Australian Institute of Refrigeration, Air Conditioning and Heating v Smarttrade Limited - [2023] FedCFamC2G 855

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Institute of Refrigeration, Air Conditioning and Heating v Smarttrade Limited [2023] FedCFamC2G 855

File number(s): MLG 2312 of 2022

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 22 September 2023

Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – application for summary dismissal or in the alternative for an order that the statement of claim be struck out – whether applicant has no reasonable prospects of proving it is the owner of the copyright that is the subject of the proceeding – whether it would be an abuse of process to permit the applicant to maintain the proceeding in circumstances where it is unable to provide to the respondent documents referred to in the statement of claim – whether statement of claim fails to plead material facts – statement of claim struck out with leave to replead.

Legislation:
Acts Interpretation Act 1901 (Cth) s 23(b)

Competition and Consumer Act 2010 (Cth) Sch 2, ss 18, 29

Copyright Act 1968 (Cth) ss 10, 13(1), 14(1), 31(1)(a), 32, 35(2), 36, 78, 115(1), 127(1)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 14.10

Federal Court Rules 2011 (Cth) rr 16.04, 16.21, 34.35

Copyright, Designs and Patents Act 1988 (UK Act) s 9(3)

Cases cited:
Australian Securities and Investments Commission v Cassimatis [2013] FCA 641

Bureau Proberts Pty Ltd v Cottee Parker Architects Pty Ltd [2023] FedCFamC2G 409

Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371

Hoser v Georges [2023] FedCFamC2G 550

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273

McKellar v Container Terminal Management Services Ltd [1999] FCA 1101

Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49

SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59

Telstra Corporation and Anor v Phone Directories Co Pty Ltd and Ors 264 ALR 617

Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44

Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

Division: General

Number of paragraphs: 85

Date of hearing: 18 April 2023

Place: Sydney

Counsel for the Applicant: Mr G Mukherji, by video

Solicitor for the Applicant: McMahon Fearnley Lawyers

Solicitor for the Respondent: Mr L Hickey of Cornwalls, by video
ORDERS

MLG 2312 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AUSTRALIAN INSTITUTE OF REFRIGERATION, AIR CONDITIONING AND HEATING

Applicant

AND:
SMARTTRADE LIMITED

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

22 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The respondent’s application that the proceeding be dismissed under r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) is dismissed.
2.Subject to order 3, pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) the statement of claim be struck out.
3.By 13 October 2023 the applicant may file and serve an amended statement of claim.
4.The matter be listed for directions at 9:30 am on 20 October 2023.
5.The costs of the respondent’s application in a proceeding filed on 8 February 2023 are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

