Clive Palmer’s United Australia Party is the latest political party to be the subject of a copyright claim for use of music in an advertising campaign (after Eminem successfully sued the New Zealand National Party for breach of the copyright of Lose Yourself).
Universal Music Group, the owners for the rights to Twisted Sister’s We’re Not Gonna Take It, have filed a claim against Mr Palmer personally for a television advertisement used by the United Australia Party. The ad features a song that repeats the refrain “Australia’s not gonna cop it anymore” in a similar rhythm to the Twisted Sister hit.
UMG claim that the Twisted Sister song is copied in substantial part, thereby infringing on their copyright pursuant to section 36 of the Copyright Act 1968 (Cth) (Act).
The last high-profile case in Australia on this issue was the highly publicised suit against the band Men at Work. They were alleged to have copied a melody from the folk song Kookaburra Sits in the Old Gum Tree for their hit song Down Under. Larrikin, the rights holder, successfully recovered damages and future royalties from the Men at Work song (see EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited 276 ALR 35).
When considering either how or whether a song has infringed on an existing musical work, the Court will need to consider:
In the Kookaburra case mentioned above, the reproduction of only two bars of one melody reproduced in another song was substantial enough to satisfy the requirements of the Act for copyright infringement since it was a distinctive element of the song (in that case, a flute riff).
With regard to the reasoning in Kookaburra, Mr Palmer may have some difficulty defending his advertisement against Twisted Sister’s claim. It will be interesting to see how this case develops.
Introduction
The recent case of HE v SHANAHAN AS LIQUIDATOR OF EASTERN SOURCE CONSTRUCTION PTY LTD (IN LIQ) & ANOR is another great case for lawyers, insolvency practitioners and the public alike as it clarifies the meaning of “cross-demand” in the context of sections 40(I)(g) and 41 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
The Law
Section 40(I) of the Bankruptcy Act provides:
s.40(1) A debtor commits an act of bankruptcy in each of the following cases: …
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia–within the time specified in the notice; or,
(ii) where the notice was served elsewhere–within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counterclaim, set-off or cross-demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counterclaim, set-off or cross-demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained.
Section 41(7) of the Bankruptcy states:
s.41(7) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counterclaim, set-off or cross‑demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counterclaim, set-off or cross-demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied..
The Case
The Applicant’s primary submission was that, having discharged the debt owed by the Second Respondent Company to Holcim, he was entitled to be subrogated into the position of Holcim to make a claim for that amount against the said company. In the alternative, the Applicant contended that the same facts gave rise to a set‑off against the said company.
The Respondents contended that the Applicant had no genuine claim under s.40(1)(g) ors.41(7) because his subrogated right was inchoate and contingent, i.e. at some unspecified time in the future, the Applicant might receive a payment from the First Respondent as liquidators, on an unsecured basis, which may be equal to or greater than the amount of the judgment debt. The subrogated right, therefore, could not be quantified, and, thus, could not be relied on in setting aside the Bankruptcy Notice.
The Findings
After considering the facts and well known authorities on the issue such as:
Bhagat v Global Custodians Limited [2002] FCAFC 51
Guss v Johnstone (2000) 171 ALR 598
Ebert v the Union Trustee Company of Australia Limited [1960] 104 CLR 346
The Court ultimately found that the Applicant’s case was unsuccessful and found in favour of the Respondents view that the Applicant’s claim was contingent or inchoate. It was not only contingent on the outcome of litigation between the two liquidators, but even then it was contingent on sufficient funds being available to pay the Applicant, as a subrogated creditor of the Second Respondent Company, an amount equal to or greater than the debt owed by him. In this regard, it was an inchoate claim.
The question of costs occupies a significant amount of the life of a proceeding and complexities surrounding costs are difficult to unravel. The losing party will usually pay the successful party’s costs that were reasonably incurred for running the proceeding.
Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 15 demonstrates an important principle that courts use to determine costs when a successful litigant is self-represented.
Background
Self-represented litigants are on the whole not able to claim for their costs, even when successful, except for disbursements (such as court filing fees and expert witness appearances): see Cachia v Hanes (1994) 179 CLR 403.
The eponymous Chorley Exception, as described in London Scottish Benefit Society v Chorley (1884) 13 QBD 872, holds that where a self-represented litigant is a qualified solicitor, they are entitled to claim professional costs for legal work they performed themselves.
The principle holds because solicitor costs are quantifiable by the courts. Costs claimed by a layperson for representing themselves for time spent performing legal work are necessarily more amorphous and will not accurately reflect the actual costs that would usually be involved.
The Chorley Exception has some limits. A solicitor cannot claim costs for instructing themselves or attending on themselves as they would do when they act for a litigant. As observed by Madden CJ in Ogier v Norton [1904] VLR 536, it would be absurd for a solicitor or barrister to claim costs that duplicate themselves as both client and solicitor and to profit on providing their own counsel.
In Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 (“Pentelow”), the New South Wales Court of Appeal considered a claim for costs from a barrister that had been owed money by an instructing solicitor. The applicant had been successful in those proceedings and now sought to claim for costs incurred in that original proceeding.
Issues
The Court was tasked with considering whether:
(a) the Chorley Exception applies to barristers, not just solicitors;
(b) a barrister is self-represented if they instruct solicitors to act for them but do much of their own legal work; and
(c) whether the Chorley Exception would apply to an otherwise eligible costs applicant performed legal work themselves.
Decision
In a 2:1 judgment, the Court held that:
(a) self-represented barristers are subject to the Chorley Exception in circumstances where:
(i) admission to practice law is uniform for both barristers and solicitors under the Legal Profession Act 2004 (NSW);
(ii) the work performed by solicitors and barristers contains significant crossover, such as drafting pleadings and affidavits, as prescribed in the New South Wales Bar Association Barristers’ Conduct Rules.
(b) the fact that the applicant instructed solicitors does not preclude claims for work performed by the applicant; and
(c) while the applicant is entitled to recover their own costs, the Chorley Exception should be read narrowly and any discussion of it by lower courts should be confined to the facts of the case.
Heading to the High Court
The High Court of Australia is currently considering an Application for Special Leave to Appeal in Pentelow, which has yet to be determined. While the position in Pentelow was a consistent application of common law surrounding the Chorley Exception, there is speculation that the High Court is interested in having their say on the issue.
In a recent High Court Case regarding the self-representative costs, Coshott v Spencer [2017] HCATrans 263, special leave was granted and the matter was listed to be heard before 7 judges. This leave was ultimately rejected once it was discovered that the respondent was operating through an incorporated legal practice and the case was not an appropriate vehicle to assess the issue. While this case highlights the issue of the Chorley Exception applying to practitioners operating through such entities, it also indicates the High Court’s interest in this area of law.
Conclusion
Costs in legal proceedings are often difficult to ascertain and rely on considerable judicial discretion after an assessment of costs.
The application of the Chorley Exception to barristers is logical where the legal qualifications of solicitors and barristers and the work that they perform in proceedings overlaps. However, this does not mean there is a natural extension of the underlying principle to barristers as a whole.
Self-represented litigants should be aware that unless they are legal professionals, they are not entitled to claim any costs except those that come straight out of pocket.
Until such time as the High Court rules has an opportunity to rule on this issue, those that come up against self-represented litigants that are solicitors or barristers should also be aware of the risk of having to pay the other side’s costs subject to the Chorley Exception.
Introduction
Since the mid 1990’s, when advertising regulations around law firms were relaxed, there has been a general trend in Australia of increased litigation and court cases. Such a trend has had significant impacts on the way people and corporations behave in our society, but not always for the better.
What’s causing this increase?
A number of factors are thought to have contributed to the increased number of claims.
There is great debate over the role that ‘No Win, No Fee’ policies have had on our legal system. While there is the obvious effect of increasing the number of cases that get off the ground, these policies also help increase accessibility to the legal system by assisting people who have legitimate claims and might otherwise not be able to afford legal fees. The negative effects of these schemes are probably compounded by those that chose to abuse them, both vexatious clients and the ‘ambulance chasing’ dodgy lawyers. Similar issues arise under the increase in litigation funding, where 3rd parties provide the funds necessary to carry out proceedings then take a cut of the payout.
Another factor is the general trend of Australia becoming a ‘blaming and claiming society’ where people’s first instinct in the case of an accident is to look for someone to blame. While individual greed and other factors might play into this trend, a great part of it is probably attributable to the age of information. In our modern society, people’s access to information about their legal rights is greater than ever, and with that comes increased sense of rights and entitlements.
There are the extreme examples of people who abuse the legal system, such as Mohammed Rahman, who has been banned from commencing any legal proceedings in NSW courts after bringing 50 cases in just 10 years. He is 1 of 12 people who have made it onto the States ‘vexatious litigant register’.
What are some of the impacts of a more litigious society?
This increase has seen a number of both positive and negative effects on our society. Negative impacts can be seen through:
(a) Increased burden on our Judicial system;
(b) Longer wait times in Courts;
(c) Greater expenses incurred in assessing and preventing injury;
(d) Higher insurance premiums for many industries; and
(e) A heightened fear of lawsuits leading to overly cautious behaviour.
Local councils and medical practices have felt the effects of increased insurance premiums most of all, having to close facilities such as parks, recreational centres and rural practices that are just too costly to insure. The loss of local recreational centres and parks have also been thought to be linked to the increase in obesity in young Australians.
There are some positive effects of increased litigation too, with some of the being direct counterpoints to some of the negative aspects, such as:
(a) The greater experience incurred in preventing injury and the heightened fear of law suits leading to increased safety;
(b) Increased accountability for wrong doings; and
(c) More recognition of individual rights.
What can a good lawyer do for you?
