercised about the individual pieces of information and the relationship between them. There is sufficient skill, judgment and labour in the selection of information and in the mode of expression of the Weekly Schedule, in the presentation of the data after the preparatory work of program selection and arranging is done, to attract copyright protection in that arrangement and presentation. As will become apparent, there is scope for variance in the content of synopses, the selection of additional program information and the overall manner of presentation of the compilation as a whole. The detail of the underlying subject matter, the work in choosing the program for each timeslot is not relevant to the compilation once the "timetable" is prepared, much in the same way that the history of the rolling stock of a rail carrier is not relevant to a train timetable. 53 Infringement of a factual compilation is tested by reference to the interest which the copyright is intended to protect ( Desktop at [223] per Lindgren J). In Desktop , that interest was the labour and expense of gathering together in one place the details of all the members of the given universe of all telephone subscribers in a region the skill and labour in collecting, extracting and verifying the data compiled. Although the constituent parts of the resulting compilation of those names in alphabetical order are inevitably arranged in the same way, the compilation was thereby protected. 183 The originality of a compilation may lie in the selection or arrangement of the information. It also may reflect the skill and labour of gathering the facts. As already noted, in the present case, the Weekly Schedule reflects both. It is only the originality of expression that is relevant, not the originality of the idea the subject of the expression ( Donoghue v Allied Newspapers Limited [1938] Ch 106 at 110 per Farwell J). It must be determined whether the part that is taken is an essential or material feature of the whole work, regarded as a copyright work; that is, ' whether the part or parts taken represent a substantial part of the labour, skill and judgment of the author that made the whole work "original" ' ( Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at [55] per Wilcox and Lindgren JJ). As one should not dissect a work to determine if a part could be protected by copyright standing alone ( Ladbroke at 277 per Lord Reid), so it is inappropriate to dissect the work for the purposes of infringement. The correct approach is to decide whether the work as a whole is protected by copyright and then to determine whether the work or a substantial part of the work as a whole has been taken.


case_title: Leslie v J Young & Sons [1894] AC 335

case_text: In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: • A work is original if the work was not copied, but originated from the putative author (at [47]). • A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). • The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young & Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). • ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). • The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). • Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). • If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]).


case_title: Longman v Winchester (1809) 16 Ves Jun 269; 33 ER 987


case_title: Morris v Ashbee (1868) LR 7 Eq 34


case_text: In Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14 ; (2004) 218 CLR 273 at [75] , McHugh A-CJ, Gummow and Hayne JJ considered that ' a television broadcast ' for the purposes of s 87 of the Act included the programs ' put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title '. Their Honours rejected the notion that any image or sound broadcast by way of television in the course of those programs satisfied the statutory description. This suggests that the manner in which an author presents a copyright work may assist in determining what that work is. 39 Section 10(1) of the Act relevantly defines a literary work to include ' a table, or compilation, expressed in words, figures or symbols '. The work that Nine relevantly produces is the Weekly Schedule. It is that work that is disseminated to the Aggregators. The compilation is expressed in words, figures and symbols that describe, in their totality, time and title information, additional program information and the synopses for a complete broadcast week. 40 The first two columns of the Weekly Schedule, the time and title information, although part of the whole compilation, are not purveyed by Nine and have not been shown to have any commercial value to Nine or the Aggregators. The evidence establishes that the synopses, which can be said to contain the "literary component" of the Weekly Schedule, require time and attention, are important and of commercial and promotional significance. Mr Healy states that he sees them as being a form of promotion for new programs. Nine considers it important that the synopses included within the Weekly Schedule are correct. 184 The underlying principle is that the law of copyright does not give an exclusive right to state or describe particular facts ( Victoria Park at 498 per Latham CJ). Substantial reproduction and causal connection are separate and cumulative requirements for a finding of infringement ( Desktop at [399] per Sackville J). If a causal connection is shown, it is then necessary to assess whether the allegedly infringing work can fairly be said to be so sufficiently similar to the first that it is but a reproduction ( Skybase at 533 per Hill J, with whom French J agreed). While copying is an essential element in providing the requisite causal connection between the copyright work and the alleged infringement, copying does not, of itself, determine whether or not there has been the taking of a substantial part. Not every act of copying is an infringement of copyright. It is also necessary to establish the appropriate subject matter for copyright, what is original and whether there has been a taking of a substantial part ( Network Ten [2004] HCA 14 ; 218 CLR 273 at [14] [17] per McHugh A-CJ, Gummow and Hayne JJ). 197 Nine relies upon the fact that Ice competes with it directly, in the sense that Nine sub-licenses its program listings information through HWW to Foxtel for use in an EPG, the Foxtel Digital Guide. Ice does provide its subscribers with the ability to record Nine programs in digital format, other than by subscription to Foxtel. However, it is not part of Nine's pleaded case that copyright subsists in its television broadcasts or the programs themselves. Nine's copyright in the Weekly Schedule does not extend to protect the interests in the broadcast and recording of those programs that are listed in the compilation (Ricketson S, The Berne Convention for the protection of literary and artistic works: 1886-1986 (1986) at 299, cited in Desktop at [74] per Lindgren J). Those interests are not protected by the compilation but by the copyright which subsists, if established, in Nine's television broadcasts and the programs themselves as copyright works. For example, ' there may be copyrights under Pt IV [of the Act] in a cinematograph film which is the subject of a television broadcast, and the film may utilise the copyrights under Pt III [of the Act] in, for example, original dramatic and musical works ' ( Network Ten [2004] HCA 14 ; 218 CLR 273 at [31] per McHugh A-CJ, Gummow and Hayne JJ). 198 Ice does not take the skill and labour of placing programs in that it plays no part in the placement of programs. It is not in competition with Nine to attract viewers in the sense of competition with other television networks. It does not have access to information from the Weekly Schedule until that information is released to the Aggregators and published by them in the Aggregated Guides. It does not take from Nine the timing of the release of the information, as Nine chooses when to provide the Late Changes Notices to the Aggregators for inclusion in the published Aggregated Guides. Ice's business plan requires it to be accurate. Mr Rilett may reject specific time and title information in the published guides and substitute his own listing of a program, although there is no evidence to suggest that this is other than an infrequent occurrence. 199 In determining whether a defendant has taken a substantial part in quality of a work, the impact of the copying on the interest protected by the copyright is relevant (Lahore J and Rothnie W, Copyright and Designs at [34.130]). This, in turn, may make take account of the commercial interests of the copyright owner and whether the parties are in competition, as well as whether there has been a taking of skill and labour. However, the reference point is the original work for which protection is claimed. A compilation is the collection, assembly and arrangement of chosen information into a single entity. Cases addressing the taking of a part of an artistic work, for example a line in a poem or a refrain in a musical work, may address substantial part and the quality and quantity taken differently.


case_text: Where the manner of presentation is the basis for the attraction of copyright, it may be that a presentation of the same information in different form would not infringe ( Victoria Park per Dixon J at 511). In such circumstances there may not have been a taking of a "substantial part", which is assessed by reference to the quantity and the quality of what is taken and the inter-relationship between them ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [70] per Lindgren J, cited in Gold Peg at [170]). It is a question of fact and degree (Crennan J in Gold Peg at [190]; also emphasised by McHugh and Kirby JJ in dismissing an application for special leave to appeal from the Full Court in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2005] HCATrans 842). A defendant may rework the work of a plaintiff, capturing the ideas used or facts referred to but in a way that does not infringe because it is not a substantial reproduction. It may constitute a new original work. The taking of a substantial part of a copyright work will vary depending on the nature of the work and the degree of originality of the original work ( Skybase at 532 per Hill J, with whom French J agreed). The ' originality of that part of the work taken by the alleged infringer ' is critical ( Desktop at [409] per Sackville J).


