Federal Court Judge, Justice Steven Rares, handed down a jaw dropping judgement on the 1st February 2012 which has legalised copyright breaches by Optus.
Justice Rares has form on the board for corrupt decisions. He should be in jail, not still sitting on the bench wasting tax payers money for his own benefit.
Another case showing his form is a judgement saying that the Federal Magistrates Court of Australia can not deal with criminal matters. This enabled Fairfax Media to get away with fabricating evidence to pervert the course of justice. But first I will deal with his Optus judgement.
Justice Rares’s dodgy Optus judgement
The Australian telecommunications company, Optus (Singtel Optus Pty Ltd), has been recording and selling copies of various football games (AFL – Aussie Rules and NRL – Rugby League). Optus last year, September and October, and with the intention of doing the same this year recorded AFL and NRL games on free to air TV with the sole intention of selling these recordings to their customers for a profit. Almost everyone in the country knows you can not do that. Rent a DVD and an ad at the start will tell you it is illegal to copy the movie and sell it. Copying sport on TV for resale is the same thing.
Optus do this via their service they call “TV Now”. They record the games on free to air TV and then resell the games to their customers who can play them back on any one of four compatible devices, namely, PCs, Apple devices, Android devices and 3G devices .
There is an exception in the Trade Practices Act which allows people to record TV shows to play back at a time of their convenience without breaching copyright laws. That is section 111 of the Copyright Act 1968. (Click here to read)
But part 3 of s 111 of the copyright act makes it very clear you can not record free to air TV for the purpose of selling the recording.
Justice Rares fails to answer a basic question. What was the motive of Optus to record and store the free to air games? The answer is for resale which is covered by s 111 part 3 of the Copyright Act 1968 and a breach of copyright. Justice Rares claims it is the Optus customer who is recording the games. (Click here to read his judgement)
Melbourne barrister Paul Ehrlich had this to say on Rares’s judgement:
“My personal view is that the judge got it wrong,” said Melbourne barrister Paul Ehrlich yesterday. “The exception of the copyright act applies to a person recording a broadcast solely for private or domestic use for watching at a more convenient time.
“This legislation was introduced especially for videotapes, and the question is, who is making the recording?
“Optus is making the recording and sending it to clients for a fee.”
and this: “It is illegal for someone to videotape a program and then courier it to another person for viewing,” he said. “What’s the difference with the Optus (TV) Now service?” (Click here to read the full article)
It is clearly a breach of copyright and theft by Optus for financial gain.
If Optus are allowed to get away with this then it opens a huge can of worms. What would stop someone from copying a movie on free to air TV and giving that copy to someone else to copy and then charge them a fee for that.
Optus have since tried to close down free speech on the matter via an attempted court injunction to stop the AFL CEO Andrew Demetriou repeating criticisms he made of its TV Now service. Mr Demetriou had accused Optus of stealing and lifting its content for its mobile TV service. Which clearly Mr Demetriou is right. (Click here to read more)
I would like to see Optus try to close down this article or maybe they will block this site on their internet service.
Rares’s judgement in the Optus matter in currently under appeal and I will update this post when the judgement is handed down.
By itself the average person might think Justice Rares made an honest mistake in the Optus case. But when put together with the judgement below and other judgements that I could write about it tells another story.
Justice Rares’s dodgy Fairfax Media judgement
I will keep the background brief. I instituted unlawful termination proceedings against Fairfax Media in May 2007. Not long after I also instituted a breach of freedom of association claim against numerous managers and directors at Fairfax Media and an application for contempt.
It is the application for contempt that is the key part to this post. The net effect of filing an application for contempt is that I was instituting criminal proceedings against four individuals for fabricating evidence in my unlawful termination proceedings.
A document that was clearly drafted almost a month after my termination for the court proceedings. It was a report into a complaint that I had made to David Kirk in relation to a number of employees at Fairfax Media.
They eventually emailed me a copy of the report and the markups showed up. Markups are when a number of people are working on a document and the changes and comments that they make can be seen. From the markups it was clear that they were lying and deceiving in an attempt to pervert the course of justice.
