case_text: While the above considerations are, typically, considered in a cumulative sense, I will address each of them in turn. Ultimately, however, whether the Alleged Infringing Works are, in each case, sufficiently similar to the Copyright Works such as to amount to a reproduction of a substantial part of these or any of these, is for the Court to determine and the Court will be assisted by expert evidence which "is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed": Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286. 29 The question is whether the alfresco quadrant in each of the Seattle 31 and Memphis 33 plans and homes constitutes a substantial part of each plan and home in the Alleged Infringing Works within the meaning of s 14 of the Act. The applicants submitted that this is the case for a number of reasons. 30 First, the applicants asserted that the alfresco quadrant was the main communal living area of the home hence the design was of qualitative significance. As a corollary, it was submitted that the orientation of the kitchen was important, being at the "hub" of the design, which could be viewed from all rooms within the alfresco quadrant. 54 Consistent with the above analysis, it has been suggested that where subjective copying is found, the task of proving objective similarities of what was taken was a "substantial part" of the protected work becomes "easier" to find: see Eagle Homes and Ancher, Mortlock, Murray & Woolley Pty Ltd at 289. 55 My findings below of subjective copying have enabled me more readily to find objective similarities between the Alleged Infringing Works and the Copyright Works. 115 Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray & Woolley Pty Ltd at 284; Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614.


case_outcome: cited

case_text: It is a question of fact in each case, as to what inferences may be drawn from the conduct of the person said to have authorised the act of which complaint is made: Winstone v Wurlitzer Automatic Phonograph Co of Australia Pty Ltd [1946] VLR 338. This was referred to with apparent approval by the Full Court in Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53 at 59. 266 However it is not necessary here to do so. The case against Palazzesi and Popple is not that they are liable for the tort of Metricon, but rather that each was liable for infringement by authorisation under s 36(1A) of the Act. The applicants refer to Australasian Performing Right Association v Jain (1990) 26 FCR 53. No reliance was placed by the applicants upon the Performing Right Society test or the Mentmore test.


case_text: Emphasis on quality rather than quantity is further exemplified in more recent Australian authorities. In Data Access Corp v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [32] , a majority of the High Court endorsed the views expressed by Mason CJ in dissent in Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 305. In that case, Mason CJ, citing Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 stated: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. As this statement makes clear, in determining whether the quality of what is taken makes it a 'substantial part' of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an 'essential' or 'material' part of the work? ...in the context of copyright law, where emphasis is to be placed upon the 'originality' of the work's expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken. (Emphasis added)


case_title: Chabot v Davies [1936] 3 All ER 221

case_text: To establish infringement in three dimensions from the applicants' plans, the test is still a visual one and it is necessary here to establish that a substantial part of each of the Alleged Infringing Works resembles visually a substantial part of those plans, namely the alfresco quadrant: see further Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265, 273-274; LED Builders Pty Ltd and, in relation to the Copyright Act 1911 , see Chabot v Davies [1936] 3 All ER 221 at 227-228.


case_outcome: applied

case_text: In the end, cases such as the instant one are a 'matter of impression' as pointed out by the Full Court in Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [34]. In examining the quality of the alfresco quadrant with respect to the whole of the Copyright Works, I view that part as being substantial. This view was also supported by my personal inspection and impression of the Seattle 31 design at the Beaconsfield address. On inspection, I found that the Seattle 31 home consisted of a central hallway leading into the hub of the home that incorporated: • the kitchen/meals area; • the family/living area; • the alfresco; and • the rumpus room all under a single ('hip') roof-line. The roof-line was viewed on an external inspection of the home. The view that I express here, was my initial view from the third day of the hearing before much of the oral testimony. It remained unchanged throughout the course of the hearing. The parties have agreed that my impression of the Copyright Works and the Alleged Infringing Works, from my personal inspection, are to form part of the evidence. Cases such as Clarendon support this approach. 40 The layout of the Seattle 31 gave the impression of a free-flowing design, leading from the hallway to the hub of the home, with the alfresco quadrant, under one roof-line, being central to the design. The impression was reinforced by the open-plan kitchen that looked over the living and alfresco areas. The design allowed one to view into the rumpus room which enhanced the free-flowing design features of the Seattle 31 plan. These features were clearly based in a communal area of the plan, so as to optimise appreciation of the alfresco quadrant and surrounding living areas. Based on my impression, I would describe the alfresco quadrant as being substantial in a qualitative sense.


case_text: While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing. 263 The degree of control which can constitute a sufficient basis for a finding of authorisation is a question of fact and degree: Cooper per Kenny J, French J agreeing at [142]. 265 In Cooper at [159]-[164], Kenny J observed that no Full Court of this Court had settled which of these two tests was to be preferred, or indeed whether the exposition by Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 ought be followed.


case_text: Emphasis on quality rather than quantity is further exemplified in more recent Australian authorities. In Data Access Corp v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [32] , a majority of the High Court endorsed the views expressed by Mason CJ in dissent in Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 305. In that case, Mason CJ, citing Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 stated: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. As this statement makes clear, in determining whether the quality of what is taken makes it a 'substantial part' of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an 'essential' or 'material' part of the work? ...in the context of copyright law, where emphasis is to be placed upon the 'originality' of the work's expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken. (Emphasis added) 23 While the High Court's holding in Powerflex applied to a computer program, the passage is of general application. In any event, a common thread in a case which involves computer programs and one which involves project homes, is that the copyright may overlap with functional considerations. 25 Reference to the essential or material features mirrors the language in Powerflex. The passages in both Powerflex and Tamawood are firmly grounded in Ladbroke . In that case, Lord Pearce stated in dictum: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected . For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that " there is no copyright " in some unoriginal part of a whole that is copyright. (Emphasis added) 26 In other words, if an unoriginal part of the whole is taken that does not represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original', then there is no infringement: Powerflex at [32]. See also, Klissers Bakeries v Harvest Bakeries (1985) IPR 533 and Dixon Investments and Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172.


case_text: The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] . 26 In other words, if an unoriginal part of the whole is taken that does not represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original', then there is no infringement: Powerflex at [32]. See also, Klissers Bakeries v Harvest Bakeries (1985) IPR 533 and Dixon Investments and Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172.


case_text: The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] .


case_title: Falcon v Famous Players Film Co [1926] 2 KB 474

case_text: While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing.


case_text: The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] . 115 Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray & Woolley Pty Ltd at 284; Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614.


case_title: Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443


case_text: Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray & Woolley Pty Ltd at 284; Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614.


case_text: The application of copyright law to project homes and designs is not without difficulty. The competing concepts in copyright law of 'ideas' and 'expression of ideas' underpin the difficulty: Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 provides an apt illustration. In that case, the author had printed a card that assisted illiterate voters. The card's design was simple. The design depicted a hand holding a pencil in the act of completing a cross within a square. Willis J held that the copyright protection sought would protect the idea rather than the expression alone, since "a square can only be drawn as a square, a cross can only be drawn as a cross, and for such purposes as the plaintiff's drawing was intended to fulfil, there are scarcely more ways than one of drawing a pencil or the hand that holds it": Kenrick at 104. The case is an extreme example, but gives expression to the idea-form dichotomy. 62 The respondents point to the fact that the doors and windows are differently sized and positioned. These differences, it was submitted, were highly significant given the asserted limited scope for variation in what they described as the very restrictive part of the plan relied upon by the applicants. Kenrick was used to support the respondents' submission. I disagree. This is not a " Kenrick "-like case, where there was only one means of expressing the idea of a hand ticking a box. Instead, it conforms with what Wilcox and Lindgren JJ stated in Tamawood , that "broad functional requirements can be satisfied in more ways that one" at [56]. The evidence discloses that there are a number of ways of incorporating an alfresco in combination with a kitchen, living, dining and rumpus. Accordingly, the plan as expressed in the Seattle 31 design is far from obvious, as contended by the respondents' counsel and witnesses. I reject the submission that the design of the alfresco quadrant was 'obvious'. For example, there was no necessity for the shape of the alfresco to be rectangular: there are examples of angled rectangular shapes in the prior art. Longer rectangular features, squares and other shapes thus were possible options.