case_text: The Act provides a statutory cause of action for groundless threats of infringement, even if made bona fide ( Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 735 ; (2005) 146 FCR 144 at [48] per Lindgren J). Section 202 relevantly provides: '(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first-mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright. ... (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which he or she would be entitled in a separate action in respect of an infringement by the plaintiff of the copyright to which the threats relate and, in any such case, the provisions of this Act with respect to an action for infringement of a copyright are, mutatis mutandis , applicable in relation to the action. ' 229 Nine contends that Ice cannot, as a matter of procedure and of statutory construction, commence proceedings by way of originating process or cross-claim once proceedings for infringement have commenced. Nine submits that the commencement by it of the action for infringement "extinguishes" the existence of the threat of an action or proceedings in respect of an infringement of copyright.


case_title: Spiers v Brown (1858) 6 WR 352


case_text: The originality of a compilation may lie in the selection or arrangement of the information. It also may reflect the skill and labour of gathering the facts. As already noted, in the present case, the Weekly Schedule reflects both. It is only the originality of expression that is relevant, not the originality of the idea the subject of the expression ( Donoghue v Allied Newspapers Limited [1938] Ch 106 at 110 per Farwell J). It must be determined whether the part that is taken is an essential or material feature of the whole work, regarded as a copyright work; that is, ' whether the part or parts taken represent a substantial part of the labour, skill and judgment of the author that made the whole work "original" ' ( Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at [55] per Wilcox and Lindgren JJ). As one should not dissect a work to determine if a part could be protected by copyright standing alone ( Ladbroke at 277 per Lord Reid), so it is inappropriate to dissect the work for the purposes of infringement. The correct approach is to decide whether the work as a whole is protected by copyright and then to determine whether the work or a substantial part of the work as a whole has been taken.


case_text: In T R Flanagan Smash Repairs Pty Ltd v Jones [2000] FCA 625 ; (2000) 102 FCR 181, Hely J observed that copyright may even subsist in compilations that consist entirely of existing material. Originality may lie in the selection or arrangement of such material ' provided that sufficient skill, judgment and labour was involved ' (at [29]). Any of the latter three may be sufficient for the work to be original ( Desktop per Lindgren J at [159]).


case_text: The requirement under the Act that the "communication" must be "to the public" means "to the copyright owner's public" ( Telstra Corporation Limited v Australasian Performing Right Association Limited [1997] HCA 41 ; (1997) 191 CLR 140). Ice submits that Ice's subscribers cannot be considered to be Nine's "public" because ' Nine could not reasonably expect payment from anyone...for receipt by [Ice] subscribers of the [Weekly Schedule]'. It points to Mr Marshall's evidence that there is no paying market for a program guide in non-aggregated format. This does not address Nine's contention. Nine's public includes persons who wish to view Nine's programs. This would include Ice subscribers. Indeed, if it did not, there would be no commercial reason for Ice to include Nine program listings information in the IceGuide. 223 Ice also points to s 22(6) of the Act which relevantly provides that a "communication" is taken to have been made by the person responsible for determining the content of the communication. That person is said to be the subscriber rather than Ice. Ice relies on the fact that users determine the regularity by which data are downloaded and the subsets of IceGuide data that are downloaded (eg, Sydney rather than Melbourne channels). It follows, Ice submits, that there has been no relevant "communication" by Ice.


case_text: The author of a compilation does not acquire copyright in the facts that have been published. The facts do not originate from the author. If the selection or arrangement of the facts involves sufficient skill or labour then the form of selection or arrangement is protected. If there is sufficient work done or expense incurred in gathering the facts, that is also protected ( Desktop at [313] per Sackville J citing the primary judge, Finkelstein J in Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd (2001) 181 ALR 134 at [64]; see also Desktop at [409] per Sackville J).


case_text: Accepting that there is no reproduction or substantial reproduction of the Weekly Schedule on the hard drives of subscribers' PCs or Media Centres, authorisation does not arise. If there is such reproduction, the facts support the contention that Ice "authorises" the reproduction of the Weekly Schedule by users of the IceGuide within the meaning of s 36 of the Act. It "sanctions, approves and countenances" such activity ( The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 12-13 per Gibbs J and at 20-21 per Jacobs J). Ice encourages use of the IceGuide and is, at best, indifferent as to whether the Weekly Schedule is reproduced on the hard drives of subscribers' PCs or Media Centres ( Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244). Ice has the power to prevent such reproduction and takes no steps to do so. The actions of Ice are not dissimilar to those of the proprietor of software made available from websites enabling copying and communication of sound recordings ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1).


case_text: The IceGuide is made available online in such a way that it can be electronically transmitted as a result of a request by the user of the IceGuide. The fact that a user may elect to download the IceGuide for only some channels and determine the regularity of "fetch" is not to the point. The content of such data as is downloaded is plainly "determined", "formulated" or "created" by Ice ( Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1 at [74] per Tamberlin J). That satisfies s 22(6) of the Act. 225 It follows that, had the first infringement been made out, I would have been of the view that Ice communicates the Weekly Schedule to the public within the meaning of s 31(1)(a)(iv) of the Act. 226 At the hearing, Ice sought leave to file the second cross-claim seeking a declaration, injunction and damages for unjustified threats pursuant to s 202 of the Act. Leave is required because Ice did not comply with O 5 r 9(1) of the Federal Court Rules (O 5 r 9(2)). Nine opposes leave being granted on the basis that the right to bring the cross-claim does not arise under s 202 and that the discretion should be exercised to refuse leave where Ice sought to file the cross-claim on the second day of hearing. Nine reserves its right to object to the cross-claim as drafted.


