Austral International Photo Library Pty Ltd v Croker
[2002] WADC 23
•31 JANUARY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: AUSTRAL INTERNATIONAL PHOTO LIBRARY PTY LTD -v- CROKER [2002] WADC 23
CORAM: GROVES DCJ
HEARD: 29-31 JANUARY 2002
DELIVERED : Delivered Extemporaneously on 31 JANUARY 2002 typed from tape and edited by Trial Judge
FILE NO/S: CIV 761 of 2000
BETWEEN: AUSTRAL INTERNATIONAL PHOTO LIBRARY PTY LTD (ACN 003 966 292)
Plaintiff
AND
NATALIE ANNE CROKER
Defendant
Catchwords:
Contract - Terms of contract - Use of photographs from photo library - Copyright - Damages - Turns on own facts
Legislation:
Nil
Result:
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff: Ms C A Bahemia
Defendant: In person
Solicitors:
Plaintiff: Hammond Worthington
Defendant: In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
GROVES DCJ: The plaintiff company has a photographic library containing some 500,000 photographic images. Its business is that of marketing and licensing the rights to reproduce those images. The plaintiff claims that by an agreement entered into on or about 19 March 1999 it agreed to supply to the defendant a number of photographic transparencies upon certain terms and conditions. The plaintiff's case is that it did supply 78 duplicate and 22 original photographic transparencies (the photos) upon the terms endorsed on a delivery contract which accompanied the photos when they were forwarded to the defendant.
It is alleged by the plaintiff that in breach of the agreement the defendant has not returned the photos to the plaintiff and damages calculated in the terms of the delivery contract are claimed. Further the plaintiff alleges that the defendant infringed the plaintiff's copyright by reproducing and/or authorising the reproduction of four photographs in a brochure and advertising for Ocean West Homes without the licence or permission of the plaintiff.
Save to admit that she was at all material times the proprietor of a business registered in Western Australia known as 100% Marketing, the defendant, by her defence, denies the plaintiff's claim. The defendant appeared in person at trial. The defence had been prepared and filed on her behalf by solicitors. They ceased to act and another firm of solicitors took over for a period of time before they too ceased to act. In the circumstances, at the commencement of the trial, I deemed it prudent to outline to the defendant the manner in which a civil trial proceeds by way of plaintiff counsel's opening and then the calling of witnesses whom the defendant would have the opportunity to cross‑examine; the defendant's opportunity then to call evidence and that such witnesses as may be called may be cross‑examined by the plaintiff's counsel and that after the hearing of all the evidence I would hear addresses.
Further the defendant was informed that in cross‑examining the plaintiff's witnesses she should put to those witnesses any evidence which she might give or call to be given which might contradict the witnesses' evidence or call into question their credibility. The defendant indicated that she understood the procedure and that she had sat in on a civil trial to familiarise herself with the procedures.
Furthermore, it became apparent at an early stage of the proceedings that the defendant, in defending the action, may go outside the scope of her defence and raise issue on, or wish to lead evidence of, matters which had not been raised in the defence and which therefore were not relevant to the matters in issue on the pleadings. Upon the plaintiff's objection to allowing such evidence, I indicated that I would be prepared to hear the evidence and I would reserve the right to the plaintiff to call evidence in rebuttal if such was necessary.
Accordingly the defendant and counsel for the plaintiff were given somewhat of a loose rein so far as the evidence led and cross‑examination was concerned. A certain amount of hearsay evidence and what would have otherwise been inadmissible evidence was allowed to flow. I allowed the trial to proceed in this way to ensure that both sides had the opportunity to raise all possible issues so that the action could be disposed of without undue technicality so as to ensure that justice would, in the end result, not only be done but would be seen to be done.
As I will indicate later in these reasons, the plaintiff was allowed to call rebuttal evidence. That evidence raised a number of matters which the defendant could not have anticipated that she would have to give evidence of when she gave her evidence‑in‑chief and which, if left unchallenged, may have given rise to findings adverse to her being made. I afforded to the defendant the opportunity to go back into the witness box to respond to those matters which I particularised. The defendant declined that opportunity.
For the purpose of these reasons I have discerned the facts from what I consider to have been evidence which would, but for the limitation of the pleadings, have otherwise been admissible; that is, hearsay evidence and unsubstantiated statements from the Bar table have been filtered out from my consideration. I make the foregoing statement for the purpose of indicating that the conduct of the trial, whilst not in accord with the usual procedures of this Court, was nevertheless conducted in a manner to ensure fairness, having regard to the fact that the defendant is not legally trained and was not legally represented.
