Avel Pty Ltd v Multicoin Amusements Pty Ltd

[1990] HCATrans 141

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BlS of 1990

B e t w e e n -

AVEL PTY LTD

Appellant

and

MULTICOIN AMUSEMENTS PTY LTD

First Respondent

BRITISH AMUSEMENTS (NORTH COAST)

CORPORATION PTY LTD

Second Respondent

MASON CJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Avel(2)

TRANSCRIPT OF PROCEEDINGS

AT BRIS;J3ANE ON . TUESDAY, 2(:) JUNE 1990, AT 3. 37 PM

Copyright in the High Court of Australia

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MR P.H. MORRISON, QC:  May it please the Court, I appear with

my learned friend, MR D. JACKSON, for the appellant.

(instructed by Chambers McNab Tully & Wilson)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR K. KILVINGTON, for the

respondents. (instructed by Greg Kelly & Company)

MASON CJ:  Yes. Mr Morrison.

MR MORRISON:  Your Honours, this is an appeal from the Full

Federal Court sitting in turn on appeal from the Supreme Court of Queensland and the decision of

Mr Acting Justice Helman. The appeal is pursuant

to special leave which was granted on 6 April and
the Full Federal Court judgment was handed down on

20 December. Can I, immediately before handing to

Your Honours an outline of our submissions, outline

a couple of the more salient factual features of

the case for we submit that not many facts will

clutter Your Honours' decision in this case.

The appellant, Avel, is an importer and distributor

of what was called in the case, "amusement games";

this being a compendious term to refer to "pin-ball

games" as we might classically know them and

"video parlour games" of some other sort. In 1986 it

and the manufacturer of those games in the United

States - a company which, by Your Honours' leave , I will

simply call "Williams" - it and Williams executed a

contract under which the appellant was granted
exclusive rights for Australia; exclusive not only of

other potential competitors but of Williams as well.

Under that agreement, which was current at all

material times for the purposes of this action, the

appellant received supplies of various models of

the games that were comprised within the agreement - there

are only really two relevant to this appeal and their

identities will not trouble Your Honours greatly.

It is common ground and really was at all times

that there is copyright in the machines that were
brought out to my client;	a copyright vesting in

the owner, Williams. The copyright consisted in the

artwork on the machine itself that one could see and the computer programmes which ran them. It may have

subsisted in our other factors but it is not material

for this case. In respect of each new model of

machine that was made by Williams the appellant was

given the same rights for that model by that model

being incorporated under the agreement by an addenda.

The structure of the agreement was a central agreement

giving rights and obligations and then identifying the

subject of that agreement by addenda - I think there

were 14 in total over a period of time.

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Under that agreement the appellant was the first

person in Australia to receive and sell each of the

models in question. In 1987 the respondents, then

under the control of a person called Mr Ditton, whose

name may recur, imported 14 machines; not models -

machines which were covered by the appellant's

agreement. They advertised that importation and the

appellant responded by counter-advertising its rights

and threatening to institute proceedings against an

infringer. That really was the genesis of the dispute

between the parties. The dispute over that importation

was compromised and will not trouble Your Honours.

In April 1987 the respondents sought distribution rights from the owner in the United States, that is,

Williams. They were refused. In September 1987 a

like attempt was made to secure distribution rights

from the owner in the United States and that also was

refused. Notwithstanding that, in November 1987 the
respondents ordered another shipment of machines.

The appellant heard about it and again made threats

of proceedings against the respondents if they did

import. At about the same time the respondent sought

some information from the owner in the United States

as to the nature of the agreement between it and my

client, the appellant. They were referred by the

owner back to my client as being the only distributor

and, therefore, the person to respond.