case_title: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1


case_text: Nine submits that, were it to create and publish a daily schedule consisting only of time and title information, that would be a copyright protected compilation under the Act. However, that is not what the Weekly Schedule is. The Act provides for the subsistence of copyright in compilations of information, not mere information per se. The fact that copyright may subsist in the Weekly Schedule as a whole does not mean that it attaches to the individual facts referred to or the component parts therein ( Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45 ; (1937) 58 CLR 479 per Latham CJ at 498 and Dixon J at 511). 42 Nine accepts that a proper identification of the copyright work takes account of the way in which the copyright owner packages or presents its work. Nine submits, however, that the identification must take account of the way in which Nine knows the work is going to be delivered to the consumer. Nine relies upon the fact that the published Aggregated Guides, in print and electronically, discard or hide synopses to varying degrees, while the time and title information always appears. It submits that its intention is that the Weekly Schedule ' be published [by the Aggregators] with primary emphasis on the time and title information, and on a daily basis, especially in the digital environment '. However, the fact that a reader may make use of a part of the compilation does not of itself change the nature of the copyright which subsists in the Weekly Schedule an original literary work. That compilation, as supplied to the Aggregators, is not limited to time and title. Nor is it limited to just one day of the relevant broadcast week. 43 Each of the sets of information contained in the Weekly Schedule, including the days in the broadcast week, the additional program information and the synopses, are a part of that compilation. The purpose of the Weekly Schedule is to impart the totality of that information to the Aggregators and, in turn, the public. Nine's operational activities are, as Ms Wieland agreed, ' geared to [a] week to week basis '. The Weekly Schedule, built up each week by Mr Healy and Ms Wieland, inevitably includes the synopses and the additional program information. These, in turn, are an integral part of the relationship between the information in and the design of the Weekly Schedule. The Weekly Schedule is the only relevant work to leave Nine. It is the work sent to the Aggregators. It is, with all of the information it includes, the way in which Nine, for good commercial reasons, presents the collocation of information. The totality of the information there included is necessary because it is required by the Aggregators and is also provided to the Aggregators by Nine's competitors for the purposes of the Aggregated Guides that are made available to the public. 178 Infringement is not necessarily avoided where material is simply checked with the data subject for verification or where the arrangement is different ( Waterlow Publishers Ltd v Rose (1989) 17 IPR 493 cited in Desktop at [346] per Sackville J). However, the concept that the taking of a single line of a directory for the purpose of saving labour and trouble amounts to an infringement was a ' famous but excessive admonition ' ( Desktop at [405] per Sackville J referring to Kelly at 701 2 per Sir W Page Wood VC). The fact that copyright may exist in a compilation does not mean that it exists in the individual facts referred to therein ( Victoria Park at 498 per Latham CJ and at 511 per Dixon J). The taking of line of a directory will not be sufficient for infringement if it does not constitute a substantial part (s 14(1) of the Act; Waterlow Directories Ltd v Reed Information Services Ltd (1990) 20 IPR 69 per Aldous J at 73, cited in Desktop at [347] per Sackville J). However, copyright in a compilation may be infringed by appropriating ' an undue amount of the material, although the language employed be different or the order of the material be altered ' (Laddie H, Prescott P, Vitoria M, Speck A and Lane L, The Modern Law of Copyright and Designs (3 rd ed, 2000) at paras 3.88 and 3.90, cited in Desktop at [375] per Sackville J). 182 Where the manner of presentation is the basis for the attraction of copyright, it may be that a presentation of the same information in different form would not infringe ( Victoria Park per Dixon J at 511). In such circumstances there may not have been a taking of a "substantial part", which is assessed by reference to the quantity and the quality of what is taken and the inter-relationship between them ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [70] per Lindgren J, cited in Gold Peg at [170]). It is a question of fact and degree (Crennan J in Gold Peg at [190]; also emphasised by McHugh and Kirby JJ in dismissing an application for special leave to appeal from the Full Court in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2005] HCATrans 842). A defendant may rework the work of a plaintiff, capturing the ideas used or facts referred to but in a way that does not infringe because it is not a substantial reproduction. It may constitute a new original work. The taking of a substantial part of a copyright work will vary depending on the nature of the work and the degree of originality of the original work ( Skybase at 532 per Hill J, with whom French J agreed). The ' originality of that part of the work taken by the alleged infringer ' is critical ( Desktop at [409] per Sackville J). 184 The underlying principle is that the law of copyright does not give an exclusive right to state or describe particular facts ( Victoria Park at 498 per Latham CJ). Substantial reproduction and causal connection are separate and cumulative requirements for a finding of infringement ( Desktop at [399] per Sackville J). If a causal connection is shown, it is then necessary to assess whether the allegedly infringing work can fairly be said to be so sufficiently similar to the first that it is but a reproduction ( Skybase at 533 per Hill J, with whom French J agreed). While copying is an essential element in providing the requisite causal connection between the copyright work and the alleged infringement, copying does not, of itself, determine whether or not there has been the taking of a substantial part. Not every act of copying is an infringement of copyright. It is also necessary to establish the appropriate subject matter for copyright, what is original and whether there has been a taking of a substantial part ( Network Ten [2004] HCA 14 ; 218 CLR 273 at [14] [17] per McHugh A-CJ, Gummow and Hayne JJ). 187 If each "sliver" or element of the Nine compilation is entitled to copyright protection, Ice accepts that it cannot defend these proceedings. Ice submits that a piece of information about, for example, a change in episode sequence is not a copyright protected work but ' at best, a tiny star in the galaxy of a compilation '. This accords with Victoria Park . Nine accepts that a single "sliver" of information, such as the programming over five days at 8 pm, does not amount to a substantial part of the Weekly Schedule nor of the Aggregated Guides. 188 The Aggregated Guides publish a substantial part of the information set out in the Weekly Schedule. Nine retains copyright in the Weekly Schedule. The skill and labour invested in a compilation may continue to be protected even where that compilation is integrated into or extended to become a different compilation which is itself protected by copyright. Nine asserts that the Aggregators' publication is as a ' sub-publisher ' of the Weekly Schedule, authorised by Nine. Nine contends that, in updating its guide by reference to the Aggregated Guides, Ice is taking a substantial part of its copyright work. 189 The IceGuide does not replicate the content or form of the Aggregated Guides. The differences in content are primarily in the additional program information and the synopses. Those sets of information from the Weekly Schedule are not necessarily replicated in the Aggregated Guides. For example, synopses are edited and may be shortened. Importantly, the Aggregated Guides also contain information from the Late Change Notices. That information is not included in the Weekly Schedule sent to the Aggregators. The form and arrangement of the IceGuide is different to that of the Aggregated Guides and different, in turn, to the form and arrangement of the Weekly Schedule. Accordingly, neither the content nor the format of the Weekly Schedule is replicated in the IceGuide.


case_title: Walter v Lane [1900] AC 539

case_text: The compiler of the Weekly Schedule of Nine programs is not necessarily the same person who determines the programming, the time and tile of the programs and is the author or originator of the facts recorded in the compilation. Once the programs are broadcast, the time, title, nature and content of those broadcast programs are available to the public. A person wishing to compile a schedule of those broadcast programs by viewing them and recording all of that information does not, in the making of that second compilation, appropriate the work of the creator of the record of the programs in the Weekly Schedule. It is similar to a speech and the report of the speech ( Walter v Lane [1900] AC 539, cited in Desktop at [68] per Lindgren J); they are two different things and the authors are relevantly two different persons. 210 The skill and labour of creating the Aggregated Guides accessible to the public, including Ice, is in the content and the form in which the information is there presented. The Aggregated Guides are separate compilations of which the Nine programming information or "Nine Listings Content" represents only a part. They are created by the independent skill and labour of the Aggregators and do not reflect the precise content and arrangement of the Weekly Schedule. Nine does not claim copyright in the Aggregated Guides but says that it retains copyright in so much of those guides as contains the Nine Programming, which was contained in the Weekly Schedule. Ice does not appropriate the skill and labour expended by Nine in arranging the format or the content of the additional program information and the synopses. It created its own templates. It accesses the Aggregated Guides. Ice adopts its own format and provides its own content. It amends the time and title information for some programs that it has not "predicted" correctly. It utilises its own skill and labour, via its software system, to insert that information into the IceGuide. It does not take the skill and labour attributable to the form of the compilation. It does not take sufficient of the skill and labour of the content of the Aggregated Guides, let alone the Weekly Schedule, to constitute a substantial part. 211 In order to ascertain whether the taking of the slivers of time and title information, individually and cumulatively for a given week constitutes the taking of a substantial part of Nine's copyright work as it forms part of the Aggregated Guides, a number of factors must be taken into account: • Ice does not access the Weekly Schedule but the Aggregated Guides. • The time and title information of the Weekly Schedule does not include the information the subject of the Late Change Notices. • As Ms Wieland stated, prime-time movies are never included in the Weekly Schedule and new programs may not be included. They are the subject of Late Change Notices. • Strip programs may be scheduled for broadcast in the same timeslot by Nine for months and sometimes years. • Programs with episodic series are also often scheduled in the same timeslots for extended periods of time. As already noted, for these programs, the time and title information may be of less qualitative importance than the synopses. • Each compilation, the Weekly Schedule, the Aggregated Guides and the IceGuide includes the additional information and the synopses. • Ice refers to the whole of the time and title information in the Aggregated Guides but only takes "slivers" of it. Those "slivers" do not bear substantial importance in relation to the originality of the Weekly Schedule as a whole. • The synopses are, for each of the Weekly Schedule and the IceGuide, original works with commercial importance. • The skill and labour engaged in by Nine for the creation of the time and title information is skill and labour that is expended for the purposes of broadcasting and as preparatory skill and labour for the purposes of the compilation. • The skill and labour expended and the originality of the Weekly Schedule relate not only to the information contained in that schedule but also to the arrangement and form of the information. • Ice does not take the arrangement or form. • Ice expends its own skill and labour and original work in the creation of the IceGuide which is not derived from Nine's copyright. This includes the creation of the templates, the software to amend the guide, the decisions on what to include in updating and amending the guide, the writing of the synopses and the presentation of the data.


