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18 February, 2010  
Goings On ...

Capitalism is a beautiful thing … Rude citizens take an opportunity to poke out their tongues at Peter Jacobson and his Kookaburra decision … And CSR’s asbestos restructure attracts some scabby opponents

imageEvery blue moon a carefully crafted judicial creation comes out of the law factory that excites citizens beyond the tight confines of the law.

Importantly, it provides an opportunity for the wider community to indulge in the vastly satisfying business of judge sledging.

Justice Peter Jacobson’s reasons in the Kookaburra Sits in an Old Gum Tree case is the latest offering in this category.

It touched something nervy.

“What a ridiculous ruling,” Angus Lawson of Pennant Hills wrote to The Sydney Morning Herald.

“An ignorant judgment,” declaimed Alan John of Arncliffe.

A “ludicrous court decision”, wrote au contraire in The National Times’ comment section.

“No wonder nobody has any faith in the judicial system in this country,” said a comment in an Age blog.

The case was a “scam … run by greedy lawyers … showing that copyright law is anachronistic … an insult to the spirit of larrikinism”.

“Men at Work turned a girlie song into a national anthem to the gratitude of most of us. Don’t they get any credit for the added value?” Richard Ure from Epping commented online.

Jacobson, copyright law itself and the peachy law shop of Simpsons, all came in for public ordure.

Larrikin’s lawyer Adam Simpson made the mistake of looking too pleased with himself when he appeared on the steps of the court to comment on the damages:

“The more the better, but it depends,” he said.

“An unedifying post-judgment remark,” responded Anne Ackroyd of Melba in the ACT.

The claim was for between 40 and 60 percent of Men at Work’s earnings from the hit ditty Down Under.

“It’s a big win for the underdog,” Adam announced.

Actually, it’s a big win for the topdog. Larrikin is owned by the giant London-based Music Sales Group. It’s website says:

“Principally Music Sales owns, manages and exploits over 200,000 music copyrights. It is also Europes largest printed music publisher, distributing products worldwide from centres in the UK, the USA, Australia, Japan and Europe.”

This is no longer Warren Fahey’s charming little Aussie-battler record label.

In any event, the judge said the claim of 40-60 percent of the income from Down Under, “grossly over-reaches a proper allocation of any such entitlement”.

imageWhile the amount of moolah remains to be determined, the flaming kept going for days.

Andrew Rowell, also from the ACT, suggested …

“Larrikin Music change it’s name to Greedy Opportunistic Bastards Music.”

Adrian Hart of Baulkham Hills thought:

“Any payments should be made to the estate of the original composer, Marion Sinclair, not faceless men with no artistry or creativity.”


The whole thing has the whiff of McLibel about it – litigation that left the successful party covered in opprobrium.

Jacobson said that the flute riff in Down Under was not a substantial part of the song, but it was a substantial part of Larrikin’s Kookaburra Sits on an Old Gum Tree.

What the case has achieved is a fresh round of unhappiness about copyright law.

Someone called “mike” made a good point in The National Times about the legal justification of copyright as a protection of investment in creativity:

“It is now abundantly clear that in the countries where copyright is weak, e.g. China, there are still loads of creative works and innovation as well as copying, so the economic rationale for copyright has weakened over time.”

Another The National Times’ correspondent volunteered:

“The whole copyright system is broken. It allows parasites like these Larrikin lawyers to profit off something they had no role in creating.”

And one final apposite comment, from London:

Down Under is a deliberate pastiche of Australiana.”


Illustration: extended “hook” in Down Under

Certainly, Barry McKenzie played an inspirational role. Bits were borrowed from here and there, as is the case with most musical works.

Kookaburra itself was a lift from an old Welsh song about a blackbird, A Ei Di’r Deryn Du.

Waltzing Matilda is heavily indebted to a Scottish air.

None of the imperfections of copyright law excited the attention of the judge in this action for infringement.

He had to remain stony faced while indignities were piled high.

As Men at Work put it:

“Do you come from a land down under?
Where women glow and men plunder? ...

I said, ‘Do you speak-a my language?’
He just smiled and gave me a Vegemite sandwich …”

All the incandescent comments I have quoted can be found HERE and HERE and HERE.

* * *

The sight and sound of James Hardie and the NSW state government opposing CSR’s asbestos-related restructure left me a little giddy.

Their concern for the proper compensation of asbestos victims is touching.

CSR’s plan to hive-off its sugar and renewable energy business sans asbestos liabilities got the thumbs down earlier this month from Justice Margaret Stone.

The NSW government and Hardie’s Asbestos Injuries Compensation Fund (AICF) opposed the scheme and ASIC sort of opposed it.

The ethically inspired voice of James Hardie weighing in on the side of the objectors was a treat for everyone.

imageHardie and CSR had an agreement to share liabilities in cases where claimants can’t tell whose asbestos did the damage.

Presumably that’s why it is wanting CSR to stump-up more than the $447 million earmarked for the new entity that will be responsible for the claims.

However, according to this report the agreement seems to have collapsed.

If so, Hardie’s indignation about CSR’s funding of its liabilities may have confused the court.

Hardie announced last year that because of the GFC the Asbestos Injuries Compensation Fund faced a “short-term shortfall”.

The bee in CSR’s objectors’ bonnets was the effect the capital reduction would have on the restructured company’s ability to meet asbestos victims’ compo claims.

Normally it wouldn’t be the court’s call, but Stone decided it was fair game because the capital reduction was part of the scheme of arrangement “as a matter of substance if not form”.

Hardie echoed the concerns of ASIC (which, unlike the other interveners, did not formally oppose the scheme) and the AICF.

It argued that the demerger would split CSR’s assets, leaving a smaller pot for the new CSR’s current and future asbestos liabilities.

Even though it is fair to assume that CSR would be anxious to avoid the underfunding chaos and subsequent prosecutions that subsumed James Hardie, nonetheless there were concerns about the way the old sugar refiner’s experts had assessed the new entity’s ability to meet future claims and the limitations of assessments in the case of “long-tail” liabilities.

The “inherent uncertainty of any actuarial assessment of future asbestos-related claims” left her Honour unable to be satisfied that the post-demerger provisions for claims were consistent with commercial morality or that the scheme of arrangement would not involve an unfair or oppressive result.

CSR sought expedited leave to appeal the decision last week, claiming the judgment “contains errors in law which … should not go unchallenged”.

Then there was the sobering performance of the NSW government.

As former asbestos lawyer Toby Tancred put it in a recent article:

“Where was this vigilant defender of asbestos victims’ rights when James Hardie tried to do the bolt a few years ago? Being told of James Hardie’s plan by a James Hardie employed lobbyist, that’s where.”

There’s an economic explanation to most things. As Tancred put it:

“So far as the government is concerned, the more guilty parties that are around to foot the bill, the less the government will have to pay for its asbestos riddled schools, hospitals, halls and building.”


Reader Comments

Posted by: Anonymous
Date: February 20, 2010, 3:44 am

Good on you Toby. Spot on