The four individuals were the Fairfax Media CEO at the time David Kirk, the director of HR at the time Linda Price, another HR manager Carolyn Bradley and a Freehills Lawyer Shivchand Jhinku.
The directors of Fairfax Media and Freehills were made aware of the fabricated evidence and took no action. If it was not so clearly fabricated they would not have needed a judge and magistrate to hand down dodgy judgments.
At this time the matter was before Federal Magistrate Cameron who summarily dismissed the application for contempt (it never went to hearing) saying he could not deal with the matter and at the same time dismissed a number of grounds of the other two claims.
It must be noted that Federal Magistrate Cameron ultimately dismissed my whole claim which was overturned on appeal. He also eventually stepped down from hearing the case because he was caught out lying about his personal interest in the matter which I documented via the transcript which is in my book. He knew at least one respondent Mark Burrows who was a director of Fairfax Media at the time. Mr Cameron and Mr Burrows are both Knox Grammar school old boys. This is relevant because where did Justice Rares’s go to school? Knox Grammar. They all knew each other.
I sought leave to appeal although have since found out that I did not need it but that is another story.
Leave to appeal is when you have to argue why you should be able to appeal.
Justice Rares was appointed to hear the matter. In relation to the application for contempt which he dismissed he said in the judgement at section 32 that the court has no criminal Jurisdiction:
32 The Federal Magistrates Court has no jurisdiction to deal generally with the administration of justice in other tribunals or courts, nor does it have criminal jurisdiction as his Honour pointed out: see also Wentworth v Rogers (unreported, Supreme Court of New South Wales, Court of Appeal, 22 July 1987) per Samuels, Mahoney, Clarke JJA; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, especially at pp 16-17 per Dawson J. An allegation of contempt is an allegation of the commission of a criminal act. Such matters are not to be dealt with lightly or imprecisely on the basis of a catch-all claim for ‘further or other relief’. The contempt proceedings, as they were constituted before his Honour, were the plainest abuse of the process of the Court. They raised issues with which the Court had no concern or jurisdiction. (Click here to read the full judgement)
A few issues in what Justice Rares says in section 32 are:
1. The Federal Magistrates Court commenced operations in the year 2000. The two precedents that Justice Rares used are 11 and 13 years before this. How could they say what jurisdiction the court has.
2. He says ” no jurisdiction to deal generally with the administration of justice in other tribunals or courts”. Well the fabricated evidence was filed by the respondents and myself in the Federal Magistrates Court. So what is the other court he is talking about.
3. Also if the fabriacted evidence was in another court like Rares tries to make out, which is not true, the Federal Magistrates Act 2000 at section 18 says
18 Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked
So the federal magistrates court could and should have dealt with it no matter how you look at it.
Every court in the land can deal with criminal matters when it comes to contempt of court such as perjury and fabricating evidence. If they could not it would be pointless taking the oath or affirmation when giving evidence from the witness stand. It would be pointless in having to sign affidavits as well.
The Federal Magistrates Court has and will continue to put people in jail for contempt of court breaches.
Justice Rares also said that he knew the group general counsel for Fairfax Media Gail Hambly and had represented Fairfax Media before when he was a barrister. He should not have been anywhere near the case.
Justice Rares has a lot to answer for in the Fairfax matter and I have put this to him before and he refuses to respond. It has also been raised with the Attorney General and Federal Police etc. (Click here to see my previous post where it gets mentioned)
What was Rares’s motivation in the Optus matter. Well the first place one would start looking is who benefited.
A couple of days ago the Attorney General Nicola Roxon introduced legislation to parliament establishing a formal complaint-handling system for the federal judiciary. It is nothing more than a smoke and mirrors routine by Roxon which I will write about soon. But even so Justice Rares would be a good place to start. He’s a real grub.
I could write a lot more about Rares but will leave it at that for the time being. He has more form on the board for corrupt judicial decisions than what is above.
Declaration: Justice Rares has his own chapter in my book “Love Letters from the Bar Table” where I write about his criminal conduct.
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