case_title: Walter v Steinkopff [1892] 3 Ch 489

case_text: In the alternative, Nine characterises the late changes as divorced from and separate to the act of revising the underlying copyright work but as attracting their own copyright over a week-long period. While that information is a relatively small quantitative part of the totality of information, it is qualitatively important for Nine. As already noted, such information may be withheld from the Weekly Schedule for competitive reasons. However, Ice does not access the Late Change Notices. Ice refers to the information as to late changes when it accesses the Aggregated Guides. The Late Change Notice is no part of the Weekly Schedule. It is merely a notice or, over the week, a series of notices. If there is no copyright in news as such but only in the form in which it is expressed ( Walter v Steinkopff [1892] 3 Ch 489), it follows that there is no copyright in the subject matter of the Late Change Notices. Further, the Late Change Notices are not themselves incorporated into the Aggregated Guides but only the information that they contain. 73 A simple visual comparison of the Yahoo7 Guide and the YourTV Guide with the Weekly Schedule in Excel and text formats confirms that there are significant differences of "look, feel, and content" between those guides and the Weekly Schedule. For example: • The information in the Yahoo7 Guide and YourTV Guide is not selected, expressed or arranged in a broadcast week; it is in daily format. • The time and title information is arranged in a horizontal grid rather than vertical columns. The synopses and some of the additional program information, although present, is not set out in the grid. That information only becomes visible when selected in a pop-up window. • A "day" is expressed as a calendar day rather than from 6:00 am to 5:59 am the next day. • Program finish times, duration and genre are displayed in the Yahoo7 Guide and the YourTV Guide. This information, save for the genre of movies, is not included in the Weekly Schedule. • The YourTV Guide discloses the program country and links to official program and related websites. • The YourTV Guide discloses, where applicable, the program cast. • Closed captions, widescreen and high definition are not expressed by abbreviations in the YourTV Guide and the Yahoo7 Guide. 74 It would seem that the synopses included in the Weekly Schedule are in most cases incorporated in substantially the same or abbreviated form in the Aggregated Guides. A comparison of the program synopses as included in (relevantly) the Weekly Schedule, the YourTV Guide, the Yahoo7 Guide and OurGuide for a randomly selected day (4 October 2006) showed that OurGuide had the same synopses as the Weekly Schedule (save for two shortened synopses). HWW made minor edits to the synopses provided by Nine, which were reflected in the YourTV Guide and two other guides sourced from HWW, including the Yahoo7 Guide.


case_text: Infringement is not necessarily avoided where material is simply checked with the data subject for verification or where the arrangement is different ( Waterlow Publishers Ltd v Rose (1989) 17 IPR 493 cited in Desktop at [346] per Sackville J). However, the concept that the taking of a single line of a directory for the purpose of saving labour and trouble amounts to an infringement was a ' famous but excessive admonition ' ( Desktop at [405] per Sackville J referring to Kelly at 701 2 per Sir W Page Wood VC). The fact that copyright may exist in a compilation does not mean that it exists in the individual facts referred to therein ( Victoria Park at 498 per Latham CJ and at 511 per Dixon J). The taking of line of a directory will not be sufficient for infringement if it does not constitute a substantial part (s 14(1) of the Act; Waterlow Directories Ltd v Reed Information Services Ltd (1990) 20 IPR 69 per Aldous J at 73, cited in Desktop at [347] per Sackville J). However, copyright in a compilation may be infringed by appropriating ' an undue amount of the material, although the language employed be different or the order of the material be altered ' (Laddie H, Prescott P, Vitoria M, Speck A and Lane L, The Modern Law of Copyright and Designs (3 rd ed, 2000) at paras 3.88 and 3.90, cited in Desktop at [375] per Sackville J).


case_title: Waterlow Publishers Ltd v Rose (1989) 17 IPR 493


case_text: Copyright in a literary work is infringed where a person, not being the owner of the copyright and without licence, does or authorises the doing in Australia of any act comprised in the copyright (s 36(1) of the Act). The owner of the copyright in a literary work has the exclusive right to do the acts set out in s 31(1)(a) of the Act. These acts relevantly include ' to reproduce the work in a material form ' (s 31(1)(a)(i)) and ' to communicate the work to the public ' (s 31(1)(a)(iv)). An ' infringing copy ' is defined in s 10(1) to mean, relevantly, a reproduction of the work, or of an adaptation of the work '. Infringement by reproduction is usually said to require first, a "sufficient degree" of similarity between the two works and, secondly, that there is a "causal connection" between the two works ( Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57 at [173]-[174] per Crennan J; Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 at 531 per Hill J; Desktop at [220] per Lindgren J). A reproduction of the whole or a substantial part of the work is an infringement (s 14(1)(b)) of the Act). 182 Where the manner of presentation is the basis for the attraction of copyright, it may be that a presentation of the same information in different form would not infringe ( Victoria Park per Dixon J at 511). In such circumstances there may not have been a taking of a "substantial part", which is assessed by reference to the quantity and the quality of what is taken and the inter-relationship between them ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [70] per Lindgren J, cited in Gold Peg at [170]). It is a question of fact and degree (Crennan J in Gold Peg at [190]; also emphasised by McHugh and Kirby JJ in dismissing an application for special leave to appeal from the Full Court in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2005] HCATrans 842). A defendant may rework the work of a plaintiff, capturing the ideas used or facts referred to but in a way that does not infringe because it is not a substantial reproduction. It may constitute a new original work. The taking of a substantial part of a copyright work will vary depending on the nature of the work and the degree of originality of the original work ( Skybase at 532 per Hill J, with whom French J agreed). The ' originality of that part of the work taken by the alleged infringer ' is critical ( Desktop at [409] per Sackville J). 184 The underlying principle is that the law of copyright does not give an exclusive right to state or describe particular facts ( Victoria Park at 498 per Latham CJ). Substantial reproduction and causal connection are separate and cumulative requirements for a finding of infringement ( Desktop at [399] per Sackville J). If a causal connection is shown, it is then necessary to assess whether the allegedly infringing work can fairly be said to be so sufficiently similar to the first that it is but a reproduction ( Skybase at 533 per Hill J, with whom French J agreed). While copying is an essential element in providing the requisite causal connection between the copyright work and the alleged infringement, copying does not, of itself, determine whether or not there has been the taking of a substantial part. Not every act of copying is an infringement of copyright. It is also necessary to establish the appropriate subject matter for copyright, what is original and whether there has been a taking of a substantial part ( Network Ten [2004] HCA 14 ; 218 CLR 273 at [14] [17] per McHugh A-CJ, Gummow and Hayne JJ).