I turn now to the evidence which was led. Adrian Ian Seaforth is a director of the plaintiff company and for 22 years has been in the photo business. It was his evidence that the business of the plaintiff company was selling the reproduction rights to the photographs held in the plaintiff's photographic library to a wide range of parties involved in the publishing industry.
His evidence touched upon the manner of business which the plaintiff company conducts where it receives its stock photographs from and the arrangements which the plaintiff has with those who supply, be they other photographic libraries or individual photographers who may forward photographs on a consignment basis. The plaintiff acts in the manner of an agent insofar as the use of the photographs by third parties are concerned.
He outlined the different forms in which the images were received and would be available for those seeking photographs for use. He also outlined the manner in which orders may be received by the plaintiff. In general terms it is in this way. The inquiry may come by either telephone, by facsimile or by email. The plaintiff has a number of catalogues in which photographs are depicted and a person inquiring may nominate a particular image by number in the catalogues. Alternatively a person making inquiry could seek the assistance of a researcher employed with the plaintiff who would obtain details as to the subject on which photographs were sought for the purpose of searching out images which may fulfil the request. In those circumstances the researcher would ascertain who the customer is, whether or not they are an existing customer or a new customer, would obtain a purchase order, would ascertain the proposed use of the image and would also ascertain who the end client was so as to ensure that the image was not licensed to a rival in the same industry.
If the caller wished to have samples of images sent to them the researcher would obtain credit account details. The researcher would then proceed to locate relevant images to fulfil the request. The invariable practice then was that a document entitled Delivery Contract would be completed by the researcher and that would be done by means of scanning the bar code number on each image into the computer and being reproduced on the Delivery Contract.
There was tendered a pro forma of the delivery contract which was used by the plaintiff at the material time (Exhibit 2). The delivery contract comprises three pages. The top page is white and endorsed on the back are "Terms of Delivery and Contract for the Use of Photos" (the Terms). The second page is pink and the third page is yellow. Neither of these pages have the Terms printed on them. The pages are self‑carbonating so that when printed on the top copy that is copied through onto the pink and the yellow copies. The usual practice which the plaintiff adopted in its normal course of business was to enclose the white and pink copies with the photos when sent to the client. Mr Seaforth, in his 22 years of experience, was only able to recall one single instance where the delivery contract had not gone out to a client with the photos. In that instance, the copies of the delivery contract were still at the plaintiff's offices after the photos had been sent. They were immediately faxed to the client and the hard copies then forwarded in the mail. It is the standard and invariable practice that the delivery contract is sent with the photos.
Mr Seaforth was able to identify from the plaintiff's working day book that on 19 March 1999 the plaintiff received a call from 100% Marketing. The entry in the day book (Exhibit 5), records "x 100 homes + people" with the initial "E" next to that. Mr Seaforth was able to identify that the researcher with whom the defendant had contact was one Emma McClure. She had been an employee with the plaintiff for six years as a researcher and was a person who packaged and forwarded photographs and contract documentation on a frequent basis. At that time the plaintiff had five employees, two of whom, including Ms McClure, were employed as researchers and despatchers.
Mr Seaforth was not able to say of his own knowledge that in fact in this case that the delivery contract was in fact included in the envelope which was despatched to the defendant. Nevertheless, having regard to the experience of Ms McClure and the usual business practice, he had no reason to think that that had not been done. Support for that conclusion is drawn from the yellow copy of the delivery contract being relevant to the subject matter of these proceedings (Exhibit 3).
The yellow copy of the delivery contract is addressed to "100% Marketing, 82 Gladstone Avenue, South Perth, WA 6151". It notes a telephone number with the prefix of 08 and is marked "Attn NATALIE CROKER". There is also the subject of the photographs sought, that being "Variety of homes and people at home" and it also identifies the contact as being Emma McClure.
The yellow copy then details some 100 numbers, some with alpha prefixes, and it records at the bottom "100 Photographs sent on 19 March 1999 on Contract number 21719".
It was Mr Seaforth's evidence that within about four to six weeks after photos being sent to a client that there would be automatically generated by the computer follow up or reminder letters in the event that there had been no response received from a client. The information which was put onto computer for the purpose of printing out the delivery contract was the base information from which reminder letters were generated. Mr Seaforth's evidence was that copies of such follow up or reminder notices are not kept. They are many and given that they are generated automatically, they do not deem it necessary to retain copies of those letters.