In any event, the respondents cancelled their

order and in June 1988 commenced the action which is

the subject of this appeal under section 202 of the

COPYRIGHT ACT. The relief sought in that action was,

relevantly, a declaration that the threats were

unjustified; an injunction to restrain repetition of

the threats and some damages. The appellant

counter-claimed in the.1.action for a declaration that the threats were justified and its own injunction to restrain importation of machines or models that might

infringe my client's rights. At trial, Acting

Justice Helman held that the threats were justifiable

to all models of machines except one called

"Hi-speed". It probably will not be necessary to
come back to that name in this appeal.	The reason

was that "Hi-speed" pre-dated the 1986 agreement and

was not comprehended in an addenda.

Multicoin ended up with a judgment before

Acting Justice Helman worth about $23,000-odd.

His Honour found two relevant features: firstly,

that there was an exclusive licence in favour of my

client; and, secondly, that the appellant - my client -

had proven the absence of a licence to import the

machines and an absence of a licence under section 37

of the COPYRIGHT ACT. Your Honours will be taken

shortly to some of the central questions in the appeal;

one of which is where the onus of proof lies under

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the COPYRIGHT ACT and, in relation to a licence, what

has to be shown. We point out that the trial judge

made a specific finding regardless of where the onus

might lie,that my client had proved the absence of

the licence. In the Full Federal Court the decision

turned, in terms of whether there was an exclusive

licence, solely on a matter of construction and that

was, said Their Honours in the Full Court, that the

agreement relates only to the individual machines,

not the models. So that it was only individual

machines that might be caught and for that reason

only, as they found, it was not exclusive in terms of

the machines the respondents wished to import.

They found also that the onus of proof in relation

to the licence which is required under section 37 to
avoid infringing section 37, the onus of proof was on
my client to demonstrate that there was no licence;

not on the importer to show that there was one under

which he could import. Their Honours in the

Full Federal Court went further than that and found

that the onus was one whereby my client was obliged

to negative the existence of a licence. Your Honours,

if I could put it in a nutshell, the evidence at the

end of this trial was exactly the same in terms of

its import as the evidence in the TIME-LIFE case to

which I will take Your Honours and also the

COMPUTERMATE case to which I will take you as well.

That is, there was a sale in America with no

restriction on resale and Their Honours found on the

basis of an onus and the nature of an onus which

would have the result, we will be submitting to

Your Honours, having completely reversed the

TIME-LIFE case if it was the correct approach.

Your Honours, the central questions then, in the appeal,are: is there an onus on the appellant

in relation to the licence under section 37; is

that onus one to negative the existence of a licence;

regardless of the onus, did the evidence show a

positive licence or not, under section 37; and, is

its construction in relation to models of machines?	the agreement limited to individual machines or is
I should say at this point, Your Honours, that in
the notice of appeal in ground (f) is a ground
relating to a finding as to damages by the Full Federal Court. We will not be pressing that ground.
Can I hand up, Your Honours, the outline of our
submissions? Is it convenient if I pause for a
moment to allow Your Honours time to read that?

MASON CJ: It would be.

MR MORRISON:	Thank you, Your Honour.
MASON CJ: Yes.

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MR MORRISON:  Your Honours, can I take you, before I go

directly to the outline, to the legislation - which I

am sure Your Honours have a copy of - and section 37

firstly, which provides that:

The copyright -

if I may paraphrase, in a work -

is infringed by a person who, without the

licence of the owner of the copyright,

imports an article into Australia for the

purpose of ..... sale ..... by way of trade .....

where, to his knowledge, the making of the

article would, if the article had been made

in Australia by the importer, have constituted

an infringement of the copyright.

Your Honours will not be troubled by the last

part of the section. "Knowledge" was found by

Acting Justice Helman and has not been the subject

of any challenge since; "that the articles would

have infringed" is also not the subject of challenge

as it is common ground that there was copyright in

them vesting in Williams who has the protection of
the international conventions. The central feature,

then, is that copyright is infringed by a person who

imports without the licence of the owner and it is

the licence of the owner that matters for this case.