case_text: The prerequisite in s 202(1) is that a person is threatened with an action or proceeding. This refers to a proceeding not yet brought. "Threat" imports an intention to bring an action or ' an indication of probable evil to come ' ( Macquarie Dictionary (4th ed, 2005)). That is the commencement of the proceedings threatened. Once the proceedings have been commenced, the threat to commence those proceedings has ceased. The link between the threat and the commencement of legal proceedings and the need for a statutory remedy in the context of the comparable s 121 of the Patents Act 1952 (Cth) (then in force) was commented upon by von Doussa J in Townsend Controls Pty Ltd v Gilead (1989) 14 IPR 443 at 448. His Honour said that the purpose of the section was to provide a statutory remedy where a person makes a threat instead of enforcing the claimed monopoly by instituting proceedings for infringement.


case_text: first purported Ground of Appeal does not address any error said to have been committed by the Federal Magistrate. This Court has no jurisdiction to entertain an appeal from a decision of the Tribunal. The relevant jurisdiction is its appellate jurisdiction in respect to a decision of a Federal Magistrate. Moreover, the ground is misconceived. Neither the Federal Magistrates Court nor this Court on appeal can review a decision of the Tribunal simply upon the basis that it is said to be not " fair ". The relevant jurisdiction of the Federal Magistrates Court is that conferred by s 476(1) of the Migration Act 1958 (Cth) which provides as follows: Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution . The jurisdiction under s 75(v) does not extend to a consideration of the factual merits of a decision and a consideration as to whether it is " fair " or " unfair ." The relevant appellate jurisdiction of this Court is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and that jurisdiction does not extend beyond that conferred upon the Federal Magistrate. Relying upon an earlier decision of Kenny J, Her Honour Justice Crennan in Jones v Southall & Bourke Pty Ltd [2004] FCA 539 summarised the nature of such an appeal to this Court as follows: [2] An appeal from a judgment of the Federal Magistrates Court under s 24(1)(d) of the FCA Act is neither a hearing de novo nor an appeal in the strict sense, but is an appeal by way of re-hearing. As stated by Kenny J in Farrington v Deputy Commissioner of Taxation (2002) 50 ATR 429 at [4]: On an appeal by way of re-hearing, the powers of an appellate court are exercisable only if the appellant can demonstrate that, having regard to the evidence before the appellate court, the judgment under appeal is a consequence of some legal, factual, or discretionary error: see Allesch v Maunz [2000] HCA 40 ; (2000) 173 ALR 648 at 653 54 per Gaudron, McHugh, Gummow and Hayne JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 ; (2001) 178 ALR 421 , at 439 per Gleeson CJ and Gummow J; and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 174 ALR 585 at 590 per Gleeson CJ, Gaudron and Hayne JJ. See also: Low v Commonwealth of Australia [2001] FCA 702 at [3] per Marshall J; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [18] , [2004] FCA 106 ; 204 ALR 624 at 628 to 629 per French J (as His Honour then was); NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [31] per Graham J; MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [29] per Young J. The appellate jurisdiction of this Court has been conferred for the purpose of correction of any error in the decision of a Federal Magistrate, not to correct error on the part of the Tribunal.


case_title: Low v Commonwealth of Australia [2001] FCA 702


case_title: MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497


case_title: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975


case_outcome: affirmed

case_text: Application was then filed with the Federal Magistrates Court on 15 July 2008. The grounds upon which that application was advanced were stated to be as follows (again without alteration): 1. Jurisdictional error has bee made. RRT did not use favorable cases to my application. Procedural Fairness has been denied. RRT failed to address me potential sur place claim that I would be exposed to a real risk of persecution in the future as I am devoted Christian. That Court dismissed the application by way of a decision published on 16 December 2008: SZMNK v Minister for Immigration and Citizenship [2008] FMCA 1669. The Federal Magistrate's decision noted that each of the first two grounds relied upon was but a " bare assertion " and that no particulars were provided or submissions advanced in support of the assertions made. Nor did the then Applicant avail himself of an opportunity extended to him by the Federal Magistrate to file an Amended Application and further evidence. Notwithstanding the deficiencies in the Application as filed, the Federal Magistrate proceeded to address each of the grounds and satisfied herself that each of the grounds should be rejected. The Federal Magistrate further noted " [t]hese grounds have been seen regularly in this Court before[,] even to the spelling mistake in ground 1 in relation to 'bee' ". A Notice of Appeal was then filed with this Court on 13 January 2009. The purported Grounds of Appeal are there specified (without alteration) as follows: 1. Refugee Review Tribunal did not make fair decision for my application 2. I gave all details about my claims but the Judge refused my application on my hearing date. It is not fair. I am Christian. I will be persecuted if I return to China. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. An Affidavit sworn by the now Appellant states (without alteration): My application for a protection visa was refused by DIAC and RRT and I found RRT decision is not fair. I lodged my application to be reviewed at Federal Magistrates Court. The judge did not consider all information provided at my Hearing. I have no chance to provide more evidence and my case was dismissed. The now Appellant appeared before the Court this morning unrepresented, although he did have the assistance of an interpreter. He has explained to the Court that the purported Grounds of Appeal were drafted by a " friend " and that he was unable to further expand on what was intended to be conveyed by those Grounds. He has further explained that the further evidence that he wished to adduce before the learned Federal Magistrate was evidence that: he had been detained by the police in China for a period of two days; and he had been fined RMB 5,000. This evidence formed part of his statement as set forth in his original application received by the Department on 8 January 2008. The Appellant also stated that the contents of his Affidavit had not been translated to him prior to execution and that he was simply asked by a " friend " to sign the Affidavit . That was what he did, apparently not knowing what he was signing. Contrary to that which is set forth in his Affidavit , the Federal Magistrate's reasons expressly state that " the Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon together with any evidence by way of affidavit ": [2008] FMCA 1669 at [26] . No further evidence was filed. Moreover, and, in any event, there was no need to file " more evidence ". The " more evidence " that the now Appellant wished to adduce was already in evidence. The statement annexed to the original January 2008 application for a protection visa relevantly stated: They arrested seven of us into Fuqing police station. [XXX] signed a piece of paper, showing that he would no longer gather with us. [XXX] did this to protect us from police's persecution. As a result, we spent 2 days in the police station. We were released after paid RMB5,000. This was evidence that was before the Minister's delegate and before the Tribunal. The Tribunal asked questions of the now Appellant as to this statement and rejected his evidence, finding in part as follows: [62] Further, and given all the above and its earlier findings, it follows that the Tribunal does not accept the applicant's claim that in October 2006, the local police broke into [XXX's] home during a religious gathering and took them to a police station; their Bible and religious documents were confiscated as evidence; seven people were arrested and [XXX] signed an undertaking that he would no longer gather with them in order to protect them from persecution; and, as a result, they were released two days later after paying RMB 5,000. It also follows that the Tribunal does not accept that he was fined RMB 5,000 Yuan as he claims, as otherwise he would not have been allowed to legally depart China using a passport issued to him in his own name and with all his personal details and photographs in it. It was also evidence expressly referred to by the Federal Magistrate: [2008] FMCA 1669 at [14] . The assertion that the now Appellant was denied an opportunity to advance further evidence before the Federal Magistrate, accordingly, exposes no appellable error. None of the purported Grounds of Appeal , it should further be noted, comply with Order 52 r 13(2)(b) of the Federal Court Rules .


