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…]

Injunctions for breach of confidence

The recent Federal Court case of Howden Australia Pty Ltd v Minetek Pty Ltd [2019] FCA 981 highlights some of the challenges faced by applicants when attempting to establish that a breach of confidential information has taken place, and the steps required to obtain an interim injunction prior to the ultimate determination of a matter. [Read more…]

The end of the innovation patent in Australia

The innovation patent system was originally introduced in 2001 to provide a cheaper, more efficient way for small to medium businesses to protect innovations through the introduction of the ‘innovative step’ test.  Innovation patents provide protection for inventions that do not meet the inventive step threshold required for standard patents.  However, the recent Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 (Bill) will see the complete abolition of the innovation patent system in Australia. [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…]

Termination for incomplete construction work

The recent decision in Hopper & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] 212 illustrates that parties to residential construction contracts need to be very careful when purporting to terminate a residential building work contract because of incomplete works. [Read more…]

Company money is for company purposes

In order to properly discharge their obligations to a company which they are appointed, directors must be satisfied that they are using company money for ‘proper purposes’.  By treating the company interests as their own interests they may be in breach of their fiduciary duties and engaging in conduct that would be oppressive to the rights of shareholders.  This article will explore the principles that underpin when it is appropriate for company funds to be used.  In short, company money must only be used for company purposes. [Read more…]

Implied contracts formed post term

It is not uncommon, where good business relationships exist, for the parties to continue to work together after the expiry of a fixed term contract (Expired Contract).  This typically occurs where there is a fixed term for the agreement and that termination date comes and passes.  While it is great to form such good business relationships, contracts are there for a purpose and there are no guarantees that good business relationships will persist.

So what is the nature of the contractual relationship between the parties in such circumstances?

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