Case: Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1
Outcome: discussed
however, there have emerged two lines of authority such that the path to be followed remains unclear. In Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 , 156 FCR 380 , Kenny J expressed these two lines of authority as follows: [160] The law concerning the liability of directors and other officers for corporate wrongdoings is unclear: see Allen Manufacturing Company Pty Ltd v McCallum &amp; Company Pty Ltd (2001) 53 IPR 400 at 409 411 per Wilcox, French and Dowsett JJ (" Allen Manufacturing "). There are two relevant lines of authority, each supportive of a different test. As the Full Court said in Allen Manufacturing 53 IPR at 409: One line supported ... the " Performing Right Society test": whether the director had "directed or procured" the company's infringement. The other line supported "the Mentmore test": whether the director had engaged in "the deliberate, wilful and knowing pursuit of a course of conduct that was likely to constitute infringement or reflected an indifference to the risk of it". [161] No Full Court of this Court has settled which of these two tests is to be preferred: see Allen Manufacturing 53 IPR at 410 411 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 ; (2002) 55 IPR 354 at [160] [161] per Weinberg and Dowsett JJ (" Sydneywide "). In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 (" Root Quality "), Finkelstein J discussed both tests and concluded at [46] that "[t]he director's conduct must be such that it can be said of him that he was so personally involved in the commission of the unlawful act that it is just that he should be rendered liable." I tend to agree with his Honour's approach: compare also Universal Music [2005] FCA 972 ; 150 FCR 1 at [134]. Branson J did not express a preference for either test and the remaining member of the Court, French J, simply agreed with the conclusion of Branson and Kenny JJ that the appeal should be dismissed. The reference to the " Performing Right Society test " is a reference to Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 at 15 where Atkin LJ said: If the directors themselves directed or procured the commission of the act they would be liable in whatever sense they did so, whether expressly or impliedly. In Microsoft Corporation v Auschina Polaris Pty Ltd (1996) 71 FCR 231 at 243 to 244, Lindgren J said of this test: The "procured or directed" test, sometimes referred to as the "authorised, procured or directed" test, focuses attention on the relationship between the director's intention and the particular corporate conduct which the law characterises as tortious. What seems to underlie this test is the notion that, necessarily, companies can engage in tortious conduct only through human beings, and, at least ordinarily, where a particular human being involved and responsible to an appropriate extent can be identified, he should, as a matter of policy, be liable. After all, even if the aggrieved party did not sue him, apparently he would be liable to indemnify the company in respect of its liability to the aggrieved party. A director who " procures or directs " his company to perform a tortious act may thus be liable along with his company: The Architects (Australia) Pty Ltd [2002] QSC 139 at [51] per Chesterman J.