In October 1999 a reminder letter to the defendant, of the sort mentioned, was returned to the plaintiff. Upon opening that letter Mr Seaforth became concerned that these photos had not been returned, they having been sent as long ago as 19 March. That same day he telephoned the defendant and spoke to her. He ascertained from her that she had changed addresses and now occupied premises in Kings Park Road at Perth. She provided to him the new address which Mr Seaforth said was subsequently recorded on the computer relevant to this account.
It was Mr Seaforth's evidence that he requested that the photos be returned to which the defendant responded that she would get her PA, or personal assistant, to return them. Mr Seaforth said that he discerned a nervousness in the defendant's voice and that concern was such that immediately following the telephone conversation he caused a facsimile to be made and sent to the defendant (Exhibit 4). That facsimile dated 27 October 1999 reads:
"Dear Natalie,
You are retaining 100 images from contract 21719 dated 19 March 1999. In accordance with our acceptance terms, these images should be been (sic) returned by 4 April 1999. After this date a holding fee of $1 per image per day (that is $100 a day) is accruing. You are also reminded the fee for the loss of our transparencies is $150 per duplicate image and $1500 per original. You are holding 71 duplicates and 29 originals, a total loss fee of $56,150. Please, it is in your interest to locate and return these transparencies immediately.
Yours sincerely."
The images were not immediately returned and a short while later Mr Seaforth telephoned the defendant again and informed her that the images had not been received. His evidence was that she expressed surprise that they had not been sent.
It was not then until April 2000 when Mr Seaforth was in Perth that he visited the sales office of Ocean West Homes. He went to them because, as was the usual practice when an order was being placed, the name of the end client, that is, the party who is going to be using the images had been provided. Mr Seaforth went into the reception area of Ocean West Homes where he picked up a brochure. He left without speaking to anyone. He has identified on that brochure (Exhibit 7) that the two photographs on the front cover, one of which is repeated on the third page of the brochure, and a photograph on the back page of the brochure as images which have been taken from photos supplied by the plaintiff to the defendant in the consignment of March 1999. Those photographs are identified as numbers 116207 (family on balcony), 12540 (construction worker looking at plans), and 19413 (spa and tap set).
It is the case that the plaintiff has not been paid for the use of those images and nor was any authority for their use granted. It is relevant in that sense to note that on the yellow copy of the delivery contract there are the words printed, in capital letters, "Important: Do not use any of these transparencies before checking with us". Mr Seaforth went on to give evidence as to the terms and the conditions which are applicable so far as the supply of photographs to clients are concerned.
Relevant terms, in the context of this action, are:
1.Review Period You may examine the accompanying Photos for up to fourteen (14) days after the time you receive them. Unless the period is extended in writing after this fourteen (14) day period, you will be charged a HOLDING FEE of $1.00 per day per Photo until their actual receipt by Austral.
…
3.Use of Photos The accompanying Photos are copyrighted and are protected under the Federal copyright laws. The Photos may not be copied, televised, transmitted, electronically stored, or used in layouts, sketches, photocopies, mockups etc, reproduced or duplicated in any way without prior permission from Austral. Projection of the images is specifically prohibited and you are not granted derivative uses of any Photo unless so indicated by way of invoice. You may not remove any Photo from its protective mount unless you obtain our specific permission. The unauthorised removal of a Photo from its mount will automatically incur a fee of $120.00 (this amount is subject to charge without notice). All fees for the reproduction rights must be negotiated prior to you using the Photos.
…
6.Liquidated Damages We both agree that the monetary damage Austral will suffer due to the loss or damage of an original transparency is difficult to determine and a Photo may be irreplaceable. Accordingly, we both agree that the establishment of a reasonable liquidated value for any lost or damaged original transparency or black and white photograph is in both our interests to avoid having to determine the value of Photos on an individual basis. Accordingly, we both accept the sum of one thousand five hundred dollars ($1,500.00) as the liquidated value of a lost or damaged original transparency or Photo. The liquidated value of a duplicate transparency or contemporary black and white Photo is agreed to be one hundred and fifty dollars ($150.00). Austral agrees to deliver the Photos to you only upon your express agreement to the terms in this paragraph. If you do not accept this liquidated damage Provision, please return our Photo(s) at once.
…
8.Time for Return You may retain the Photos invoiced until you create the separation or half tone, or otherwise complete the reproduction process, for a period of not more than two (2) months from the date of our invoice. All other Photos must be returned within the fourteen (14) day review period set forth in Paragraph 1. After the applicable fourteen (14) day or two (2) month period you will be charged a holding fee of one dollar ($1) per day per Photo until its actual return and receipt by Austral. Unless a longer period is granted in writing, holding fees will accrue for the next nine (9) months. Eleven (11) months from the date of the invoice, if a Photo is still not returned, it shall be deemed to be conclusive and binding proof of the loss of such Photo and holding fees will cease to accrue and you shall be billed for its loss in accordance with the liquidated damage provisions set forth in paragraph 6 of these terms and conditions."
