FEDERAL COURT OF AUSTRALIA
Acohs Pty Ltd v Ucorp Pty Ltd (No 2) [2012] FCAFC 67
Citation: Acohs Pty Ltd v Ucorp Pty Ltd (No 2) [2012] FCAFC 67 Appeal from: Acohs Pty Ltd v Ucorp Pty Ltd [2010] FCA 577 Parties: ACOHS PTY LTD (ACN 009 572 187) v UCORP PTY LTD (ACN 062 768 094) and BERNARD BIALKOWER File number: VID 506 of 2010 Judges: JACOBSON, NICHOLAS AND YATES JJ Date of judgment: 14 May 2012 Cases cited: Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 Date of hearing: Determined on the papers Date of last submissions: 16 March 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the Appellant: Mr G Dalton Solicitor for the Appellant: White Ellis Lawyers Counsel for the Respondents: Mr R Garratt QC with Mr P Wallis and Mr S Rebikoff Solicitor for the Respondents: Holding Redlich
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 506 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ACOHS PTY LTD (ACN 009 572 187)
AppellantAND: UCORP PTY LTD (ACN 062 768 094)
First RespondentBERNARD BIALKOWER
Second Respondent
JUDGES:
JACOBSON, NICHOLAS AND YATES JJ
DATE OF ORDER:
14 MAY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 1 and 2 made by the primary judge on 10 June 2010 are set aside.
3.The first respondent, whether by its servants, agents or otherwise, is restrained from, without the licence of the appellant/applicant:
(a)reproducing in a material form the whole or any substantial part of any of the copyright works;
(b)communicating to the public the whole or any substantial part of any of the copyright works; or
(c)authorising any other person to do any of the acts specified in paragraphs (a) or (b) hereof.
In this order “copyright works” shall mean any of the material safety data sheets listed as “Authored by ACOHS” in Annexure A and Annexure A1 to the Amended Particulars of Copyright Ownership dated 31 August 2009.
4.All outstanding issues (including the costs of the proceeding before the primary judge) are remitted to the primary judge for determination in light of this Court’s reasons for judgment.
5.The respondents are to pay to the appellant 70% of the appellant’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 506 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ACOHS PTY LTD (ACN 009 572 187)
AppellantAND: UCORP PTY LTD (ACN 062 768 094)
First RespondentBERNARD BIALKOWER
Second Respondent
JUDGES:
JACOBSON, NICHOLAS AND YATES JJ
DATE:
14 MAY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 2 March 2012 we delivered reasons for judgment in this matter: see Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16. In our reasons for judgment we indicated that, in our view, injunctive…
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- Case
- [2012] FCAFC 67
- Decision Date
CaseChat Overview and Summary
The court examined the primary judge's findings and the evidence presented, focusing on the nature of the material safety data sheets and their status as copyright works. It was held that the primary judge had erred in finding that the sheets did not constitute copyright works, as they were original and fixed in a material form. Consequently, the court allowed the appeal, setting aside the orders made by the primary judge and reinstating the copyright protection for the sheets. The court also imposed an injunction against Ucorp from reproducing or communicating the sheets without Acohs' licence and remitted the outstanding issues back to the primary judge for further determination.
The court's decision emphasised the importance of correctly identifying and protecting copyright works, even in the context of technical and informational materials. The respondents were ordered to pay 70% of Acohs' costs of the appeal, reflecting the significance of the infringement found by the court. The orders were made under the Federal Court Rules 2011, ensuring that the procedural aspects of the case were appropriately managed.
Orders
Orders of the court
1. The appeal is allowed.
2. Orders 1 and 2 made by the primary judge on 10 June 2010 are set aside.
3. The first respondent, whether by its servants, agents or otherwise, is restrained from, without the licence of the appellant/applicant:
(a) reproducing in a material form the whole or any substantial part of any of the copyright works;
(b) communicating to the public the whole or any substantial part of any of the copyright works; or
(c) authorising any other person to do any of the acts specified in paragraphs (a) or (b) hereof.
In this order “copyright works” shall mean any of the material safety data sheets listed as “Authored by ACOHS” in Annexure A and Annexure A1 to the Amended Particulars of Copyright Ownership dated 31 August 2009.
4. All outstanding issues (including the costs of the proceeding before the primary judge) are remitted to the primary judge for determination in light of this Court’s reasons for judgment.
5. The respondents are to pay to the appellant 70% of the appellant’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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