On 17 October 2022 the applicant (AIRAH) commenced a proceeding by filing an application and a statement of claim in which it claims, among other things, that the respondent (STL) has infringed, and continues to infringe, the copyright AIRAH alleges it owns in two manuals; and that STL made, and continues to make, a number of representations which, given AIRAH’s ownership of the copyright in the manuals, were and are false or misleading.
STL submits that AIRAH has no reasonable prospects of establishing that it owns the copyright in the manuals; or, assuming it owns the copyright, AIRAH has no reasonable prospects of establishing that STL infringed the copyright in the manuals or that the representations STL may have made were false or misleading. For these reasons, STL submits that the proceeding should be dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) (GFL Rules). STL also submits that, in any case, the statement of claim is sufficiently defective to merit its being struck out. Thus, in the alternative to its application for an order under r 13.13 of the GFL Rules, STL applies for an order under r 16.21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) that the statement of claim be struck out.
In determining STL’s application under r 13.13 of the GFL rules, it will be necessary to consider the documents the parties have adduced into evidence. That will be so because, although the determination of an application for summary dismissal under r 13.13 of the GFL Rules “does not require a mini-trial based upon incomplete evidence to decide whether the proceeding is likely to succeed or fail at trial”, the determination of such application requires “a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”.[1]
BACKGROUND
[1] Australian Securities and Investments Commission v Cassimatis [2013] FCA 641, at [46]
AIRAH and the manuals
The statement of claim describes AIRAH as a body that represents professionals and practitioners working in the heating, ventilation, air conditioning, and refrigeration industries (HVACR industries), and in the building services industries.[2]
[2] Statement of Claim, [1(b)]
AIRAH has published four editions of a manual known as the “DA19 HVAC&R Maintenance Manual” (DA19 Manual). The first edition of the DA19 Manual was published in 1992, the second in 2001, the third in 2009, and the fourth in 2019.[3] The DA19 Manual is directed to “HVAC&R systems”, being systems that “provide comfort conditions within a building”, “support business processes”, and “enable business systems”.[4] The fourth edition of the DA19 Manual states that it:[5]
is one of a series of Application Manuals prepared to assist mechanical engineering designers and maintenance engineers with their day-to-day tasks, and the discharge of their duties. This manual seeks to set down knowledge of the art and current practice in the current practice in the planning, specification, procurement, delivery and management for HVAC&R systems. The document will also be of use to all those engaged in regulating, planning, design, construction, operation, servicing and management of buildings and HVAC&R systems.
[3] A copy of the third and four editions are exhibited to the affidavit of A Izra 01.03.2023; and a copy of the second manual edition of the DA19 Manual is Exhibit LTH-4 to the affidavit of L T Hickey 03.02.2023
[4] DA19 Manual 2019 Edition, page 1
[5] DA19 Manual 2019 Edition, page 2. The corresponding section of the 2009 edition of the DA19 Manual is to the same effect.
The fourth edition of the DA19 Manual identifies its purpose as follows:[6]
The focus of this manual is to assist in the development and review of the routine and preventative maintenance programs in use by building services engineers, maintenance engineers and plant engineers, and to provide guidance in the preparation of maintenance contracts for HVAC&R services.
A further purpose is to provide a guide to the programming of the maintenance service required for items usually found in HVAC&R systems and, where considered necessary, to explain how the maintenance work should be performed. It includes detailed maintenance schedules for common HVAC&R plant items and systems, and guidance on how these schedules can be tailored to individual buildings and systems.
. . . .
An important purpose of this manual is also to outline for the owner, maintenance manager and maintenance contractor the extent of service required in order to maintain a system at peak efficiency at all times. This manual outlines, for the system owner or operator, the choices of the type of maintenance service that can be provided.
[6] DA19 Manual 2019 Edition, page 8. The corresponding section of the 2009 edition of the DA19 Manual is to the same effect.
The information contained in the DA19 Manual:[7]
is provided in a layered structure, starting with general information about maintenance and maintenance management, moving on to more detailed information on maintenance planning maintenance delivery and maintenance review, and leading to detailed technical maintenance instructions in the routine maintenance schedules. Much of the detailed technical resources such as maintenance schedules and audit procedures have been located in the Appendices.