Furthermore, it was Mr Seaforth's evidence that on a number of occasions searches have been undertaken of the plaintiff's library of photographic images to ascertain whether or not any of the 100 which were despatched to the defendant have been returned. Those searches reveal that none of those photos have been returned.
Mr Seaforth also described the manner in which the photos are packaged, namely in a plastic shroud to protect the image. That plastic shroud would have to be removed to allow it to be scanned for reproduction use, and there is writing on the cover of the photographs or of the shroud, to the effect "A fee will be charged for removal of the image from the plastic or covering shroud".
In cross‑examination, Mr Seaforth conceded that he had not been able to locate any delivery note indicating the delivery of the photographs to the defendant. That, as the evidence unfolded, does not bear on anything as the defendant admitted in her evidence that she did receive the photographs.
Produced to Mr Seaforth was a photocopy of a delivery contract, (Exhibit 9). That copy bears an address of 100% Marketing at Level 1, 18 Kings Park, West Perth, WA 6005. On the defendant's case she contended that was the first occasion when she received a copy of any delivery contract and that was when she became aware of the Terms. I will comment more in relation to that copy of the delivery contract later in my reasons.
Mr Seaforth acknowledged that, in his experience, on one occasion the delivery contract had not been included with an envelope forwarding photographs to clients. He conceded and properly so that it is 'possible' that an envelope could be sent without the delivery contract being enclosed. Anything is possible. Albeit that it may be possible, that is not evidence of the fact that, on this occasion, as the defendant was to later give evidence of, the delivery contract was not enclosed.
At the completion of Mr Seaforth's evidence the plaintiff closed its case. The defendant proceeded then to give evidence. Before dealing with her evidence I will identify the witness who I allowed the plaintiff to call by way of rebuttal of matters which were raised by the defendant in the course of her evidence.
Mr Seaforth was recalled and certain matters of which the defendant had given evidence and which the defendant had not put to Mr Seaforth earlier in cross‑examination were raised. I will touch on each of those matters when I deal with matters of conflict of evidence.
Evidence was also called by the plaintiff from Damon Mark Knott, a sales executive, Natalie Karen Grey, a graphic designer, both employed by Type Express, and Colin Linton Brewer, a director of that business. The relevance of their evidence will become apparent when I have dealt with the defendant's evidence and consider matters of conflict which arise as between the defendant's evidence and the evidence of those witnesses.
It was the defendant's evidence that she operates a marketing consultancy business, named 100% Marketing, and had done so for four or five years and has been in that industry for approximately 10 years. She confirmed that on 19 March 1999 she telephoned the plaintiff and had a conversation with a female employee. She indicated what the purpose of her inquiry was, that she was preparing a brochure for a small building company and wanted photographs of a variety of homes and people in the home environment.
It was her evidence that she only wished to be supplied with 10 samples of photography and that there was no discussion or mention of terms and conditions other than that once she had viewed and chosen photographs which might be used, there would be discussion as to reasonable market rates which would be negotiated. I interpose here to say that that indicates to me that there certainly was some discussion as to the procedures and practice adopted by the plaintiff in dealing with clients so far as charging for the use of photos is concerned.
It was the defendant's evidence that on receipt of the package of photos she was surprised by their number. She could not recall how the package was received. She was adamant that there was not enclosed with the package any copy of a delivery contract. She says that she looked at perhaps 10 of the photographs and by her observation she was surprised because she thought the photos were quite dated. That is, they were of the sixties and seventies era and would not be suitable for her purpose.
Nevertheless she went to Type Express for the purpose of that company doing the artwork and design for a brochure for her client Ocean West Homes. It was her evidence in cross‑examination that she spoke there with a person named Natalie and that, in fact, she left the package of photos with her for approximately one week. It was then agreed that the photos were not suitable for the purpose intended and she phoned the plaintiff, said that they were not suitable and was told that they should be returned.
It was also her evidence‑in‑chief that Type Express used their photographs, identified from a catalogue, and invoiced her for the cost of those photographs for the Ocean West Homes brochure. She did not recall getting any reminder notices from the plaintiff. In March 1999 she did occupy premises for her business at 82 Gladstone Avenue in South Perth to where the photos had been forwarded. In April 1999 she moved to another address at Mackie Street in Kensington and on 24 September 1999 she moved into offices in Kings Park Road.
She gave evidence that she did receive a telephone call from Mr Seaforth on 27 October 1999. She said Mr Seaforth expressed concern to her that the photos had not been returned. It was her evidence that the photos had been returned, that Mr Seaforth accused her of lying and "He said if he received a suitable offer he would end proceedings". Her evidence was that the photographs had been returned on 25 October 1999 by the friend of a friend. When she gave that as evidence, I ruled that it was hearsay and not admissible. Even if I were to accept such as evidence, I do not accept it as being the fact; that is, that the photos were returned. If it were the case that the photos had been returned in that way it is somewhat surprising that the person, who was not identified, was not called to give that evidence, having regard to the importance of that fact in these proceedings. Nor was any evidence proffered as to why that person was not able to attend to give such evidence. To the extent that I heard that statement, it has not been substantiated and is disregarded in its entirety.
In cross‑examination the defendant said that the first time she became aware of the Ocean West Homes brochure and the photos was when she spoke with Mr Seaforth some time in or after April 2000, that is, after the time when Mr Seaforth had been to Perth and collected a copy of the brochure.
The assertion which the defendant suggested was that she took the photos to Type Express and left them there and that thereafter Type Express dealt directly with the client Ocean West Homes so far as the design of the brochure was concerned, that Type Express sent to her an invoice for the design work which she then sent on to her client.
By that evidence, I understand the defendant to be suggesting that Type Express used the plaintiff's photos without her knowledge and dealt directly with Ocean West Homes for approval and signing off on the brochure and that Type Express billed Ocean West direct. On that issue the matter of an invoice which the defendant received from Type Express is relevant and I will deal with that when I deal with areas of conflict of evidence.
As to the Terms on the delivery contract, the defendant maintained firstly that she did not receive a copy of the delivery contract with the photos and secondly that she did not become aware of the terms until after she had moved to the Kings Park Road address. She said that this was the first time that she saw the Terms and that was subsequent to the conversation that she had with Mr Seaforth on 27 October.
So far as there are other relevant matters of evidence, they will be dealt with as I proceed now to deal with areas where there are conflicts of evidence. The relevance of these matters of course goes to the issue of credibility.
First, arising from the evidence of Mr Seaforth, it was the defendant's evidence that there had been a telephone conversation between her and Mr Seaforth before 27 October 1999. Mr Seaforth denied that. His first telephone call to the defendant was when he received the reminder notice returned to sender and that was on the day when he sent the fax on 27 October 1999. For reasons which will become apparent I accept Mr Seaforth's evidence on that.
Secondly, during the conversation on that date it was the defendant's evidence that she informed Mr Seaforth that she had returned the photos. Mr Seaforth denied that was said or that he was informed then that the photos had been returned. His concern was such that he immediately sent the facsimile to the defendant. The content of the facsimile is not consistent with him having been told then that the photos had been returned. It might reasonably have been expected that had he been so told, then the facsimile would have said something of that and of the fact that they had no record of the photos having been received. Again, I accept Mr Seaforth's denial of that assertion.
Thirdly, during that conversation it was the defendant's evidence that Mr Seaforth said that if he received a suitable offer, he would end proceedings or dismiss the claim or words to that effect. Mr Seaforth denied that was said. I consider that it would be unlikely that he would say that. At that time, 27 October, proceedings had not been instituted and there had been apparently no mention of proceedings and it begs the question of why that might have been said at that point in time. Next, it was the defendant's evidence that there was a second telephone call on 27 October, following the facsimile. Mr Seaforth denies that there was a second telephone conversation on that day.
Next, the defendant's evidence that the photos were returned on 25 October 1999. As I have said, Mr Seaforth has caused searches of their library to be made on a number of occasions and none of the photos have been located. The defendant says that they were returned by a friend of a friend on 25 October, that is, two days before the first telephone conversation took place. I have commented on that statement earlier. As I have said also, that person who is said to have returned them was not called to give evidence and that leaves me to be sceptical as to the defendant's assertion in any event. I have, in those circumstances, no reason not to accept Mr Seaforth's evidence on that issue. The defendant says that she offered to get an independent person to go through the plaintiff's photographic library to try to locate the photos and that that offer was refused. Having searched the library to no avail, the plaintiff was under no obligation to accede to the defendant's request and in the end result, nothing turns on that point.