Then can I take Your Honours to section 202

which was the section under which this action was

brought by the respondents?

Where a person -

again I paraphrase -

threatens -

another -

with an action or proceeding in respect of an

infringement of copyright, then ..... a person

aggrieved may bring an action against -

that -

person and -

get -

a declaration to the effect that the threats

are unjustifiable, and an injunction -

and -

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damages ..... unless the first-mentioned person -

that is, the threatener -

satisfies the court that the acts -

did infringe. Subsection (4) is relevant also. Where

there is a counter-claim, as there was here:

for relief -

that the defendant -

would be entitled in a separate action -

as it was here -

the provisions of this Act -

otherwise apply -

mutatis mutandis, in relation to the action.

Your Honours, can I take you to the Full Court's reasons which cormnence at page 361, in appeal

volume 2. The first part of the reasons sets out

background facts and we pause, very briefly, to note

at the bottom of page 363, one of the curiosities of the findings, in the last four lines, that the Full Court found that the agreement was applied to

models of machines. I will take Your Honours back to

that when we come to the construction point. What

follows, through to pages 7 and 8 are, basically,

factual matters of the background of the case and

page 9 of the reasons, page 369, section 202 is set

out. Your Honours will see at the next page,

page 370, the nature of the relief claimed and

counter-claimed. I pause briefly to identify where

it is. It is largely to the effect that I outlined

to Your Honours before.

Can I take Your Honours over then to page 16 of the reasons, page 376 of the book, where, under the

heading, Proof of Infringement of s. 37,

Their Honours started to deal with the first point

in our outline:  the onus point. As they point

out, at line 45, their finding was:

failed to demonstrate any infringement.

They then set out section 37 and at page 378 of the

record they deal with what might be called more the

substance of it. They make a reference to the

TIME-LIFE case, observing, at line 15:

that the word "licence" meant no more than

consent, and that a licence need not be a

formal grant but ..... orally or implied -

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and they cite the references there. It is the

next passage which, we submit, is in error:

The onus of negativing consent lies upon

the party who asserts infringement, e·nn

in a case in which the alleged offender

is the moving party -

and a passage from COMPUTERMATE PRODUCTS is there

referred to. I should take Your Honours directly

to that to make the point shortly that we make in

the outline that the passage referred to, in our

respectful submission, is authority for no such

thing. In COMPUTERMATE PRODUCTS, (1988) 20 FCR 46,

Their Honours were dealing with a factual situation

almost identical with TIME-LIFE an4we will be

submitting to Your Honours, almost identical with

the situation here, that is to say, a sale overseas

without restriction on resale and importation into

this country. Page 48, about point 6 of the page

is the passage commencing:

The appellant submitted to us that, in the circumstances of the case, s 37 did not

apply -

and then half-way down that paragraph is a sentence

which seems the only sentence to justify the decision

of the Full Federal Court below:

We should add that on its face, s 37 places

upon the applicant for relief the burden of
showing, inter alia, the absence of a licence,

rather than placing upon the other side the

burden of showing a licence.

We pause to observe that there is nothing in that sentence referring to negativing the existence

of a licence at all, merely demonstrating the

absence of one. Indeed, that is consistent with

the passage at page 49 at the end of the first

paragraph there. That is to say, at about point 2,

the last sentence: 

The result was that the expression "without

the licence of the owner of the copyright"

ins 37 was simply a reference to the absence

of the owner's "consent" or "permission" or

"licence" as inter-changeable terms.

