The Internet Industry Association (IIA) produced its first documents subpoenaed by the film industry today before filing for access to affidavits and opening statements by both sides to help prepare its submission to the court.
At the close of the first fortnight of hearings, the IIA's barrister appeared before the Federal Court in Sydney to hand over an envelope of documents to Justice Cowdroy and the film industry.
But she asked the subpoena be "stood over until October 30" until chief executive Peter Coroneos returned from travel commitments overseas.
Justice Cowdroy proposed holding the subpoena until November 2, coinciding with the resumption of hearings and the first date it was anticipated that iiNet chief Michael Malone would be cross-examined on his affidavits by the film industry's barristers.
But the proposed date was too late for the film industry's counsel.
"We'd like to have [the documents] before Mr Malone's evidence starts," the film industry's barrister Tony Bannon said.
It was agreed by all parties the remainder of documents under the subpoena would be produced "informally" to the film industry's lawyers "prior to or on 30 October" and formally to the court on 2 November.
Justice Cowdroy then turned his attention to an application by the IIA to access "all" affidavits and opening statements that had been served by the film industry and iiNet.
It was understood the IIA had sought access to the documents to prepare its submission to the court on the case.
The IIA had previously sought to model itself as a disinterested party advising the Federal Court in deciding whether iiNet aided illicit downloads of copyright material as alleged by the film industry.
At the time, Justice Cowdroy noted that he was not yet sure "what purpose would be served" by the ISP group's application but he did not rule out its involvement.
Senior counsel for the IIA was today forced to amend the association's request to include only those documents that were not confidential, after concerns were raised by Justice Cowdroy and the film industry's barristers that some confidential affidavits were yet to be read into court.
"Your client is effectively a stranger to the proceedings," Justice Cowdroy said.
"You have to convince me that the IIA should be... given leave to investigate matters that would not be live to the public."
Senior counsel for the film industry Tony Bannon opposed the IIA's access to confidential documents "on any basis".
Bannon also queried IIA's barrister why the association had not sought access to non-confidential documents through "their friends the respondents" [iiNet], prompting Justice Cowdroy to query whether such an arrangement had been pursued prior to seeking an order from the court.
"My instructing solicitors have not been able to obtain any documents," IIA's barrister alleged.
Senior counsel for iiNet Richard Cobden interjected that "every time we move a finger to assist there's an outcry that we're moving further towards the IIA".
Justice Cowdroy also queried whether a court order was necessary for the IIA to obtain non-confidential material that had been read into court.
"Your client as a member of the public has the right to look at affidavits made public and documents that have been read," he told IIA's barrister.
But Justice Cowdroy did grant the IIA access to "non-confidential documents admitted to evidence".
"I also make a separate order that opening submissions now have no basis or claim for confidentiality, so it's quite clear those are public documents," Justice Cowdroy said.
The case resumes on November 2.
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