[7] DA19 Manual 2019 Edition, pages 8-9. The corresponding section of the 2009 edition of the DA19 Manual is to the same effect.
The “Appendices” to which this passage refers includes appendix A, which is headed “HVAC&R Maintenance Schedules”.[8] The introductory section of Appendix A includes the following:
[8] DA19 Manual 2019 Edition, page 87. The corresponding section of the 2009 edition of the DA19 Manual is to the same effect.
A service contract will often comprise the contractual details as described in Section 5, and also include a maintenance schedule or program listing the service to be undertaken.
This section of the document contains a compilation of standard maintenance schedules for common equipment and plant used in HVAC&R systems. Each standard schedule is a suggested list of possible items for inclusion in a maintenance program, outlining the maintenance action required and an indication of the most appropriate method and frequency for the carrying out of the action.
Appendix B illustrates a method of preparing a scheduled maintenance program for an air conditioning system from the standard equipment schedules provided in this appendix.
It is not intended that the suggestions made are the only, or the best way, in which the work should be performed. They should be taken as suggestions rather than a specification of the detail of the work to be done.
The schedules list the maximum service frequencies that might be anticipated for each plant item, for the relevant maintenance level.
Detailed maintenance schedules for HVAC&R systems should be prepared by experienced personnel on a project-by-project basis. Aspects to be considered when preparing these schedules are:
1. Plant reliability required by the client
2. Statutory requirements
3. Operational hours of the plant
4. Plant operating conditions and local site operating conditions
5. Condition and age of the plant
6. Any other specific conditions that may affect the plant.
Each of the second, third, and fourth editions of the DA19 Manual contains a section headed “Acknowledgments” (Acknowledgment Section). The first edition of the DA19 Manual is not in evidence, but it may be inferred it also contained a section headed “Acknowledgments”. The Acknowledgment Section of the second edition of the DA19 Manual contained the following statements (emphasis added):[9]
This Application Manual was reviewed by the industry and edited by a review panel prior to publication. The author wishes to acknowledge that many people who have contributed to the preparation of the document by way of comment. Chief amongst them were:
. . . .
The assistance from these people is very much appreciated by the author.
The development of this and other documents in this series was only made possible by a co-operative decision made in 1972 between the Australian Federal Government through the then Department of Works and AIRAH. The authors and AIRH wish to acknowledge the significance of this pioneering arrangement in the industry, and the considerable assistance provided over the years by the Department.
The following persons played a major role in the production of this Application Manual . . . .
[9] DA19 Manual 2001 Edition, page 4
The third edition of the DA19 Manual contains a preface written by Vince Aherne, who is described as “Editor”. The Acknowledgment Section of this edition of the DA19 Manual contained the following:[10]
This is the third edition of DA19 HVAC&R Maintenance. Much of the content of the previous editions has been retained in this version and the authors and editors of the previous editions, K.R Irvine, G.A. Lane, C Broadbent and F Wickham are acknowledged.
This edition of the Application Manual was reviewed by the industry and edited by a review panel prior to publication. AIRAH wishes to acknowledge the many people who have contributed to the preparation of the document by way of technical development or review and comment including;
. . . .
The assistance of these people is very much appreciated.
The development of this and other documents in this series was only made possible by a co-operative decision made in 1972 between the Australian Federal Government through the then Department of Works and AIRAH. The authors and AIRH wish to acknowledge the significance of this pioneering arrangement in the industry, and the considerable assistance provided over the years by the Department...
[10] DA19 Manual 2009 Edition, page 2
The preface to the 2019 edition of the DA19 Manual was written by Mr Aherne, who is described as “Editor”. The Acknowledgment Section of this edition of the DA19 Manual contained the following:[11]
This is the fourth edition of DA19 and acknowledgement is given to the contributors, authors and editors of the previous editions. This edition of the Application Manual was revised by a technical group of maintenance experts and reviewed by the industry prior to publication. AIRAH wishes to acknowledge the many people who have contributed to the preparation of this document by way of technical development, review or comment, including:
. . . .
The assistance of these people is very much appreciated.
The development of this and other documents in this series was only made possible by a co-operative decision made in 1972 between AIRAH and the Australian Federal Government through the then Department of Works.
