The Annual Bar Dinner took place on 10 September 2009 at the Queensland Museum, Southbank. It was a wonderful evening, featuring speeches from the Honourable Chief Justice French of the High Court of Australia, Danny Gore QC and the President, Michael Stewart SC.
A number of members attended the Annual Redkite Dinner on 21 August 2009, the highlight of which was the hotly contested Brisbane Corporate Quiz where almost 50 corporations battled each other (and, in some cases, themselves) for this year’s bragging rights.
Redkite is a wonderful organization that extends help to children and young people with cancer, as well as support to their families. By delivering specialised childhood cancer counselling and support, Redkite aims to alleviate the challenges young people and their families experience throughout the diagnosis and treatment of cancer and beyond. Redkite also supports the special needs of bereaved families.
Redkite partners with children, young people and their families through the entire childhood cancer journey to help them stay connected, regain control, and then transition to what for many of them will be ‘the new normal’. To do this, Redkite provides the practical must-have needs of financial relief, emotional support and educational services.
Redkite’s unique services approach is collaborative and recognizes that each family is unique, listening to their story and then responding in a flexible and tailored way to meet those unique needs of each family. www.redkite.org.au.
Redkite receives no Government funding and relies totally on the community, corporate and foundation sectors for support. The organization does no face-to-face selling on the street and do not conduct any telemarketing. This is why an event like the Brisbane Corporate Quiz is so important in raising funds for the children and families affected by cancer in Queensland.
This year’s Dinner was an outstanding financial success – raising $175,000 for Redkite. It was also a thoroughly enjoyable night for all who attended. In this regard, the ABC’s Adam Spencer was an excellent Master of Ceremonies, and he was ably supported by Kay McGrath, Ian Skippen, John Buchanan, Sean Dorney and Michael Kasprowicz who along with auctioneer, Haesley Cush, all did their part to ensure the night was a truly memorable one.
For the record it remains to be said that Robert Mulholland QC’s table — In Excess — although a previous overall winner, performed well below the expectations of their leader. However, Robert did seem to find some solace in the feature that his group managed to pip the More Chambers table — More Excess – albeit in a style reminiscent of Winter Olympian Steven Bradbury.
Both tables are reportedly looking for ‘fresh blood’ for the 2010 Dinner.
Oh, and for those who are interested, Thomson Adsett Architects won the Quiz.
Background
The respondents (Mr and Ms Grant), had worked for the plaintiff (OPSM), a retail optometry business with 480 stores Australia wide. Mr Grant, was employed by OPSM as a regional operations manager, whilst Ms Grant, held a position with OPSM from approximately September 2006 to January 2008 as a ‘cluster leader’ providing support for optometrists in other stores in her region.
In about April 2008, Mr Grant resigned his position and took up employment with a competitor of OPSM, Specsavers. At about that time, Ms Grant approached Specsavers to inquire after a possible position. A position was subsequently offered to her. The case arose because of 23 emails sent by Ms Grant from her work computer to her home email address on or about 27 August 2008. The particular emails over which OPSM claimed copyright (and breach of express terms as to confidential information within the written employment contract) were:-
a list of new optometry graduates, the stores at which they would be working, their mobile telephone numbers, their postal and email addresses and their starting dates. In addition was a 41 page brochure entitled ‘Graduate Optometrist Learning Pathway 2008’ which was a guide book or procedures manual for new graduate optometrists: [6]
The attachment was entitled ‘Optometrist Referrals’, and provided details of how optometrists should refer patients to other optometrists, general practitioners and ophthalmologists;[7]
The attachment to this email was a PowerPoint document entitled ‘Optometrist Workshop’ and provided training to optometrists on billing, referring to differences between Medicare item codes billed by OPSM optometrists compared with the rest of the profession;[8]
This was a document sent to various managers of OPSM stores attaching a guide called ‘Coaching for Conversion Tool Kit’ and set out marketing procedures by which an optometrists and a retail shop assistant working together could best persuade a customer to buy new frames or lenses. The method was called the ‘Three-way Handover’ and suggested how optometrists and optometrists could shepherd a customer from a consulting room to the shop assistant and how the optometrist should remain involved in the selling process: [9]
In relation to the fourth email, unlike the other emails described in the preceding three paragraphs, Ms Grant accessed the computer at the OPSM store, at which she worked, and forwarded the document to her own work email address and from there forwarded the document to her home email address. In the evening of that day, Ms Grant forwarded the attachment and covering email to Mr Grant at his work email address.
