JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20

FEDERAL COURT OF AUSTRALIA

JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20 Appeal from: JR Consulting & Drafting Pty Ltd & Anor v Cummings & Ors [2014] NSWSC 1252

File number: NSD 183 of 2015

Judges: BENNETT, GREENWOOD AND BESANKO JJ

Date of judgment: 3 March 2016

Catchwords: CONTRACT – consideration of the relevant principles for the construction of a commercial contract – whether Recitals taken into account – whether court may have regard to conduct after the contract – identification of commercial purpose or object of the agreement CONTRACT – consideration of doctrine of abandonment – where abandonment not expressly pleaded –relevance of delay and failure to perform over a long period –whether appropriate in circumstances to infer an intention that agreement should not be further performed CONTRACT – breach of contract – whether breach of contract gave right to terminate contract – whether contract actually terminated – where case not pleaded INTELLECTUAL PROPERTY – consideration of the principles governing the subsistence and ownership of copyright in computer software as a literary work – consideration of the notions of authorship and originality in copyright – consideration of the principles to be applied in determining authorship, originality and subsistence of copyright in sequential works constituted by regular releases and publication of versions of the software program INTELLECTUAL PROPERTY – consideration of the principles to be applied in determining whether a party has authorised infringements of the work – consideration of the principles to be applied for the purposes of s 36(1) and s 36(1A) of the Copyright Act 1968 (Cth) – consideration of the principles to be applied in determining whether parties engaging in particular conduct are to be regarded as joint tortfeasors