SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Deane JJ. SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59

ORDER Appeal allowed with costs. Order that—

(a) the judgment and order of the Full Court of the Federal Court be set aside in so far as it relates to artistic works specified in pars. 3(a) and (b) of the statement of claim;

(b) the judgment of the Supreme Court of Western Australia in action No. 1398 of 1980 be restored in so far as it relates to artistic works specified in pars. 3(a) and (b) of the statement of claim and the order of Brinsden J. in that action be varied by deleting pars. 1(3), 3(b) and 4 thereof;

(c) the respondent pay one half of the appellant's costs of the action and of the costs of the proceedings before the Federal Court.

Cur. adv. vult.

The following written judgments were delivered:—

1985, Sept 19 Gibbs C.J.

This is an appeal from a judgment of the Full Court of the Federal Court [1] which allowed an appeal from a judgment given by the Supreme Court of Western Australia (Brinsden J.) in favour of the plaintiff (the present appellant) in an action for infringement of copyright. The appellant company claimed that the respondent firm had infringed its copyright in three artistic works, viz. drawings of parts of the solar energy hot water systems which it manufactures on a large scale. Two of the drawings (which have the identifying numbers B310/29 and B310/30) together depict the absorber panels and header pipe connexion nuts which go to form one of the important parts of a solar energy hot water system, to which I shall refer as the absorber unit. The third drawing (B310/43) depicts another important part of the system, a storage tank. At all stages of the proceedings it was conceded that the drawings were artistic works within the definition contained in s. 10 of the Copyright Act 1968 Cth, as amended, ("the Act") which does not require that a drawing should be of artistic quality to bring it within the definition. The appellant's case was that the respondent reproduced the drawings, or a substantial part of the drawings, by producing a version of them in the form of articles which formed parts of the solar energy hot water systems manufactured and sold by the respondent. If that case is made out, then, subject to the effect of s. 71 of the Act which will be mentioned hereunder, the actions of the respondent will have amounted to an infringement: see ss. 14, 21(3), 31(1)(b)(i), 36 and 38 of the Act. It is convenient immediately to refer to s. 21(3), which provides as follows: