Hurley, Thomas --- "Debasing music" [1997] LawIJV 50; (1997) 71(2) The Law Institute Journal 55

• Debasing Music

Debasing Music

by THOMAS HURLEY

Copyright - whether copy debases the work.

❑ Schott Musik International GMBH v Colossal Records of Australia P/L (unreported, NG 743/95, 26 November 1996, Tamberlin J).

Tamberlin J considered whether a "techno" dance music remix of the "0 Fortuna" chorus from Carl Orff's work "Carmina Burana" "debases" the original work within s55(2) of the Copyright Act 1968 (Cth).

Copyright - infringement - liability of director of corporate infringer.

❑ Microsoft Corp v Auschina Polaris P/L (unreported, NG 592/95, 6 December 1996, Lindgren J).

Lindgren J considered when directors of a corporation which had infringed copy-right would be personally liable for breaches of copyright by the company.

Copyright - remedies - election.

❑ Led Builders P/L v Eagle Homes P/L (unreported, NG 817/93, 12 December 1996, Lindgren J).

Lindgren J considered whether the owner of copyright may defer electing between the remedies of damages or an account of profits until after the reasons for judgment, after further hearing, after discovery by the respondent or at all.

Defamation - privilege - article in consumer magazine.

❑ Bowin Designs P/L v Joyce (unreported, NG 758/92, 6 December 1996, Lindgren J).

Lindgren J considered whether the defence of qualified privilege was available to the publisher of the magazine of a consumer organisation in respect of an article dealing with a potentially dangerous product and whether a reply of malice was established. He further considered the extent of the exclusion of liability of prescribed publications by s65A of the TPAct.

Post office - services reserved to Australian Postal Corporation.

❑ Australian Postal Corporation v Street-file P/L (unreported, VG 130/95, 6 November 1996, Northrop J).

By s29(1) the Australian Postal Corporation Act 1976 (Cth) gives Australia Post the exclusive right to carry letters within Australia; by s30(1)(c) the reserved services do not include the carriage of news-papers, catalogues or leaflets; and by s31(1) Australia Post may obtain an injunction from the Federal Court where its exclusive rights are impinged. Northrop J found that the respondent had delivered a compact disk pack of documents to various addresses, and other catalogues, in contravention of the Act. Northrop J entered judgment for the applicant in the sum of $2691.83 of which $486.50 was interest.

Trade practices - supply of goods in contravention of prescribed consumer safety standard - promotional distribution of sunglasses by hamburger chain.

❑ ACCC v Hungry Jack's P/L (unreported, WAG 163/96, 5 November 1996, Carr J).

Carr J concluded the respondent had breached a consumer product safety standard prescribed for sunglasses under s65E of the TPA and accepted the respondent's offer to provide specified corrective advertising.

Trade practices - misleading and deceptive conduct - overall impression.

Telstra Corp v Optus Communications P/L (unreported, VG 677/96, 22 November 1996, Merkel J).

Merkel J concluded a television advertisement which may not contain an inaccurate representation when its constituent parts are considered separately might yet be misleading or deceptive contrary to s52 of the TPA because of the first impression conveyed.

Trade practices - damages - disappointment.

❑ GIO Australia Holdings Ltd v Marks (unreported, NG 168/96, 21 November 1996, FC).

A Full Court considered the operation of the decision in Gates v City Mutual [1986] HCA 3; (1986) 160 CLR 1 that relief under the TPA does not extend to damages for disappointment expectations. The Court considered what relief should be given to applicants who were misled by promotional material into believing the interest on a finance facility was fixed where the contractual documents provided for it to be varied when there was no evidence the applicants could have borrowed more cheaply elsewhere.

Trade practices - misleading conduct - misleading offer of employment.

❑ Callinan v Gilro-ERG P/L (unreported, VG 308/94, 15 November 1996, O'Loughlin J).

O'Loughlin J concluded the applicant had been misled and deceived contrary to s52 of the TPA by his prospective employer and was entitled to damages including damages for future loss of income for the balance of the term of the contract of employment.

Corporations - oppression - family company - cross-vesting to Family Court.

❑ Roff v Aqua Distributors P/L (unreported, TG 3014/96, 7 November 1996, Merkel J).

Merkel J ordered that a proceeding in the Federal Court seeking under s260(a)(i) Corporations Law that a company owned by members of a family be wound up on the grounds of oppression, unfair prejudice and deadlock be cross-vested to the Family Court where proceedings for the dissolution of the relevant marriage were on foot.

Contract - repudiation - whether appointment of administrator under deed of company arrangement amounts to repudiation.

❑ Smith v Deputy C of T (unreported, SG 37/96, 22 November 1996, FC).

A Full Court concluded the primary judge had erred insofar as she had accepted that the appointment of an administrator, in itself, amounted to repudiation of a compromise agreement between the subject company and a creditor. The Full Court rejected the invitation to determine for itself whether the appointment of the administrator in the particular circumstances of the case, where payments under a compromise agreement were already outstanding, represented conduct intimating an intention to abandon and refuse to perform the contract.

Corporations - examination - validity of notice.

❑ ASC v Avram (unreported, VG 398/96, 21 November 1996, North J).

North J concluded that a notice under s19 of the ASC law requiring a person to appear for an examination in respect of a company was valid. He rejected a submission that the notice was too broad in that it was concerned with "the management of the affairs" of the company, that the notice failed to identify the conduct being investigated under s229(3) of the Corporations Law or that it failed to identify the persons suspected of acting in breach of s229(3). He ordered the respondent appear for examination.

Corporations - deed of arrangement - priorities - industrial instrument.

❑ Irving v Construction Industry Long Service Leave Board (SA) (unreported, SG 3023/96, 20 November 1996, O'Loughlin J).

O'Loughlin J concluded that the decision in Re E&L Constructions Pty Ltd (In Liq) (1981) 5 ACLR 778 compelled the conclusion that the CILSLB of SA was not entitled to priority as an unsecured creditor in respect of money due pursuant to a statutory levy relating to employees' long service leave entitlements.

Corporations - whether court may make winding up order of company subject to winding up order.

❑ Dewina Trading SDN BHD v Ion International P/L (unreported, NG 3348/96, 29 November 1996, Moore J).

Moore J concluded a court does not have power to make an order winding up a company when another court has already made such an order.

Private international law - arbitration clause - charter party.

❑ Hi-Fert P/L v Kuikiang Maritime Carriers Inc (unreported, NG 778/96, 12 December 1996, Tamberlin J).

Tamberlin J ordered that an application concerning a charter party which had an arbitration clause be stayed. He concluded the dispute arose from the charter party and it would be convenient if all disputes were heard together. He concluded this result was not prevented by sll(2) of the Carriage of Goods by Sea Act 1991 (Cth) nor the International Arbitration Act 1974 (Cth).

Migration - Refugee Review Tribunal - breach of procedure.

❑ Singh v Minister for Immigration (unreported, VG 193/95, 21 November 1996, North J).

North J concluded that the procedures of the RRT did not require it to obtain psychiatric assessment when a claimant for refugee status asserted he was unable to recall the exact circumstances of the torture.

Evidence - legal professional privilege - waiver.

❑ Wenkart v AFP (unreported, NG 106/95, 11 November 1996, Branson J).

Branson J concluded that certain pieces of advice given to medical practitioners concerning the incorporation of a pathology practice were subject to legal professional privilege which had not been waived, in relation to the pre-incorporation principals, by the liquidator of the subsequently formed company. ■

Thomas Hurley is a member of the Victorian Bar.