Bialkower v ACOHS Pty Ltd [1998] FCA 446

Bialkower v ACOHS Pty Ltd [1998] FCA 446

It was open to the trial judge to find that Bashford and RMC contravened s 52 and Dr Bialkower was involved in the contravention. Damages of $20,000 for reputational loss were properly awarded. The contribution order apportioning 75% of liability to Dr Bialkower was justified, supported by s 23B of the Wrongs Act. On the copyright claims, Dr Bialkower failed to discharge the onus of proof establishing authorship or ownership for the MSDSs, thus appeal on copyright grounds failed.

Parties
Appellant: Bernie Bialkower; First Respondent: Acohs Pty Ltd; Second Respondent: R A Bashford Consulting Pty Ltd; Third Respondent: Risk Management Concepts Pty Ltd
Jurisdiction
Australia
Judgment Date
04 May 1998
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Misleading or Deceptive Conduct, Copyright Infringement, Contribution Among Respondents, Implied Licence, Damages for Loss of Reputation and Goodwill
Trade Practices Copyright Damages Equity Misleading or Deceptive Conduct Copyright Infringement Contribution Among Respondents Implied Licence +1 more

Case Brief

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Parties

Bernie Bialkower

Appellant

Acohs Pty Ltd

First Respondent

R A Bashford Consulting Pty Ltd

Second Respondent

Risk Management Concepts Pty Ltd

Third Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether Dr Bialkower was involved in contravention of s 52 of the Trade Practices Act
  2. 2 Whether the newsletter was misleading or deceptive under s 52
  3. 3 Entitlement to contribution between respondents for damages

Ratio Decidendi

It was open to the trial judge to find that Bashford and RMC contravened s 52 and Dr Bialkower was involved in the contravention. Damages of $20,000 for reputational loss were properly awarded. The contribution order apportioning 75% of liability to Dr Bialkower was justified, supported by s 23B of the Wrongs Act. On the copyright claims, Dr Bialkower failed to discharge the onus of proof establishing authorship or ownership for the MSDSs, thus appeal on copyright grounds failed.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellant pay the first respondent's costs of the appeal.