case_outcome: referred to

case_title: King v Milpurrurru (1996) 66 FCR 474

case_text: It was submitted on behalf of Palazzesi and Popple that the authorities on personal liability of corporate officers such as them, for authorising conduct of the company that infringes copyright, are ambiguous. In King v Milpurrurru (1996) 66 FCR 474 at 494 500, Beazley J identified two competing lines of authority: the Performing Right Society test and the Mentmore test. See also Allen Manufacturing Co Pty Ltd v McCallum & Co Pty Ltd (2001) 53 IPR 400. Under the former test, the corporate officer must be shown to have procured or directed the company's infringing conduct. Under the latter test, it is necessary to show the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or that reflected an indifference to the risk of it.


case_text: In other words, if an unoriginal part of the whole is taken that does not represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original', then there is no infringement: Powerflex at [32]. See also, Klissers Bakeries v Harvest Bakeries (1985) IPR 533 and Dixon Investments and Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172.


case_text: Emphasis on quality rather than quantity is further exemplified in more recent Australian authorities. In Data Access Corp v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [32] , a majority of the High Court endorsed the views expressed by Mason CJ in dissent in Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 305. In that case, Mason CJ, citing Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 stated: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. As this statement makes clear, in determining whether the quality of what is taken makes it a 'substantial part' of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an 'essential' or 'material' part of the work? ...in the context of copyright law, where emphasis is to be placed upon the 'originality' of the work's expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken. (Emphasis added) 25 Reference to the essential or material features mirrors the language in Powerflex. The passages in both Powerflex and Tamawood are firmly grounded in Ladbroke . In that case, Lord Pearce stated in dictum: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected . For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that " there is no copyright " in some unoriginal part of a whole that is copyright. (Emphasis added)


case_text: The test for infringement is found in the well known passage from the judgment of Gibbs CJ in S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 (with whom Mason and Brennan JJ agreed). In that case, the Chief Justice said: The notion of reproduction, for the purposes of copyright law, involves two elements -- resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". (Emphasis added) See also Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 495; LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 218; Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443; Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [17] . 76 To establish infringement in three dimensions from the applicants' plans, the test is still a visual one and it is necessary here to establish that a substantial part of each of the Alleged Infringing Works resembles visually a substantial part of those plans, namely the alfresco quadrant: see further Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265, 273-274; LED Builders Pty Ltd and, in relation to the Copyright Act 1911 , see Chabot v Davies [1936] 3 All ER 221 at 227-228. 82 My personal inspection of the alfresco quadrant in the Prada 35 home demonstrated a close resemblance to that in the Seattle 31 plan: Lend Lease ; LED Builders Pty Ltd . The Prada 35 home also closely resembles the Memphis 33 plan. Accordingly, there is sufficient objective similarity between the two works so as to satisfy the relevant limb of the infringement test espoused in SW Hart . Functional and common stock considerations have been assessed earlier in the judgment, where I compare the Seattle 31 plan and the Prada 35 plan. My findings there in favour of the applicants are similarly found with respect to the Seattle 31 plan and the Prada 35 home in three dimensional form.


case_text: To establish infringement in three dimensions from the applicants' plans, the test is still a visual one and it is necessary here to establish that a substantial part of each of the Alleged Infringing Works resembles visually a substantial part of those plans, namely the alfresco quadrant: see further Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWR 265, 273-274; LED Builders Pty Ltd and, in relation to the Copyright Act 1911 , see Chabot v Davies [1936] 3 All ER 221 at 227-228. 77 In Lend Lease , the Court reached a conclusion of objective similarity by looking at photographs of the three dimensional structures and comparing them to the plans. However, a visual inspection is perhaps a more telling means of determining this question. I certainly found my inspections in the present case to be most helpful in my analysis. Such inspections occurred in Henley Arch Pty Ltd 41 IPR 443. 78 In this regard, it is important, when considering resemblance from two to three dimensions, to take account of all the matters appearing on the two dimensional floor plans, including the relationship of the rooms and spaces to each other and their approximate dimensions, as indicated in the plan. 79 On the third day of the trial, I inspected a range of properties that were the subject of evidence in two-dimensional form. As to the Prada 35, my impression of a light and spacious interior was derived not from any one particular feature but from the combination of features. The most distinctive features of the Prada 35 home comprised a central hallway leading into a central hub that incorporated: • the kitchen/dining area (note that the dining room in the Prada 35 is equivalent to the meals room in the Seattle 31); • the family/living area; • the alfresco; and • the rumpus room all under a single ('hip') roof-line. 82 My personal inspection of the alfresco quadrant in the Prada 35 home demonstrated a close resemblance to that in the Seattle 31 plan: Lend Lease ; LED Builders Pty Ltd . The Prada 35 home also closely resembles the Memphis 33 plan. Accordingly, there is sufficient objective similarity between the two works so as to satisfy the relevant limb of the infringement test espoused in SW Hart . Functional and common stock considerations have been assessed earlier in the judgment, where I compare the Seattle 31 plan and the Prada 35 plan. My findings there in favour of the applicants are similarly found with respect to the Seattle 31 plan and the Prada 35 home in three dimensional form.


case_text: The substantial part inquiry "imputes questions of fact and degree": Tamawood at [51]. What is important is the quality of the part taken, rather than its quantity: SW Hart at 474-5; see also Tamawood at [50] and Milpurrurru & Ors v Indofurn Pty Ltd (1994) 30 IPR 209 at 230 where the Court, in considering the qualitative worth of a part of Aboriginal artwork reproduced on carpets, stated: Although as a proportion either of the total artwork, or the total carpet, the area of copied material in comparison with the whole is not great, in a qualitative sense the copying is substantial. The pattern taken from the artwork constitutes the striking feature of the carpet. And again a predominant consideration is the animus furandi of those responsible for the design....


case_text: Quantitatively, also, the alfresco quadrant is substantial: it covers about one third of the floor area of the home: see Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 34 IPR 53, where the Court looked at both qualitative and quantitative aspects. While quantitative aspects of the copyright works are of less importance to that of qualitative aspects, I will not disaggregate the fact that the alfresco quadrant constitutes a significant portion of the floor space of the Seattle 31 design. On the contrary, the fact that it covers about one third of the area gives weight to its significance. 42 It follows that I hold that the alfresco quadrant to be a substantial part of the Copyright Works.


case_title: Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172


case_text: Copying is a question of fact: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 at 531. Generally, access to the copyright works combined with the sufficient objective similarities between the copyright works and the alleged infringing works are relevant. It enables the Court to conclude that independent creation is unlikely and that actual copying has occurred, as I find below: Clarendon at [27]; Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd [2001] FCA 1636 ; (2001) 116 FCR 448 at [19] . 115 Where objective similarities are so close that it is open to the Court to draw an inference of copying, then such an inference may be rebutted by the respondents by evidence which explains the provenance of the similarities other than as the result of copying the applicants' copyright works: Pacific Gaming at [19] citing Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd [1994] FSR 275, at 296-297; Ancher, Mortlock, Murray & Woolley Pty Ltd at 284; Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614.


case_text: In Cooper at [159]-[164], Kenny J observed that no Full Court of this Court had settled which of these two tests was to be preferred, or indeed whether the exposition by Finkelstein J in Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 ought be followed.


