Thursday, December 29, 2011

A word about legal doublets

A certain law firm has been undertaking a letterbox drop, exposing the supposed evils of the Succession Act and offering (no doubt for a fee) to assist you to prevent middle-aged drug-addict delinquent children getting their hands on an estate you'd rather leave to your cat. But I digress.

The Estate Defence Lawyers website contains the following endnote:

"A legal will is sometimes called a last will and testament or will and testament because the law sometimes uses the Norman and the English words together as a legacy of the Norman conquest of England. In fact will and testament are synonymous, like devise and bequeath, nook and cranny, cease and desist, hue and cry, goods and chattels and null and void."

This, and similar assertions, are often made particularly in the halls of schools of legal practice encouraging the use of so-called "Simple English". 

However, let there be no mistake: whatever their etymology, the first and second word in each doublet ARE NOT SYNONYMOUS.

A will and a testament are historically different things. Historically, a will referred to a disposition of real property and a testament referred to a disposition of personal property. So "Last Will and Testament" was used to describe the instrument by which the whole of one's estate (consisting of both real and personal property) could be disposed of as a consequence of one's demise. 

Going through the roll-call of supposedly synonymous legal doublets:  

  • "hue" referred to the use of a horn whereas "cry" referred to shouting;
  • "devise" referred to the disposition of real property whereas "bequeath" referred to the disposition of personal property (and for completeness, neither included a gift of money, hence the traditional use of the triplet "give, devise and bequeath");
  • "nook" generally refers to a corner (or at least a small, partially enclosed area of a larger room) whereas "cranny" refers to a crack or similar crenellation (it is not clear that this is a legal doublet at all);
  • "cease" required someone to halt an activity, whereas "desist" required them to not take up the activity again at a later time;
  • "goods" refers to moveable property whereas "chattels" includes not only moveable property but also refers to intangible (and therefore immovable) property such as choses in action (particularly negotiable instruments and securities) and money which have never been considered "goods".

Another interesting aspect of the website is their promotion of libertarian thinkers such as Locke, Mill and Bentham in support of their campaign against the family provision sections in the Succession Act, and even call in aid one Elizabeth Tudor who, it is claimed, famously captured "the great principle of liberty" when she said:  "I have no desire to make windows into the souls of men [sic]".  What Elizabeth in fact meant when she said (by traditional attribution) "I have no desire to make windows into men's souls" was that she did not care what the citizenry in fact understood by the formularies of the Church of England, just that they assented to them.  Hardly a "great principle of liberty" at all, but no doubt a sentiment that prevented the heads of many being liberated from their bodies for heresy.

Monday, November 7, 2011

Law for Food Bloggers

As a result of Direct Messages I received via Twitter in the weeks preceding EatDrinkBlog2011 I have decided to speak about the legal aspects of three issues facing foodbloggers:

  • a food blogger's right to take photographs of dishes in a restaurant, and whether or not a food blogger is entitled to include in those photos images of people, such as other patrons or staff;
  • copyright in those photos;
  • copyright in recipes.

What follows is obviously a very brief summary of the legal position, hopefully shorn of technical language so that it may be understood by non-lawyers (and as a consequence not expressed in a way that intellectual property lawyers would necessarily accept as technically correct).


Like many things in the law, there is a common sense answer and a strict legal answer, and they may not necessarily be the same, but there will usually be a fair bit of overlap between they two.

Let's start with the strict legal position.

In general terms in Australia, you are allowed to take photographs of whomever you like, or whatever you like, whenever you like.  You do not generally need permission to do so, and in particular you do not need the permission of a person you wish to photograph.  There is no general right to privacy that protects people from being photographed.

There are some obvious limitations to this.

There are now anti-voyeurism laws, or peeping-tom laws that prevent the taking of photos of a sexual or voyeuristic nature, usually of what are quaintly referred to as "private parts".  And as Bill Henson notoriously discovered a few years ago, taking photographs of children, especially where they are sexualised, or at least arguably so, is always fraught with difficulty.

The most important limitation on a photographer's right to take photographs however comes not from laws relating to privacy or deviant behaviour, but from the law of property.

When you enter upon private property, whether it be a restaurant or cafe or a supermarket or shopping centre, you enter on the common law understanding that you comply with requirements the property owner imposes upon you.  And in general, those requirements can be imposed upon you after you have entered, as a condition of thereafter remaining on the property.

