Case: Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574
Outcome: applied
In the course of oral submissions counsel put the case in this way (at TS 200 ll 25-30): 'Our starting point is very simple, your Honour. When one goes to The Koursk ([1924] P 140) which has been adopted as the foundation of the principle of joint tortfeasorship by the High Court in Thompson's case, [ Thompson v Australian Capital Television Pty Ltd [1996] HCA 38 ; (1996) 186 CLR 574 ] and we've set it out in paragraph 18 of our outline, Scrutton LJ spoke of two persons who agree on a common action in the course of, and to further which one of them commits a tort. And that's the foundation of what are joint tortfeasors. In this case, in our respectful submission, the evidence is clear that Toea, as landlord or land owner, and the stallholders, who are two or more persons, agree on a common action, the common action being the promotion of their joint businesses at the market.' 156 In Thompson v Australian Capital Television Pty Ltd (supra) the facts, according to the head note, were as follows: 'A television station broadcast live to viewers in the Australian Capital Territory a current affairs programme produced by another station. The licence to broadcast was granted by PBL which was a related entity of the producer. The content of the broadcast was defamatory of T. T settled with the producer and gave it a release. T sued the broadcaster in the Supreme Court of the Territory. The broadcaster joined the producer and PBL as third parties, seeking contribution and also damages for breach of an implied condition of the licence agreement that they would exercise reasonable care to ensure that the relayed programme would not include defamatory material. Although the broadcaster took no part in the production of the programme, it acted in its own right and had the ability to control and supervise the material it televised. The broadcaster voluntarily decided to broadcast live. It sought to defend the proceedings on the grounds that it and the producer were joint tortfeasors and that the release granted to the producer by T also released it.' 164 In Kerly's Law of Trademarks and Trade Names 14 th ed at par 19-044, the learned authors observe, in connection with trademarks, that: 'For the general principles applicable in relation to joint liability based on procurement or common design see CBS v Armstrad and Credit Lyonnais v Export Credit Guarantee Department '. Those decisions are based on that in The "Koursk" . The High Court's view of that case appears from the decision in Thompson v Australian Capital Television and is the relevant test for present purposes. 168 There will be cases in which the relationship between the person who commits a tort and another person may be such as to amount to both authorization (in the case of copyright) and also to satisfy the test for joint tortfeasors laid down in The "Koursk" and Thompson v Australian Capital Television. However to prove authorization is not necessarily to prove infringement. As the present case demonstrates, control does not, itself, imply a common purpose. However the extent of control may be relevant evidence in determining whether such a common purpose existed at the relevant time. 170 In the course of argument the applicant referred to three American cases concerning 'secondary' liability for trademark infringements. Given the clear statement of principle in connection with tortious liability in Thompson v Australian Capital Television, I see no point in discussing those cases in this judgment. 171 I proceed upon the basis that, in order to hold the respondents liable for the stallholders' infringements, '... there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage', and that in order to satisfy that test in the present case, it is necessary to show that the respondents acted in concert with each stallholder in 'committing the tort' . 172 In my view it is simply impossible to reach that conclusion. I accept Mr Rosenlund's evidence that he wished to deter stallholders from infringing trademarks and took steps to do so. The primary infringing stallholders all understood that this was his position and therefore that of Toea. The applicant's case hangs upon the assertion that he did not do enough, or could have done more, to deter infringement. It is said that from this, I should infer that he was really encouraging the stallholders in their illegal activities. In other words, it is submitted that although there was no duty on the respondents to take steps to prevent infringement, the failure to do so evidenced an intention to encourage infringement. That approach fails to take account of the fact that there may have been other reasons for not taking more draconian measures to prevent infringement. In any event, I am unpersuaded that either of the respondents acted in common with any of the stallholders in the actions which constituted infringement of the applicant's copyrights. I am also satisfied that such infringements were not committed in the execution of any common purpose shared with the respondents. As I have said, the respondents' purpose was to conduct an efficient and profitable Market. The purpose of each stallholder was the successful conduct of his or her stall. There was no common purpose. 173 It follows that the application must be dismissed. I will hear submissions as to costs and any requests for further findings of fact. I certify that the preceding one hundred and seventy three (173) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 6 November 2006 Counsel for the Applicant: Mr D Shavin QC Mr D Eliades Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr A Crowe SC Mr M Rivette Solicitor for the Respondent: McLaughlins Solicitors Dates of Hearing: 12, 13, 14 December 2005 Date of Judgment: 7 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1443.html