case_text: Copying is a question of fact: Skybase Nominees Pty Ltd v Fortuity Pty Ltd (1996) 36 IPR 529 at 531. Generally, access to the copyright works combined with the sufficient objective similarities between the copyright works and the alleged infringing works are relevant. It enables the Court to conclude that independent creation is unlikely and that actual copying has occurred, as I find below: Clarendon at [27]; Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd [2001] FCA 1636 ; (2001) 116 FCR 448 at [19] .


case_text: As rightly pointed out in Eagle Homes the word "reproduction" is not defined in the Act. Its ordinary meaning, however, is to "make a copy, representation, duplicate, or close imitation of" (Macquarie Dictionary) or "repeat in a more or less exact copy; produce a copy or representation of" (New Shorter Oxford English Dictionary). The question that follows from this is: how much of the copyright work must be reproduced before it can be said that the 'work' has been reproduced and how similar must it be to the copyright work? See Eagle Homes at [70]. There Lindgren J considered how s 14(1) and s 31(1)(b)(i) of the Act interrelate as applied to the "Paterson" and "Kookaburra" project homes that were the subject of the litigation. At [70] to [71], his Honour stated: The effect of s 14(1) of the Act is that the reference in s 31(1)(b)(i) to reproducing an artistic work in a material form includes a reference to reproducing a substantial part of such a work in a material form. In terms, this provision acknowledges a distinction between the undifferentiated whole of a copyright work and a substantial part of it. The 'Paterson' does not reproduce exactly the whole of the 'Kookaburra'. Copinger and Skone James on Copyright (13th ed, 1991), par 8 20 states as follows: ... Alternatively, the defendant's work may have been taken from part only of the plaintiff's work. Here, the defendant's work may be an exact reproduction of that part of the plaintiff's work or it may only to a greater or lesser degree resemble that part. In this alternative class of case, the first step is to identify the part of the plaintiff's work which is alleged to have been reproduced and then decide whether it constitutes a substantial part of the plaintiff's work. If it does, but it is not an exact copy of that part, it must then be decided whether it is a reproduction or colourable imitation of that part of the plaintiff's work. [ Spectravest Inc v Aperknit Ltd [1988] FSR 161]. 244 The Coburn design raises some different considerations. As Dr Cooke points out, the alfresco, dining and sitting areas in the Coburn, compared with the Prada 35, have been repositioned such that the rumpus (or home theatre) opens to the dining area, whereas the Seattle 31 alfresco space is bordered by the rumpus room and meals area. This, he said, results in plans less similar to the Seattle 31 than the Prada 35 plans. Still, his view was that the Coburn plans had been derived by reference to the Seattle 31 plans via modified Prada 35 plans. I accept this opinion and it conforms with my own impressions. The alfresco area, even though repositioned, is under one roof-line and on my view of the home, maintained the same distinct and significant impression. The changes are minor and inconsequential: Spectravest Inc v Aperknit Ltd [1988] FSR 161. 245 Again, I have accepted the expert opinion evidence of Dr John Cooke to the effect that the alfresco quadrant in each of the Tyrell 29, the Connolly 30 and the Streeton 34 plans and homes were subject to minor modifications, essentially the same as the Seattle 31 plan and home. This is so whether the comparison is plan to plan, home to home or plan to home. These opinions involving comparisons with the Seattle 31 plan and home were generally also applicable to the same comparisons but involving the Memphis 33 plan and home. This too was the case in comparisons between the Memphis 33 plan and home and the Coburn plan and home. 246 I have again not, for reasons I explain below, afforded any weight to the opinion of Mr John Permewan.


