Copyright, code libraries and ownership

In Australia, copyright automatically vests in certain types of literary works, including computer programs and artistic works, upon their creation.  The general rule is that the owner of copyright in a literary or artistic work is the author of that work.[1]  An exception to this rule arises if the work is made by an employee pursuant to the terms of their employment.  In this case, the employer owns the copyright subsisting in the employee-generated work.  However, the distinction of whether an employee has created the work pursuant to the terms of employment, is not always clear.  This issue was considered in the case of Redrock Holdings Pty Ltd and Hotline Communications Ltd v Hinkley [2001] VSC 91 (Redrock). [Read more…]

Compilations from the public domain – confidential or not?

In the case of Ezystay Systems Pty Ltd v Link 2 Pty Ltd [2014] NSWSC 180 (Ezystay) it was held that the plaintiff’s business manuals were confidential despite having been compiled from the documents in “public domain”.  On Appeal, the Court had to re-visit the test for confidential information to determine whether or not the respondents’ software, business manuals and other documents collated from the public domain were in fact capable of being protected as confidential information.

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Shareholder oppression – valuation issues

Shareholder oppression or minority shareholder oppression can occur when the majority (shareholder(s)) in an entity misuse their majority to oppress or control the minority shareholders.  There are is not a limited number or combination of activities which the majority may engage in to oppress the minority, sometimes referred to as “sharp practice” or “board room tactics”, the possibilities are almost infinite. [Read more…]

Tort of conspiracy & confidential information

The tort of conspiracy has been well established in Australia by the High Court, however it is a fairly uncommon cause of action.  The High Court has endorsed some early UK decisions with respect to damage, including the cases of Mogul Steamship Co v McGregor Gow & Co [1892] and Sorrel v Smith [1925] AC 700.  [Read more…]

Litigation – offers to settle and the rules

Civil litigation is a costly and technical process which requires careful compliance with the legislative and rules of the respective Court.   In contrast it also is akin to a game of chess as each party to the proceedings does now know the others strategy.  In Queensland, the predominant legislation which governs how litigation is to be conducted is contained in the Uniform Civil Procedure Rules 1999(Qld)(UCPR).  There are of course various practice notes and rules prescribed by the respective Court and case law which needs to be complied with depending on the circumstances and the Court. [Read more…]

What is a risk management framework?

A risk management framework is a key component of an overall governance framework.   As the name suggests it focuses on risks faced by the business.  Typically, a governance framework will document the approach an organisation takes to managing risks and include details of:

  • Risk appetite – being a measure of the level of risk an organisation is willing to assume;
  • Risk tolerance – being a measure of the amount of risk an organisation is capable of absorbing; and
  • Risks – being details of the types of risk which the organisation faces and seeks to avoid, mitigate or accept.

In developing a risk management framework an organisation should refer to AS ISO 31000:2018 Risk Management Guidelines which sets out the process principles and framework for risk management.

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A bet or a game? The Lottoland case

On 16 August 2019, the Supreme Court of New South Wales (Supreme Court) ruled in favour of the plaintiff, Lottoland Australia Pty Ltd ACN 602 590 429 (Lottoland), in its action against the Australian Communications and Media Authority (ACMA) for their investigative findings against them stating their online products were in contravention of the relevant legislation: Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041. [Read more…]

The doctrine of repudiation – when good deals go bad

Contracting in business can get complicated, particularly if one party appears unwilling or unable to hold up their side of the bargain.   The common law doctrine of repudiation is one basis for terminating a contract and seeking appropriate damages for the other party’s ‘repudiatory’ conduct. [Read more…]

Not so swole – removal of trade marks for non-use

In the recent case of Swole Gym Wear Group Pty Ltd v Swole O’Clock Ltd [2019] FCA 685, Swole Gym Wear Group (Applicant) applied for an extension of time to file a notice of appeal for the removal of their trade mark 1702160, which was registered for the word “SWOLE” in class 14, from the Register of Trade Marks pursuant to s92(4)(a) of the Trade Marks Act 1995 (Cth)(Act). [Read more…]

Why you should not engage an unlicensed building contractor

In Queensland, building work is governed by the Queensland Building and Construction Commission Act 1991 (Act).  Under Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Regulation), subject to some qualifications (i.e. design work, plumbing, gas fitting etc), work is not building work (as that term is defined in Schedule 2 to the Act) if it is valued at less than $3,300.00.  Pursuant to section 42(1) of the Act, a person can only carry out or undertake to carry out building work if the person holds a contractor’s licence for the appropriate class under the QBCC Act and the Regulation.  Building work performed by an unlicensed person is unlawful building work and has significant implications for a person who engages someone who is unlicensed to perform building work. [Read more…]

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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