Findings
There was a finding of breach of copyright and breach of contract by Ms Grant. With respect to the claim in contract and compensatory damages for copyright infringement under s 115(4) of the Copyright Act, nominal damages were awarded. OPSM accepted that it suffered no loss and that Mr and Ms Grant had not made a profit.
The central issues for determination were OPSM’s claim for additional damages under s 115(4) of the Copyright Act and the question of costs.
White J noted that Ms Grant did not take any steps to cover her tracks and accepted that she wanted copies of the documents, either because she had made a substantial contribution to their creation or that they might help identify someone to speak to at OPSM for a reference, if graduates approached her in her new role with Specsavers.
Decision
White J determined that no award of additional damages should be made, save an award of $10. Relevantly, White J said at [49]:
Having regard in particular to my finding that the first defendant was not conscious of any wrongdoing, that she did not attempt to cover her tracks, and that she did not derive any benefit from the infringement of the plaintiff’s copyright, I do not consider that interests of deterrence warrant the award of additional damages. I should add that I do not consider that additional damages should be awarded to reflect the fact that a reason no benefit was derived by the first defendant from the infringement was that the plaintiff moved promptly for an injunction.
It might surprise practitioners to know, that costs were awarded against OPSM. OPSM sought costs from all defendants up to and including the first day of the hearing with no order as to costs for the second day. Mr and Ms Grant had a more robust application, seeking costs of the proceeding on an indemnity basis from OPSM. In short, both parties claimed successes.
OPSM’s ‘successes’ were the awarding of nominal damages and consent orders without admission for delivery up of documents. OPSM had only pressed its claim for additional damages under the Copyright Act, and that was against Ms Grant only. It had not pressed its claims for compensatory damages or equitable compensation for breach of contract, breach of fiduciary duty, or breach of an equitable duty of confidence against Ms Grant. It did not press its claim against Mr Grant for knowing assistance in an alleged breach of fiduciary duty by Ms Grant, nor its claim that Mr Grant was liable as a joint tortfeasor for acting in concert with Ms Grant pursuant to a common design to infringe OPSM’s copyright: the costs judgment at [4].
Relevantly, Mr and Ms Grant made, through their solicitors, a without prejudice offer, offering to deliver up or destroy the documents in issue under oath, with each party paying their costs. This offer was rejected. A similar offer was made, with the difference that an offer to pay on a taxed basis, the plaintiff’s costs against Specsavers, who were also joined in the proceeding. That offer was not accepted.
A further offer was made, in which Mr and Ms Grant offered to submit to injunctive orders, dispose of the “Luxottica non-public Information” and “Luxottica Confidential Information” and pay the plaintiff’s costs. The defendants did not respond to this offer. White J did not consider the failure to accept OPSM’s offer was unreasonable, given the lack of specificity of the expressions “Luxottica non-public Information” and “Luxottica Confidential Information”: the costs judgment at [18].
Another offer was made, some two weeks later and in similar terms, but attaching a schedule of documents taken from the verified disclosure. In addition, the offer as to costs was that each party was to bear its own costs. The hearing was one week away. The difficulty now lay with costs, OPSM agreeing in essence to the delivery up on oath but seeking 80% of agreed or taxed costs. This offer was repeated on the second day of hearing, with the difference that the defendants offered $100 and that each party pay its own costs to 17 February 2009 and for OPSM to pay the defendants’ costs after 17 February 2009 – the defendants’ confidence was growing.
White J considered that the offer of 17 February 2009, ‘gave the plaintiff substantially the whole of the relief which it obtained in the proceedings’: the costs judgment at [29]. Accordingly, its rejection based on an insistence that all costs be borne by the defendants was unreasonable.
