The Revision Application
2 These reasons assume an understanding of the licensing issues discussed in the trial reasons. The infringement case operated at five factual levels:
(1) the streaming and downloading of Warm by Glass Candy;
(2) the downloading of Warm from the IDIB and Big Cartel websites;
(3) the streaming and downloading of Warm from music service providers such as Spotify, iTunes, YouTube and Google Play;
(4) the streaming of France from the Air France YouTube channel; and
(5) the playing of France as Air France's telephone hold music.
3 The present debate concerns only the third and fourth of these and the others may be disregarded. The Applicants' case about the streaming and downloading of Warm from music service providers such as Spotify was that Glass Candy and Kobalt had authorised those providers to do so. The case about the streaming of France from YouTube was that Air France had authorised YouTube to do so. I concluded that a case based on authorisation could not succeed for several reasons. One of these reasons was that each of the music service providers held an APRA and AMCOS licence which authorised them to stream and make available for downloading Love and, therefore, a substantial part of Love. Since the infringement I found was that Warm contained a substantial part of Love (the sung line with instrumentation 'love is in the air'), it followed that the music providers had been authorised by APRA and AMCOS to make available Warm for streaming and downloading to the extent that it infringed Love. Consequently, the music service providers could not have been held liable to the Applicants for infringement by streaming Warm or making it available for downloading. Since they could not be primarily liable for that conduct, Glass Candy and Kobalt could not be liable for authorising them to engage in that conduct. The same reasoning was applied to the streaming of France by YouTube, i.e., Air France could not be liable for authorising YouTube to do something it was legally entitled to do.
4 The Applicants now submit that I overlooked the fact that the APRA and AMCOS licences that each of the music service providers held contained exclusions. The Applicants claim these exclusions were to the effect that the licences did not extend to a reproduction or communication of a substantial part of Love (which I held the relevant portions of Warm and France to be) 'with words that [were] not approved or normally associated with' Love or which were 'in association with new or substituted lyrics…unless the making of the new or substituted lyrics [was] authorised by the copyright owner'.
5 It is true that I did not consider the argument now advanced by the Applicants. This was, however, because no such argument was put to me. The licence clauses now relied upon by the Applicants were referred to in the Applicants' written submissions but in relation to a different topic entirely and not as any part of a response to the proposition that the music service providers could not be liable for primary infringement.
6 At trial what the Applicants said about these clauses was that they were relevant to the proper construction of a deed of assignment by which part of the copyright in Love had been transferred between various parties. The contention was that the deed of assignment had been ineffective to assign the right to sue in relation to copies of Love which infringed the copyright (which Warm was said to be). If this was true Boomerang was the owner of the right to sue in relation to Warm, not APRA. It was in the course of that argument that the Applicants pointed out that the APRA and AMCOS licences contained the above exclusions. It had nothing to do with the argument now being advanced. It was in this context that I referred to the exclusions in the trial reasons at [320].
7 There is no question that Glass Candy explicitly submitted at trial in writing that the effect of the APRA and AMCOS licences held by the music service providers meant there could be no primary infringement by them and hence no secondary infringement by Glass Candy. That submission was expressly picked up and adopted by Kobalt and Air France. The time to respond to that argument was in the Applicants' written submissions in reply or in oral argument. No such submission was made. I do not accept that the point was sufficiently flagged by the fact that the Applicants denied the existence of the licences at s3 of their reply to the defences.
8 The jurisdiction of the Court to revisit its reasons before the Court's orders are entered is undoubted. It may be exercised where the Court 'has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing': Davis v Insolvency and Trustee Service Australia (No 2) [2011] FCAFC 9; 190 FCR 437 at [6] citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 per Mason CJ. The Court did not proceed on a misapprehension of the facts or the relevant law in not dealing with an argument which was not put to it. There was no fact put to me by the Applicants which was said to be a relevant answer to Glass Candy's submissions about this and there was no misapprehension by the Court about any legal proposition on this topic put by the Applicants simply because they did not put any.
9 To have dealt with the argument now sought to be raised by the Applicants would have involved the Court in (a) formulating an argument for the Applicants which they had not formulated for themselves; and (b) reaching my own views about that argument without hearing from the Respondents (with the ever-present risk of self-persuasion). The first step would have involved a departure from the adversarial mode of trial which is foundational to civil procedure. The second would have involved me in a breach of the rules of procedural fairness.
10 I refuse to grant the application to revise my reasons so as to consider an argument not put to me.
11 In the alternative the Applicants sought to re-open their case. I do not think that leave to re-open the case should be permitted. This is for two reasons. First, if I permitted the case to be re-opened I would need to afford the Respondents an opportunity to be heard on that case. At the present hearing, they foreshadowed that they did not accept the Applicants' construction of the APRA and AMCOS licences and that they would wish to demonstrate that extrinsic materials supported their position. Whilst I am to some extent sceptical that such extrinsic materials would be useful, nevertheless, over the Respondents' objection I permitted just such an escapade to the Applicants in their construction of the deed of assignment during the trial. Indeed, it was in the pursuit of that enterprise that the Applicants came to put before me the terms of the APRA and AMCOS licences in the first place.
12 Secondly, there is no doubt that the present issue was live before the Court during the hearing. Glass Candy explicitly submitted that the Applicants' case on secondary infringement was defeated because of the APRA and AMCOS licences. The Applicants did not seek to explain why the matter had not been explored during the trial. I am prepared to infer that under the weight of submissions prepared by the parties the issue was simply overlooked and I think it unlikely that it reflected a deliberate forensic choice. Be that as it may, the case has been heard and the parties afforded an opportunity to address each other's arguments. Procedural fairness also requires an end to argument and there is a public interest in the finality of litigation. Glass Candy put this argument; it was not rebutted by the Applicants; I accepted it. It would be unfair if I were now to permit the matter to be agitated a second time.
13 The application for the Court to revise its reasons and to re-open the case is refused. The parties indicated they wished to be heard on costs. I will do so if they wish and if they be so advised. My preliminary view, however, is that it will suffice that the Applicants should pay the Respondents' costs. The present application does not resemble, at first blush, the kinds of matters that Sheppard J was discussing in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 801; 46 FCR 225. In particular, it does not have the appearance of litigation misbehaviour. I will order the Applicants to pay the Respondents' costs unless they contact my chambers within seven days of the making of the orders.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.