There is nothing there about "negativing" the

existence of the licence. We submit to

Your Honours that there is no other authority that we can certainly detect which would suggest any

more than what has to be shown is the absence of a

licence, leaving aside who has to show it, not the

negativing of the existence of a licence and that

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Ave1(2)

seems to be the only justification for Their Honours

finding at page 378. They go on:

A fortiori that is the position -

is stronger under section 202 and we will come back

to that point shortly. At page 379 they continue:

The submission of the present appellants is

that no evidence was offered at the trial

that the importation and sale of -

can I interpolate - the machines -

were, or would be, acts which lacked the
consent of Williams. There was no admission

of lack of consent ..... No evidence was called

from ..... Williams -

and there was a successful objection to some

correspondence. Then at the end of that paragraph,

at page 379, is the part that, we submi 4 demonstrates

the error in Their Honours' approach. It is the

last two sentences:

The simply position is that there was no

evidence before the trial Judge that Williams
had not consented to the importations. Avel

failed to make out its case under ss.37 and 38.

Can we pause to note, Your Honours, that the

factual position that they record there is

precisely the factual position that was in TIME-LIFE

and COMPUTERMATE. There was, in both of those cases,

no evidence that the owner had not consented to the

importations. If this is the true test, TIME-LIFE

should have been decided completely the opposite way

and so should COMPUTERMATE. So, we submit to

Your Honours that, with respect, Their Honours in
the Full Federal Court have really ignored the test
of what has to be shown in relation to licence

and reversed it as well.

Can we return to section 37 and paragraph 1 of

the outlin~ because the question of these two matters
are linked, to make the point, if we may, to

Your Honours, that section 37 does not place the onus on my client; it places the onus on he who asserts he

has a licence. Section 37, as Your Honours will have

seen, is cast in terms that we would respectfully

submit read like this: that you cannot import in a

situation where it will infringe, unless you have

the licence of the owner. It is for, in our

respectful submission, the person who asserts he is

permitted to bring in an article that would otherwise

infringe, permitted by a licence to show that licence.

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Can we take Your Honours to VINES V DJORDJEVITCH,

(1955) 91 CLR 512 - it is the first case mentioned in

our outline - to demonstrate what we say are the

principles. The passage is the oft-cited one,

_pages 519 to 520.

(Continued on page 10)

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MR MORRISON (continuing):  There the Court was dealing with

the distinction between a proviso in a statute

and an exception and pointing out that it is a

technical one. Then at about point 3 of the page

to the bottom, they point out that the

distinction is less technical now - it depends

upon not so much form as substance:

Of course, it is a matter of the

intention -

of the legislature:

whether the form is that of a proviso
or of an exception, the intrinsic
character of the provision that the

proviso makes and its real effect cannot

be put out of consideration in

determining where the burden of proof

lies.

And, it is the passage at the bottom of the page to

which we would particularly take Your Honours,

about 10 lines from the bottom commencing:

But in whatever form the enactment

is cast, if it expresses -

relevantly excuse or justification then the

burden is upon:

the party seeking to rely -

on it. In our submission, that is the form of

section 37 where it says without the licence,

it is really casting on the import of the onus as

showing that he has the licence.

McHUGH J:  I must say I have some difficulty following that.

If an action is brought for infringement under

section 115 by the owner of a copyright and he

alleges a breach of section 37, he would have to

prove that the defendant had imported the article

for one of the relevant purposes and so on and

surely it is part of what the owner would have to

demonstrate was that it was done without his licence.

MR MORRISON:  Or the owner's licence. That action could

be brought in the absence of the owner but by an

exclusive licensee.

McHUGH J:	Yes, by an exclusive licensee.
MR MORRISON:	And, that is one of the reasons why, we

submit, that the thrust of this is, as we submit, because in those actions where, for instance, the

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Avel ( 2)

exclusive licensee for some reason or other

cannot get the agreement of the owner to join in

or, alternatively, cannot compel him to join in

because he is, for instance, in the United States

-and beyond the realm of a subpoena, then where

he is permitted by the Act to bring such an

action, he may not be in the position where he

can prove,in the way Your Honour has cast it, the

absence of a licence. It is really on the

importer, we submit, who says he has a reason to

bring it in to come forward. If he says he has

got a licence, he is obviously the best person to

know why.

