Game on: AFACT and iiNet in court

The movie industry’s copyright breach claim against ISP iiNet saw the inside of a courtroom for the first time today.

As usual for a preliminary hearing, the court only made procedural orders to advance the case to the next stage.

Orders made in the Federal Court

1. Evidence in the proceedings be by way of affidavit.
2. The Respondent file and serve its defence by 5 February 2009.
3. The matter be listed for further directions at 9:30 am on 6 February 2009.
4. There be liberty to apply on 2 days’ notice.

The court notes that the Applicants have indicated that they will reply to the request for particulars contained in the letter from Herbert Greer (sic) dated 15 December 2008, before 16 January 2009.

Comment

Nothing unusual in this.

Evidence by affidavit

Evidence by affidavit is usual.  It means that witnesses must provide affidavits before the trial date.  The other side will then be entitled to require any witness to attend court for cross examination.

Date for defence

50 days to serve a defence document is a bit longer than usual, but the court is allowing for some Christmas / New Year ‘down time’.

Further directions

Absolutely normal to bring the matter back to court after the steps in this package have been completed.

Liberty to apply

This simply means that if a party wants to raise some further issue between now and 6 February, the judge will let them come back to him on 2 days’ notice to the other side.

For instance, if AFACT fails to meet its agreed time to deliver ‘further particulars’ – see below – iiNet might apply to the judge for orders that it give the particulars by a set date and / or that the time limit for a defence be extended a bit because of the delay.

Request for particulars

Pretty normal step.  iiNet has asked AFACT ‘Tell us more detail about this or that, so we can better understand your claim.’

What else ?

According to an SMH report:

• The judge stated his desire for the matter to ‘move along rapidly’, with a hearing to potentially begin as early as March.
• Lawyers for iiNet said that timetable was too ambitious, indicating a long, drawn out legal battle.
• AFACT lawyers said they would reject iiNet’s claims that it was not liable for the actions of its users due to safe harbour provisions introduced with the US free trade agreement.