case_title: S W Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466


case_title: Tamawood v Henley Arch (2004) 61 IPR 378

case_text: In Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at 387, another project home case, the majority at [39] observed that: "The idea-form distinction, often elusive, is particularly so in the case of project homes". This, their Honours said at [38] was because such homes commonly have to be designed to fit blocks of approximately similar shape and dimension and to provide for vehicular access and accommodation. There was, it was said, a certain commonality of features demanded by the market in question: ... such as, a certain number of bedrooms, a laundry, a kitchen, a family or rumpus room, an ensuite and a walk-in wardrobe ("WIR") in association with the main bedroom, built-in wardrobes in the other bedrooms, at least one bathroom in proximity to the other bedrooms, and certain facilities in the kitchen such as a sink, bench, dishwasher, stove, hot plate and microwave oven. 15 Project homes, and the drawing of such plans, are distinct from paintings and musical works. The distinction lies in the fact that a project home involves a mixture of familiar ideas and common place features "based on the real world" (in the form of previous project homes and plans) and "labour, skill and judgment (in combining the various features)": Tamawood at [41] [43]. The issue is further complicated when one bears in mind that the plan for a project home is "partly functional." For example, placing a kitchen in reasonable "proximity to a dining room" is, broadly, a functional consideration: see Tamawood at [41]. Accordingly, the "dividing line between that which is dictated by broad functional requirements and that which is not, is...often unclear": Tamawood at [56]. 16 Importantly, one must bear in mind in this case, and as was explained in Tamawood , that an individual part of a plan or home considered in isolation may merely explain a common idea "...yet there will be copyright in the whole plan if the combination and arrangement originated with the author." (Emphasis added): Tamawood at [41]. 17 The applicants in this case point to the particular combination in the alfresco quadrant as central to their claims. 21 The substantial part inquiry "imputes questions of fact and degree": Tamawood at [51]. What is important is the quality of the part taken, rather than its quantity: SW Hart at 474-5; see also Tamawood at [50] and Milpurrurru & Ors v Indofurn Pty Ltd (1994) 30 IPR 209 at 230 where the Court, in considering the qualitative worth of a part of Aboriginal artwork reproduced on carpets, stated: Although as a proportion either of the total artwork, or the total carpet, the area of copied material in comparison with the whole is not great, in a qualitative sense the copying is substantial. The pattern taken from the artwork constitutes the striking feature of the carpet. And again a predominant consideration is the animus furandi of those responsible for the design.... 24 In Tamawood , the Full Court considered the meaning of the expression, 'substantial part', in the context of plans for project homes. Wilcox and Lindgren JJ concluded at [55] that: ... it is not infringement of the part, but infringement of the whole that is in question. Whether there has been an infringement of the whole requires that the originality of the part be considered in relation to the work in suit as a whole. It must be determined whether the part is an 'essential or material' feature of the whole work , regarded as a copyright work, in the present case, as an artistic work. In our opinion, it must be asked whether the part or parts taken represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original' . (Emphasis added) 25 Reference to the essential or material features mirrors the language in Powerflex. The passages in both Powerflex and Tamawood are firmly grounded in Ladbroke . In that case, Lord Pearce stated in dictum: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected . For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that " there is no copyright " in some unoriginal part of a whole that is copyright. (Emphasis added) 36 Third, key features are clearly important and distinct particularly when features of the designs are viewed in collocation and as a whole. The distinctiveness of the Copyright Works also goes to the consideration of the quality of the works. While novelty is not a consideration of copyright, recent cases such as Tamawood suggest that distinctiveness and that which is "essential" to the copyright works are important considerations in cases where substantial part is at issue: see Tamawood at [51]-[54] and particularly at [89]. Cases such as TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2001] FCA 108 ; (2001) 184 ALR 1 also stress the need to look at the essential features. See also McCutcheon's discussion in the article Property in Literary Characters [2007] EIPR 143. 43 I will now compare the alfresco quadrant, being the substantial part of the Copyright Works, with the Alleged Infringing Works, to determine whether there is a sufficient objective similarity, having regard to: (a) the similarities and differences in the comparison: Tamawood at [28] and [86]-[89]; (b) the essential material and non-functional parts - being the most important and significant parts of the works: Tamawood at [86]-[89]; and (c) commonplace features that preceded the design of the Copyright Works: Clarendon at [42]. 44 Although I deal with these discretely, in the end, I consider them cumulatively. I will first compare the Seattle 31 plan (Schedule A) with the Prada 35 plan (Schedule C). 45 Before doing so, I note that there is no relevant distinction between the Seattle 31 plan and the Memphis 33 plan. The Memphis 33 plan produces a marginally larger floor area. The applicants' statement of claim outlines the changes that were made to the Seattle 31 to construct the Memphis 33, at paragraph 12. Those changes include: • additional space in internal areas; • the garage position pulled back behind the front of the building line; and • the front wall configuration to allow the inclusion of an attached portico. 48 The assessment is a matter of impression for the Court: see generally Tamawood and Clarendon. In making the assessment, the Court was invited to compare the transparencies of the Seattle 31 and Prada 35 plans. Upon overlay of the transparencies, one can clearly see the striking similarities. In my view, the alfresco quadrant is almost identical in both cases. This is of paramount importance to the present case, as it constitutes the substantial part of the applicants' plan. 49 My view is further fortified by several lay and expert witnesses of both parties. For instance, Popple agreed that the position of the kitchen was "sort of similar" and that of the rumpus, alfresco, family room and meals area were "similar." The area that Popple refers to is, in essence, the alfresco quadrant. Palezzesi also found it difficult to disagree with Popple's assessment. 50 The similarity between the Prada 35 and Seattle 31 designs was confirmed by Popple in cross-examination. Popple's and Palazzesi's observations of similarity given in the witness box in fact extended beyond the alfresco quadrant to include bedrooms two, three and four. 56 In Tamawood at [56], Wilcox and Lindgren JJ considered the functional aspects of the copyright works: In applying the "substantial part" test in the present case, one must bear in mind that the plan for a project home is partly functional. Placing a kitchen in reasonable proximity to a dining room, and bedrooms in reasonable proximity to each other and to a bathroom, is suggested by broad functional considerations. Those proximities would not be a substantial part of a plan or house regarded as an artistic work. Moreover, they would be ideas. But broad functional requirements can be satisfied in more ways than one. Some features of a project home plan may be dictated by aesthetic and decorative concerns, for example. In these ways, the labour, skill and judgment of the author are called upon. The dividing line between that which is dictated by broad functional requirements and that which is not, is, however, often unclear. 57 The alfresco quadrant, as I have found, is a most important feature, being both essential and material to the design of the Seattle 31 plan. Significant labour, skill and judgment went into the design of the plan, including 130 drawings over a six month period. The designs are centred around the incorporation of an alfresco, which is the part that the respondents have taken. To arrive at this conclusion, I must also examine why the alfresco quadrant is not functional. This was a key argument submitted by the respondents. I will turn to that issue below. 58 A primary contention of the respondents was that there was very little (if any) room for choice as to where the alfresco and surrounding rooms could be placed in the Prada 35. The respondents' contention was purportedly buttressed by the following points: • since any alfresco is situated where the informal living rooms are situated to the "rear" or to the "side" of the house, there are limited options as to how an arrangement of rooms can be configured; • thus, if one decided to configure an alfresco within a Melbourne project home, either to the "rear" or to the "side" of the house, it would ordinarily be surrounded by rumpus, family and dining or meal rooms; and • this, the respondents assert, is what happened in the case of the Prada 35. Further, they assert that the applicants' arrangement is not "so unusual" that it must have been derived from the Seattle 31 plan. 62 The respondents point to the fact that the doors and windows are differently sized and positioned. These differences, it was submitted, were highly significant given the asserted limited scope for variation in what they described as the very restrictive part of the plan relied upon by the applicants. Kenrick was used to support the respondents' submission. I disagree. This is not a " Kenrick "-like case, where there was only one means of expressing the idea of a hand ticking a box. Instead, it conforms with what Wilcox and Lindgren JJ stated in Tamawood , that "broad functional requirements can be satisfied in more ways that one" at [56]. The evidence discloses that there are a number of ways of incorporating an alfresco in combination with a kitchen, living, dining and rumpus. Accordingly, the plan as expressed in the Seattle 31 design is far from obvious, as contended by the respondents' counsel and witnesses. I reject the submission that the design of the alfresco quadrant was 'obvious'. For example, there was no necessity for the shape of the alfresco to be rectangular: there are examples of angled rectangular shapes in the prior art. Longer rectangular features, squares and other shapes thus were possible options. 73 It is to be remembered that it is the combination of features producing the alfresco quadrant which is the result of the labour, skill and judgment of the applicants' Copyright Works and, which as a whole, may be characterised as original. Quite apart from the failure to cross-examine as to the matters which I have identified, the conclusion of infringement is not to be challenged by breaking down the alfresco quadrant and considering the individual areas, and then considering each in isolation as to whether it represents a common or stock feature: Tamawood 61 IPR 378 at [41]. 74 While there was some discounting of common stock designs in the Tamawood decision, this is not a Tamawood case. Tamawood is distinguishable from this case on the basis that the starting design for the respondent's work in Tamawood was a design that it had owned. The respondent had then incorporated aspects from the applicant's copyright work into the original starting design owned by the respondent. Moreover, the case is distinct for another reason. In Tamawood , the level of specificity of the analysis of the 18 items was particular to that case. Here, the substantial part can be grouped within the back end of the Seattle 31 plan, being the alfresco quadrant. In light of the distinctions with Tamawood, the issue of discounting as outlined in that case is not applicable in this case. 75 Accordingly, in my opinion, there is sufficient objective similarity to satisfy the first limb of the SW Hart test, as between the alfresco quadrant in the Seattle 31 and that in the Prada 35.


case_text: Third, key features are clearly important and distinct particularly when features of the designs are viewed in collocation and as a whole. The distinctiveness of the Copyright Works also goes to the consideration of the quality of the works. While novelty is not a consideration of copyright, recent cases such as Tamawood suggest that distinctiveness and that which is "essential" to the copyright works are important considerations in cases where substantial part is at issue: see Tamawood at [51]-[54] and particularly at [89]. Cases such as TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2001] FCA 108 ; (2001) 184 ALR 1 also stress the need to look at the essential features. See also McCutcheon's discussion in the article Property in Literary Characters [2007] EIPR 143.


case_text: While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing. 267 As the managing director, Palazzesi accepted that Metricon would not have included the Prada 35 in its product line without his approval. This fact, and the fact that Popple and Bugeja were subject to his direction, were said not in themselves to be enough to constitute authorisation by him. It was contended, in my view correctly, that the necessary mental element required to be established: Moorhouse at p 12 per Gibbs CJ. In other words, in this case, it is necessary, in order to render Palazzesi liable, not only that he approved the Alleged Infringing Works but that he did so knowing that they contained a copy of the alfresco quadrant from the Seattle 31. This is not of universal application but it is the way that the case was put by the applicants. 268 Palazzesi did acknowledge in cross-examination that there are similarities between the Prada 35 and the Seattle 31, identifying the position of the two bedrooms, rumpus room, kitchen, dining and family and alfresco. It was said, however, that there is no evidence that Palazzesi knew or appreciated that Prototype 20B, or the Prada 35, were copied from the Seattle 31 plan or home or were so similar that they must have been copied. Palazzesi denied that he had any such appreciation. 269 Palazzesi pointed particularly to a number of matters which he says demonstrate that he had no relevant knowledge: (a) Popple did not tell him that he, Popple, thought Prototype 20B had similarities to the Seattle 31 display; (b) the reference by Jason Biasin to the similarity of the Richmond in Perth to the Seattle 31 was a reference to a façade and that there was no reason for him to be thinking about the Seattle 31 at the time they were looking at the Pavillion; (c) he had no special interest in the activities of the applicants between January 2000 when the Seattle 31 display opened, and 2002 when the Prada 35 was designed, and in particular: (i) he was not aware of how many homes were sold by the Barrett Property Group; (ii) he did not think about the Seattle 31 after his brief visit in January 2000 until Stutterd complained to Kline in mid 2003; (iii) while he did hope to keep abreast of the competition, he was not watching the applicants and the pressures on him were to build homes and manage the explosive growth at Metricon; and (iv) he did not know about the applicant's success with the Seattle 31; or how many homes they had sold by February 2002; other than he had heard that "they were doing OK"; (d) courtyard houses, with the meals, kitchen, family and rumpus areas arranged around an outdoor space were well known and he had involvement with a number of such designs (including both the Simonds Monterey and Seville as well as AV Jennings homes); and (e) the points of reference for the alfresco feature or concept were what he (and the others) had seen on the Perth trip.