It was ordered that that OPSM pay the defendants’ costs of the proceedings from and including 18 February 2009 and that there otherwise be no order as to the costs of the proceedings.
The application of the defendants that the costs be on an indemnity basis was rejected. The grounds for the application were stated to be that OPSM’s motives were to make an example of Mr and Ms Grant to the other employees and thereby dissuade such conduct. His Honour considered that if that were correct, it would justify an award of costs on an indemnity basis. However, the submission was not pressed and therefore not determined.
Comment
The decision sounds a warning bell for anyone dealing with the enforcement of IP rights, particularly copyright or trade mark infringement cases. The government is proposing in IP Australia’s Consultation Paper in November 2008 (see http://www.ipaustralia.gov.au/resources/news_new_archived_2008.shtml), to add additional damages to the relief a court might grant in trade mark cases. It should be noted that additional damages have a punitive element.
In cases where it is clear that the usual approaches to compensatory relief, lost sales, lost profit or a licence fee approach, are not relevant, that additional damages may very well be the main claim. I act for an association who has nothing to do with the clothing industry, but who have difficulties with members of the clothing industry, seeking to use its trade marks (or variations based on them). Save for damages at large or compensation for embarrassment or distress, additional damages loom as the main risk factor for the respondents, particularly where injunctive relief will not be an issue. When is that? Usually, when the respondent was only trying a run to see if there was a reaction.
Dimitrios Eliades
Foonotes
Luxottica Retail Australia v Grant [2009] NSWSC 126 (White J, 9 March 2009), (the additional damages judgment); Luxottica Retail Australia v Grant (No. 2) [2009] NSWSC 736 (31 July 2009), (the costs judgment).
Practice Directions – Land Court of Queensland
On 4 September 2009, the President of the Land Court, Mrs Carmel MacDonald, issued new practice directions and forms.
Sunshine Coast Bar Professional Development Day 2009
For the second year running a successful professional development day was held at Maroochydore for the growing number of resident Sunshine Coast barristers. On Saturday, 19 August a gathering of 30 or so (including local government lawyers) enjoyed a varied programme with presentations on mediation, ethics, appellate advocacy, the effective use of IT in practice, and the presentation of evidence and exhibits in trials. Local presenters were joined by Byrne QC, Glynn S.C. and Davis S.C. Judge Robertson opened and closed the day’s proceedings which were followed by an enjoyable dinner at a local Italian restaurant.
Niseko Conference – 18-21 January 2010
Internet Law for Professionals is the theme of the Niseko Conference 2010 which will take place at Niseko Hirafu, Japan from 18 to 21 January 2010. Attendance at the conference has been accredited 5 CPD points. For more information, visit www.nisekoconference.com
The New Legal Challenges: Global Warming and Financial Freeze – 5th World Bar Conference – 1-5 April 2010
Expressions of interest are now being taken for the 5th World Bar Conference to be held in Sydney between 1 to 5 April, 2010.
The Conference will commence on 1 April 2010 with an Opening Reception at the Sydney Opera House. The Business Sessions will be held on Saturday 3 and Sunday 4 April at the Sheraton on the Park. The Conference will conclude with a Gala Dinner at the Art Gallery of New South Wales on Sunday 4 April.
The names of those interested will be placed on a Priority List to receive a registration brochure prior to any general distribution. Please send your full contact details to honsec@austbar.asn.au
James Bell QC in action at Mentawais this year [These are of course the ‘before shots’. Ed]
May it please the Court.
As is demonstrated by the number standing behind me the Bar wholeheartedly welcomes this appointment and I take great pleasure in extending congratulations and best wishes to your Honour on your transformation to a Justice of the Supreme Court of Queensland.
But it’s not only the Bar who come today but solicitors, and perhaps most importantly, many of your former colleagues from the District Court. This is clearly a popular appointment.
As a barrister your Honour won a reputation as a tenaciously thorough, intelligent and knowledgeable advocate who could always be counted on to act fairly and courteously. More than most though you seemed to bring a sense of humour to bear upon the briefs and your dealings with judges and others engaged in the litigation process. The result of this was that while your opponents always felt as though they had been challenged by a worthy adversary, they always felt equally as though the process had been negotiated by the pair of you in the way things ideally should be done.
