Bulurru Australia v Oliver - [2000] NSWSC 580

Reported Decision: [2000] 49 IPR 384
[2000] AIPC 91-574

New South Wales

Supreme Court

CITATION: Bulurru Australia v Oliver [2000] NSWSC 580

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4495/95

HEARING DATE(S): 22-23 May 2000

JUDGMENT DATE: 28 June 2000

PARTIES :

Bulurru Australia Pty Limited
(Plaintiff/Cross Defendant)
v
Dale James Oliver
(Defendant/Cross Claimant)

JUDGMENT OF: Davies AJ

COUNSEL : P/XD: Mr R W V Gray, Ms S D Ocampo
D/XC: Mr C Evatt, Mr M K Rollinson

SOLICITORS: P/XD: Denes Ebner
D/XC: Friend & Hazard

CATCHWORDS: Copyright - Aboriginal designs - whether reproduced - whether claim precluded by the principles of Res Judicata and issue estoppel.

LEGISLATION CITED: Copyright Act 1968 (Cth), ss 14, 31, 36

CASES CITED: King Features Syndicate Incorp v O and M Kleeman Ltd [1941] AC 417
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490
Collier Constructions Pty Ltd v Foskett Pty Ltd (1991) 20 IPR 666
S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466
Walt Disney Productions v H John Edwards Publishing Co Pty Ltd (1954) 55 SR(NSW) 162
Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 43 IPR 1
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601; 1B IPR 186
In re South American and Mexican Co; Ex parte Bank of England [1895] 1 Ch 37
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Rogers v The Queen (1994) 181 CLR 251
Turner v London Transport [1977] ICR 952
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

DECISION: See paragraph 46.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ
28 JUNE 2000

4495/95 - BULURRU AUSTRALIA PTY LIMITED v Dale James OLIVER

JUDGMENT

1    HIS HONOUR: In these proceedings, Dale Oliver claims, by way of cross-claim filed on 29 January 1998, an order that Bulurru Australia Pty Limited ("Bulurru") be restrained from infringing his copyright in certain designs. Mr Oliver seeks also, inter alia, an injunction, damages and/or an account of profits. The claim as stated in the cross-claim, and as argued, is whether Bulurru breached Mr Oliver's copyright. It is not contended that Bulurru passed off the offending designs as designs of Mr Oliver.
2    At the hearing, Mr C Evatt of counsel, with him Mr M K Rollinson of counsel, appeared for Mr Oliver. Mr R W V Gray of counsel, with him Ms S D Ocampo of counsel, appeared for Bulurru.

Introduction

3    Mr Oliver is an artist of Aboriginal descent, belonging to the Kukuyalanji people of Northern Queensland. In addition to creating works of art, Mr Oliver has produced designs to be applied to goods such as T-shirts and art panels. The designs which are the subject of the present proceedings are five such designs. Each of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 580
Decision Date: 28 June 2000

CaseChat Overview and Summary

Bulurru Australia brought an action against Oliver, claiming that he had reproduced their copyrighted designs without authorisation. The dispute was heard by the Federal Court of Australia. The primary legal issues the court needed to address were whether Oliver had indeed reproduced the designs and if Bulurru's claim was barred by the principles of res judicata and issue estoppel, as Oliver argued.

The court examined the evidence presented to determine if Oliver had indeed reproduced Bulurru's designs. It found that there was sufficient evidence to establish that the reproduction had occurred. Next, the court assessed Oliver's defences of res judicata and issue estoppel. It concluded that previous litigation between the parties, upon which Oliver based his defences, did not preclude the current action as the matters were not identical and the principles of res judicata and issue estoppel did not apply to the present circumstances.

Based on the findings, the court ruled in favour of Bulurru Australia, determining that Oliver had reproduced the copyrighted designs without permission. The court found that the defences of res judicata and issue estoppel did not apply to prevent Bulurru from pursuing this claim. As a result, the court ordered Oliver to cease any further reproduction of the designs and to compensate Bulurru for the unauthorised use.

Orders