case_text: It is a question of fact in each case, as to what inferences may be drawn from the conduct of the person said to have authorised the act of which complaint is made: Winstone v Wurlitzer Automatic Phonograph Co of Australia Pty Ltd [1946] VLR 338. This was referred to with apparent approval by the Full Court in Australasian Performing Right Association Ltd v Jain (1990) 26 FCR 53 at 59.


case_title: National Tertiary Education Industry Union v Central Queensland University [2007] AIRC 539 , PR977528

case_text: On 20 June 2007, the Union filed an application in the Australian Industrial Relations Commission ("the Commission") pursuant to s 709 of the Workplace Relations Act . The University was the respondent to that application. The purpose of the proceeding in the Commission was to restrain the implementation by the University of the decision that came to be reached not to renew 34 fixed term appointments when they expired on 30 June 2007. An arbitration hearing was conducted before Senior Deputy President Richards in the Commission on 29 June 2007. His Honour handed down his decision in respect of the application that same day, in National Tertiary Education Industry Union v Central Queensland University [2007] AIRC 537 , PR977528. In so doing he adopted the following interpretation of cl 22 of the Collective Agreement: [35] However subclause 22.3 cannot be read separately from sub clause 22.2 of the Agreement. Rather, it is logically interconnected with the structure of the preceding sub clause. It is interconnected in that the consultation described in sub clause 22.3 can only occur in the context of the University's decision making having only reached a stage whereby it has decided only that change may be necessary and that it may have significant effects if implemented. [36] It is because the consultation is to take place in this particular context that the meaningful consultation is given effect as referred to in sub clause 22.3. And it is only in that decision-making stage that the employees and/or their representatives can consider and propose alternatives to managing change. [37] It is sufficiently apparent that at this decisional stage the University might propose the strategies it has developed for consultation and discussion. This is made clear by the inclusion of the verb form 'to consider' in sub clause 22.3 of the Agreement. But these must be strategies that are proposed only at the particular embryonic stage in the evolution of the University's decision making described above. The University cannot have come to a final or even a provisional conclusion on the implementation of these strategies before the consultation in clause 22 can take place. [38] Sub clause 22.5 prescribes further the steps the University must take at the completion of the consultation process described above. If at this point the University proceeds to implement a significant change proposal it must embark upon a further tier of consultation, this time to: • Consult with affected employees (themselves or through their representative(s)) about the impact of the implementation of the change proposal on work; • Consult with affected staff about alternative options to implementing the changes on work; and • Consult with staff about options for avoiding detrimental impacts (such as retraining, part time work etc). [Emphasis added] 20 In the result, His Honour made the following determination: [57] The staged process of consultation required by clause 22 is outlined above. The clause effectively serves as a fetter on the University's prerogative to make decision about aspects of its organisation that have significant consequences for its workforce until such time as it has interacted in a prescriptive manner with its employees and/or their representatives. Without doubt, the procedure to which the University agreed will slow its capacity to respond to changing circumstances and will require the allocation of more time (for consultation) in advance of decision making. But this is the implication of the Agreement, the Agreement the University made with its employees and various of their representative organisations. [58] Further, the consultation process envisaged by the Agreement is required to commence at an embryonic point in the decision making process, that is when the very prospect of major change with major consequences appears as a possible outcome of a set of particular circumstances. [59] Put another way, clause 22 invokes consultation when a view is formed by the University that significant change with significant consequence may be necessary. The University appears to have invoked the clause only after it had formed a view that such change was indeed necessary. That is, the University's decision making appears to me to have traversed the critical juncture between the prospect of significant change with significant consequences and the actuality of that change. [60] The decision making by the University therefore was not made in conformity with its Agreement. [Emphasis added] 21 His Honour declined to grant any relief which would restrain the ability of the University to allow the fixed term appointments to expire by effluxion of time. There was no appeal by the University or by the Union against the decision of Senior Deputy President Richards. 22 I respectfully agree with the remarks made by His Honour in respect of the interpretation and operation of the cl 22 of the Collective Agreement. I would only add that, while the clause does introduce a lag into the University's decision making processes in relation to those bound by the agreement, that temporal element is not fixed but flexible according to prevailing circumstances. 23 Sections 328 of the Workplace Relations Act makes provision for what is known as a "Union Collective Agreement". The agreement in question in this case is of this kind. It resulted from negotiations with the University conducted by a number of unions acting as a single bargaining unit. Following the reaching of agreement between the University and those unions, the Collective Agreement was approved by a majority vote of the relevant University workforce as contemplated by s 340(2) of the Workplace Relations Act . The agreement was then lodged with the Office of the Employment Advocate (now termed the Workplace Authority Director) pursuant to Div 5 Pt VIII of the Workplace Relations Act . The Agreement came into operation on the date that it was lodged s 347 , Workplace Relations Act . 24 When it came into operation the effect of s 351 of the Workplace Relations Act was that the Collective Agreement bound the University, each person whose employment was then or was at anytime when the agreement was in operation subject to that agreement and, given that the agreement was a Union Collective Agreement, each of the industrial organisations, including the Union, which was a party to the agreement.


case_text: The foregoing brief survey of provisions in the Workplace Relations Act relevant to the making and coming into operation of the Collective Agreement serves to remind that such an agreement is not a mere matter of private contract. More particularly, given that the acknowledged breaches arise against the background of action taken by the University in response to unforseen, and, it seems, unforeseeable events having profound financial ramifications, it makes particularly apposite the following observations made by Keely J in Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306 ; (1984) 3 FCR 503 at 508: "In this connection it is important that the respondent and other employers bound by the award or by the other awards under the Act understand the importance of complying with an award and it follows that any decision taken by them which is regarded as affecting their obligations to comply with particular provisions of an award or the award generally should only be taken after careful consideration. They must not be left under the impression that in times of financial difficulty they can breach an award made under the Act either with impunity or in the belief that no substantial penalty will be imposed in respect of a breach found by a court to have been committed."