Closely related to these qualities is your Honour’s reputation as a very civilised or cultivated gentleman. In the main it seems to me that this is attributable to your self-professed devotion to the nearly lost art of poetry. An acolyte of Gerard Manly Hopkins and a self-confessed poet yourself, this is an important part of your Honour’s background, your make up. The truth, of course, is that your Honour is a truly terrible poet, having produced nothing but atrocious doggerel for many decades now. The last authoritative review that I’m aware of, your Honour, concluded that the poem entitled “Rabbits” marked the high water mark of your Honour’s oeuvre.
It may be thought that all of these qualities combined to make your Honour an extremely effective and sought after mediator because in the last days of your practice with us at the Bar that is certainly what you were.
On the Bench of the District Court your Honour demonstrated your adaptability by quickly mastering the previously unfamiliar jurisdiction of the Planning and Environment Court mentioned by the Chief Justice. In this important field which decides disputes concerning very large investments and, more importantly, which have the potential to have a lasting effect on the public interest, your Honour won the admiration of all of those who specialised there. All of them are sad to lose you.
But your Honour is not just joining the ranks of the Supreme Court. It is vital to all of us that the Queensland Civil and Administrative Tribunal not only succeeds but that it gets off to a healthy and indeed a flying start. As the inaugural President of the Tribunal which opens its doors for business in just 34 days’ time, I understand, your Honour faces a daunting task. The Act requires QCAT to operate in a way that promotes collegiality and maintains a cohesive organisational structure. The rules have been drafted to establish three divisions: Human Rights; Administrative and Disciplinary, and Civil Disputes, and there are many Tribunals which will be amalgamated to populate these divisions. So your Honour’s task is not just that of ensuring that the work is performed to a very high standard but really to establish the culture and together with the Deputy President, to lead this new and important enterprise. But selection for the most demanding tasks is said to be the highest form of compliment, and daunting as the task may be, the Bar wishes to express its unqualified confidence in your Honour’s ability to carry it out.
To return to your role as a judge of this Court may I say that those members of the Bar who specialise in wills or estate-related litigation are already predicting a golden era for themselves as they are presented with the opportunity of arguing their cases before such an expert in that field.
Your Honour and your family, particularly your wife Lindy, are entitled to savour this occasion. The Bar shares in your enjoyment and in this recognition of this new and most important milestone in your legal career. We wish you very well in this new role.
Michael Stewart SC
President
After being admitted to the Bar in Tasmania at the age of 21, John Baulch SC practised for period before taking up an appointment in the Public Solicitor’s office in Papua New Guinea where he remained for four years. In 1977, he joined the local Bar in Townsville and was appointed Senior Counsel in 1998.
What is your motto?
John’s family motto is “loyal au mort”. Its history is quite ancient, being derived from a coat of arms which his ancestors took to England with the William the Conqueror. John’s family has not had another motto and, as he admires loyalty, he is content to stick with that.
What is your idea of earthly happiness?
Earthly happiness is a work life balance which enables one to spend time with family and friends.
What could you not live without?
I could not live without my family.
What is your greatest fear?
My greatest fear (as at 23-09-2009) is that Geelong will lose the grand final.
What is your greatest indulgence?
Red wine.
Which skill or talent would you most like to have?
I would love to be a single figure golfer.
What is the trait you most deplore in others?
Pretentiousness and pomposity.
What is the quality you most admire in a person?
Patience
What is your most marked characteristic?
Impatience
On what occasion do you lie?
When describing my alcohol intake to my doctor.
What is your greatest regret?
That Geelong has only won four (4) premierships in my lifetime.
Which words or expressions do you most over-use?
‘In my opinion’ and ‘in my view’
If you could change one thing about yourself, what would it be?
I would like to have been a better parent
To what do you aspire?
To be an exceptional Grandparent
How would you like to be remembered?
As I would like to be judged, kindly.