Next is the issue surrounding the copy of the delivery contract (Exhibit 9), bearing the Kings Park, West Perth address. That copy is dated 19 March 1999 and is addressed to the Kings Park address. It was the defendant's evidence that she did not move to the Kings Park address until 24 September. She said that she first saw this document after speaking with Mr Seaforth on 27 October. The defendant suggests that there is something untoward in the fact that, although dated 19 March, the document bears the Kings Park address. The response to that suggestion is that the document (Exhibit 9) does not purport to be a copy of the original copy of the delivery contract, that is, the white or pink copy of Exhibit 3. I say that for a number of reasons: firstly, apart from bearing a different address, Exhibit 9 has a different contact telephone number for the defendant; it does not refer to the subject matter of the photos being variety of homes and people at home; Exhibit 9 bears the defendant's Visa card number and expiry date; the contact person named is Mr Seaforth, whereas Exhibit 3 named Ms McClure; and the printed words "Delivery Contract" at the top of the document and the "Important Information" printed at the bottom of the form are different in their size and appearance from the original copy on the sample document which was Exhibit 2.
I accept unreservedly Mr Seaforth's evidence that the change of detail was following the conversation which he had with the defendant on 27 October when, having received the change of details, he input that information into the computer and it was subsequent to that event that the document Exhibit 9, a copy of which was forwarded to the defendant, was printed out. I conclude that there is nothing untoward insofar as that document is concerned.
There are a number of areas of conflict also arising as between the defendant's evidence and the evidence of those persons from Type Express who were called. First, it was the evidence of Knott and Grey of Type Express that the first job which they did for the defendant for Ocean West Homes was an advertisement to be published in The West Australian newspaper and that was in or about August 1990 (Exhibit 12). The second job which they did for the defendant for Ocean West Homes was an advertisement for Starting Point magazine in September 1999 (Exhibit 13).
It was the defendant's evidence that she went to Type Express in about March with a brief for the Ocean West brochure. That was denied by both Knott and Grey. It was Grey's evidence that she first met the defendant in person in about June 1999 which was some three months later than the defendant would have it to be.
Secondly, Knott and Grey acknowledged that they had occasional contact with the end client to get final approval for advertising material. The suggestion implicit in the defendant's evidence was that Type Express dealt direct with Ocean West Homes after she had introduced work for the brochure to Type Express and that Type Express had billed Ocean West Homes direct for that work. That evidence and assertion by the defendant was emphatically denied by Knott.
Thirdly, implicit in the defendant's evidence was the assertion that Type Express did the artwork and design for the Ocean West brochure. This assertion also was emphatically denied by each of Knott, Grey and Brewer. Most emphatic was Ms Grey who was the only person there who would have done the artwork and she was adamant that she had nothing to do with the brochure.
Fourthly, the defendant's evidence was that she went to Type Express in March 1999 with the bundle of photos which she received from the plaintiff and that she discussed them with Ms Grey. Ms Grey denied that she met the defendant in or about March. The defendant's evidence was that she left the photos for about a week. Again this was denied by Grey who was emphatic that she never received any large bundle of photos from the defendant.
Fifthly, it was the defendant's evidence that she went through a photo stock book with Grey to identify photographs for the Ocean West Homes brochure. Grey's evidence was that they went through a catalogue looking for photos for another of the defendant's clients, namely, Brendan Manso. The use of photos on that account is confirmed in the invoice from Type Express to the defendant (Exhibit 10), that being an account where reference is made to "five stock photographs".
Sixthly, the defendant's evidence concerning a telephone call made to Mr Brewer one evening during the course of the trial. I will come back to that in a moment. There are other matters arising from the evidence of Knott and Grey which I invited the defendant to respond given that this evidence had followed the defendant's evidence and went beyond mere rebuttal.
The defendant chose not to respond thus their evidence on these matters is left unchallenged and necessarily I must accept it. That evidence was, first, Grey who said that in September 1999 the defendant provided photographs to he for the Starting Point magazine for an Ocean West Homes advertisement; secondly, that those photographs included photo 18431 (being a family group picture), and photo 19413 (being the bathroom spa and taps photo).
Photos 18431 and 19413 have been identified as having been provided to the defendant in March 1999 and in fact photo 19413 is published on the reverse side of the Ocean West Homes brochure (Exhibit 7). Thirdly, those photographs after use for the Starting Point advertisement were picked up by or otherwise returned to the defendant. Fourth, that on 28 September 1999 the defendant faxed to Type Express what purports to be a copy of the front page of the Ocean West Homes brochure. That would indicate that the defendant was familiar with the Ocean West Homes brochure at that date.