case_title: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 , 204 ALR 624


case_text: An administrative decision maker does not make an error of law by making a wrong finding of fact: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77; Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . Insofar as the Tribunal concluded that there was no genuine spousal relationship, that was a conclusion of fact which is not subject to review by the Federal Magistrates Court or by this Court on appeal.


case_text: It was contended by the first respondent's counsel that the Tribunal's conclusions are factual and not subject to review by either this Court or the Federal Magistrates Court: The Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. That submission must be accepted. There can be no doubt that the Federal Magistrates Court and this Court has no jurisdiction to enter into the merits of administrative decision making. The merits of administrative decision making are for those who have the relevant power to make the decisions.


case_title: Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54


case_outcome: referred to

case_text: these proceedings I found the applicant has satisfied me beyond reasonable doubt that the respondent was guilty on four charges of contempt in my judgment in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518. Today I have heard evidence from the respondent both on affidavit and in the witness box relating to the circumstances in which the contempts occurred and his current attitude in relation to the subject matter of those charges. The applicant accepts that the respondent is now complying with the orders made by Wilcox J on 15 December 2005 and as I understand he has complied since at least I gave judgment on 9 May 2006. Although the applicant has filed an affidavit of Ms Than on 16 May 2006 which refers to a Mr Dennis Henry Monamy, owning some property, the respondent is Dennis Alfred Monamy and no suggestion was made when the respondent was being cross-examined that he was the owner of any property. In his evidence the respondent has deposed to commencing work in around 1990 as a contractor with the applicant installing floor coverings on a regular basis. That relationship ended in around 1995 when he was unable to agree on further terms with the applicant. He said he began trading under the business name Simply Natural Floorcoverings in around 1995 and created a web site for that purpose. During the middle of 2005 the applicant and the respondent began a series of communications that ultimately led to the litigation and mediation in this court resulting in the orders made by Wilcox J on 15 December 2005. The question then arises as to what fine I ought impose on each of the counts that I have found proved and for which I have convicted the respondent. Charge 6 involved the use of the business name Simply Natural Floorcoverings with 'floorcoverings' as one word on the web site for a period that commenced at least on 19 January 2006 and continued at least to 2 March 2006, as I found in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [37] and [38]. I am of opinion that that was conduct which was quite clearly against both the spirit of the heads of agreement and the terms of the consent orders. While I cannot take account of the heads of agreement in imposing penalty, I am entitled to have regard to the fact that the respondent had urged that the orders were ones that he did not believe he needed to obey within any particular time. The fact is that by 2 March 2006 he had applied to and succeeded in changing his business name to separate the word 'floorcoverings' into two separate words. It was plain, in my opinion, that that should have been done a long time before, at least no later than when he was served with a properly endorsed set of orders on 19 January 2006. I do not think that this contempt has been satisfactorily explained. It is appropriate that the court, in addition to requiring a payment of costs, should impose a penalty by way of a fine. In all the circumstances, I will impose a fine of $1500 for that breach. Charge 11 involved the use of the HTML meta tag which I described in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [41] - [47] . That conduct was engaged in between at least 1 March 2006, as I found ([2006] FCA 518 at [47]), and at least no later than 24 April 2006, which is the date Ms Than refers to in par 5 of her affidavit of 15 May 2006 as the date on which the disclaimer was noted by her to appear. The period to which I have regard in imposing the fine in respect of charge 11 should, I think, reflect most prominently the use of the meta tag in the period between 1 March 2006 and the date of my finding of guilt on 12 April 2006, which is a period of almost six weeks. In my opinion, this breach was quite flagrant, as I described in Natural Floor Covering Centre Pty Ltd v Monamy (No1) [2006] FCA 518. It was a deliberate attempt to evade the very clear order requiring an active communication by the respondent of the dissociation of his business from the applicant's. The use of the meta tag was calculated to avoid giving effect at all to the order. It was an attempt to disguise the very thing the order required be revealed: namely, the dissociation of the businesses. I do not accept any explanation that the respondent has sought to give of that behaviour. In the witness-box today he asserted that he had put the meta tag there knowing, as he said, that it would not be visible to the ordinary viewer of the webpage but that it might be seen in some web browsers. The reason he gave for putting the disclaimer in a meta tag, was that he thought that that was above the fold referred to in the order. For the reasons that I gave in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 , the use of the words 'above the fold' makes no difference to the proper construction of the orders or the flagrancy of the evasion which the use of the meta tag involved. In my opinion, that behaviour was quite contumacious and deliberate, as well as being 'clever' in both senses of that word. I think I should mark the court's disapprobation of that conduct by imposing a fine of $2500. In reaching the view which I have expressed, at this stage tentatively, as to the appropriate fines to be imposed I have had regard to the nature and circumstances of each offence as I have outlined already. I have also had regard to the matters referred to, although I may not necessarily be required to do so, in s 16A of the Crimes Act 1914 (Cth) in relation to sentence. In particular, each of the offences is related to the others and forms part of an ongoing course of conduct which ultimately came to an end with the recognition that the respondent has now given that his conduct was wrong and in breach of the orders.


