Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd [2023] HCA 38

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD AND JAGOT JJ

REAL ESTATE TOOL BOX PTY LTD & ORS APPELLANTS

AND

CAMPAIGNTRACK PTY LTD & ANOR RESPONDENTS

Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd

[2023] HCA 38

Date of Hearing: 1 August 2023

Date of Judgment: 6 December 2023

S16/2023

ORDER

1. Appeal allowed.

2. Set aside the orders made by the Full Court of the Federal Court of Australia on 6 July 2022 and 19 July 2022, and, in lieu thereof, order that the appeal be dismissed with costs.

3. The first respondent pay the appellants' costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

B W Walker SC with H P T Bevan SC and J E McKenzie for the appellants (instructed by Mills Oakley)

M Green SC with W H Wu for the first respondent (instructed by McLean & Associates Solicitors)

No appearance for the second respondent

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

CATCHWORDS

Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd

Copyright – Infringement – Authorisation of infringement – Where s 36(1) of Copyright Act 1968 (Cth) relevantly provides copyright is infringed by person who, not being owner of copyright, and without licence of owner of copyright, "authorizes the doing in Australia" of any act comprised in copyright – Where first respondent owner of copyright in cloud-based real estate marketing system "DreamDesk" – Where fifth appellant ("Mr Stoner") director of second appellant ("Biggin & Scott") – Where Mr Stoner instructed second respondent ("Mr Semmens") to build web to print delivery system software that does not breach other companies' copyright – Where Mr Semmens and others developed "Real Estate Tool Box" software ("Toolbox") – Where Mr Stoner and sixth appellant ("Ms Bartels") established first appellant ("Real Estate Tool Box Pty Ltd") – Where Mr Semmens reproduced "DreamDesk Source Code Works", "DreamDesk Database and Table Works" and "DreamDesk PDF Works" in creating Toolbox – Where use of Toolbox involved reproduction of DreamDesk Source Code Works – Whether Biggin & Scott, Mr Stoner, Ms Bartels and Real Estate Tool Box Pty Ltd ("Biggin & Scott parties") infringed copyright in DreamDesk Source Code Works by authorising infringing acts of Mr Semmens and others in developing Toolbox and of users in using Toolbox – Whether Biggin & Scott parties infringed copyright in DreamDesk Database and Table Works by authorising infringing acts of Mr Semmens and of users in using Toolbox.