The High Court (Gummow and Bell JJ) refused Telstra’s special leave application this morning.
Young QC for Telstra ran hard on the concurrent findings that there was human skill and effort in the collection and verification of the data. However, that ran up against Yates J‘s findings at [167] – [169] and Keane CJ’s findings at [89] – [90].
At [113], Perram J had said:
Had the tasks been attended to manually an original work would have ensued.
Which might seem a very strange, technology specific approach to take in this day and age.
Bell J, however, challenged Young QC about the difference between “computer-assisted” and “computer-generated”. Gummow J at one point stated, you need a database directive.
One might wonder whether allowing special leave in this case would have thrown any light on the differences in approach between the two judgments in IceTV. In November, the Full Federal Court is scheduled to hear an appeal in Dynamic Supplies. Who knows whether it will get there or not. If it did, however, it might present an interesting vehicle for exploring the new world which IceTV ushered in.
