Evidence – Tendency rule – Section 97(1) of Evidence Act 1995 (Cth) – Failure to comply with tendency rule where evidence not characterised as tendency evidence at first instance – Applicants alleged that respondents refurbished and sold machines that incorporated pirated copies of material in which applicants held copyright, thereby infringing ss 36 and 38 of Copyright Act 1968 (Cth) – Email communications of respondents relied upon by primary judge to prove that respondents had knowledge of infringing conduct – Full Court of Federal Court held that email communications relied upon by primary judge to establish tendency to engage in infringing conduct without compliance with s 97(1) of Evidence Act 1995 (Cth) – Whether open to Full Court to conclude that email communications were relied upon by primary judge to establish tendency.
Words and phrases – "tendency evidence".
Copyright Act 1968 (Cth) – ss 36, 38.
Evidence Act 1995 (Cth) – ss 94(1), 95(1), 97(1), 136.
Judgment date
Case number
S168/2012
S169/2012
Before
French CJ, Crennan, Kiefel, Gageler, Keane JJ
Catchwords