His Military Service to Australia
Brigadier Tom had many titles and civil academic awards for his many achievements. His military awards were for either long, meritorious service or actual service. He reached the first level of general officer rank. At one time the Australian Army title for his rank was “Brigadier General” and in fact it still is that in the US Army and US Marines Corps. He loved to say that his ED (EFFICIENCY DECORATION) was for “20 years undetected crime as an officer”. However in his own words in his private autobiography he wrote:1
“ The one thing I wear most proudly on my uniform above my medals, is a small bronze badge, just an oval oak leaf garland with a bayonet in the middle — my Infantry Combat Badge. It means nothing to anyone other than a soldier, but to other servicemen it signifies that I had been engaged in Infantry combat, and that, I think says it all. It distinguishes us, as my late father-in-law, Bob Brown, so succinctly put it, ‘from the ithers’.”
The other badge he took great pride in was his RSL badge, which he always wore on his suit. He was the president of the Sandgate Sub Branch, and the military history display which he established led the Commander of the First Military District Brigadier (later Major General) Peter Phillips MC to invite him to chair a Victoria Barracks museum, of which I had the honour to serve at one time as his Vice President. He guided this group through difficult times.
Likewise as he rose from a lowly clerk in the Maryborough Courthouse to Solicitor General and consequently the most senior barrister on the Roll in 1972, he similarly rose from a private soldier on the parade ground to a brigadier, acting deputy divisional commander. His military career peaked in the Army Reserve when his full time job was the onerous office of Solicitor General for Queensland. His intermediate jobs and military appointments were also what many men would have regarded a good career pinnacle. A monumental effort considering that both ultimate jobs were at the peak of the pyramid. Indeed a Rigby cartoon in the Telegraph upon his appointment as SG showed a general in uniform and robes reviewing a parade of barristers…Rigby had been a gunner in WW2. Brigadier Tom had Rigby’s original in his study.
He drew on his military experience in his role as a barrister quite often. He told me he likened a heavy criminal trial to have the same strain and pressure that he experienced in a platoon attack. Indeed when he and the late Justice George Lucas planned the Bar Practice Course at the QUT for potential baby barristers they modelled the course on a direct entry Officers “Knives and Forks” Course so at least they would know how to do their job in the transition from student at law or solicitor to practice at the Bar.2
Brigadier Tom joined the Militia in 47 Battalion at Maryborough in the beginning of 1940; he was soon commissioned as a lieutenant. At one stage he qualified in infantry anti tank tactics with 2 -pdr guns being trained by 101 Tank Attack Regiment RAA. Later in the war the infantry took over the 2-pdr s and Lt Tom had to demonstrate the use. He fired 4 rounds off and smote down a tree with a dexterity that the senior officers admired. When packing up he found the axe, which one of his sergeants had used to “prepare” the tree with a few cuts, was missing, they eventually found the axe after a lot of effort…axes had to be meticulously accounted.3
On another occasion he found out that there were rare fresh rations including fruitcake available from LST’s when his unit was on the Butibon River in New Guinea. He told his CO. As his battalion was on bully beef and biscuits the QM was sent down to draw fresh rations, but was told politely to come back next month as the unit had drawn its month’s rations. A mystery 10-wheel truck driven by an officer who smoked a pipe arrived at the ration point with an impeccably correct requisition. The identity of the persons involved was never found. In his memoirs Brigadier Tom said that many people knew what was going on and there was tight-knit solidarity. He had a lot of trouble driving a left-handed drive truck for the first time.
During another course in WW2 he was in a group who were demonstrated a prototype .45 calibre Sub Machine Gun by Evelyn Owen, it was an early Owen Gun which later had a production calibre of 9mm. He was in Townsville for a while early in the war but then went on to New Guinea where he saw extensive service as a platoon commander. It was in New Guinea he first smoked his trademark pipe4. He had asked his father-in-law for a pipe and was sent a supply of tobacco in a tin with a small GBD silver mounted pipe. This later saved his life when it was in his shirt pocket and stopped a Japanese bullet and he once remarked:
“ I owe a lot to my pipe, I could never get another as good as that one.” No one could, I suggest!5
His active service was not only in World War Two but benignly in the Vietnam War. He like many CMF (Reserve) officers were sent for a two week observer stint, for which he later received a further active service gong. He remarked to me that he wished he’d earned his Pacific Star as easily as that one.