The general proposition that you have a right to take photographs wherever you want to, is subject to the very important qualification for food bloggers that the owner of private land is perfectly entitled to ask you not to, and is perfectly entitled to ask you to leave if you continue to do so.  And they are perfectly entitled to use such force as is reasonably necessary to force you to leave if you refuse to comply with the conditions they have imposed.

They are also perfectly entitled to limit what you photograph, or what you subsequently do with the photograph.  So, they could ask you not to photograph patrons or staff.  Or they could ask you not to put your photographs onto a blog, or sell them to a commercial photo bank.  Of course, the enforcement of these conditions after you have left is another matter entirely, but they are entitled to impose the conditions and get your agreement to them as a condition of you remaining.

There is nothing to stop you from taking photos of the premises (and of the inside of the premises) from off the premises in a public place such as the footpath.

I should I finally mention that a common yet misconceived way people sometimes try and prevent you from taking a photograph is to say that doing so will breach someone's copyright.  There is no copyright in a snow egg. And while there may be copyright in the snow egg recipe (as we will discover below), taking a photograph of the snow egg does not infringe the copyright in that recipe.

What about taking photographs of people?

As indicated earlier, there is no general right to privacy and so generally there is no need to ask someone's permission to take their photograph.  That is of course subject to what has been said about a property owner's entitlement to restrict you from taking photos of patrons or staff as a condition of entry to, or remaining on, the property.

But, you may in limited circumstances be prevented from using photographs taken of people without their consent.

In practical terms this is generally going to apply only to famous people or people with a reputation worth protecting. And it is by a tortured legal path where the Courts can prevent the use of a person's image where the image is used in order to endorse a product or website.  Examples of where this occurs are now legion in the food world with celebrity endorsements of particular foodstuffs (eg swimming’s association with Uncle Toby's) or celebrity food endorsements of supermarkets (eg Margaret Fulton and Woolworths).

But unless there is a commercial use of someone's image to endorse a product, and unless that person has some element of celebrity or notoriety about them, then it is extremely unlikely that there could be any restriction placed on the use of a photograph taken of them.

A more detailed discussion of photographer’s rights is available in the excellent web article entitled “NSW Photo Rights”


A photograph is, in the language of the Commonwealth Copyright Act, an "artistic work" and the photographer is therefore given certain exclusive rights in respect of that photograph.

The most important right is of course the right to copy and to publish and to use that photograph.  And so, where you take a photograph and put it up on your blog to accompany a story, or include it as part of a photo gallery if you are a food photographer, you have the right to control how it is used.

There are also important moral rights that are attached to a photograph.  So a photographer has the right to be attributed as the creator of the photographer, and can take action to prevent the image being distorted in a way prejudicial to your reputation.

In general it is an infringement of your copyright if someone else does any of the things that you have the exclusive right to do. So if they copy it (which would include scanning a hard copy and posting it, or downloading it an re-posting it) without your permission that would be an infringement. They don't have to copy the whole of the photograph. So long as they copy an important, distinctive or recognisable part of the photograph that is sufficient.

Copyright is not infringed by someone copying your set-up and independently taking their own photograph.  It is only the reproduction of the photograph, not the idea for the photograph, that is protected.

There is a "fair dealing" defence that entitles a person to reproduce a copyrighted work for the purposes of criticism or review if there is a sufficient acknowledgement of the work.  This probably means you would not infringe copyright by publishing a copy of the cover of a cookbook to accompany a review of a cookbook.

More information can be obtained from the infosheet available from the Australian Copyright Council entitled "Photographers and copyright".


The good news is a recipe is capable of protection by similar copyright laws that protect photographs. The bad news is that the protection is fairly limited, and unless there is blatant plagiarism of the words used, it will be difficult to establish a breach of the copyright.

Copyright will only protect the written form of a recipe, but does not protect the dish itself.

So, for example, the inventor of a new dish cannot prevent people from making the dish, nor can they prevent people from writing their own description of how to make it.  Everyone of you is perfectly entitled to go away and write down how to make anything you get taught in a master class and you won't be infringing anyone's copyright in doing so.

Of course once someone has committed the recipe for a dish to writing, then that written form is protected by copyright.  But it is still the writing that is protected, and not the dish itself. So again, you don't infringe copyright by making the dish from the recipe, nor by publishing your own description of how to make the recipe.

An important limitation on the protection afforded by copyright is that it does not protect ideas.  So the idea of using blue cheese to make ice-cream cannot be protected. 

