Case: University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1
Outcome: cited
While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing. 267 As the managing director, Palazzesi accepted that Metricon would not have included the Prada 35 in its product line without his approval. This fact, and the fact that Popple and Bugeja were subject to his direction, were said not in themselves to be enough to constitute authorisation by him. It was contended, in my view correctly, that the necessary mental element required to be established: Moorhouse at p 12 per Gibbs CJ. In other words, in this case, it is necessary, in order to render Palazzesi liable, not only that he approved the Alleged Infringing Works but that he did so knowing that they contained a copy of the alfresco quadrant from the Seattle 31. This is not of universal application but it is the way that the case was put by the applicants. 268 Palazzesi did acknowledge in cross-examination that there are similarities between the Prada 35 and the Seattle 31, identifying the position of the two bedrooms, rumpus room, kitchen, dining and family and alfresco. It was said, however, that there is no evidence that Palazzesi knew or appreciated that Prototype 20B, or the Prada 35, were copied from the Seattle 31 plan or home or were so similar that they must have been copied. Palazzesi denied that he had any such appreciation. 269 Palazzesi pointed particularly to a number of matters which he says demonstrate that he had no relevant knowledge: (a) Popple did not tell him that he, Popple, thought Prototype 20B had similarities to the Seattle 31 display; (b) the reference by Jason Biasin to the similarity of the Richmond in Perth to the Seattle 31 was a reference to a fa&ccedil;ade and that there was no reason for him to be thinking about the Seattle 31 at the time they were looking at the Pavillion; (c) he had no special interest in the activities of the applicants between January 2000 when the Seattle 31 display opened, and 2002 when the Prada 35 was designed, and in particular: (i) he was not aware of how many homes were sold by the Barrett Property Group; (ii) he did not think about the Seattle 31 after his brief visit in January 2000 until Stutterd complained to Kline in mid 2003; (iii) while he did hope to keep abreast of the competition, he was not watching the applicants and the pressures on him were to build homes and manage the explosive growth at Metricon; and (iv) he did not know about the applicant's success with the Seattle 31; or how many homes they had sold by February 2002; other than he had heard that "they were doing OK"; (d) courtyard houses, with the meals, kitchen, family and rumpus areas arranged around an outdoor space were well known and he had involvement with a number of such designs (including both the Simonds Monterey and Seville as well as AV Jennings homes); and (e) the points of reference for the alfresco feature or concept were what he (and the others) had seen on the Perth trip.