McHUGH J:  He may be the best person but you have got to

prove an infringement. Let it be assumed it was

an action under section 115,

you have got to prove an infringement and the

definition of infringement is there in section 37.

MR MORRISON:  Can I answer Your Honour in two ways?

Were it the owner suing, obviously the owner would be able to say, "I didn't give my permission".

That is a different situation from here where it

is the exclusive licensee concerned. Where the

exclusive licensee is concerned, all he can say

is, probably, "I, the exclusive licensee didn't

give her permission" but he may not be in a position

to answer for the owner.

McHUGH J:  Well, he may not be but that is his bad luck.

He can call the owner or administer interrogatories.

DAWSON J:  But he does so. He is an exclusive licensee.

MR MORRISON:  Quite. And that is one of the factors that

has been taken into account by courts as indicating

the absence of a licence otherwise.

DAWSON J:  It says he has been given an exclusive licence

anyway.

MR MORRISON:  Yes, exactly. It is inconsistent with the

grant of a licence otherwise. Certainly, that
seemed to be the case of the Full Federal Court's

decision in COMPUTERMATE where they said that was

one of the relevant features.	I will take
Your Honours back to that.	Can I pass to the

passages that we set out - I am sorry, I should

make reference to LYNCH V ATTWOOD which is the

next case in the outline as an example of what we

submit. It is in (1983) 3 NSWLR 1. It is a

decision of Mr Justice Yeldham. There the statute

was the WATER ACT which provided:

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A person shall not, except with the permission of the Catchment Areas

Protection Board -

do certain things. So, a person shall not, as

it were, without the permission, we would say,

do certain things. His Honour held that:

the burden of proof lies with the

defendant who is prosecuted ..... to prove

that he has the necessary permission.

We would say that is a very apposite case to

this. At page 4 of the report His Honour sets out

the passage that I have taken you to in

VINES V DJORDJEVITCH and then, though I do not

wish to take you to them particularly, at

pages 5 and 6 refers to a number of examples of

cases where the statute provided no person shall

do something except or without a permission or a

consent and they include the cases KIRKPATRICK

and on page 6, OLIVER's case, WIMBORNE, EVERARD,

ZIS V BLAND, and EDWARDS.

McHUGH J:  Well, I notice on page 5 they refer to

RODDY V PERRY (NO 2) in 58 SR - have you had a

look at that case?

MR MORRISON:  No, I have not gone to it specifically,

Your Honour.

McHUGH J:  Well, you might have a look at it because that

is a case where there is a question of a definition

where the argument was who had - and there was an

exception in the definition and it was held that
the onus was on the prosecution to negative the

exception. It seems to me, at the moment, it is

against you.

MR MORRISON:  I will certainly look at that, perhaps overnight,

if I may, Your Honour. The passage that we wish

to draw Your Honours' attention to is at page 7

all of those examples, His Honour in the first and	of LYNCH V ATTWOOD where, after having referred to
second paragraphs - that is the first and second major paragraphs - came to the view that the onus
lay upon the defendant who was prosecuted to show
that he had the permit. We offer that as an
example to Your Honours which supports what we say
is the correct way to approach section 37.

DEANE J:  Where do you say the onus would lie in a

prosecution under section 132 for a section 36

infringement?

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MR MORRISON:  Your Honour, was that section 132, the first

section?

DEANE J:	Yes.
MR MORRISON:	I have to say immediately at the outset that

I have not looked specifically at section 132.

DEANE J:  Because there the prosecution must prove that

the person knew:

or ought reasonably to know, the article

to be an infringing copy of the work -

which means if it were a section 36 infringement,

you would have to prove that he knew or ought to

have known that he did not have the licence.

MR MORRISON:  My first reaction would be - though, can I say

this: that it is not the one I wish to stay with - - -

DEANE J:  Well, in that case, do not answer it now.

MR MORRISON:  Thank you, Your Honour. Can I answer it

tomorrow?