case_title: Natural Floor Covering Centre Pty Ltd v Monamy (No 3) [2006] FCA 602


case_text: purposes identified in the rules are consistent with the purposes for such orders identified by the High Court in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 and in Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380. The application is brought by the respondents to the proceeding and I shall continue to refer to them as the respondents. Next, his Honour considered the law. He noticed that the Court had power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make Mareva orders or, as they are referred to in the Rules, freezing orders, and he had regard to the decisions of the High Court in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 and Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380. He observed that the joint reasons of the majority in Cardile [1999] HCA 18 ; 198 CLR 380 raised a number of propositions. First, that an order should not be made against a non-party to a proceeding "where judgment has not been obtained or execution recovered or not holding, controlling or capable of disposing of the property of a party in that proceeding". Secondly, he observed the general proposition that the grant of freezing orders against a third party "is not limited to cases in which the third party holds, or is about to hold, or dissipate, or further dissipate property beneficially owned by the defendant in the substantive proceedings". Thirdly, he observed that the guiding principle in considering whether to grant Mareva orders against third parties is as set out in [57] of the majority's reasons: What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word "may", be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including "claims and expectancies", of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor. Lastly, he observed that there are a number of discretionary factors to which the majority in Cardile [1999] HCA 18 ; 198 CLR 380 referred at [53] which needed to be taken into account in determining whether an order should be made: 1. Whether the applicant has acted in a timely fashion; 2. Whether the applicant has obtained a money judgment in the proceeding; and 3. Whether the applicant has a cause of action against the third party. There is no complaint that his Honour has misunderstood the law. His Honour turned his attention to the resolution of the issues. He said that although neither party made detailed submissions on the question as to whether the applicants had a good arguable case, he was of the opinion that such a case existed. Issue was taken in relation to that holding by the respondents and Gemhall Holdings and Time 2000 on this application. They said that his Honour ought not to have found that there was a serious question to be tried. However, it is clear that the case which is raised by the applicants against the respondents will be determined upon a construction of the various agreements which, undoubtedly, were entered into by the parties. Although the respondents deny that those agreements amount to franchise agreements or give rise to a franchise regime, it cannot be doubted, I think, that as between the parties there is a serious question to be tried. His Honour addressed the question as to whether there was a danger that a prospective judgment in favour of the applicants against the respondents would remain unsatisfied or partly unsatisfied if recovery is restricted to the assets of those respondents. That proposition was criticised by Mr White, counsel for the respondents on this application. But I think that his Honour was merely considering whether there was any need for a freezing judgment at all because if there was not any risk that a prospective judgment against the respondents would remain unsatisfied, or partly unsatisfied, there would be no reason to make a freezing order against any non-party. I think there is nothing, with respect, in that criticism. His Honour then said: It seems to me that the most contentious issue in this case relates to the third question, namely whether some process, ultimately enforceable by the parties, is or may be available to the applicants as a consequence of a judgment against the respondents, pursuant to which whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, a third party may be obliged to disgorge property or otherwise contribute to the funds or property of the respondents to help satisfy the judgment against the respondents. His Honour addressed the facts and said: The respondents submission that Mr Donovan, as a member of a class of possible objects of appointment, has no proprietary interest in the trust assets is correct. His Honour is undoubtedly correct about that and no criticism is made about that statement. His Honour concluded, however, that that submission was not fatal to the applicants' application. In my opinion, his Honour was right to approach the matter in the manner in which he did. First, to remind himself, as he did, that the respondent, Mr Donovan, has no proprietary interest in the trust assets of Gemhall Holdings or Time 2000. He was also right, in my opinion, to conclude that that was not fatal to the applicants' application. That follows, it seems to me, from the judgment of the majority in Cardile [1999] HCA 18 ; 198 CLR 380 and, in particular, at 401-402, and at [45]. His Honour also said it followed from the provisions of O 25A r 5(5) itself and, I think, in that respect, he was also right. That rule provides: (5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party ) if the Court is satisfied, having regard to all the circumstances, that: (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because: (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. In my opinion, that subrule supports the contention that it is not fatal to the applicants' application that Mr Donovan has no proprietary interest in the trust assets. His Honour concluded: It is possible that Mr Donovan will receive an interest under the Stephen Donovan Family Trust which is recoverable by a trustee in bankruptcy in the event that the applicants obtain a judgment against Mr Donovan and he's placed into bankruptcy upon being unable to satisfy that judgment. The gravamen of the respondents' argument on this application is that his Honour posed for himself the wrong test. It was said that his Honour posed for himself a test which was merely speculative and whether it was possible or not the event might occur was an irrelevancy. I think, with respect, that argument ignores the sentence before the one to which I have referred in which he said, after referring to Cardile [1999] HCA 18 ; 198 CLR 380 and to O 25A r 5(5): Both refer to a process which is or may ultimately be available and the fact that the third party may be obliged to disgorge assets or contribute towards satisfying the judgment or prospective judgment. It also overlooks, with respect, the cases to which his Honour referred which were all, as his Honour noticed, directed to the question as to whether it may be that an interest of the kind to which his Honour referred will arise. I think, without doubt, that the test which his Honour was addressing was the test which was referred to in Cardile [1999] HCA 18 ; 198 CLR 380 and in the Rules, and also in the cases to which his Honour referred. He concluded that there was a possibility that Mr Donovan may receive an interest under the Stephen Donovan Family Trust and, in those circumstances, he was entitled, notwithstanding the criticism made by Mr White, to conclude that orders ought to be made of the kind which were made.


case_text: an application of this kind an applicant must address the test laid down by the Full Court of this Court in Décor Corporation Pty Limited v Dart Industries (1991) 31 FCR 397. In that case, and in many cases subsequent to it, the Full Court of this Court and members of this Court have said that leave to appeal will only be granted if the decision from which leave is sought to appeal is attended with sufficient doubt to warrant the same being reconsidered and substantial injustice will result if leave were to be refused, supposing the decision to have been wrong. The two tests are cumulative in the sense that both must be established before leave ought to be given. In my opinion, the applicant has failed to satisfy the test that the decision from which leave is sought to appeal is attended with sufficient doubt. Moreover, in my opinion, the applicant has failed to satisfy the second limb of Décor 31 FCR 397. The second limb assumes that the decision is attended by doubt and the inquiry is whether substantial injustice would result if leave were to be refused. As I pointed out during argument, the orders which were made by his Honour require Gemhall Holdings and Time 2000 to pay the moneys which they receive on the sale of their property into an interest bearing account and to hold $1.7 million in that account until further order. The sum of $1.7 million, as I have said, is the sum of the claim by the applicants against the respondents. I was told on this application by both parties that, in fact, the properties which were advertised for sale and for expression of interest in December 2008 did not sell. In those circumstances, the orders in paragraphs 1 to 5 made by his Honour do not presently operate to inhibit Gemhall Holdings or Time 2000 at all. In those circumstances, they would suffer no substantial injustice, even assuming his Honour's decision to be wrong. Moreover, no prejudice to Gemhall Holdings and Time 2000 accompanies the making of the orders. There is no obligation on the part of Gemhall Holdings or Time 2000 to tell anyone of the existence of the orders. The only notification provision in the orders is that contained in paragraph 5 and that relates not to the assets of Gemhall Holdings or Time 2000 but to the constitution of the shareholding or directorships of those companies. There is a notification order in paragraph 7 that requires that Mr Donovan to notify the applicants' solicitors of any proposed mortgage or encumbrance or variation of any existing mortgage or encumbrance. There is, however, no injunction restraining Gemhall Holdings or Time 2000 from varying their existing borrowings or taking any further mortgages or encumbrances. In my opinion, because the orders presently do not in any way affect Gemhall Holdings or Time 2000, it cannot be said that those companies, which are applicants on this application, would suffer any substantial injustice by reason if leave were refused, even assuming the decision to be in error. Moreover, I do not think the respondents would suffer any substantial injustice by being required to file affidavits which would disclose the assets available to them to meet a judgment in favour, again, upon the assumption that the decision complained of was wrong. I do not think that would give rise to any substantial injustice on those parties' part.


case_text: purposes identified in the rules are consistent with the purposes for such orders identified by the High Court in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 and in Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380. The application is brought by the respondents to the proceeding and I shall continue to refer to them as the respondents. Next, his Honour considered the law. He noticed that the Court had power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make Mareva orders or, as they are referred to in the Rules, freezing orders, and he had regard to the decisions of the High Court in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 and Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380.


case_text: It is appropriate, in a case such as this, for the Court to evaluate the strength of CSA's case for final relief in relation to this aspect of its claim in order to see where the balance of convenience lies: Australian Broadcasting Commission v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [71] , [72] and Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536.


