High Court gives hope to iiTrial interveners

The High Court of Australia has extended the iiTrial appeal hearings by half a day, providing hope for the industry bodies applying to intervene in the case.

The Australian Federation Against Copyright Theft (AFACT), ISP iiNet and their respective legal teams were notified that the case would begin hearings on Wednesday November 30 for half a day, despite previous concerns of tight scheduling.

They would continue on December 1 and 2 as previously planned, though the hearing schedule remains unclear until closer to the date.

Though no motivation was provided for the date changes, High Court Justice William Gummow suggested in a directions hearing earlier this month that the two days set for the hearing would be insufficient to hear both parties in addition to any amicus curiae or “friends of the court”.

A total of six parties have applied for leave to intervene in the case, evenly split in support for each party.

Though their submissions have been acknowledged by the court, each party will only be notified if they will be heard as amicus or for leave to intervene on the day of the case. Even then, they are not guaranteed air time.

Any submission made by the amicus curiae must rely on the principles of the case and not introduce new evidence.

In some cases, interveners supporting a particular party may be heard after that party makes its arguments, though they could be left until the end of the set hearing dates.

“They are not to be allowed to eat up your time destructively, given those minutes,” Justice Gummow said in a hearing on November 10.

Nevertheless, the hearing time extension provides hope to the proposed amicus curiae, who were described on the whole as “enthusiastic” by the parties.

“We’re briefing counsel at the moment in order to make a verbal submission so we hope to have that opportunity,” Communications Alliance CEO John Stanton told iTnews.

“I don’t think we’ll actually know until the day how the Bench plans to manage it. Certainly the indication we were taking from what’s happened is there might be a good opportunity to make that submission.”

The industry body hoped to represent the wider ISP industry’s interests in the High Court appeal, after the Internet Industry Association failed in a similar bid during the initial Federal Court hearings.

Other parties - including the Media, Entertainment & Arts Alliance, the Screen Actors Guild and the Australasian Performing Rights Association and the Australian Privacy Foundation - sought to join the case during the High Court appeal.

Australian Privacy Foundation chair, Dr Roger Clarke, remained uncertain the organisation would be heard.

“It is seriously quite unpredictable. So we have avoided having any confidence or otherwise on whether our application for amicus curiae will succeed,” he said.

“We have no clue what they will make of it. They look at the individual case, consider the material on its merits, and then determine an outcome.”

The hearings will take place from 2.15pm in the High Court’s "working courtroom", used in cases where a full court of fewer than seven Justices is sitting.

Only five of the seven High Court judges will be sitting for the appeal but, apart from Chief Justice Robert French, the presiding judges are yet to be confirmed. 

However, it is considered likely that Justice Gummow AC, well regarded for his rulings in intellectual property, will make the cut.