Garrett v Emap Australia Pty Ltd t/as Zoo Weekly [2008] FCA 431

Garrett v Emap Australia Pty Ltd t/as Zoo Weekly [2008] FCA 431

Paragraph 6(a) of the amended statement of claim is struck out as not reasonably capable of being conveyed by the publication; all other pleaded defamatory imputations are arguably capable. Summary dismissal of the copyright claim is not warranted as it remains arguable that the assignment included a right to sue for past infringements. Equitable ownership and subsequent assignment are also potentially available arguments, and the matter should proceed to trial.

Parties
First Applicant: Nikki Garrett; Second Applicant: Girls In Golf Pty Limited; First Respondent: Emap Australia Pty Limited t/as Zoo Weekly; Second Respondent: Paul Merrill
Jurisdiction
Australia
Judgment Date
02 April 2008
Procedural Posture
Civil / Interlocutory Hearing – Application to Strike Out Pleadings and for Summary Dismissal
Outcome
Partial strike out and dismissal of application for summary dismissal
Legal Topics
Assignment of Copyright, Standing to Sue for Past Copyright Infringement, Imputations and Defamatory Meaning, Summary Judgment and Striking Out Pleadings
Copyright Defamation Assignment of Copyright Standing to Sue for Past Copyright Infringement Imputations and Defamatory Meaning Summary Judgment and Striking Out Pleadings

Case Brief

Summary, issues, holding and outcome

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Parties

Nikki Garrett

First Applicant

Girls In Golf Pty Limited

Second Applicant

Emap Australia Pty Limited t/as Zoo Weekly

First Respondent

Paul Merrill

Second Respondent

Procedural Posture

Civil / Interlocutory Hearing – Application to Strike Out Pleadings and for Summary Dismissal

Legal Issues

  1. 1 Whether assignment of copyright includes a right to sue for past infringements
  2. 2 Whether equitable ownership of copyright is sufficient to confer standing to sue for infringement
  3. 3 Whether the defamatory imputations pleaded are reasonably capable of being conveyed by the published material

Ratio Decidendi

Paragraph 6(a) of the amended statement of claim is struck out as not reasonably capable of being conveyed by the publication; all other pleaded defamatory imputations are arguably capable. Summary dismissal of the copyright claim is not warranted as it remains arguable that the assignment included a right to sue for past infringements. Equitable ownership and subsequent assignment are also potentially available arguments, and the matter should proceed to trial.

Court Disposition

Partial strike out and dismissal of application for summary dismissal

Orders

  • Paragraph 6(a) of the amended statement of claim filed 17 September 2007 is struck out.
  • The amended notice of motion filed by the first and second respondents on 18 March 2008 is otherwise dismissed.