Last month we saw how your will may not carry out your final wishes.  This month we look at another example.

Ken Brown died in February 2008.  His estate had a net value of approximately $3.1 million.  He had met Carol in December 2004 and co-habited with her for a short period before marrying on 1 November 2007, less than two and a half months prior to his death.

In his will he made provision for Carol to live in a flat (on his farm property) in which they had resided prior to his death for her lifetime provided she did not remarry or enter into a marriage type relationship.

The will also attempted to give to her another property known as Lot 216 which was valued at only $40,000.  That gift however was ineffective as Lot 216 was not owned by Ken Brown but was owned by a company owned by him.

Persons making wills should always ensure that their lawyers are properly instructed as to the ownership of all assets and details of precisely where liabilities lie.

A court case ensued in which Carol sought a larger provision for education, maintenance and advancement in life.

It was conceded at the hearing that the relationship between Carol and Ken Brown’s children and one of his daughters-in –law had broken down to such an extent that Carol could not realistically expect to continue to reside in the flat which in fact was part of a farm property owned by Ken Brown.

Carol and Ken had commenced a relationship in the first half of 2005.  Ken was 69 years of age and Carol was 57.  In September 2006 Ken was diagnosed with a terminal melanoma.  In December 2006 they became engaged.  In May or June 2007 Ken and Carol moved into the flat on the farm which had previously been occupied by one of Ken’s sons, his wife and three children.  That son and family then moved into the main residence where Ken had previously resided.  A wedding which was planned for January 2008 was brought forward to November 2007 having regard to Ken Brown’s life expectancy.

Carol was a qualified nurse who had worked as a carer but had not worked for a number of years prior to Ken’s death.  She also had office and clerical skills.  She had carried out voluntary work for the Red Cross.  She also did work for a local radio station.  She was described as a youthful 63 who was more than capable of obtaining employment.

In the court case Carol sought an amount of $475,000 to buy a four bedroom property.

She herself had no assets and at the time of hearing was in receipt of a widow’s pension of approximately $218.50 per week.

If it is accepted that a will makes insufficient provision for an eligible pension then a court has to determine a proper provision having regard to;

 
• The plaintiffs (Carols) financial position

• The size of the estate

• The circumstances of the relationship including the length of time of the relationship and in particular the marriage

• The relationship of the testator to other persons who have a claim on the estate and

• The need to pay regard to the testator’s wishes

The court made it clear that the Family Provision Act did not;
“Intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally”.

In this case the marriage was very short.  The relationship was relatively short.  When they married they both knew that Ken Brown had only a short time to live. The court said that it was appropriate that Carol be allowed a sum of $275,000 to cover the purchase of a two to three bedroom home in the Nowra region as well as a further sum of $200,000 as a capital sum.

The legal costs of these cases are exorbitant and it can be safely assumed that of the $3.1 million of the estate probably about $2million was finally available to Ken Brown’s two sons.

This was a relationship of three years.  Fair or not fair?

Taken literally some of our laws in relation to Occupational, Health and Safety are from an employer’s point of view frightening.  No-one can argue against laws which aim to improve the safety of the workplace provided the obligations on employers are kept within some reasonable perspective having regard to the risk involved and what ought to be the responsibility of other parties including employees to have some care for their wellbeing.

Mr. Kirk was a Director of a company, Kirk Group Holdings Pty Limited which owned a farm near Picton in NSW.  Mr. Kirk did not take an active part in running the farm and in fact was in poor health and had no farming experience.  He left the day to day operation of the farm to Mr. Graham Palmer who was employed by the company as a Farm Manager.  Mr. Palmer had run a large property of his own and Mr. Kirk considered him to be a competent person.

The company had in 1998 on Mr. Palmers’ recommendation purchased an all terrain vehicle.  On 28 March 2001 Mr. Palmer used the vehicle to deliver some steel to fencing contractors who were working in a back paddock of the farm.  He secured the steel to carry racks at the rear of the vehicle.  He drove along a formed road but then to get to the workmen he left the road and went down the side of a hill.  He did not have to take that route.  It was steep.  The vehicle overturned and Mr. Palmer was killed.

Mr. Kirk and his company were charged with offences under the Occupational Health and Safety Act in NSW which generally provided that an employer was to ensure the health, safety and welfare at work of all employees.  It was alleged that Mr. Kirk and his company failed to provide systems of work that were safe, provide information, instruction, training and supervision in relation to the operation of the vehicle, and to ensure that the vehicle was only operated by persons with appropriate training. 

He and the company were convicted and financial penalties imposed.

The matter went through a number of appeals and ended up in the High Court.  Earlier this month, almost nine long years after Mr. Palmers death the High Court quashed the convictions.

The High Court said that the Industrial Court had no power to convict and sentence Mr. Kirk and his company in the first place because it had not identified any particular acts or omissions which constituted the offences of which they were convicted.

Mr. Kirk had been fined $121,000.  His costs would have been huge. 

Although his judgment was a dissenting judgment there are some interesting observations in relation to the problems facing employers, particularly rural employers in the judgment of Heydon, J.  He noted that the trial judge had criticized Mr Kirk for not supervising the daily activities of employees or contractors working on his farm.  Heydon, J said that the suggestion that the owners of farms should conduct daily supervision of employees and contractors, even on small farms was astonishing.  He noted that a great number of farms in Australia were owned by natural persons who did not reside on or near them, and a great many other farms were owned by corporations, the Chief Executive Officers of which did not reside on or near them.  The suggestion by the trial judge therefore in relation to Mr. Kirks behaviour reflected a view of the legislation which was offensive to a fundamental aspect of the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear.

