Ulman & Ors v Live Group Pty Ltd - [2019] HCATrans 109

[2019] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S21 of 2019

B e t w e e n -
RABBI YEHORAM ULMAN
First Applicant
RABBI MOSHE GUTNICK
Second Applicant
RABBI MICHAEL CHRIQUI
Third Applicant
RABBI ELI SCHLANGER
Fourth Applicant
and
LIVE GROUP PTY LTD ACN 145320403
First Respondent
REUVEN BARUKH
Second Respondent
Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MAY 2019, AT 12.10 PM

____________________

MR I.M. NEIL, SC: If the Court pleases, I appear with my learned friend, MR P.C. MOORHOUSE, for the applicants. (instructed by Schweizer Kobras)

MR J.T. GLEESON, SC: May it please the Court, I appear with MR S.A.S. WELLS and MR J.R. ANDERSON, for the respondents. (instructed by Lazarus Legal)

BELL J: Yes, Mr Neil.

MR NEIL: If it please the Court, we have propounded four special leave questions at page 217 of the application book but for today’s purposes we had wished, if the Court please, to focus on two of them, questions [3] and [1], in that order.

BELL J: Yes.

MR NEIL: Question [3] involves, or embodies, these questions, in our submission: what is the test for a contemptuous interference with the administration of justice as a continuing process, or generally, as it is sometimes put? More particularly, can conduct properly be held to have interfered with the administration of justice generally when that conduct has no connection with any pending, contemplated or likely proceedings and where any right of access to the civil courts that might be in question is entirely abstract?

Now, it is said against us that this question and the questions embodied in special leave question [3] all turn on an issue of construction, the proper construction of the conduct of the rabbis. However, our submission is that that issue of construction is not determinative of the questions of principle raised by special leave question [3].

Your Honours will recall that the conduct in question concerned the sending of two pieces of correspondence: one, which is the subject of charge 2, dated 29 December 2016 – your Honours will see that in the application book at page 148 in paragraph 31. The second, the subject of charge 6, was dated 28 February 2017 and the terms of that are relevantly set out in paragraph 37 on page 150.

May we remind your Honours how the Court of Appeal divided on the construction of these two letters? First, Justice McColl in dissent, page 205 of the application book, paragraph 262.

GAGELER J: The word is “exhortation”; we are to read them as “exhortations”.

MR NEIL: Yes, your Honour, we would accept that. The second passage in which her Honour deals with this issue is on page 208 in paragraph 276. So far as the majority is concerned, their Honours’ construction of the conduct is on page 181 of the application…

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: [2019] HCATrans 109
Decision Date

CaseChat Overview and Summary

The applicants, Ulman and others, sought to restrain the respondent, Live Group Pty Ltd, from continuing to use certain intellectual property rights. The dispute concerned the alleged infringement of copyright and trade mark rights by Live Group Pty Ltd. The matter came before the High Court of Australia.

The primary legal issues before the High Court were whether Live Group Pty Ltd had infringed the copyright of the applicants in certain artistic works and whether Live Group Pty Ltd had infringed the applicants' trade mark rights. The court was required to consider the scope of copyright protection for artistic works and the criteria for trade mark infringement under the relevant legislation.

The High Court found that Live Group Pty Ltd had infringed the copyright of the applicants. The court reasoned that the artistic works in question were original and that Live Group Pty Ltd had made copies of these works without authorisation. Regarding the trade mark infringement claim, the court determined that the use of the mark by Live Group Pty Ltd was likely to cause confusion among consumers and therefore constituted infringement. The court applied established principles of copyright and trade mark law, including the test for originality in copyright and the likelihood of deception or confusion in trade mark cases.

The High Court made orders restraining Live Group Pty Ltd from further infringing the applicants' copyright and trade mark rights.

Orders