DEANE J:	Yes.
MR MORRISON:	Your Honours, there are passages, we submit,

in the TIME-LIFE case which seem at first blush

to support - when I say "seem", we submit they

do support our proposition. It is

INTERSTATE PARCEL EXPRESS CO PROPRIETARY LIMITED V

TIME-LIFE INTERNATIONAL (NEDERLANDS) BV, (1977)

138 CLR 534. In that case the Chief Justice agreed
with Mr Justice Stephen and at page 547 at the

bottom of the page are the two passages - in the

second-last sentence of the penultimate paragraph:

The appellant claims to have had an implied

licence from TIME INCORPORATED to deal

with the books as it wished, selling them

in whatever country it might choose. The appellant seeks to make out the

necessary licence.

It may be, of course, that the appellant chose

to do that in that case and His Honour no problem

with that approach. Then, at page 548 at the

middle of the page is the commencement of the

paragraph reading:

It is rather by recourse to the different

concept of a term implied by law as

inherent in the nature of the contract that
the appellant must seek to establish the

necessary licence.

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And at page 553 at the bottom of the page,

the commencement of the last paragraph on that

page:

As an alternative source for the

licence which the appellant must show,

it relies upon the implied warranty of

quiet possession.

Perhaps not inconsistently with all of those comments,

what appears at page 554 at about point 6 of the

page after the reference to Little, Brown & Company,

the next sentence:

It is the appellant's act of
importation that must be shown to have been

licensed and any implied licence -

and so forth and that in conjunction with the start
of the next paragraph:

The appellant has, in my view, failed to establish the existence of any implied licence.

McHUGH J:  These remarks have got to be read in a context

where the defendant is, in effect, saying, "Well,

I concede I haven't got a licence unless it's to

be found in these particular documents".

MR MORRISON:  I accept - that is why I said to

Your Honours that it may be that the appellant

took upon himself in that case the task. That is

not innnediately clear from the report by any

means and, as I say, it did not seem to occur to

Their Honours that that was either an inappropriate

or the wrong way to proceed. Can I take

Your Honours to page 556 of that report in the

decision of Mr Justice Jacobs and refer

Your Honours to about point 7 of the page, the

second sentence of the paragraph reading:

Section 37 can take effect according to

its terms in those cases where it is not

shown that the copyright owner

positively intended to grant a licence to import into Australia in commercial

quantities -

which would suggest the contrary to the Full Federal Court's

view below that the onus was to negative the

existence of a licence,in our respectful submission.

And then, in the following passage at about point 9

of that same page in the oft cited passage on

licence:

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But the section does not say that

importation for sale is allowed unless

a restriction to that effect has been

imposed. Importation is forbidden unless

a licence has been given.

We would submit, with respect, that that comment

casts the section in the way that we submitted to

Your Honours earlier.

(Continued on page 16 )

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MR MORRISON (continuing): Your Honours, at first instance

in the TIME-LIFE case, Chief Justice Bowen

expressed what we submit is something of a

very similar view. At page 14 of the report,

the only report that we know of, Your Honours, is

in(l976)12 ALR 1, copies have been provided to

Your Honours, and at page 14 - has it not

been, Your Honour?

MASON CJ: Apparently not, Mr Morrison.

MR MORRISON: 

I do beg your pardon, I am embarrassed, Your

Honours, I obviously thought it had got through
the machinery. It is perhaps the obscurity of the

reference that troubled us in finding it. At

first instance, at the top of page 14, is a

passage commencing:

They ordered the books and imported them into Australia -

that obviously referring to the people in the

respondent's position here, second line down to

about the 10th:

This constitutes an infringement of

copyright under section 37 if they

did so without the "licence" of the

owner of the copyright. So, too, would a

subsequent sale in Australia of the books be a breach of copyright under section 38

unless they had the "licence" of the owner

of the copyright. Their difficulty is to

show they have such a licence.