Mr Kirk should never have been put through nine years of hell.  For employers the outcome is in a sense unsatisfactory. The real point is that it should never have got to the High Court in the first place.

Men at Work, unlike many groups from 30 years ago have not yet regrouped for a Zimmerframe concert.  Colin Hay, one of the members of the group, initially composed the lyrics verses, choruses and chord structure to the song Down Under.  The song was first composed in 1978 and then underwent some changes over time.  Men at Work was not formed until 1979.  By 1980 Men at Work had grown to five musicians and by then Greg Ham who had joined the group had added a flute line.  In 1979 Men at Work financed the recording of a single of Down Under.

The Kookaburra song consists only of four bars.  Two of the bars appeared in this 1979 recording.  In 1981 Down Under was re-arranged and shortened from the original version to three minutes and Greg Ham’s flute riff was substituted for the original bass riff melody introduction.

Greg Ham had said that he was aware of Kookaburra and was pretty sure that it was part of his school songbook when he was a child.  He admitted to adding the flute to inject some Australian flavour into the song.  On the other hand Colin Hay said that he was unaware of the reference to the melody of Kookaburra when the 1979 and 1981 recordings were made.  A 1981 video performance of Down Under showed Greg Ham playing the flute riff in the middle of the song while sitting in a tree playing to a koala in a hangmans noose.  Although he said he wasn’t aware of it at the time Colin Hay in his evidence accepted that the flute riff played by Greg Ham while sitting in the tree was a direct musical reference to Kookaburra.

Colin Hay still performs as a solo musician and regularly plays and performs Down Under on his acoustic guitar.  When performing in concerts the flute line was apparently often played by other instruments such as a horn section played by back up musicians.  Colin Hay was sometimes accompanied in concert by his wife and her band and when that occurred his wife Cecelia played the flute line on an “air flute”.  Colin Hay gave evidence that for about two or three years from around 2002, when performing Down Under in concerts he sometimes sang the words of Kookaburra in the middle of the song at the point where the song had reached the flute line.

The judge hearing the case heard evidence from two musical experts who gave evidence as to whether or not there was an objective similarity between the part of the Kookaburra song used in Down Under and Kookaburra itself.  The judge on all the evidence determined that was a sufficient degree of objective similarity.  Furthermore the reproduction of Kookaburra in Down Under was a reproduction  of a substantial part of Kookaburra.

When is there reproduction of a work for the purpose of copyright law?  If you want to prove your case you have to show two things, the first being resemblance to and actual use of the copyright work and the second, being a causal connection between the copyright work and the infringing work.   The causal connection which is to be established is that the infringer, (Men at Work) had copied the work.  The copyright work must be the source from which the infringing work is derived.

The judge said that the 1979 and 1981 recordings of Down Under infringed the owner of the copyright in Kookaburra because both of the recordings reproduced a substantial part of Kookaburra.

Men at Work is an iconic Australian group.  The Kookaburra song forms an important part of our culture as well.  It was composed in 1934 by Miss Marion Sinclair.

This however was not a fight between Miss Sinclair’s family and Men at Work.  The copyright to Kookaburra was owned by Larrikin Music Publishing Pty Limited.  Miss Sinclair’s will appointed the Public Trustee as her sole executor and trustee.  After her death the Public Trustee entered into a Deed of Assignment of the copyright in Kookaburra to Larrikin.  Larrikin paid only $6100 for this Australian icon.  But did Larrikin really own the copyright?

In 1934 the Victorian Girl Guides held a competition for various categories but including a song.  The rules of entry provided that all entries were to become the property of the Guide Association.  Marion Sinclair submitted her song Kookaburra.  Marion Sinclair arranged for the song to be printed and it was made available for sale.  Miss Sinclair donated the proceeds of sale to the Victorian Girl Guides.

Thereafter there was various correspondence and other documents which seemed to indicate that the Victorian Girl Guides and Marion Sinclair treated the song as in fact being owned by Marion Sinclair and not the Girl Guides. 

The judge found that Marion Sinclair did not assign copyright to the Victorian Girl Guides.  The Public Trustee was therefore entitled to sell the copyright to Larrikin and Larrikin were entitled to bring the court case that they did.

It seems offensive that someone is trying to make money from the sales of Men at Works’ famous song.  You can’t help but think that Marion Sinclair would have been delighted to see a small reference to Kookaburra in Down Under.

But in the law of copyright and the pursuit of money a different approach is taken.

But 30 years had passed since the recordings of Down Under complained of.  The similarity had never occurred to anyone until in 2007 on Spicks and Specks, a musical panel quiz show on the ABC a question was asked to “Name the Australian nursery rhyme that this riff has been based on?”.  A part of Down Under was then played and one of the panel members made the link.

It somewhat offends against the Australian sense of fairness that Larrikin should make money out of this.  Will they?

The judge hearing the case made it very clear that the mere fact that there had been an infringement of copyright did not necessarily mean that the printing presses would roll.  Larrikin in their submissions suggested that they should be entitled to 40-60% of the income of the song Down Under.  The judge said that that submission “grossly overreaches a proper allocation of any such entitlement”.

To obtain damages Larrikin will need to show that the flute riff is a substantial part of Down Under. They may have a little more difficulty in that aspect of the case and it is doubtful that Larrikin will obtain the windfall which they no doubt are seeking.

So when you write your next song, be sure that you eliminate any subconscious influences from the songs of your childhood!