IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from an interlocutory judgment of the High Court of Solomon in Civil Case No. 358 of 2011.

COURT FILE NO.: Civil Appeal No. 27 of 2011

PARTIES:

Solomon Telekom Company Limited (1st Appellant) and Telekom Television Limited (2nd Appellant

v

Satsol Limited (Respondent)

ADVOCATES:
Appellants: J. Sullivan, QC & E. Soma
Respondent: A. Radclyffe

DATE OF HEARING: 10th October 2011.

DATE OF JUDGMENT: 14th October 2011

THE COURT: Mwanesalua, Ag P,
Faukona JA,
Apaniai JA.

KEY WORDS: 

RESERVED/DISMISSED: Dismissed

PAGES: 1 – 7

JUDGMENT OF THE COURT

1.	This is an appeal against an interlocutory judgment by His Lordship, Mr. Justice Chetwynd ("primary judge"), dated 8th September 2011 in which his Lordship had refused to grant some of the interlocutory reliefs sought by the Appellants against the Respondent in their application filed on the 7th September 2011.

2.	In the application, the Appellants have sought the following interlocutory injunctions:-

[1] an interlocutory injunction restraining the Respondent, its officers, employees and agents from broadcasting or transmitting in Solomon Islands all Rugby World Cup matches being held in New Zealand from 9th September 2011 to 23rd October 2011;

[2] an interlocutory injunction restraining the Respondent, its officers, employees and agents from broadcasting or transmitting in Solomon Islands all Rugby League Telstra Premiership Qualifying Final, Semi Final, Preliminary Finals and Final matches being played in Australia and New Zealand from 9th September 2011 to 2nd October 2011; 

[3] an interlocutory injunction restraining the Respondent, its officers, employees and agents from broadcasting or transmitting in Solomon Islands all soccer matches controlled by FIFA and/or broadcasted by SBS Australia including the current FIFA Beach Soccer World Cup;

[4] an interlocutory injunction restraining the Respondent, its officers, employees and agents from re-broadcasting or re-transmitting all television programmes being broadcasted or re-broadcasted by the Appellants from their own transmitters in Solomon Islands, whether by way of their free to air or Sky Pacific direct to home subscription service;

[5] an interlocutory injunction restraining the Respondent, its officers, employees and agents from advertising the broadcasting or transmitting of any of the matches mentioned in paragraphs [1], [2] and [3] above; and, 

[6] an interlocutory injunction restraining the Respondent, its officers, employees and agents from selling any advertising space in connection with the broadcasting or transmitting within Solomon Islands of any of those matches.

3.	In his ruling, the primary judge granted the orders mentioned in sub-paragraphs [5] and [6] above but refused to grant those mentioned in paragraphs [1] to [4].

4.	It seems to us that the basic reason for the decision by the primary judge was that the Appellants' rights to broadcast the matches stem from their agreement with Fiji Television ("Fiji TV") and therefore their rights are confined only to matches being broadcasted or transmitted by Fiji TV through Sky Pacific and not those broadcasted or transmitted from other television services such as the Australian free to air channels.

5.	The effect of the ruling is that the Respondent may continue to re-broadcast and re-transmit matches broadcasted or transmitted from the Australian free to air channels (which, in effect, are the same matches, which are being broadcasted and transmitted by Sky Pacific) but not those broadcasted or transmitted by Fiji TV through Sky Pacific.

6.	Eight grounds of appeal have been raised but we consider that, in a nutshell, the main issue on this appeal really is whether the primary judge was right in refusing to grant the interim orders seeking to restrain the Respondent from re-broadcasting or re-transmitting in Solomon Islands the matches from the Australian free to air channels or any other channel for that matter.

7.	To have a proper understanding of the appeal, an outline of the brief facts of the case is necessary. We have decided to adopt the facts as set out in the Appellants' written outline of submissions with minor changes. They are as briefly set out hereunder in paragraphs 8 to 12.