There were also a number of matters arising in the course of the defendant's own evidence which are relevant so far as conflict of evidence and credibility is concerned. First, I note that the defence which was lodged contained a non‑admission that the photographs had been received by her. It was her admission in the course of evidence that in fact those photos were received. Why that admission was not made earlier is cause for wonder. When the defendant received the bundle of photos it was her evidence that she looked at a few of them, considered that they were quite dated, that they were photos of the sixties and seventies era and considered that they were not suitable for what was needed for the brochure. Against that statement it is perhaps surprising that in fact three of the plaintiff's photos were used on the brochure.
More relevantly, if that were the case, it is surprising that some six months later the defendant would present two of those photographs, 18431 and 19413, to Ms Grey for inclusion in the Starting Point advertisement. That is, the defendant's evidence when viewed in that context is hardly credible.
Secondly, it was the defendant's evidence that the first time she became aware of the Ocean West Homes brochure and photos, was when she spoke on the telephone with Mr Seaforth and he told her that he had seen the Ocean West Homes brochure. That was in about April 2000 when Mr Seaforth was in Perth. The fact is that the defendant had or at least had a copy of the front page of the brochure in September 1999 when she faxed a copy of that front page to Type Express. The defendant had photograph 19413 when she went to Ms Grey at Type Express in September 1999 regarding the Starting Point advertisement. That photograph, 19413, is depicted on the reverse of the brochure. The coincidence could not have gone unnoticed and nor could the defendant have been unaware, firstly of publication of the brochure and secondly, of the use of the plaintiff's photographs on that brochure.
The defendant offered no evidence and declined to respond to the evidence of Ms Grey on the Starting Point advertisement photographs. Again, I conclude that the defendant's evidence is not credible, it is against the weight of other evidence and should not be accepted.
Thirdly, in her evidence‑in‑chief the defendant said that she took the bundle of 100 photographs to Type Express where she left them for some days. It was her evidence that she was told that they were not suitable, and she received them back, that Type Express used their own photographs and invoiced her for the cost of those photographs.
An invoice had been included in the defendant's unsworn affidavit of discovery of documents and had been inspected by the plaintiff's solicitors, although seemingly no copy of that document had been provided. Nevertheless, the detail of the invoice as noted by the solicitor on inspection was put to the defendant. It was her evidence that the invoice was relevant to the work for the Ocean West Homes brochure of March 1999.
The defendant was called upon to produce that invoice on the next day of trial. On the following day she advised the Court that she could not locate that invoice, nor had she been able to obtain a copy of it from Type Express. Nevertheless, she conceded that in fact, contrary to her earlier evidence the invoice did not relate to the Ocean West Homes brochure but was in respect of the Starting Point advertisement of September 1999.
Even though the subject of the invoice, that is "Starting Point ad" had been put to her the day before, she did not then volunteer or acknowledge that Type Express had done that work, that is for the Starting Point advertisement. In those circumstances the defendant attempted to lead this Court to the belief that the invoice referred to was relevant to the Ocean West Homes brochure. Quite clearly and by her own admission, that was not the case. At best without explanation, her evidence in that respect must be regarded as deceitful and, at worst, dishonest.
Fourthly, likewise it was her evidence the following morning after having been called upon to search for or produce that invoice, that overnight, in her attempt to get a copy of the invoice she had telephoned Colin Brewer of Type Express on his mobile phone and had left a message for him to call her about the matter. Mr Brewer gave evidence that his current mobile phone number was the same number which the plaintiff put to him. It was his evidence that he received neither that night nor in the morning, before he appeared to give evidence, any message on his mobile telephone from the defendant. I have no reason to disbelieve Mr Brewer on that. On the other hand I have every reason to disbelieve the defendant.
Having regard then to the significant areas of conflict on the evidence, it is necessary that I weigh those matters up in the light of the whole evidence presented. At the outset it has to be said that on the defendant's case she is the only one telling the truth and that each of the plaintiff's witnesses have been untruthful in their evidence. The converse of course is that it is the defendant who has not been truthful in her evidence before this Court.
Having regard to those numerous areas of conflict which I have identified, the manner in which the witnesses gave their evidence and the content thereof, the consistency and inconsistency of other evidence and the weight of competing evidence, I have concluded that the defendant has not been a truthful witness and is not a person to be believed, either where her evidence is in conflict with evidence of others or where she makes any assertion as to any matter of fact which is not otherwise substantiated.
