GIBBS C.J. This is an objection to the competency of an appeal brought in intended exercise of the right conferred by s.33(4)(b) of the Federal Court of Australia Act 1976 (Cth), as it was in force before its amendment in 1984. The judgment which was made by the Full Court of the Federal Court and from which the appeal is brought first restrained the respondents to the appeal in that Court (the present appellants) from infringing copyright and secondly restrained them from certain acts of importation. Both those orders for permanent injunctions were made quia timet. Then it was ordered that if the appellants in that Court wish to pursue claims for damages, they should file and serve on the respondents notice to that effect, whereupon the matter would be referred to Beaumont J. for findings on the evidence as it then stood in respect of the knowledge, if any, of the first respondent, including so far as relevant the evidence of the second respondent, of the matters mentioned in s.37 or s.38 of the Copyright Act 1968 (Cth), as amended. Finally, it was ordered that the appellants in that Court should bring in short minutes of orders to give effect to that Court's findings on the issues relating to the Trade Practices Act 1974 (Cth), as amended.

2. I do not find it necessary to express any opinion as to the nature of the last-mentioned order. What is plain is that the judgment of that Court comprised two orders which, viewed by themselves and apart from the rest of the judgment, were final orders, and one order which was plainly interlocutory. The result of the judgment as a whole was that some of the questions in issue in the case were determined and others were not. The question then is whether a judgment of that kind is a final judgment within the meaning of s.33(4) of the Federal Court of Australia Act, and s.35(3) of the Judiciary Act as they stood at the material time.

3. The test for determining whether a judgment is final, which has been laid down in a number of cases including Carr v. Finance Corporation of Australia Ltd. (No. 1) (1981) 147 CLR 246, is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment. So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings. And the answer is, plainly, that it did not, because it left undetermined the question whether any, and what, damages were payable. The conclusion that the judgment is not a final judgment is supported by a short passage from the judgment of Dixon C.J. in John Grant &Sons Ltd. v. Trocadero Building and Investment Co. Ltd. (1938) 60 CLR 1, at p 35, where his Honour said:

"The judgment of the Supreme Court did not determine the action, for the demurrers did not affect pleas to or replications in relation to all counts of the declaration. The judgment was, therefore, interlocutory, and this appeal did not lie without leave."

It is unnecessary, then, to consider the second point, on which we have not heard argument, whether the requisite amount was involved in the appeal.

4. I would, for these reasons, uphold the objection to competency.

MURPHY J. I agree.

WILSON J. I agree.

Orders

Objection to competency allowed with costs.

Details

AGLC: Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47
Case: [1984] HCA 47
Decision Date: 10 August 1984

CaseChat Overview and Summary

Computer Edge Pty Ltd (Computer Edge) and others were sued by Apple Computer Inc (Apple) for alleged infringement of copyright in Apple's operating system software for its Apple II microcomputers. Computer Edge had imported and sold microcomputers that were compatible with Apple II software, and had also sold copies of Apple's operating system software, which they claimed were necessary for the computers to function. Computer Edge argued that their actions did not constitute copyright infringement, and that the copyright in the software was invalid. The case was heard by the High Court of Australia.

The High Court was required to determine whether the reproduction of Apple's operating system software by Computer Edge constituted an infringement of copyright. Specifically, the court had to consider whether the software, embodied in a ROM chip, was a "writing" or "other work" within the meaning of the Copyright Act 1968 (Cth), and whether the reproduction of the software for the purpose of enabling a compatible computer to operate was a lawful use. The validity of Apple's copyright was also challenged.

The majority of the High Court, comprising Gibbs C.J. and Wilson J, held that the operating system software was a literary work protected by copyright. They reasoned that the instructions contained within the software, even though embodied in a ROM chip and not directly readable by humans, were a form of expression that fell within the scope of copyright protection. The court found that Computer Edge's reproduction of the software, by copying it onto ROM chips for their compatible computers, constituted infringement. Murphy J dissented, arguing that the software was not a literary work in the traditional sense and that the purpose of the reproduction was to enable the use of a compatible machine, not to compete with the original work.

The High Court, by majority, found that Computer Edge had infringed Apple's copyright. The appeal was dismissed, and Computer Edge was ordered to pay Apple's costs.

Orders