Data Access Corp v Powerflex Services Pty Ltd - [1999] HCATrans 3

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M113 of 1997

B e t w e e n -
DATA ACCESS CORPORATION
Appellant
and
POWERFLEX SERVICES PTY LTD
First Respondent
POWERFLEX CORPORATION PTY LTD
Second Respondent
DAVID MEREDITH BENNETT
Third Respondent
MARGARET ANN BENNETT
Fourth Respondent
DEMILEIGH PTY LTD
Fifth Respondent

GLEESON CJ
GAUDRON J

McHUGH J
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 FEBRUARY 1999, AT 10.19 AM

______________________

MR J.M. EMMERSON, QC: If the Court pleases, I appear with my learned friend, MR A.K. PANNA, for the appellant in this matter. (instructed by Stephens Lawyers & Consultants)

MR R.C. MACAW, QC: May it please the Court, I appear with my learned friend, DR J.F. BLEECHMORE, for the respondents. (instructed by Trumble Szanto Lawyers)

GLEESON CJ: Yes, Mr Emmerson.

MR EMMERSON: If the Court pleases. The Court will have our written submissions. It is convenient to start with consideration of our first proposition which is set out in paragraph 6(a) of our written submissions. That is to say, we say that copyright subsists in each of the reserved words in the Dataflex language on the footing that each of them is a computer program within the definition in section 10 of the Copyright Act. We have set out that definition in our submissions.

GUMMOW J: And therefore, a literary work, you have to say.

MR EMMERSON: Exactly.

GAUDRON J: And you say that divorced from the underlying code, as it were?

MR EMMERSON: We say that divorced from the underlying code, yes; we say that each of the words is itself an expression and that expression has been taken.

HAYNE J: What is the set of instructions that is referred to in the definition of “computer program” in this respect?

MR EMMERSON: The set of instructions is the meaning and the syntax of the reserved word in each case.

McHUGH J: But this would lead to serious problems with computer programming generally, would it not, because, take a program like Access, with which I am familiar with, the syntax may be, “select expression” or “select from”, “where”, “order by”, for example, which will be a chain of instructions. Now, what about the word “select” or the word “where” or “from” or the phrase “order by”, are they expressions for this purpose? Are they programs?

MR EMMERSON: In this case each of the words, we say, is a program but we are not seeking to divorce these words from the meaning and syntax that they have in the context of data access. So, our complaint here is not merely a taking of the words simpliciter but a taking of the words, giving them the same meaning and giving them the same syntax and we say that when all of that is combined, then we have all the elements of the definition of “computer program” which appears in section 10…

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.

Continue reading Data Access Corp v Powerflex Services Pty Ltd

Details

AGLC: Data Access Corp v Powerflex Services Pty Ltd [1999] HCATrans 3
Case: [1999] HCATrans 3
Decision Date

CaseChat Overview and Summary

Data Access Corp and Powerflex Services Pty Ltd were parties to litigation concerning alleged breaches of contract and misleading and deceptive conduct. The case was heard by the High Court of Australia.

The High Court was required to determine, among other things, whether Powerflex Services Pty Ltd had engaged in misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 (Cth) by representing that it had the capacity to provide certain services when it did not. The court also considered the nature of the contractual obligations between the parties and whether those obligations had been breached.

The High Court analysed the evidence regarding the representations made by Powerflex Services and the understanding of Data Access Corp. The court applied principles of contract law and the interpretation of statutory provisions relating to misleading and deceptive conduct, considering the objective meaning of the representations made and the circumstances in which they were made. The court ultimately found that Powerflex Services had engaged in misleading and deceptive conduct.

The High Court allowed the appeal in part, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for further determination of damages.

Orders