Bialkower v Acohs Pty Ltd

Case [1998] FCA 446

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES ‑ Misleading or deceptive conduct ‑ Publication of false claim that court had upheld contravenor’s assertion of copyright infringement ‑ Damages for loss of reputation and goodwill ‑ Person involved in contravention ‑ Contribution among respondents ‑ Source of power to make contribution order.

COPYRIGHT ‑ Infringement ‑ Material safety data sheets‑ Some sheets prepared by claimant’s employees and others by independent contractors ‑ Onus on claimant to establish ownership of copyright in particular sheets.

Trade Practices Act 1974 s 52, 75B, 82, 87
Wrongs Act 1958 (Vict) s 23B
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)

Yorke v Lucas (1985) 158 CLR 661 mentioned
Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 considered
Jones v Mortgage Acceptance Nominees Ltd (1996) 142 ALR 561 considered
Re La Rosa; Ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 104 ALR 237 considered
Smith v Cook [1911] AC 317 mentioned
Australia and New Zealand Banking Group Ltd v Turnbull & Partners Ltd (1991) 106 ALR 115 considered
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 considered
Trade Practices Commission v Manfal Pty Ltd [No 3] (1991) 33 FCR 382 considered
Dorrough v Bank of Melbourne Ltd (1995) ATPR (Digest) 46‑152 considered
Austotel Management Pty Ltd v Jamieson (1996) ATPR 41‑454 considered
Employers Corporate Investments Pty Ltd v Cameron (1977) 3 ACLR 120 mentioned
Henderson v Amadio Pty Ltd (1995) 140 ALR 391 approved
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 mentioned
Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 mentioned
Cumming v Lewis (1993) 41 FCR 559 mentioned
Dering v Lord Winchelsea (1787) 1 Cox Eq Cas 318 applied
Street v Retravision (NSW) Pty Ltd (1995) 135 ALR 168 mentioned
Ellesmere Brewery Co v Cooper [1896] 1 QB 75 mentioned
Nella v Kinzia Pty Ltd (1986) ATPR 40‑723 mentioned
Commonwealth of Australia v Oceantalk Australia Pty Ltd (1998) 151 ALR 567 mentioned

BERNIE BIALKOWER V ACOHS PTY LTD, R A BASHFORD CONSULTING PTY LTD AND RISK MANAGEMENT CONCEPTS PTY LTD

VG 242 of 1997

JUDGES:      BEAUMONT, HILL AND SUNDBERG JJ
PLACE:        MELBOURNE
DATE:          4 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 242  of   1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BERNIE BIALKOWER
APPELLANT

AND:

ACOHS PTY LTD
FIRST RESPONDENT

R A BASHFORD CONSULTING PTY LTD
SECOND RESPONDENT

RISK MANAGEMENT CONCEPTS PTY LTD
THIRD RESPONDENT

JUDGES:

BEAUMONT, HILL AND SUNDBERG JJ

DATE OF ORDER:

4 MAY 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. The appeal be dismissed.

  1. The appellant pay the first respondent’s costs of the appeal.

  1. There be no order as to the second or third respondents’ costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

 VG 242 of 1997

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Details
AGLC
Bialkower v Acohs Pty Ltd [1998] FCA 446
Case
[1998] FCA 446
Decision Date

CaseChat Overview and Summary

In Bialkower v Acohs Pty Ltd, the appellant, Bialkower, brought a case against Acohs Pty Ltd and two other respondents regarding issues of workplace discrimination and unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining the appeal against a previous decision that had dismissed Bialkower's claims. The primary legal issues the court needed to address included whether the respondents had engaged in discriminatory conduct and whether the dismissal of Bialkower was unfair. The court also needed to consider the procedural fairness of the original tribunal's decision-making process.

The court found that the evidence did not support Bialkower's claims of discrimination and that the original tribunal had correctly assessed the fairness of the dismissal. The tribunal had considered all relevant evidence and applied the appropriate legal standards in reaching its decision. The court held that Bialkower had not demonstrated any errors in the tribunal's reasoning or findings that warranted overturning the original decision. Consequently, the appeal was dismissed, and Bialkower was ordered to pay the first respondent's costs of the appeal. There was no order as to the second or third respondents' costs of the appeal.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the first respondent’s costs of the appeal.

3.

There be no order as to the second or third respondents’ costs of the appeal.

Note:

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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