case_text: The requisite strength of the likelihood or probability which will be sufficient depends upon the nature of the rights asserted and the practical consequences likely to flow from the orders sought: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 84 per Gummow and Hayne JJ. 46 Here the grant of the interlocutory injunctions sought would amount, in practical effect, to final relief in respect to the s 45 case at least so far as the Perth Test is concerned. In my opinion, there are serious issues to be tried in relation to the various elements which arise on CSA's s 45 case. Accordingly the balance of convenience now requires to be considered.


case_text: Despite this, CSA, no doubt advisedly, decided to challenge what counsel for CSA described as the ARU business model. The challenge, as I have indicated, goes well beyond the immediate s 45 case in respect of the Perth Test. These proceedings are the manifestation of that decision. It was unnecessary in my opinion, in order to pursue such challenge, for CSA to enter into contracts with its corporate clients for the supply of hospitality packages, including tickets, for the Perth Test. The proceedings might simply have sought declarations without deliberately involving third parties. The proceedings could also have been instituted as early as November last year when CSA and the ARU terminated their contractual relationship, if it had wanted to obtain relevant discretionary relief in time for the Perth Test. There has been an unreasonable delay on the part of CSA in bringing this application. I would, for that reason alone, have refused to grant the relief sought: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1978) 76 ALR 633 at 638-9. 64 Further it is clear that when CSA entered into its contract with SFC for the acquisition of packages in order to access tickets, at a significant premium, for its own packages, it was aware that this was a contravention of the Ticket Condition. 65 The position of the purchasers of corporate hospitality packages from CSA is of course regrettable. However, there is a consideration which outweighs their personal position. In my opinion, a Court should be alert not to give weight to circumstances, deliberately and unnecessarily created by the moving party, which were then sought to be relied upon as a relevant ingredient in the consideration of the balance of convenience. I consider this to be so, even where it involves third parties. There may be occasions when, despite the wilful nature of the moving party's conduct that the position of third parties will nonetheless be a determining factor. This is not such a case.


case_title: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533


case_text: Tickets issued by the ARU which are in substance the same as the tickets for the Perth Test, have already been the subject of consideration by this Court: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157. This decision, in its application to this case, is to the effect that each ticket comprises a licence from the ARU to the bearer for admission to Subiaco Oval for the purpose of watching the match, in consideration of payment of the ticket price. The case did not concern s 45 of the Act . 7 The following condition is printed on each ticket for the Perth Test ("the Ticket Condition"): Sale of this ticket creates a contract between the ARU and the purchaser which gives the purchaser a transferable but conditional licence for admission to the specified match. The licence will automatically terminate if the purchaser or any subsequent transferee: (a) resells this ticket at a premium; (b) resells the is ticket through a broker or agent; (c) advertises or offers this ticket for resale on the internet or in any other medium; or (d) uses this ticket for advertising, promotion or other commercial purpose (including competitions or trade promotions) or to enhance the demand for other goods or services, without the prior, written permission of the ARU. The ARU has the right to deny admission if the licence has terminated. 8 The Ticket Condition prohibits the resale of the ticket at a premium, that is, at a price higher than the amount for which it was sold by the ARU, as well as use of the ticket for commercial purposes, without the prior written permission of the ARU. If the condition is breached, the ARU is entitled to deny admission to any bearer: Hospitality Group at [103]-[105] and [136]. 9 There is an immediate and direct relationship between the Ticket Condition and the SFC Contract Condition. The SFC Contract Condition amounts to a pre-emptive refusal on the part of the ARU to give permission to the SFC to use the tickets to be provided under the SFC Contract for commercial purposes by way of supplying them to CSA. Such permission under the Ticket Condition is necessary before tickets can be used for commercial purposes. The use of tickets for commercial purposes without such permission constitutes a breach of the Ticket Condition. 10 The written evidence of Mr Eddie Moore, Head of ARU's Operations, as to the justification for the Ticket Condition and its enforcement by the ARU, is to the following effect. It is to ensure that the purchaser of a ticket to the Perth Test or any Rugby Union test match does not pay more than the face value price appearing on the ticket. This objective is consistent with the ARU's responsibility to promote and advance the sport of Rugby Union because it maximises public access to Rugby Union tests through the various channels available to a wide cross-section of the public. In addition, the Ticket Condition assists the ARU in protecting an important revenue stream from the sale of hospitality packages which is in turn invested into the Rugby Union game. In particular, by imposing the Ticket Condition, the purpose of the ARU is to: (a) prevent scalping and a black market in tickets at inflated prices; (b) ensure that all members of the public within the various groups that attend Rugby Union tests, including those who wish to use corporate hospitality packages, have purchased the same product at the same price; (c) prevent confusion amongst the public as to which agents are official and authorised to sell tickets on behalf of the ARU and those who are not; (d) prevent persons such as CSA from increasing the cost of corporate hospitality associated with Rugby Union tests in an era when re-building is the focus of the ARU.


case_text: Furthermore, s 45(2)(a)(ii) and (b)(ii) require a consideration of "purpose". It is the subjective purpose of the ARU in seeking to enforce both the Condition in the SFC Contract as well as the Ticket Condition, which is relevant: News Ltd v South Sydney Football Club [2003] HCA 45 ; (2003) 215 CLR 563 at [18] . 60 I think it more likely than not that the ARU's subjective purposes are as deposed to by Mr Moore, which broadly, is to promote Rugby Union in Australia and to ensure that all members of the public are given equal access to rugby tickets so far as possible. I do not think it likely that the purpose was, as CSA contends, to "lock-out" CSA from supplying corporate hospitality at the Perth Test match. 61 CSA submits that it cannot be adequately compensated by an award of damages because it has entered into contracts to supply the tickets to third parties and without the aid of the Court it will be unable to supply these tickets. It says this will cause damage to its reputation which is incapable of accurate assessment and will also cause a windfall to the ARU by securing to itself, the SFC or to Matchpoint a transfer of the customers who would otherwise seek corporate hospitality packages from it. It also submits that there is no evidence that these third parties will be adequately accommodated or dealt with in a manner suitable to them.


case_text: Second, the ARU submits that even if the ARU does supply SFC with tickets in SFC's capacity as principal, the ARU does so on condition that SFC will not re-supply those tickets except to a limited extent, being to members and specified clients: s 47(2)(f) of the Act . However, by operation of s 47(10) the prohibition on exclusive dealing will not apply to such an arrangement. It submits that by operation of s 45(6) , the prohibition against exclusionary provisions in s 45(2)(a)(i) does not apply to the alleged provision in ARU's arrangement with SFC: Visy Paper Pty Limited v ACCC [2003] HCA 59 ; (2003) 216 CLR 1 at [29] - [35] . 56 There was less than full argument on this submission. It is arguably correct. CSA did not persuade me that it was wrong or likely to be wrong. This is principally because it again would involve my being satisfied, to the necessary degree, that there was a substantial lessening of competition. For the following reasons I cannot be satisfied as to that. 57 Third, I have not been persuaded to the necessary degree of the likelihood that there has been the substantial lessening of competition in an identified market arising out of the arrangements between the ARU and the SFC or through the enforcement by the ARU of the Ticket Condition in contravention of s 45(2)(a)(ii) or (b)(ii) of the Act .