[11] DA19 Manual 2009 Edition, page 2
This section of the fourth edition of the DA19 Manual identifies Mr Graham Brown, a director of STL, as one of the persons who has contributed to the fourth edition. According to an affidavit Mr Brown made, he wrote and authored the text appearing in section 6.4.4, which is headed “Smart schedules”, and section 6.12, which is headed “Smart maintenance implementation”.[12] Mr Brown further deposes that he co-authored a substantial part of the text in section 6.3, which is headed “Digitisation of maintenance management”, and section 6.4, which is headed “Digitisation of maintenance delivery”. It would be useful at this point to reproduce some of the text that appears in these sections of the fourth edition of the DA19 Manual:
[12] Affidavit of G Brown 18.04.2023, [6]-[7]
6.3 Digitisation of maintenance management
Smart maintenance includes using digital and IT technology to inform and drive plant and system maintenance. By capturing, analysing and reporting on plant and system performance, smart maintenance systems can:
• maximise the efficiency of the maintenance workforce,
• minimise the plant and system failure frequency, and
• optimise the plant and system operation.
Smart maintenance must deliver customer value. Smart maintenance systems can be designed to give users a realtime view of their maintenance needs, so they can make informed decisions. Collected data must be used effectively to improve both plant and system efficiency and customer satisfaction.
Computer maintenance management systems (CMMS) can be regarded as a necessary component of a smart building. Implementing complex CMMS solutions beyond the end user’s wants, needs or capability, can be counterproductive.
. . . .
6.4 Digitisation of maintenance delivery
6.4.1 Internet, mobile and wireless technologies
Service personnel need to be mobile, but they also:
• Need to collect and record data
• Need to access system technical information
• Need to create reports and reviews.
There is a growing application of information technology devices and systems, particularly with regard to mobile and wireless technologies and remote access to internet and email.
. . . .
6.4.4 Smart schedules
The use of paper-based or spreadsheet maintenance schedules in the field is being replaced by electronic forms (e-forms or smart schedules) that can deliver significant productivity gains.
Discussions about development of electronic forms based on the DA19 Manual
On 27 October 2016 Mr Brown, as a director for STL, sent an email to AIRAH in which he sought permission to develop a “suite of standard HVAC electronic forms (Smart Forms) based on DA19 Manual.” [13] Mr Brown stated that STL is a New Zealand based software company which develops field service job management software for a wide range of industry types; that a key component of its product range is electronic “SmartForms” its customers use with STL’s “SmartTrade Mobile” application on smart devices. Mr Brown further stated:
[13] Affidavit of A Izra 01.03.2023, Exhibit AI-4, page 388
To date we have developed nearly 500 standard or customised SmartForms for our field service provider customers, including a range of HVAC forms. We found HVAC customers were asking us to develop different forms to do the same job, there seems to be little standardisation. Accordingly, we decided to develop a suite of standard HVAC SmartForms. We initially proposed to build this off the back of the HVAC SmartForms we had previously developed, to get the ball rolling we built a demonstration ductless split aircon unit SmartForm which we then sent to a some key HVAC customers for feedback.
. . . The demo SmartForm was arguably a step too far for some HVAC customers currently using relatively simple check lists, having said this we’re still committed to building ‘smarts’ into HVAC SmartForms where they can add value.
As a result we purchased a copy of the DA19 manual from the AIRAH and are in the process of building a demonstration SmartForm for A6 Boilers (Appendix A, p55 of DA19). We chose A6 Boilers for the demonstration SmartForm because it comprises only two schedule items (A6 Boilers and A5 Automatic Controls), while still allowing us to demonstrate a number of the ‘smarts’ possible with SmartForms.
Subject to getting AIRAH’s approval to develop a suite of SmartForms based on DA19 we will probably want to develop SmartForms for the following:
A6 Boilers
A10 Chillers
A14 Cool and freezer rooms
A15 Cooling towers
A21 Evaporative air coolers
A29 Packaged A/C plant
A37 VAV units
A39 Warm air furnaces
If it would be helpful to your consideration of this request we give you an online demonstration of the A6 Boilers SmartForm when it is finished.
AIRAH responded by an email Mr Wilkinson sent on 9 November 2016 to Mr Brown.[14] Mr Wilkinson holds the position of Executive Manager – Government Relations and Technical Services. Mr Wilkinson said that the work Mr Brown described in his email was “similar to concepts we have been thinking about around demonstration of compliance”, and he requested Mr Brown provide him a copy when “you have prepared the form”.
[14] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, pages 386-387

