A disagreement between lawyers acting on behalf of iiNet and the Australian Federation Against Copyright Theft (AFACT) over creating a "map" of the issues for the appeal of the ground-breaking copyright infringement case has delayed a decision from the Federal Court judges.
At the close of the appeal of Justice Cowdroy's ruling that iiNet did not authorise its users' breach of copyright, Justices Emmett, Jagot and Nicholas called for a map of the issues of the case to be delivered to the court before 20 August. It was revealed in a directions hearing today that AFACT did not agree to the map put together by lawyers acting for iiNet, so it was abandoned in favour of two documents listing the issues, produced by both sides.
"In an attempt to move towards agreement, we put the diagram aside and Your Honour has the documents before you," iiNet counsel Neil Murray said.
Justice Emmett said he and his fellow judges would not be able to reach a decision yet because they hadn't had the documents to review.
"The intention was that the three judges would have a chance to consider this before today — we haven't because the documents arrived yesterday afternoon," he said.
"When making a judgement one has to deal with all the issues. The purpose of the direction was to get some commonality as to what the issues were and what flows from the determination from each issue. There's no way you can't agree on that," he added.
"A diagram I would probably find helpful so long as it's clear what each element in the diagram represents."
Justice Emmett said that the two documents provided would be helpful in deciding the case, but "going from one to the other is one of the things we were trying to avoid".
One of the key differences between the two cases put to the judges today was that the lawyers for iiNet have listed the instance of primary infringement of copyright by users as the most important issue in the appeal, while AFACT lawyers believe authorisation of copyright infringement to be the most important issue in the case.
AFACT barrister David Catterns said it would be a "mere matter of word processing" to put the two documents together and has agreed to produce a cross-reference table to outline the differences between the parties by next week.
Justice Emmett did not set a date for a decision on the appeal, but indicated he would be away on leave until early October.