Regulators such as the Australian Competition and Consumer Commission and the Australian Securities and Investments Commission have an important role to play in ensuring that our business laws are properly adhered to. And, where appropriate, they should seek remedies against companies that break the law. I have no quarrel with these regulators pursuing perceived lawbreakers, as long as they do not engage in publicity stunts when they commence or conduct the litigation. But the regulators also have a role to keep a watch on civil litigation (that is between parties who may argue that a particular provision in the Trade Practices Act of the Corporations Act etc have been breached) where appropriate. If the regulator believes it can add value to the litigation, the regulator should intervene. Recently, the ACCC has been granted leave to intervene in an interesting case involving litigation between the Sony companies and a Mr Stevens. In Kabushiki Kaisha Sony Computer Entertainment v Stevens ((2001) ATPR 41-846) the facts were briefly these (as taken from the CCH Reports). The Sony companies manufactured and distributed the Sony PlayStation computer game console and computer games for use with the Sony PlayStation console. The Sony companies had commenced proceedings against a Mr Stevens alleging that he had sold computer games in circumstances that infringed registered trademarks held by one of the Sony companies.
The Sony companies also alleged that Stevens infringed copyright in a range of computer games used with the Sony PlayStation computer console by selling devices that could be used to circumvent a "technological protection measure" incorporated into the computer games. The Sony companies sought relief under section 116A of the Copyright Act 1968 (Cth) (the Act). The pleadings indicated that there were two broad categories of issues between the Sony companies and Stevens; first, the allegations of fact relating to the conduct of Stevens, and secondly, issues of the correct construction of section 116A of the Act. The ACCC applied by notice of motion that it be given leave to appear and to be heard as amicus curiae (ie, a friend of the court) in the proceedings. The ACCC sought to be heard only on the second issue concerning the construction and operation of section 116A of the Act. It submitted that it could assist the court in understanding the nature of the device which the Sony companies allege was being circumvented.
In response, the Sony companies objected to the ACCC participating in the proceedings as amicus curiae. The Sony companies submitted:
• That it would be inappropriate for the Australian Government Solicitor, representing the ACCC, to make submissions to the court interpreting the legislation, because it might create the impression that the Commonwealth was dictating to the court the correct interpretation of the legislation.
• The arguments that the ACCC intended to make (which were foreshadowed) were "entirely skewed in favour of the respondent".
• The costs, as between the parties, of the ACCC appearing as amicus curiae would be disproportionate.
Obviously, parties may not want the regulator to intervene in cases because this can add to the time (and costs) to deal with the particular matter (and litigation is always costly) and could have their case damaged if the regulator appears. It may want to push a particular argument which even the defendant may not be interested in and this may send the litigation off on a different tangent to the one that is being pursued. On the other hand, the defendant might be happy to have the regulator intervene if it felt that the plaintiff (or the applicant) pursuing a cause of action that was unreasonable. These are matters that a court will take into account in appropriate litigation.
Justice Sackville in the Federal Court considered that there was a limited and defined role that the ACCC could play in the current proceedings. He did so on the basis that the ACCC was genuinely appearing as a friend of the court. In reviewing the matter Sackville J looked at the law relating to amicus curiae. He noted that this role was normally confined to assisting the court in resolving issues that had been identified by the parties and in drawing attention of the court to some aspects of the case that might otherwise have been overlooked. Indeed, Sackville J suggested that in some special cases the intervener could provide evidence to ensure that the whole picture was available to the court but he did qualify this remark by suggesting that the evidence would have to be non-controversial. In this case, the court felt that the ACCC would be able to help because section 116A of the Copyright Act did present some difficult issues. Simply because the ACCC was arguing a particular line that did not suit the Sony companies was not sufficient to disallow the intervention. After all the judge would make a decision on the merits of the arguments on an independent basis.
The court recognised that there would be added costs and felt that this was a matter that the court could control with an appropriate order as to how costs were to be awarded. In any event, the ACCC might find that it did not need to remain an intervener depending on how the case progressed. In all the circumstances the court granted the ACCC's application. It will be interesting to see how the matter progresses.
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The purpose of this database is to provide a full-text record of all articles that have appeared in the CDJ since February 1997. It is aimed to assist in the research and reference process. The database has a full-text index and will enable articles to be easily retrieved.It should be noted that information contained in this database is in pre-publication format only - IT IS NOT THE FINAL PRINTED VERSION OF THE CDJ - therefore there might be slight discrepancies between the contents of this database and the printed CDJ.