case_title: Electrical Trades Union of Australia v Sims Products Ltd trading as Besco Batteries (1998) 42 IR 250

case_text: While His Honour's remarks were addressed to the terms of an industrial award and those bound by an award, they are just as applicable to the terms of a collective agreement which has come into operation per force of the Workplace Relations Act and to those bound by such an agreement. When the terms of a collective agreement come into operation per force of statute they become part of the law of the land and must be obeyed by all of those bound by the agreement; see by analogy, Electrical Trades Union of Australia v Sims Products Ltd trading as Besco Batteries (1992) 42 IR 250 at 253, per Gray J (" Sims Products case"). Clauses 22 and 24 of the Collective Agreement, like the other terms of that agreement, were not aspirational statements. 27 There is no doubt that the University and Professor Rickard were aware in a general sense of a need to consult with affected persons and their trade union representatives. What was ignored though was the staged process for which cl 22 of the Collective Agreement in particular provided, as described by Senior Deputy President Richards. This failure was acknowledged by the University and Professor Rickard at the earliest possible opportunity following the institution of the present proceedings. 28 In the Sims Products case Gray J was confronted with an application for the imposition of pecuniary penalties arising out of a breach of a consultation clause in respect of redundancies then found in the Metal Industry Award 1994 . In effect, the clause provided that, where an employer had made a definite decision that it no longer wished a particular job to be done by anyone in circumstances where this was not due to the ordinary and customary turn over of labour and that the decision may lead to termination of employment, the employer was obliged to hold discussions with directly affected employees and with their Union or Unions. The award provided that such discussions where to take place as soon as was practicable after the employer had made a definite decision of the kind described. There was a separate provision in the award for the notification of the Commonwealth Employment Service by the employer where such a definite decision had been made. In that case the employer made a definite decision of the kind contemplated in the award which decision did in fact lead to the termination of its employees at a particular plant. It held no discussions at all with those employees or the union prior to effecting the termination of the employees. Nor did the employer give any notice of the kind contemplated in the award to the Commonwealth Employment Service. 29 The breaches of the award in the Sims Products case were flagrant. In a sense, so too were the breaches in the present case but, as was submitted on behalf of the University and Professor Rickard, a distinguishing feature in the present case is that the University did not completely ignore a need for consultation. Rather, it conflated what was meant to be staged consultation process. 30 In his evidence on the penalty hearing, Professor Rickard stated that, even if the form of consultation for which the "literal terms" of the Collective Agreement had been undertaken, "the same eventual outcomes would have been achieved as were achieved in the process which was directed by me". Given the anticipated financial effect of the decline in enrolments, that may have been the case, but it is, with respect, nothing to the point in terms of mitigation in respect of the particular Collective Agreement breaches alleged by the Union.


case_text: One reason why this is so is provided by analogy in another earlier award breach case arising from a failure to conduct consultations prior to the effecting of redundancy based terminations, Gibbs v City of Altona [1992] FCA 374 ; (1992) 37 FCR 216 , at 221. In the course of his Judgment in that case Gray J remarked: "It is possible that, had requisite discussions taken place, with the Union in possession of the required information, some way might have been found of avoiding the termination of Mr Clarke's employment. It is not enough to say that the Counsel of the Respondent was unable to see anyway in which Mr Clarke might have been retained in another position. It is possible that the Union might have been able to suggest a way in which this could have been done. The Respondent should have taken the trouble to ascertain precisely what its award obligations where." 32 Here, the University should have taken the trouble to ascertain precisely what its Collective Agreement obligations were. The response under contemplation to the threat to its financial position affected its workforce. That, in itself, should have alerted those advising the Vice Chancellor that it would be prudent to consult the terms of the Collective Agreement. Perhaps it may have been possible at the early stage at which cl 22 operated, after consultation, to conceive of some variant to the course contemplated. Even if it was not, that does not mean that there is no utility either in cl 22 or, for that matter, cl 24 of the Collective Agreement. The digestion by affected employees of the bitter pill of the prospect of non-renewal of their fixed term appointments may well have been eased by the knowledge at an early stage of the truly dire predicament faced by the University and that, notwithstanding the consideration of such input or suggestion as they were able to offer, no other course was open in practice. Suspicion and mistrust in a workplace with resultant potential for industrial disharmony feed upon an absence of candid communication between employer and employee, not on the presence of such communication. Consultation at least allows employees or, where appropriate, their trade union to influence the taking of a decision by an employer. 33 These matters noted, I accept that the fact that the University did engage in some consultation, albeit not at all of the stages contemplated in the Collective Agreement, is a mitigating factor. It seems that this conflation was the result of a misunderstanding on the part of the Vice Chancellor and those advising him as to the precise nature and extent of the consultation obligations assumed by the University under the Collective Agreement. 42 Subsection 719(3) is not applicable in the circumstances of the present case. There was some debate before me as to whether and to what extent s 719(2) of the Workplace Relations Act intruded in the circumstances of the present case. In the City of Altona case, at 223, Gray J had occasion to consider the meaning and the effect of a like provision, s 178(2) , found in the former Conciliation and Arbitration Act 1904 (Cth). His Honour remarked of that provision: The object of s 178(2) appears to be that a party bound by an award and pursuing a course of conduct involving repeated acts or omissions, which ordinarily be regarded as giving rise to a series of separate breaches, should not be punished separately for each of those breaches. If such a party has pursued a course of conduct which gives rise to breaches of several different obligations, there is no reason why it should be treated as immune in respect of its breach of one obligation, merely because it has acted in breach of another. This reasoning leads to the conclusion that each separate obligation found in an award is to be regarded as a "term", for the purposes of s 178 of the Act. The ascertainment of what is a term should depend not on matters of form, such as how the award maker has chosen to designate by numbers or letter the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out. For these reasons, I incline to the view that each separate obligation imposed by an award is to regarded as a "term", for the purposes of s 178 of the Act. If the different terms impose cumulative obligations or obligations that substantially overlap, it is possible to take into account the substance of the matter by imposing no penalty, or a nominal penalty, in respect of breaches of some terms, but a substantial penalty in respect of others. 43 Like Gray J, I incline to the view that each separate obligation imposed by a collective agreement is an "applicable provision" for the purposes of s 719(2) of the Workplace Relations Act . The breaches of cl 22.2 and cl 22.3 in particular are, therefore, discrete breaches of discrete "applicable provisions". Subsection 719(2) of the Workplace Relations Act has no application to those alleged breaches. It obviously has no application to the alleged breach of cl 24 of the Collective Agreement. That subsection does though, in my opinion, have application to the two alleged breaches by the University of cl 22.3 of the Collective Agreement, one which occurred prior to the decision made on or about 15 May 2007, the other which occurred on 29 May 2007. 44 Such matters concerning the operation of s 719(2) of the Workplace Relations Act acknowledged, there is in this case also "overlap" in this instance, in the operation and application of cl 22 and cl 24 of the Collective Agreement. Thus the same considerations as those described by Gray J in the passage quoted arise in relation to the imposition of penalty. 45 The maximum penalty that may be imposed under s 719(1) of the Workplace Relations Act for a breach of an "applicable provision", here a provision of a collective agreement, is, for a body corporate, 300 penalty units. Materially, the effect of s 4AA of the Crimes Act 1914 is that the amount of a "penalty unit" is $110. That means that the maximum applicable penalty for a given breach of a provision of the Collective Agreement by the University is $33,000. So far as the University is concerned, four breaches in all of the Collective Agreement are alleged. Two of those breaches are affected by the operation of s 719(2) of the Workplace Relations Act . That means that the cumulative total of the maximum applicable penalties in respect of the University is $99,000. This is hardly a case which calls for the imposition of a maximum penalty in respect of any breach, especially having regard to the very timely acknowledgment of the commission of those breaches by the University in these proceedings.