8.	The 1st Appellant holds a licence to operate a television service pursuant to s.6 of the Television Act (cap. 116). It operates, through the 2nd Appellant as its agent, a number of free to air television channels in the ultra-high frequency (UHF) and very high frequency (VHF) bands.

9.	The Appellants are the agents of Fiji TV within Solomon Islands and, in that capacity, provide a direct to home subscriber pay television service in Solomon Islands called Sky Pacific and sell decoders that enable subscribers to watch or listen to broadcasts on the Sky Pacific pay television service.

10.	By a series of commercial agreements entered into by Rugby World Cup Limited ("RWC"), Fiji TV and the Appellants, the Appellants have arranged to receive and broadcast the following: all live and simultaneous transmission of the rugby matches and other events notified to the Appellants by Fiji TV (such as the opening ceremony and/or closing ceremony) comprising part of the final rounds of the Rugby World Cup 2011; a delayed transmission of a recording of a match, as if it were a live transmission, within 24 hours of the end of the match; a repeat transmission of a recording of a match, following a live transmission or a delayed transmission; highlights of a match; footage of a match and of interview conducted at a match venue; promotional trailers for a match; clips of a match; and support programming made by the Appellants consisting of footage of matches and interviews.

11.	The Respondent operates a pay television service and also holds a licence to provide a television service under the Television Act. It broadcasts an encoded signal locally, which its subscribers pick up using a special aerial connected to a set-top box. The Respondent's customers purchase subscriptions and are given smart cards, which provide an electronic key to enable the set-top box to unscramble or decode the signal. 

12.	The Appellants say that the Respondent has been re-broadcasting and re-transmitting the matches from free to air and/or encrypted satellite services in Australia. It is the re-broadcasting and re-transmitting of these matches that the Appellants seek to restrain.

13.	The Appellants' argument, as we understand, is that they are entitled to restraining orders sought irrespective of where or who or what the source of the broadcasts or the transmissions is. They say it is the content of the broadcasts and the transmissions that matter for their rights are in relation to the contents of the broadcasts and the transmissions and it matters not whether the broadcasts and the transmissions are from Sky Pacific or from Australian satellite services or from someone else.

14.	The Appellants further argue that they are entitled to the restraining orders sought on the basis of their rights as licensee under the Copyright Act (Cap. 138).

The Respondent, while conceding that it has no copyright in the 2011 Rugby World Cup match broadcasts and no licence from the copyright owner of the matches to re-broadcast or re-transmit the matches and, further conceding, that it has been re-broadcasting and re-transmitting the matches from free to air and/or encrypted satellite services in Australia, argues, however, that its re-broadcasting and re-transmission of these matches were not sourced from Sky Pacific broadcasts or transmissions and therefore the Appellants have no right to restrain its re-broadcasting or re-transmission of the matches.

15.	We have taken care as much as is possible not to make any judgment on the issues raised by the pleadings. Those issues must be left for trial. We are mindful that this is an interlocutory application and that the only issues which we need to consider is whether triable issues have been raised by the pleadings and whether the balance of convenience lies in granting the orders sought or in refusing them. 

16.	We are satisfied however that triable issues have been raised in those pleadings in so far as the claim raises the question of the Appellants' rights over the re-broadcasting and re-transmission of the matches in Solomon Islands from Fiji TV sources.

17.	However, we are of the view that the Appellants are not entitled to raise the issue of the Copyright Act in support of their claim. It is a fundamental rule of law that the trial of a claim (which, in our view, includes trial of matters raised in an interlocutory application relating to the claim) must be limited to matters raised by the pleadings. Pleadings are the documents by which the parties state their cases and the trials are said to be "on the pleadings". The pleadings show all the matters which are to be argued before and tried by the court and they disclose to the court the issues upon which the parties are seeking its decision. The trial will therefore be limited to the pleadings and if a party fails to plead a matter, he will be prevented from raising or arguing that matter before the court.

