Burge v Swarbrick [2007] HCA 17

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

BRENT BURGE & ORS APPELLANTS

AND

JOHN HARLEY SWARBRICK RESPONDENT

Burge v Swarbrick

[2007] HCA 17

26 April 2007

P24/2006

ORDER

1. Appeal allowed with costs. 2. Set aside the orders of the Full Court of the Federal Court of Australia and in their place order that: 1. the appeal to that Court be allowed with costs; and 2. the orders made by Carr J on 24 June 2004 be set aside and in their place order that: 1. the respondent's application to the Federal Court be dismissed; and 2. all questions respecting the cross-claims be stood over for determination by a judge of the Federal Court in conformity with the reasons of this Court; and 3. the respondent pay the costs of the appellants of the proceedings before Carr J up to 7 July 2004, including any reserved costs and the costs of the two motions notice of which was filed on 12 September 2003 and 3 October 2003.

On appeal from the Federal Court of Australia

Representation

J J J Garnsey QC with R J L McCormack for the appellants (instructed by Stables Scott)

D M Stone with T J Carmady for the respondent (instructed by Williams & Hughes)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Burge v Swarbrick

Copyright – Artistic works – Works of artistic craftsmanship – The respondent obtained an injunction against infringement by the appellants of the respondent's ownership of copyright in works constituted by a "plug" from which a mould for a yacht hull could be derived, and in the hull and deck mouldings of that yacht – Whether works protected by copyright or should have been protected, if at all, under the designs registration law.

Copyright – Artistic works – Works of artistic craftsmanship – Whether "work of artistic craftsmanship" is a composite phrase to be construed as a whole – Relevance of aesthetic appeal to the existence of a work of artistic craftsmanship – Relevance of machine production to the existence of a work of artistic craftsmanship – Relevance of functional or utilitarian constraints to the existence of a work of artistic craftsmanship – Whether the "plug" and mouldings constituted works of artistic craftsmanship.