I have instanced occasions where the defendant was dishonest before this Court in her evidence. Clearly she attempted to present a case by the fabrication of a story which, but for it having been tested by the trial process, may have enabled her to get away with avoiding her liability. As I have identified she has been comprehensively caught out.
I return now to the matter at issue in these proceedings. The plaintiff's case is that the agreement is represented in part by the oral conversation which took place on 19 March 1999 between Ms McClure and the defendant, in part by the document, being the delivery contract, and in part by the conduct of the defendant. The true issue as to whether or not there is a contract is as to whether or not there was sent by the plaintiff with the photos the copies, being the white top copy and the pink second copy, of the delivery contract, that is, the two top copies of the document marked Exhibit 3.
On the one hand I have no direct evidence from the plaintiff that in fact the delivery contract was inserted with those photos to the defendant. On the other hand I do have the evidence of Mr Seaforth as to the standard or usual business practice of the plaintiff as to what happens when photos are sent to clients for their perusal and consideration as to their suitability for use. Against that evidence the defendant says that when she received the photos there was no copy of the delivery contract enclosed with them.
Having regard to my findings so far as the credibility of the defendant is concerned, I have no hesitation in rejecting her denial that no copy of the delivery contract was enclosed with the photos. The denial like so many other aspects of her evidence is not accepted and does not bear scrutiny having regard to the whole of her evidence and the manner in which she has been shown to be a person who has not been truthful in her evidence before this Court.
In those circumstances I am satisfied on the balance of probabilities, having regard to the usual business practice of the plaintiff, that the copies of the delivery contract were enclosed and that the terms endorsed on the reverse of the original copy were received by the defendant. I have indicated earlier the relevant terms of the contract. Mr Seaforth gave evidence as to those terms so far as liquidated damages are concerned.
In those circumstances therefore I conclude that there was an agreement made between the plaintiff and the defendant as alleged and that agreement included the terms endorsed on the reverse of the delivery contract. I am satisfied in those circumstances that the plaintiff has made out its case as pleaded in the statement of claim.
In terms of the agreement the plaintiff is entitled to recover a holding fee of $1 per day per photo for a period of nine months (Terms 1 and 8), liquidated damages for loss of photos at $1,500 per original photo and $150 per duplicate photo (Term 6) and damages for removal of four photographs from their protective mount at $120 per photograph (Term 3).
The statement of claim also pleads a breach of copyright. It was Mr Brewer of Type Express evidence that when they receive photographs for inclusion in publications, they do so on the basis that the person supplying them has received approval or has been licensed to use or reproduce that photograph, it is not part of their business to obtain those approvals.
Implicit with the supply of a photograph to such a business goes the inference that the party submitting the photograph does have either copyright in the photo or a licence to cause that photograph to be reproduced and I find that in the circumstances of this case that that was implicit in what the defendant did, for example, in presenting the plaintiff's photographs to Type Express for the purpose of inclusion in the Starting Point advertisement. The same would follow in those circumstances to whomsoever it was that the photos were supplied for the purpose of the design and publication of the Ocean West Homes brochure which also includes photos of the plaintiff.
It was Mr Seaforth's evidence that the plaintiff has not received any payment for the use of the images on the Ocean West Homes brochure and gave no licence or authority for their use. His evidence was that if a request for reproduction had been sought the following would have been the reasonable charges for the use of those photos.
Two front cover images – 2 x $600 $1,200
Rear cover image $ 500
Internal image $ 300
$2,000
I am satisfied that the sum of $2,000 is a reasonable sum by way of damages for breach of copyright.
Damages calculated as follows will be allowed:
Holding fees from 2 April 1999 (ie 14 days after delivery) to 2 January 2000 (274 days) at $1.00 per day per Photo for 100 Photo ($100.00 per day for 274 days):
$27,400.00
Liquidated damages for loss of Photos:
22 Original photos x $1500.00 = $33,000
78 Duplicate photos x $150.00 = $11,700
$44,700.00
Damages for removal of 4 Photos ($120 each) from mount: (18431 – family group; 19413 – taps; 11116207 – family on balcony; 12540 – tradesman
$ 480.00
Damages for breach of copyright
$ 2,000.00
$74,580.00
The plaintiff also claims interest pursuant to s 32 of the Supreme Court Act on the judgment sum from 24 March 2000 being the date when the writ was issued. Interest will be allowed as claimed.
Accordingly there will be judgment for the plaintiff against the defendant in the sum of $74,580 together with interest at the rate of 6 per cent per annum from 24 March 2000 to the date of judgment. There will also be an order that the defendant do pay the plaintiff's costs of this action to be taxed if not agreed.
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