By email sent on 10 November 2016,[15] Mr Brown informed Mr Wilkinson that the form had been finished for demonstration purposes, although STL was still tidying up the primer to go with it, which Mr Brown expected would be finished by “tomorrow”. Mr Brown explained that STL’s SmartForms are completed in the field by use of STL’s SmartTrade Mobile app, being a companion solution to STL’s “office solution”; the “form results go to the cloud” where they can be reviewed and downloaded as a PDF document. Mr Brown suggested a demonstration of the SmartForm.
[15] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, pages 385-387
On 2 December 2016 Mr Brown sent to Mr Wilkinson an email in which he stated, among other things (emphasis added):[16]
[16] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 384
Kevin Greenfield told me he spoke to you today about the demo HVAC forms he sent you. He also said you confirmed AIRAH has no problem with us developing a suite of standard HVAC SmartForms based on the schedules in the DA19 manual, thank you very much. On this basis we will proceed to develop the forms. My expectation is we will have a suite of core forms done by the end of January or early February. Per my original email I see the core suite comprising:
A6 Boilers
A10 Chillers
A14 Cool and freezer rooms
A15 Cooling towers
A21 Evaporative air coolers
A29 Packaged A/C plant
A37 VAV units
A39 Warm air furnaces
Kevin also informed me you are considering modifying some of the forms on the basis they may be uneconomic to perform. Any guidance you can give us on this would be appreciated, alternatively or in parallel we can work with some of our reference HVAC customers to see how the schedules might be modified, then revert them to AIRAH for your comment.
Kevin also mentioned that AIRAH would be prepared to endorse our forms when they are ready, this would be very much appreciated. I see from your website that you have regular trade nights around Australia, we would be interested in participating in these once we have the standard suite of SmartForms done.
On 3 March 2017 Mr Brown sent an email to Mr Wilkinson in which he said he was “following up on the concept of developing a suite of standard HVAC SmartForms based on the” DA19 Manual to see if that could be pursued further; and Mr Brown asked two questions.[17] Mr Wilkinson responded by email on the same day thanking Mr Brown for his “update”, and asked whether Mr Brown was “still interested in exploring a commercial arrangement with” AIRAH “in relation to the product”.[18] Mr Brown, in turn, responded by saying “realistically I think we should park this for a little while, probably only a month or two”.[19]
[17] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 383
[18] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 382
[19] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 381
On 20 March 2017 Mr Greenfield visited AIRAH in Melbourne to demonstrate “the DA19 SmartForm prototype”.[20] On 14 February 2018 Mr Wilkinson sent an email to Mr Brown stating that, although AIRAH “won’t rewrite DA19 to suit your specific application”, AIRAH was “still keen to explore how we could partner/support/have DA19 incorporated into your product”, noting that that discussion “is probably best had with Tony involved”.[21] Mr Brown responded on 15 February 2018 as follows:[22]
For clarity we’ve got no expectation for DA19 to be rewritten to give us a commercial advantage. Sticking with the current DA19 would arguably give us the best outcome because it’s so difficult to create a contemporary digital forms solution for it, as one of our HVAC customers told us “nobody has cracked it [DA19 e-forms] yet”. We’ve got an [sic] DA19 e-form solution that we could take to market now, but it could be a lot better if DA19 was made more technologically permissive. Accordingly, what we believe would be best for the industry is an improved DA19 that will be an enabler of digital solutions to take advantage of current and future technologies. For us this means we will have to scrap much of the work we have already done while making it easier for competitors to enter the market. The benefit we will get from committing resources to the DA19 project is the first mover advantage.
[20] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 417
[21] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 418
[22] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 418
On the evidence currently before me, nothing further seems to have occurred in relation to STL collaborating with AIRAH until shortly before Wednesday 10 June 2020 when a video conference was arranged to occur on Friday 12 June 2020 between at least Mr Brown and Mr Gleeson, AIRAH’s chief executive officer. On 10 June 2022 Mr Brown had sent an email to Mr Gleeson in which he set out his “thoughts ahead of Friday’s video conference”.[23] Mr Brown made statements that included the following:
