On the first issue, EMI relied on the fact that the rules of the competition stipulated that “All matter entered to become the property of the Guide Association”. His Honour rejected the submission that this gave rise to an assignment of copyright from Sinclair to the Girl Guides, noting that there was no evidence that Sinclair was aware of the rules of the competition, and no evidence of any contract in writing which might have satisfied the requirements of the Copyright Act then in force. Further, the conduct of both Sinclair and the Girl Guides subsequent to the competition was contrary to any intention or understanding that copyright in the song had been assigned.

The second issue arose in circumstances where there was a dispute as to the ownership of the copyright in Kookaburra between the Public Trustee, to whom Sinclair bequeathed her estate, and the Libraries Board of South Australia, to whom Sinclair had previously made a “Donation of Records”. Larrikin had originally obtained assignment of the copyright from the Public Trustee, but following this dispute entered a tripartite assignment with both parties and a further deed of confirmation after the commencement of the infringement proceeding. Without deciding on the effectiveness of the original assignment from the Public Trustee to Larrikin, Jacobson J concluded that:

Plainly, there are only two possibilities. Either the copyright was owned by the Public Trustee as trustee of Ms Sinclair’s deceased estate, or by the Libraries Board by reason of the donation of records. Whichever of those two institutions owned the copyright, both have assigned it to Larrikin in a clearly documented chain of title in the Deeds, to which I have referred. What is more, they confirmed the assignment in the Deed of Confirmation

Accordingly, Larrikin was found to be the owner of copyright in Kookaburra. In light of this finding the remaining issues in dispute, including whether “Down Under” reproduces a substantial part of “Kookaburra”, will now be determined.