18.	In the present case, the pleadings show that the Appellants' claim is founded solely on their exclusive contractual right to broadcast and transmit the matches as conferred under their agreement with Fiji TV. The issue of the Appellants' statutory rights under the Copyright Act has not been raised in the pleadings nor in the application nor in the sworn statement in support of the application. Unless the claim is amended to include this issue, we do not think the Appellants are entitled to raise any argument relating to that issue in their application for interlocutory relief. The fact that the primary judge had raised that issue in his ruling does not, with respect, necessarily mean that we ought to consider that issue as well. It follows therefore that we must reject any argument relating to the Appellants' rights to the matches under the Copyright Act.

19.	Having said that, it is our view that the contractual rights of the Appellants under the agreement with Fiji TV are clear with regards to the broadcasting or transmission, or re-broadcasting or re-transmission of the matches in Solomon Islands. The agreement confers on the Appellants the exclusive right to broadcast and transmit, or re-broadcast or re-transmit, those matches in Solomon Islands in so far as the matches are obtained from Fiji TV sources. To that extent, an injunction will be available to the Appellants against any other person or body who broadcasts and transmits, or re-broadcasts or re-transmits, the matches in Solomon Islands. This is what the primary judge did and, in principle, we see nothing wrong with his decision. We would reject this appeal for those reasons.

20.	Even if we were wrong in rejecting the appeal for the above reasons, we think we should still reject the appeal for the reason that the balance of convenience does not, in our view, favour the granting of the interlocutory orders sought.

21.	The principle of the balance of convenience does not only involve undertaking of damages by the Appellants. To determine where the balance of convenience lies, following matters must be considered:-

[a] If injunction is denied, but the Claimant wins his case in the end, is the Defendant in a position to compensate the Claimant? If the Defendant is not in a position to compensate the Claimant, injunction should be granted. If the Defendant is in a position to compensate the Claimant, injunction should not be granted.

[b] If injunction is granted, but the Claimant loses his case in the end, is the Claimant in a position to compensate the Defendant? If the Claimant is not in a position to compensate the Defendant, injunction should not be granted. If the Claimant is in a position to compensate the Defendant, injunction should be granted.

[c] If there is doubt as to [a] and [b] above, all other factors must be taken into account in determining whether or not to grant the injunction. The Court will have to bear in mind the need to maintain the status quo at the time of the Defendant's action which gave rise to the need for the injunction.

[d] If [c] is not of any help, then, the comparative strength of each of the parties' case must be taken into account upon the evidence before the Court.

22.	In the present case, the Appellants have made an undertaking as to damages. While there is no evidence to show the Appellants' ability to make good that undertaking should they lose the case in the end, we do not doubt the Appellants' ability in that respect. Likewise, we do not also doubt the Respondent's ability in that respect should it loses the case in the end. We are therefore obliged to consider the need to maintain the status quo and the strength of the case for each of the parties. It is in these respects that we are of the view that the appeal should also be dismissed for the reasons set out below.

23.	First, in so far as the matches are concerned, the majority of these matches have already been re-broadcasted and re-transmitted by the Respondent. The remaining games are the semi-finals and the finals which is 4 games in total. Even if an injunction is granted, a good part of the damage, which is intended to be prevented by this interlocutory application, has already been caused. We think that the case has now gone beyond the need to maintain the status quo and the Appellants should therefore be left to pursue damages if they succeed at trial.

24.	Second, we have earlier expressed the view that the Appellants' claim has been founded on its contractual rights under its agreement with Fiji TV and not on its statutory rights under the Copyright Act. If the claim remains at that, we have doubts about the strength of the Appellants' claim for there is little evidence to convince us that the Respondent had been, or will be, sourcing its broadcasts or transmissions from Fiji TV or Sky Pacific.

25.	It follows therefore that we are of the opinion that the appeal should be dismissed. Accordingly, we order that the appeal be dismissed and that the Appellants pay the Respondent's costs of the appeal to be taxed if not agreed.

Francis Mwanesalua
Ag President

Rex Faukona JA

James Apaniai JA