On 22 April 2009 the High Court delivered its decision in Ice TV Pty Ltd v Nine Network Australia Pty Ltd. Mallesons’ Melbourne Intellectual Property team acted for Telstra in its successful application to intervene in the IceTV hearing in October 2008. As our clients had some involvement in the case, I cannot comment too broadly on the decision. In December 2008 I blogged about the Canberra High Court experience and forecast my view as to how the High Court would rule, with the Nostradamus-esque prediction “they are not going to shy away from a landmark decision.”
My crystal ball was clearly working that day, as the High Court has delivered a judgment that is anything but shy. Interestingly, the decision was made through two judgments, each comprised of three justices. The decisions perhaps provide two examples of works of joint authorship…. The first judgment is a joint judgment of French CJ, Crennan and Kiefel JJ. The second judgment is a joint judgment of Gummow, Heydon and Hayne JJ.
Each judgment found in favour of the appellants, IceTv, yet each judgment did so with divergent reasoning. In the infringement context, the two judgments propose different tests for how one should assess whether a ‘substantial part’ has been taken. The second judgment also identifies animus furandi as relevant to infringement (in colloquial terms, whether or not the copier has engaged in piracy).
This 3:3 split decision places the courts that must consider and apply IceTV in a difficult position, as it is not clear whether either judgment should be preferred. Section 23(2) of the Judiciary Act 1903 provides that where members of a court have differing opinions as to the outcome of a case, and the court is equally divided, the opinion of the Chief Justice must prevail. However, in IceTV each judgment reached the same outcome but followed different reasoning. Therefore it is unclear whether the Chief Justice’s seniority should have any impact at all. At a recent Melbourne Law School debate titled “That IceTv is a hard case making bad law” Dr Sam Ricketson argued that, as the first judgment included the Chief Justice, it should be favoured by a subsequent court, but there is no clear precedent either way.
Yet, it is possible that no judgment should be favoured, in which case a subsequent court would have to try to synthesise the judgments.
The next court which considers IceTV will be in an unenviable position. To determine the case before it, the court will have to bring together the two IceTV judgments, identify the ratio decidendi (in circumstances where four academics argued its content at the recent Melbourne Law School debate without many common conclusions), and finally, consider whether IceTV should be confined to its facts or applied more broadly to compilations in general.