In most regards, the recent judgment in Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267 (‘the Gammasonics case’) is rather uninteresting. In fact, taken at face value, the only interesting aspect of the case is that it contains a discussion of one significant legal question: that is, under what circumstances can software be classed as ‘goods’? That is no doubt an important question, not least as such a classification may determine whether a buyer of software is entitled to rely on the terms implied under the various state Sale of Goods Acts.
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References
1.
ReidLord, ‘The Judge as Lawmaker’ (1972) 12Journal of the Society of Public Teachers of Law, 22 at 22.
2.
MurphyLionel (Speech delivered at the National Press Club, Canberra, 22 May 1980).
3.
Sale of Goods Act 1923 (NSW), s. 5(1).
4.
Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267, at 5.
5.
Toby Constructions Products Pty Ltd v Computa Bar (Sales) Pty Ltd [1983] 2 NSWLR 48.
6.
In discussions of whether software is to be classed as ‘goods’ reference is commonly also made to two judgments from overseas courts; namely: Advent Systems Ltd v Unisys Corp (1991) 925 F 2d 670 and St Albans City and District Council v International Computers Ltd [1996] 4 All ER 481.
7.
Toby Constructions Products Pty Ltd v Computa Bar (Sales) Pty Ltd [1983] 2 NSWLR 48, at 54.
8.
Re Amlink Technologies Pty Ltd and Australian Trade Commission [2005] AATA 359, at 42.
9.
Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267, at 44–45.
10.
Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267, at 47.
11.
See Schedule 1 of the Trade Practices Amendment (Australian Consumer Law) Act No (2)2010. It is worth noting that, as a consequence, software will be classed as goods under one piece of legislation (ie the ACL) but not under another (ie the SGAs). Not only is this complicating the law in an unreasonable manner, it is also unfair and likely to confuse and mislead some purchasers of software.
