Judgment Watch

CLAIRE MARSHALL
Volume 1, Issue 3 (Originally Published 12 March 2012)
 
Kill, pitbull, and homosexual relationships
 
Perez v Fernandez [2012] FMCA 2 – moral integrity and rapper's rights.
 
The Federal Court recognised a moral right to integrity, ruling a DJ who remixed song 'Bon Bon' by artist Pitbull had subjected him to 'derogatory treatment'.
 
Fernandez downloaded the song without permission and edited it to include his name. Driver FM found what was required to establish a finding of derogatory treatment was anything 'prejudicial to the author's honour or reputation' and that a listener might think that Fernandez's version was the original. He awarded Pitbull $10,000 for 'distress caused by the infringement of moral rights'.
 
The 'Bon Bon' song isn't an of Pitbull's but a combination of samples he raps over. Lyrics include ‘When it comes with women I don't taste them, I replace them' and 'You must know that a fat ass I lust for'. I'm delighted Pitbull's moral right to remarkable poetic introspection conveying modern struggles with lust and ladies are being protected by our courts.
 
Estrella v McDonald [2012] VSC 62 – trusts, shame and the dearly departed
 
A Victorian man has been awarded $300,000 from the estate of his deceased partner, with whom he lived in a homosexual relationship.
 
The plaintiff was left out of his partner's will and sought maintenance per s 91 of the Administration and Probate Act 1958 (Vic). Lansdowne J interpreted the Act as not requiring a relationship of any particular character. His honour followed Forsyth v Sinclair [2010] VSCA 147, finding a partnership of 'shared significant moments' and 'deep and intimate affections’.
 
The dispute centred around whether a relationship existed at all. The deceased's family insisted the plaintiff lived with him as a lodger for fifteen years and emphatically denied he was gay. They testified that the frequent trips the plaintiff and deceased shared were platonic, the gay porn found in his room was irrelevant and his ex-wife said “having younger men around was a normal part of his life. He enjoyed their company. I think it kept him young”.
 
Evidence showed the deceased was deeply ashamed of his sexual orientation. The statutes may be interpreted tolerably but prejudice is still in court.
 
Western Australia v Kuzimski [2012] WASC 67 – death, juries and bad ink A man accused of murdering two women disputed the use of a photograph of a tattoo in the bundle of evidence provided to jurors. Jenkins J considered the effect of the photo on the jury’s decision in the context of his duty to ensure a fair trial, and gave them a 'firm direction' to not let it factor in their verdict. Nevertheless, they found him guilty. A note to aspiring defendants: if you're contemplating murder, don't get 'KILL' inked to your knuckles
 
Claire Marshall