Relevance
2 The present proceeding is a determination of a reference under s 154 of the Copyright Act 1968 (Cth) ('the Act'). Section 154(4) of the Act relevantly provides:
(4) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, confirming or varying the scheme or substituting for the scheme another scheme proposed by one of the parties, as the Tribunal considers reasonable in the circumstances.
3 Here, the scheme which has been referred to the Tribunal is a licencing scheme proposed by APRA AMCOS. Two of the Respondents to the proceeding, Netflix and Stan, have proposed alternative schemes. The question for the Tribunal is therefore whether it should confirm or vary APRA AMCOS' proposed scheme or whether it should substitute for that scheme either of the schemes proposed by Netflix and Stan.
4 In exercising the power under s 154(4), the Tribunal is not sitting as a court. It is sitting as a price fixing tribunal which produces a determination which is quasi-legislative in nature. There are no pleadings and no formally defined issues. Whilst the Tribunal must hear the parties on their cases and afford them procedural fairness, it is not bound by the cases which they put. So much is inherent in the power of the Tribunal to vary a scheme. It is open to the Tribunal, so long as it affords the parties procedural fairness, to do something quite different to what they propose. It also within its power to adopt a scheme but for different reasons to those which are advanced in its support. For example, the Tribunal might, in appropriate cases, consider the economic analysis to be largely a thought experiment underpinned by no real data and to conclude instead that some other, more transparent, method of arriving at a price was warranted.
5 The power to require the production of documents is contained in s 167(3) of the Act:
(3) A member or the Registrar may summon a person to produce specified documents or articles to the Tribunal by producing the documents or articles to a specified person at a specified time at a specified place.
6 Plainly, this power is not at large. It may be exercised only if it may be seen as having a proximate connection with the exercise of the power in s 154(4). In deciding whether a document sought by a summons has a sufficiently proximate connection with the exercise of the power in s 154(4), the concept of relevance is a useful one. However, in the determination of what is relevant for the purposes of 154(4), two considerations should be borne in mind.
7 First, in a reference proceeding such as the present, it is not the case as I have just explained that the perceived issues between the parties exclusively define the scope of what is relevant to the exercise of the power in s 154(4). So much flows from the fact the Tribunal is entitled to reject the pricing methodologies put forward by them subject only to the requirements of procedural fairness.
8 Secondly, the question of what is relevant to the determination of the reference is likely to be affected by the stage to which the proceedings have progressed. As the matter gets closer to a hearing, there will be an increased focus on the nature of the dispute between the parties. At the outset, however, it will generally be more difficult to be dogmatic about what is relevant and what is not. The fact that the relevance inquiry tends to narrow over time is a well-known phenomenon in ordinary civil litigation and has frequently been remarked upon in the context of attempts to set aside subpoenas: see Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [23] per Wigney J.
9 The combination of these two matters together widens further the caution with which the Tribunal should approach relevance debates in a context such as the present. It will rarely be likely at this stage of the proceedings that it will be appropriate to reject the issue of a summons which seeks the production of documents on a rigid view of what must be relevant or irrelevant. That degree of forensic precision will rarely be present. For example, it was put by Netflix that production of documents throwing light on the approach its management took to an earlier fee it agreed to pay APRA AMCOS could not be relevant to the question of whether the latter exercised monopoly power which was instead to be determined by reference to the objective circumstances. It is simply not possible to accept that kind of dogmatism at this level. In my view, it is possible that such material may be relevant to the exercise of the power in s 154(4). I do not accept that it is appropriate to determine at this stage that the Tribunal could not as a matter of law accept that the views of Netflix's management when negotiating the fee with APRA AMCOS were relevant to whether APRA AMCOS was exercising monopoly power.