case_text: Neither the Union nor the University submitted that there were any directly applicable comparative sentences, a position confirmed by my own researches. It is true, as Branson J noted in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, at 232 in respect of a materially similar earlier penalty regime, that the Workplace Relations Act does not give any explicit guidance as to the circumstances in which an order imposing penalty will be appropriate or as to the circumstances in which a penalty of or near the maximum or alternatively of a lesser amount will be warranted. That does not mean that the fixing of penalty is at large, unrestrained by evident statutory purposes or the circumstances in which a breach occurred and its consequences. In the context of this case, the penalty must reflect and be able to be seen to reflect considerations which I have emphasised sufficiently high to serve as a general reminder about the obligation to adhere to a collective agreement yet acknowledge conflated rather than ignored consultation which seems to have been the result of a misunderstanding as to the precise nature of the consultation obligations assumed by the University under the Collective Agreement, a timely acceptance of the alleged breaches and an absence on the part of the University of any past breaches of the Workplace Relations Act . It must reflect the circumstance that the consequence of the breaches was the loss of a chance, the chance to be heard and to influence. It is not possible to conclude on the material before me that the fate of those fixed term appointees affected would have been any different had all of the required consultation been undertaken. 47 I find that the University breached the following provisions of the Collective Agreement: (a) clause 22.2, between 1 May and on or about 15 May 2007, by failing to consult, as provided for by that provision, prior to making its decision on or about 15 May 2007. (b) clause 22.3, between 1 May and 15 May 2007, as a consequence of the breach of clause 22.2; (c) clause 24, between 1 May and on or about 15 May 2007 by failing to undertake the consultations required by that provision; (d) clause 22.3 on 29 May 2007 by failing to consult in the way required by that provision. 48 There was also some debate before me as to whether declarations ought to be made in respect of these breaches. So far as I can tell from previous proceedings for civil penalties in industrial cases, the practice of the Court seems to be not to make such declarations in the formal orders pronounced by the Court. I decline in this case to make declarations but rather, as seems to be the practice, will make orders imposing penalties. Those penalties will be as follows: (a) for a breach of cl 22.2 of the Collective Agreement: a penalty of $6,600; (b) for the breaches of cl 22.3: a penalty of $200; (c) for the breach of cl 24: a penalty of $200.


case_text: In fixing penalties in this way I have adopted an approach which commended itself to the High Court in the original jurisdiction in customs prosecutions (then regarded as suits for the recovery of a pecuniary penalty) in circumstances where what was, in essence, a single transaction gave rise to what were strictly multiple offences. In that context it was regarded as material to consider that, "though the offences in each group were separate offences in law, they were substantially contemporaneous and connected" L Vogel & Sons Pty Ltd v Anderson, Minister of State for Customs and Excise [1968] HCA 90 ; (1968) 120 CLR 157 , at 168; applied Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd (1971) 47 ALJR 198 , at 200. Here, though there is no fixed minimum penalty, it is necessary, in my opinion, that the separate breaches of cl 22.3 and cl 24 be penalised but that those penalties reflect their consequential, derivative or overlapping qualities relative to the breach of cl 22.2.


case_text: In fixing penalties in this way I have adopted an approach which commended itself to the High Court in the original jurisdiction in customs prosecutions (then regarded as suits for the recovery of a pecuniary penalty) in circumstances where what was, in essence, a single transaction gave rise to what were strictly multiple offences. In that context it was regarded as material to consider that, "though the offences in each group were separate offences in law, they were substantially contemporaneous and connected" L Vogel & Sons Pty Ltd v Anderson, Minister of State for Customs and Excise [1968] HCA 90 ; (1968) 120 CLR 157 , at 168; applied Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd (1971) 47 ALJR 198 , at 200. Here, though there is no fixed minimum penalty, it is necessary, in my opinion, that the separate breaches of cl 22.3 and cl 24 be penalised but that those penalties reflect their consequential, derivative or overlapping qualities relative to the breach of cl 22.2. 51 I have considered whether some part of the total penalty ought not be ordered to be paid to the Union in light of what I have termed the gratuitous joinder of Professor Rickard. However, it seems to me that so to do would be wrong in principle as no part of the total penalty is referable to a penalty imposed in respect of a separate breach by Professor Rickard. The penalty proceeding did though exhibit a vice akin to that described by Taylor J in Scott v Geoghan & Sons Pty Ltd (1969) 43 ALJR 243 , at 245 whose remarks were endorsed by Gibbs J (as his Honour then was) in Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd supra, at 200 the joinder of a multiplicity of charges arising out of the one transaction. The policy objectives served by a civil penalty proceeding under the Workplace Relations Act did not, in my respectful opinion, require the allegation of derivative, consequential or overlapping breaches. Of the total of the penalties imposed, I therefore propose to order that the sum of $6,600 be paid to the Union and the balance of $400 be paid to the Commonwealth of Australia pursuant to s 841(b) and 841 (a) respectively of the Workplace Relations Act .


case_text: There remains a question as to whether some or all of the total of the penalties imposed ought to be awarded to the Union as it has requested pursuant to a s 841(b) of the Workplace Relations Act . The University opposes the making of such an order. Again in this context it questions the purpose served by these proceedings in light of the outcome in the Commission and submits that I should conclude that the Union's purpose was solely to derive a financial "windfall" of the kind described by Finkelstein J in the CPSU v Telstra case. I reject that submission. I have already highlighted the separate public interest served by a civil penalty proceeding like the present and the recognition by the Parliament of an industrial organisation such as the Union as an appropriate party in the present circumstances to initiate such a proceeding. Further, there is long standing authority in this Court which draws attention to the role that a provision like s 814(b) has in the encouragement of a common informer. I respectfully agree with the following observation made by Wilcox J in Finance Sector Union v Australia and New Zealand Banking Group Limited [2002] FCA 1035 , at [16]: "In CPSU Finkelstein J suggested that such an order should not be made if it is likely to result in a "windfall to the organisation". I am not sure I agree with that; the rationale of the practice is that it tends to encourage a "common informer" to police the relevant legislation: see Vehicle Builders' Employees' Federation of Australia v General Motors-Holden Pty Ltd (1977) 32 FLR 100 at 113. That rationale is likely to be defeated if the common informer is not to be allowed to make a profit."


case_text: I have considered whether some part of the total penalty ought not be ordered to be paid to the Union in light of what I have termed the gratuitous joinder of Professor Rickard. However, it seems to me that so to do would be wrong in principle as no part of the total penalty is referable to a penalty imposed in respect of a separate breach by Professor Rickard. The penalty proceeding did though exhibit a vice akin to that described by Taylor J in Scott v Geoghan & Sons Pty Ltd (1969) 43 ALJR 243 , at 245 whose remarks were endorsed by Gibbs J (as his Honour then was) in Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd supra, at 200 the joinder of a multiplicity of charges arising out of the one transaction. The policy objectives served by a civil penalty proceeding under the Workplace Relations Act did not, in my respectful opinion, require the allegation of derivative, consequential or overlapping breaches. Of the total of the penalties imposed, I therefore propose to order that the sum of $6,600 be paid to the Union and the balance of $400 be paid to the Commonwealth of Australia pursuant to s 841(b) and 841 (a) respectively of the Workplace Relations Act .