Fighting for your legal rights isn’t always a bad thing. Despite the onslaught of vexatious claims the Courts hear nowadays, many people still have legitimate grievances that should be heard. The important thing when dealing with a claim is assessing the best course of action to achieve the best results possible. Many forms of dispute resolution can be used as an alternative to litigation, such as:
(a) Mediation;
(b) Conciliation; and
(c) Arbitration.
In fact many cases can be settled without the need for any sort of formal proceedings, through means like letters of demand and deeds of settlement.
Conclusion
Whether it’s the scalpel or the sledgehammer, great thought and care needs to be given when considering what tool to use at the outset of your claim.
Introduction
A former Oxford student has recently claimed that the university was responsible for his failure to attain employment as a top tier lawyer in the case of Faiz Siddiqui v The Chancellor, Masters & Scholars of the University of Oxford [2018] EWHC 184 (QB).
The action was brought 16 years after his graduation and related to a poor mark received in a paper he wrote for the course “India, 1916—1934: Indigenous Politics and Imperial Control”. Among Mr Siddiqui’s allegations was that negligently inadequate teaching quality led to his poor mark, thereby preventing him from achieving first class honours and from later being hired by a top tier firm.
Although this particular claim was (somewhat unsurprisingly) rejected by the High Court of the UK, the possibility of future successful claims was explicitly left open, begging the question: could Australian students sue their universities where they fail to attain employment?
Background
Before looking at the possibility in Australia, it is worth examining the peculiar fact scenarios which have led to successful claims overseas.
In the case of Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council [2000] UKHL 47, litigants were awarded damages for the loss of wages they suffered as a result of the negligent acts of their schools. The schools failed to recognise and provide appropriate education for their special educational needs, and the court acknowledged that this failure directly caused their failure to find employment.
More recently, in the US, a lawsuit was settled when DeVry University agreed to pay $100 million to students affected by misleading advertisements relating to the employability and earning capacity of their graduates. It was found that the university’s assertions that DeVry graduates were more employable than their counterparts from other universities were false. Damages were accordingly awarded to students harmed by the deceptive conduct (though the definition of such harm was not made public, and settlement prevented the question being put before a judge).
It seems that negligence and misleading or deceptive conduct both provide potential avenues for redress.
Australia
In Australia, there have been no judgements to date relating to such educational negligence, and a handful of misrepresentation cases have been unsuccessful.
For example, in Fennell v Australian National University [1999] FCA 989, an ambiguous advertisement suggesting that graduates would be guaranteed work placement was deemed to fall short of misleading and deceptive conduct.
In Yee Tak On v Dr Linda Hort (ANU College) [2012] FMCA 391, a student was denied damages for failing a course where the homework requirements were greater than was foreshadowed in its course guide.
In Weir v Geelong Grammar School (Civil Claims) [2012] VCAT 1736, the mother of a student failed to establish that the school had provided a standard of teaching lower than advertised, and that the failure had caused her daughter to be denied entry into Law at Sydney University.
Conclusion
Despite the area being somewhat unexplored in Australia, these failed cases appeared to have largely turned on their facts. Scope may remain to hold educational institutions responsible where their students fail to attain employment and the circumstances are sufficiently clear.
Considering the current oversupply of university graduates to the legal market in Australia, it isn’t hard to imagine many of our own students finding themselves empathising with Mr. Siddiqui.
Sometimes a party to a dispute requires urgent relief.
Some examples of circumstances where urgent relief would be necessary includes where:
An injunction is a form of urgent relief that can be granted by the Court in certain circumstances.
An injunction can be prohibitory or mandatory.
A prohibitory injunction prevents the other party from taking some kind of action; some examples include preventing disseminating confidential information or preventing an eviction.
A mandatory injunction is where a party is required to take positive steps; some examples include being compelled to perform an obligation pursuant to a contract or compelling the removal of a publication from the public domain.
To get an urgent injunction on an interlocutory basis, a party is required to establish the following:
Whether or not it is advisable to apply for an injunction depends on a case by case basis. It is a remedy available in circumstances where it is necessary to preserve the status quo pending a final hearing. Where there is a case for irreparable harm – for example, a pending major disruption to a business due to threat of eviction or irreparable harm to the reputation of a person or business – a case can be made to justify the grant of an injunction.
An ex-parte injunction is where an injunction is applied for without notice to the other party. Ex-parte injunctions can be applied for in circumstances where there is such urgency that immediate relief is necessary. However, it is likely that the matter will be made returnable in a few days’ time to provide the other party with an opportunity to be heard.
When applying for an injunction, the person or entity making the application is required to provide an undertaking as to damages. The intention of this is to balance the interests of the parties given that injunctions are often granted on an interim basis without an opportunity for the parties to be heard in full.
If you require urgent assistance with a matter, our litigation team is well equipped to provide you with advice concerning the remedies available to you. Please contact Rory Markham or Stipe Vuleta on (02) 6215 9100.