FEDERAL COURT OF AUSTRALIA

Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 357

PRACTICE AND PROCEDURE – adjournment – motion by first and third respondents to vacate hearing dates – both parties defaulted in complying with timetable – matter could not adequately be prepared for hearing by fixed date – prejudice suffered by applicants could be remedied by costs order – hearing dates vacated

Copyright Act 1968 (Cth) s 202

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 followed

Sali v SPC Ltd (1993) 116 ALR 625 referred to

NINE FILMS & TELEVISION PTY LTD (ACN 008 685 407) AND NINE NETWORK AUSTRALIA PTY LTD (ACN 066 040 024) v NINOX TELEVISION LIMITED (formerly known as NINOX FILMS LIMITED), TELEVISION NEW ZEALAND LIMITED AND JOHN CHARLES McEWEN

NSD 1820 OF 2004

TAMBERLIN J

SYDNEY

5 APRIL 2005

THE COURT ORDERS THAT:

1.         The hearing dates (11-15 April 2005) are vacated.

2.         The First and Third Respondents pay any costs of the Applicants thrown away as a consequence of this late application to vacate the hearing dates.

3.         The Applicants have leave to tax and pursue recovery of these costs forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Vacation of Hearing

1                     On 18 March 2005, I granted a Motion by the first and third respondents, Ninox Television Ltd and John Charles McEwen (collectively referred to herein as “Ninox”), seeking vacation of the dates fixed for hearing of this matter (11-15 April 2005) and ordered Ninox to pay any costs of the applicants thrown away as a consequence of the vacation of the hearing dates.  These are my reasons for granting that request.

2                     On the Motion, senior counsel for Ninox assured me that, having considered the matter, it was his clear opinion that the matter could not reasonably be ready for a proper hearing by 11 April 2005 due to Ninox’s inability to comply with the directions timetable.  It is said that the position in which Ninox finds itself has been contributed to by the conduct of the applicants, Nine Films & Television Pty Ltd and Nine Network Australia Pty Ltd (collectively referred to herein as “Nine”), and that there is no evidence of any substantial prejudice to Nine which could not be remedied by an order for costs.  My attention was drawn to a series of authorities setting out the relevant principles including State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154-155, where Dawson, Gaudron and McHugh JJ confirmed the well-settled principle that the Court should not, without sound reason, act in such a way, in the interest of efficient case management, as would prevent a party from presenting its case consistently with the attainment of justice.  Where costs are an appropriate remedy, that is an important consideration.  The authorities also indicate that the Court should take into account the effect of an adjournment on court resources, the competing claims by litigants in other cases awaiting hearing and the hardship to the other party: see Sali v SPC Ltd (1993) 116 ALR 625 at 629 per Brennan, Deane and McHugh JJ, 636 per Toohey and Gaudron JJ.

3                     On 17 December 2004, over three months ago, the matter was fixed for hearing for the week commencing 11 April 2005.  Counsel for Nine then said to the Court that a third series of “The Block” was currently in production and was scheduled to be broadcast in the first half of 2005.  Nine’s contention at that point was that the uncertainty created by the threats from Ninox needed to be dispelled and the threats should be considered by the Court as a matter of urgency because they had the potential to tarnish Nine and the expected success the third series of “The Block”.  Ninox contends that Nine’s need to dispel uncertainty as to its situation was lacking in substance because it assumed that the hearing of the case, the delivery of judgment, and the hearing of any appeals from the judgment, would occur prior to, or during, the screening of the third series of “The Block”.  In my view, the possibility of appeals and the time necessary for a reserved judgment are not a sufficient basis in the circumstances of this case to displace the hearing dates, however, they are matters which can be taken into account.

4                     In my view, there is no evidence before me as to any undue hardship or prejudice which Nine would suffer over and beyond that which might be remedied by costs in the event of an adjournment being granted, which would weigh against the hardship to Ninox if its case could not be properly presented.

5                     Although the submissions point out that there have been defaults in complying with the timetable, these defaults are attributable to both parties and it is incumbent, in my view, on a party who wishes to proceed on an urgent basis to immediately draw to the Court’s attention to any failure to comply, or envisaged failure to comply, with the Court’s direction.  In this case, I think that both parties have been remiss in not promptly drawing to the Court’s attention to slippages in the directions timetable and not seeking a variation of the timetable at the first available time. 

6                     It is correct, as Nine emphasises, that in December 2004 the respondents agreed to the early hearing date.  Notwithstanding that, the evidence before me demonstrates that the matter could not adequately be prepared for hearing by the appointed date.  

7                     As counsel for Nine correctly points out, the purpose of an application under s 202 of the Copyright Act 1968 (Cth) is to dispel any doubts cast on the proprietary rights of Nine as a consequence of threats by Ninox to sue for infringement and to require Ninox to make good its assertions of infringement.  This is the rationale for the section.  It is therefore said that when the threats were made a year ago it would be expected that there was basis and grounds for the threats based on substantial evidence.  Accordingly, it is said that Ninox ought now to be in a position to proceed with the case.  While this is an important factor, I do not think it is determinative.  Having regard to the essential consideration that the matter is not ready to proceed and that no substantial prejudice has been established which cannot sound in costs, I do not think it is appropriate to force the matter on to a hearing at this point.

8                     Accordingly, I vacate the hearing dates which have been fixed.  I order Ninox to pay the costs of Nine which are thrown away as a consequence of this late application.  I grant leave to Nine to tax and pursue recovery of those costs forthwith.

Associate:

Dated:              5 April 2005