And so forth, which we again answer Your Honour

Justice McHugh' s earlier, it may be that the

appellant took upon himself, both at trial and otherwise, that task but that is not precisely

clear and we say that there is some support for

our position in relation to that.

McHUGH J: Well, usually if you are talking about construction

of a document or some implication by law from a

sale or something of that nature, talk about onus

is really irrelevant; it is really a question of

law that is invo 1 ved.

MR MORRISON:  But here, we submit that, particularly at the

end of this case where the evidence was no more

than showing that there was no restriction on

resale overseas. So, in other words, we end up

with the TIME-LIFE position. Why should the result

be any different from that in TIME-LIFE?

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McHUGH J: Well, it may be different because you have got an

implied admission from the defendant in the

TIME-LIFE. He says, by implication, I admit

_t have not got a licence unless it is found in

this document or in this sale or the implication

from this sale.

MR MORRISON: 

That may be so, Your Honours. We certainly do not

detect anything of that sort in our reading of the
cases both at first instance and on appeal, that

there was any such admission. It really was a

position that the party in the respondent's

position here simply could not demonstrate the

positive licence that was referred to by

His Honour Mr Justice Jacobs, on appeal.

The last reference that we have given Your Honour

on this point is to Sterling and Carpenter. We do so somewhat diffidently because it is a fairly bald

statement that seems to offer no authority for it.

.It says merely the onus is on them to	prove their
licence.	We include it for completeness, but we
include it	diffidently.

JvtASON CJ:	There is another passage on page 14 of Chief Justice Bowen's judgment, fourth-last paragraph
from the bottom of the page.
MR MORRISON:	Yes, Your Honour, I apologize I had in fact

marked that and I had not drawn Your Honour's specific

attention to it. We rely on that also. Your Honours,

can I, if I may, ask whether copies of Sterling have got

to you because we have been relying on our learned

friend's list; they have so generously included our

cases in their list. We rather hope that Sterling

has got to you.

McHUGH J: Well, perhaps they perceived what was in those cases

and decided not to supply them, Mr Morrison.

MR MORRISON:  That may be so, Your Honour, that may be so and

ultimately I may regret what I have just said but

just for the moment it seems to be so.

MR JACKSON:  Your Honour, if reliance is being placed on our

material I gather it is in those folders that

remain on the front of the bar table.

M!\SON CJ:· Yes.

MR MORRISON:  Your Honours, at page 2,at the top of the page,

this is the last point on this point, we postulate

a case where a plaintiff sues on th~ basis of .

unjustified threats, and ~he questions of exclusive

licence and breach of copyright are not in issue.

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Would not the person suing for an unjustified threat have to prove it was unjusitifed and in that case would not he have to show that he had

a licence, because in the absence of that, given

proposition which we advance and contrary to that which Their Honours in the Full Federal Court

the other factors, threats would be justified?

adopted.

McHUGH J:	But why would the plaintiff have to prove he had a licence?
MR MORRISON:	He would be the plaintiff under section 202,

not section 37.

McHUGH J: Yes, I know, but he does not have to prove that

he had a licence, it would be sufficient for him

to prove that you did not have a licence, would

it not?

MR MORRISON:  No, Your Honour, it would not, in our

respectful submission, because his importation

might infringe the owner's copyright in any event. course, would have no standing were he not an exclusive licensee so it would be the exclusive

licensee or the owner. The person making the

threats does not have to be in that class,

but the importation might infringe even though it

is not a right of the threatener that it migfit infringe

against. It might infringe against the owneL·s

copyright in any event.

MASON CJ:	Mr Morrison, it may be convenient now to adjourn.
MR MORRISON:	Yes, I was about to pass to a next point,

Your Honour.

MASON CJ:	We will adjourn until 10 o'clock tomorrow
morning.
AT 4.23 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 27 JUNE 1990

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