It also does not protect bare information such as, importantly for food bloggers, the list of ingredients and quantities used to make a particular cake. It is a common misconception that you can avoid infringing copyright in a recipe by merely changing a ingredient or a quantity.  This is misconceived for two reasons.  The first is that ingredients and quantities are not protected by copyright in the first place.  The second is that even if they were, the mere changing of one or two quantities would not protect you from infringement.  You infringe copyright where you reproduce a substantial part of a work (in this case the wording of the recipe) and so it may not be sufficient to simply change a few words here or there.

What is protected by copyright is not the method or technique used, but the expression of that method or technique in written words.

More information can be obtained from the infosheet produced by the Australian Copyright Council entitled "Recipes: Legal Protection".

Thursday, November 3, 2011

Admissibility of evidence of surrounding circumstances in interpreting contracts

The High Court has given unusually long reasons in rejecting an application for special leave to appeal in a case in which the Court was invited to reconsider its previous authority on the admissibility of evidence of surrounding circumstances as an aid in the interpretation of a contract.

The orthodox position, stated by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352, is that "evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed."

That orthodox position was upheld by the NSW Court of Appeal in Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137, from which decision the application for special leave was brought.  In rejecting the application Gummow J (speaking also for Heydon and Bell JJ) said:

Justice Macfarlan gave the leading judgment in the Court of Appeal in this matter. In the passage in his reasons in which he found error in principle in the reasons of the primary judge, his Honour said:
A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted.
His Honour added that the trial judge appeared:
to have acted on the basis that the provision would make more sense from a commercial point of view –
if it were construed as the trial judge did construe that provision. These statements by Justice Macfarlan since have been applied by the New South Wales Court of Appeal in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 at paragraph 18.

The primary judge had referred to what he described as “the summary of principles” in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 at paragraphs 19 and following. The applicant in this Court refers to that decision and to MBF Investments Pty Ltd v Nolan [2011] VSCA 114 at paragraphs 195 to 204 as authority rejecting the requirement that it is essential to identify ambiguity in the language of the contract before the court may have regard to the surrounding circumstances and object of the transaction. The applicant also refers to statements in England said to be to the same effect, including Westminster City Council v The National Asylum Support Services [2002] UKHL 38; (2002) 1 WLR 2956 at 2958.

Acceptance of the applicant’s submission clearly would require reconsideration by this Court of what was said in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352 by Justice Mason, with the concurrence of Justices Stephen and Wilson. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.

The position in Codelfa as a binding authority was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at pages 62 to 63, paragraph 39 and it should not have been necessary to reiterate the point here.

We do not read anything said in this Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 462, paragraph 22; Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165, 179 paragraph 40; Wilkie v Gordian Runoff Limited [2005] HCA 17; (2005) 221 CLR 522 at 528 to 529, paragraph 15 and IATA v Ansett Australia Holdings Limited [2008] HCA 3; (2008) 234 CLR 151 at 160, paragraph 8 and at 174, paragraph 53 as operating inconsistently with what was said by Justice Mason in the passage in Codelfa to which we have referred.

Tuesday, August 9, 2011

Also in the High Court this week

In Monday's post about what was happening this week in the High Court of Australia, I omitted the hearing this week of Williams v Commonwealth of Australia in which the plaintiff, the father of four children enrolled in a Queensland public school, is challenging the Commonwealth's National Schools Chaplaincy Program, introduced by the Howard government in 2006 and extended for four years by the Gillard Government in 2010.
In 2007 the Commonwealth entered into a funding agreement with the fourth defendant, the Scripture Union of Queensland, for the provision of funding under the NSCP with respect to the school attended by the plaintiff's children. Neither the plaintiff, nor any of his children, has participated in any program or chaplaincy service at the school provided pursuant to the NSCP. There is also no obligation for them to have done so. 
The plaintiff seeks to prevent the Commonwealth from spending taxpayers' money on the NCSP, arguing that it contravenes section 116 of the Constitution, which states:
"The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth" 
The questions to be addressed by the Court include:
  • whether the plaintiff has standing to challenge the making of the funding agreement, the drawing of  moneys from consolidated revenue for the purpose of making payments under the funding agreement, or the making of payments by the Commonwealth in accordance with the funding agreement.
  • If the plaintiff does have standing, is the funding agreement invalid by reason that it exceeds the executive power of the Commonwealth under section 61 of the Constitution, or because it is prohibited by section 116 of the Constitution.