Case: Oakley v Lyster [1931] 1 KB 148
Outcome: referred to
relies upon the principles referred to in Oakley v Lyster [1931] 1 KB 148 at 153 in support of its contention that the tort of conversion involves deliberate intent. The principles concerning conversion under s 116 have been considered recently by the Full Court in Venus Adult Shops Pty Ltd and Others v Fraserside Holdings Ltd and Another [2006] FCAFC 188 ; (2006) 157 FCR 442 at [85] to [94]. At [88] the Full Court said: The essence of conversion is interference with a right of possession. It is nevertheless properly described as a "varied and somewhat amorphous tort" serving two distinct functions. One function is tortious, whereby it compensates a person deprived of the use of goods. However it also acts as a "surrogate for the Roman vindicatio ; that is, in order to give a dispossessed owner the means to recover his goods in specie , or if that is not appropriate their market value" &#8722; Tettenborn, Wiley and Bennett; The Law of Damages (LexisNexis UK, 2003) p 294. The conduct which may constitute conversion is diverse. It has been said to include: (i) refusal to return; (ii) taking; (iii) receipt; (iv) disposal or deprivation of title; (v) destruction; (vi) loss as a bailee; (vii) keeping. The diversity of that list raises questions about the universal appropriateness of a "market value" approach to the assessment of damages &#8722; Tettenborn A, "Damages in Conversion: the Exception or the Anomaly" (1993) 52 CLJ 128. Relying upon the observations in Oakley v Lyster , iiNet has also submitted that conversion is an intentional tort, and Roadshow's pleadings relating to this cause of action are thereby deficient for failing to plead this integer. Such contention raises the question whether intentional dealing with the property of Roadshow is an integral requirement of the tort of conversion. As such contention is arguable, the Court concludes that to strike out the pleading on the basis that intentional dealing is not pleaded or to arrive at an interlocutory judgment on such question is inappropriate. This issue will require detailed argument at the hearing. Paragraph 67F of the ASOC primary infringement claim In addition to Roadshow's claim that the iiNet users have infringed copyright in the films and that iiNet has authorised such conduct, Roadshow relies upon some of the same paragraphs as the conversion claim in support of a claim that iiNet itself has infringed the copyright in the films ('primary infringement'). The fact that paragraph 67F refers only to paragraph 67B(b) for such claim, together with the Amended Particulars, suggests that Roadshow alleges the primary infringement claim only arises from the data which is stored transiently in iiNet's facilities and which was discussed at [46] of this judgment, and not the transmission of such data. The issues the Court has raised regarding the definition of ' infringing copy ', and whether that could apply on the facts pleaded, do not arise in relation to this claim. If it is found that there was transient storage of the whole or substantial part of the films, this may give rise to there being a ' copy ' for the purposes of s 86(c) of the Copyright Act , and consequently the problems discussed above in relation to ' electronic transmission ' do not apply. The Court finds no deficiency in the pleading of the primary infringement claim. Separate hearings The Court now considers iiNet's claim in paragraph nine of its Notice of Motion for a separate determination of the issues relating to the 86 identified films from the other films in the catalogue of Roadshow.