Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd

Aristocrat Technologies Australia Pty Ltd and others (the applicants) brought proceedings against Global Gaming Supplies Pty Ltd, Impact Gaming Pty Ltd, Tonita Enterprise Pty Ltd, and individuals associated with these companies (the respondents). The applicants alleged that the respondents refurbished and sold gaming machines that incorporated pirated copies of software and artwork in which the applicants held copyright, thereby infringing sections 36 and 38 of the *Copyright Act 1968* (Cth). The primary judge found that some of the impugned transactions involved gaming machines containing infringing components, inferring that the respondents had knowledge of the infringing conduct. The Full Court of the Federal Court later characterised the primary judge's use of certain email communications as evidence of a tendency to engage in infringing conduct, without explicit compliance with section 97(1) of the *Evidence Act 1995* (Cth).

The central legal issue before the High Court was whether the Full Court was entitled to conclude that the primary judge had relied on email communications as tendency evidence, notwithstanding that the primary judge had not explicitly used the term "tendency" or referred to section 97 of the *Evidence Act 1995* (Cth). The applicants contended that the primary judge's reasoning did not demonstrate a reliance on the emails to establish a tendency to infringe copyright.

The High Court considered that, despite the absence of explicit language, the inferences drawn by the primary judge regarding the respondents' sanctioning, approval, or countenance of copyright infringements by others were not directly linked to the specific infringing transactions. This suggested that the reasoning process, in part, involved discerning a pattern of behaviour or a disposition on the part of the respondents to deal with articles whose creation infringed the applicants' copyright. Consequently, the High Court found that it was open to the Full Court to characterise the primary judge's approach to the email evidence as based on the discernment of a tendency.

Special leave to appeal was refused in each matter, with costs awarded to the respondents. The High Court concluded that the Full Court's view of the primary judge's use of the email evidence was reasonably open and that the applications did not involve a question of law of public importance.