After World War Two he married his beloved Margaret in 1946. Like many returned solders he married in uniform whilst awaiting discharge. As part of his resettlement he enrolled in the TC Beirne School of Law at the University of Queensland to read for an LLB. Thus there is a direct link between his legal and military careers. In 1948 he joined the newly formed Citizens Military Forces and in 1949 was promoted a captain in infantry. In 1956 the Queensland University Regiment was raised to battalion status and Brigadier Tom was appointed to command as a lieutenant colonel, a post which he held until 1959. That did not end his association with QUR however because in 1976 he had the privilege of being QUR’s Honorary Colonel until 1980.
In the mid 1960’s he was 2 IC of the 1st Pentropic Battalion. This was an experiment in formational use of infantry, and also the other Corps using a US model. I Bn was under the command of a full colonel. After three years he was promoted to full colonel, as Commander 2 Support Group, which was a logistical, command encompassing Engineers. Ordnance, Army Service Corps, Medical, Intelligence, WRAACS, Dental and Field Hygiene. He was proud of the very great achievement that the medical units under his command set up and manned “ the very fine Australian Military Hospital in Vietnam”.6
In 1972 he was appointed as Commander 7 Task Force and promoted to the rank of brigadier. He was later appointed as acting Deputy Divisional Commander I division, and retired in that office in 1975.
I mentioned his service to the RSL. Not surprisingly he held high office in that organization, being a South East District’s Counsellor and a State Counsellor for many years. As well as Sandgate Sub Branch President, he was president of the Club and pulled that club out of a massive debt and on to a very good profit.
I valued his guidance and friendship greatly. He moved my admission and loaned me his wig until I acquired one myself. We spoke often. His mind was always as sharp as a tack.
Like many of his military peer group he studied Confederate Lieutenant General Stonewall Jackson’s Shenandoah Valley campaign ad nauseum and General Jackson’s last words as he was dying from pneumonia were:
“Let us cross over the river and rest under the shade of the trees.”
Brigadier Thomas Parslow RFD, ED**, QC soldier, lawyer and advisor to statesmen, has crossed over the river and is now resting under the shade of the trees.
As he often said at his RSL functions, “LEST WE FORGET”.
Joel M Barnett
Barrister at Law
Trustee, 9th Battalions War Memorial Museum Collection and Property Trust
Presented Friday 29th Day of May 2009 at Cannon and Cripps Chapel,
Kelvin Grove Road,
Kelvin Grove, Brisbane.
Footnotes
Parslow, Thomas “ Parslow Soldier and Lawyer, an autobiography” Self published 2nd ed p.181
Private discussions 1996
ibid p154
He would in later life go to a conference with up to 8 pipes packed with tobacco in his briefcase.
Private discussions with Brigadier Parslow
Parslow opcit p211
In the last edition of Hearsay we published this image – and then asked whether anyone could identify him with the aid of a clue – male, not Everson DCJ.
The correct answer is:
Dean Morzone
Antique and fine furniture restoration and conservation
Traditional French polishers
Income Protection, Life Insurance, Trauma Insurance
Redkite’s unique services approach is collaborative and recognizes that each family is unique, listening to their story and then responding in a flexible and tailored way to meet those unique needs of each family. 
OPSM’s ‘successes’ were the awarding of nominal damages and consent orders without admission for delivery up of documents. OPSM had only pressed its claim for additional damages under the Copyright Act, and that was against Ms Grant only. It had not pressed its claims for compensatory damages or equitable compensation for breach of contract, breach of fiduciary duty, or breach of an equitable duty of confidence against Ms Grant. It did not press its claim against Mr Grant for knowing assistance in an alleged breach of fiduciary duty by Ms Grant, nor its claim that Mr Grant was liable as a joint tortfeasor for acting in concert with Ms Grant pursuant to a common design to infringe OPSM’s copyright: the costs judgment at [4].