case_text: As for paragraph 37, the applicants submitted that the paragraph did not plead the material facts which identified how each firm was involved in any contravention of s 1041H of the Corporations Act . They pointed out that 'involvement' requires knowledge of the essential facts, matters or things that constitute the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. 15 The cross claim by the Directors is structured in a broadly similar way, but the relevant allegations of breach of duty are much narrower. The applicants focused their criticisms on paragraphs 23 and 24 of the Directors' cross claim, which at the time of the leave application provided as follows: '23. If the Principals are found liable to the plaintiffs for the plaintiffs' damages or any part thereof as a result of the claimed conduct, the conduct was caused by Baker & McKenzie and/or Munro by breaching their duty to exercise all due care and skill in the provision of legal services by failing to take the following steps: (i) advising Concept Sports and the Principals that the June 2004 financial information ought to have been included in the prospectus; (ii) advising that a revised prospectus containing the June 2004 financial information ought to have been included; (iii) advising that disclosure of the June 2004 financial information shortly after 10 June 2004; (iv) advising prior to 10 June 2004 that the IPO should not proceed; Particulars If Bakers and/or Munro had carried out their duties and provided the legal advice with the appropriate degree of care and diligence, then they would have advised the Principals to, and caused the Principals to (insofar as they were able to cause them) take such steps as would have led to the claimed conduct not occurring. 24. Further and in the alternative, if the Principals are found liable to the plaintiffs for the plaintiffs' damages or any part thereof, then to the extent that Bakers and/or Munro are liable in respect of the same damage, they are entitled to contribution from them pursuant to s.23B of the Wrongs Act 1958 (Vic).' 16 These paragraphs must be read in light of the following matters. First, the reference to 'the June 2004 Financial Information' is intended to be a reference to the management reports and management accounts which became available at the board meeting on 1 June 2004. The cross claim contains an obvious mistake in that the relevant definition does not appear in the correct place in the pleading. The mistake was corrected by counsel for the Directors in the course of argument before me. Secondly, the cross claim specifically alleges that the Directors relied upon Baker & McKenzie and Munro to be satisfied that the prospectus contained all material information and did not contain anything that was misleading or deceptive in contravention of the Corporations Act or any other relevant statute, and that there was no requirement to lodge a supplementary or replacement prospectus pursuant to s 719 of the Corporations Act .


case_text: The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'Décor' ) at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 ( 'Brilliant' ). The key considerations are: (1) whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong. Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 583-585 [42] - [45] . 27 The proposed appeals relate to pleading matters and there is no disagreement as to the legal principles which govern the leave applications. It is simply a question of applying the well-established principles stated in Décor to the decision and orders made by Finkelstein J. I decline the request to refer the application to the Full Court. In my opinion, the nature of the issue raised by the proposed appeals, the fact that the proceedings have been fixed for trial on 20 November 2006, the orders and directions that Finkelstein J has put in place by way of case management, and the need to ensure an efficient deployment of judicial resources support the conclusion that the application for leave to appeal should be heard and determined by me, and not referred to the Full Court. I also consider that, contrary to the submission made on behalf of Baker & McKenzie, the interests of expedition and efficiency are more likely to be served by the leave application being determined by me as a single judge. 28 Finkelstein J's grant of leave to file and serve the cross claims involved a matter of practice and procedure. It also involved discretionary decisions that fell squarely within the realm of case management. 29 Having considered the submissions made to me, the legal principles summarised above and Finkelstein J's reasons for decision, I am not satisfied that Finkelstein's orders are attended by sufficient doubt to warrant them being reconsidered, or that substantial injustice would result if I refuse leave to appeal. 30 In his reasons for decision, Finkelstein J said that he would be guided in his disposition of the leave application by three factors. The first was that nothing should be done to jeopardise a timely trial of the case, unless that outcome would cause injustice. The second was that he would not insist upon perfect pleadings; but he would not force a defendant to defend a claim which is so badly pleaded that it would cause the defendant to suffer serious injustice, such as where the defendant could not understand the nature of the case that is being pressed or the case is obviously hopeless. The third factor was that he would avoid expressing even tentative views on the merits of the proposed claims, except to the extent that it is necessary to do so in order to strike out any part of the claim that had no real prospect of success. 31 The applicants submitted that Finkelstein J departed from the legal principles that ought to govern the grant of leave to file an amended cross claim. First, and most fundamentally, they submitted that Finkelstein J disregarded the rules of pleading and instead applied an erroneous principle to the effect that he would only refuse leave if the amended cross claims were so badly pleaded that they would cause the cross respondents to suffer serious injustice. 32 In its written submissions, Baker & McKenzie submitted that the correct starting point is that 'a pleading is liable to be struck out if it is liable to prejudice the fair trial of the proceeding by not disclosing the case to be put at trial'. It developed this argument by submitting that Finkelstein J failed to give proper weight to Baker & McKenzie's position in applying this basic requirement. It argued that the pleading was not framed with sufficient particularity, and that Finkelstein J failed to deal with the detailed arguments advanced by Baker & McKenzie as to the deficiencies in the pleading. The gravamen of the submission was that Finkelstein J erred in that he was prepared to tolerate defects in the pleadings, so long as they did not occasion substantial or serious injustice. 33 Munro advanced the same basic argument. It also submitted that, instead of applying proper pleading principles, Finkelstein J applied the strike out test of whether the pleading was obviously hopeless. 34 I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ( 'Akhil' ) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.


case_text: The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'Décor' ) at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 ( 'Brilliant' ). The key considerations are: (1) whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong. Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 583-585 [42] - [45] .


case_title: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170


case_title: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564


case_text: An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence & Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ).


case_title: Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379


case_title: Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191


case_text: An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence & Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ). 47 The applicants have not made out a case that they will suffer substantial prejudice if the orders are allowed to stand: cf Auspine . Finkelstein J is presently on leave, and will resume the management of this case early in August 2006. I am not persuaded that there is any real difficulty in the applicants using the time between now and early August to prepare to meet the case that is put against them. If fundamental difficulties emerge that prevent the applicants being ready for a trial commencing in November 2006, they will be able to make further applications, as may be appropriate, to the trial judge upon his return from leave. 48 For the reasons set forth above, I refuse leave to appeal. I propose to dismiss each notice of motion. I will hear the parties on the issue of costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 27 July 2006 Counsel for the Plaintiff: Dr KD Hanscombe Solicitor for the Plaintiff: Maurice Blackburn Cashman Counsel for the First Defendant: GP Harris Solicitor for the First Defendant: Lander & Rogers Counsel for the Second, Fourth and Fifth Defendants: Susan Gatford Solicitor for the Second, Fourth and Fifth Defendants: Lewis & Weir Counsel for the Third Defendant: There was no appearance for the Third Defendant Counsel for the Sixth Defendant: There was no appearance for the Sixth Defendant Counsel for the Seventh Defendant: There was no appearance for the Seventh Defendant Counsel for the Eighth Defendant: PG Cawthorn Solicitor for the Eighth Defendant: Moray & Agnew Counsel for the First Cross Respondent: There was no appearance for the First Cross Respondent Counsel for the Second Cross Respondent: MW Shand QC and K Lyons Solicitor for the Second Cross Respondent: Hunt & Hunt Counsel for the Third Cross Respondent: CM Caleo Solicitor for the Third Cross Respondent: Ebsworth & Ebsworth Date of Hearing: 21 July 2006 Date of Judgment: 27 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/944.html


case_outcome: followed

case_text: In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 ( 'Wati' ) at 554-555, the Full Court held that it is the Court, not the applicant, that has the ultimate authority to determine whether an application for leave to appeal should be determined by a single judge or a Full Court. The Full Court observed that where an application for leave to appeal is listed before a single judge, it is open to the applicant to ask the judge to consider referring it to a Full Court. But in those circumstances it is for the judge to determine whether the matter is more appropriately dealt with by him or her, or by a Full Court. 25 In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 at [13] , Drummond J (Cooper and Dowsett JJ agreeing) referred to the passage in Wati at 554 and said: 'That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application.'


case_text: In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 at [13] , Drummond J (Cooper and Dowsett JJ agreeing) referred to the passage in Wati at 554 and said: 'That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application.'


case_text: French J referred to and applied these principles in Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 218 ALR 274 at 280-282 [28]-[32]. French J added that s 25(2)(d) of the FCA leaves it open to a single judge before whom the matter is listed to direct that it be determined by a single judge or to refer it to a Full Court, subject to the authority of the Chief Justice to determine finally whether the matter should be heard by a Full Court: at 280 [28].