[23] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, pages 398-401
(a)In 2013/2014 STL set out to standardise its HVAC&R maintenance forms based on STL’s SmartForm solutions, its HVAC&R forms it had previously developed, and its “own R&D”.
(b)STL sent out several prototype HVAC&R forms to STL’s field service customers. At the suggestion of several of these customers, STL chose the harder path of building the solution around the “DA19 schedules, principally because it made more sense to work with industry than trying to do our own thing”.
(c)The “real IP is in the SmartForm solutions itself”. If “there is a copyright issue with the use of the DA19 manual schedules we can easily rebuild the solution to eliminate the problem”. The best outcome would be “an industry supported generic DA19 solution”, the proposed structure of which is described later in the email.
(d)STL has “now got the DA19 SmartForm solution pretty well battened down”, and is already prototyping the next version which will take several months of developer time.
(e)STL has been looking at the possibility of developing an app that is integrated with STL’s “DA19 SmartForm Solution” that could be based on AIRAH’s specifying a maintenance package guideline.
(f)STL has also developed a “SBO SmartForm solution for the heating industry”. Which incorporated the same “UI” (that is, user interface) features STL includes in the DA19 SmartForm solution.
(g)“Basically”, STL is “now running a continuous improvement program”.
(h)The “proposed structure” of Mr Brown’s solution consists of:
(i)revenue sharing, where SBO is shared on a transactional basis every time a person creates a quote, job, timesheet, or complete a SmartForm;
(ii)AIRAH and STP would enter into an “IP sharing agreement” in which “specified IP, in AIRAH’s case copyright”, is “covered by the revenue sharing agreement”;
(iii)STL, at its cost, “reviews and advises on how the DA19 manual might be modernised into a fully cloud based e-manual solution”, which would “effectively be the “forms-only” white labelling option with [STL] managing the software development and support side”.
Crystallisation of copyright dispute
In an email sent to Mr Gleeson on 12 June 2020 Mr Brown responded to questions Mr Gleeson had asked in a telephone call.
(a)Mr Brown said that STL had been “beta testing” its “SBO platform with its DA19 SmartForm solution with key HVAC&R customers on both sides of the ditch”; and that STL was “looking to feature it at the AIRAH Virtual Industry Showcase event on 26^th June”; and its “team is currently putting the final touches to the video presentation [STL] is required to submit”.[24]
(b)Mr Brown also referred to having held a board meeting that afternoon to confirm the last features in the current four month development “sprint” that was due to finish in September, and pre-plan for the following “sprint” that would take STL to early 2021; and it would therefore see logical that “we make February’s ARBS 2021 the drop-deadline for getting the development work done to make the DA19 manual solution industry generic, namely having an API available to 3^rd party developers, the “forms-only” DA19 solution and the white label options”.
(c)Mr Brown referred to two articles that appeared in an AIRAH newsletter that had arrived in his inbox. The first related to “HVAC&R licensing”; the second related to the Department of Agriculture, Water and the Environment developing an education program. Mr Brown said that fitted into the “blockchain refrigerant stewardship R&D” STL was doing: STL was probably three to four weeks away from being able to demonstrate the “blockchain prototype at the UI level”, and that STL should be able to demonstrate “the prototype leak/refrigerant management SmartForm within the next fortnight”.
[24] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 396
Mr Gleeson responded on 12 June 2020 with the following email:[25]
Thanks for the update.
Regarding the virtual show case you will need to call the DA19 SmartForm solution a prototype as we have no formal written agreement from the AIRAH Board.
Regarding the Board meeting I have already communicated about our discussions to the Board and will get back to you next week to set up a date in early July.
[25] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 395
In an email he sent to Mr Gleeson on 12 June 2020, Mr Brown stated Mr Gleeson’s suggested change “could be construed that [STL] haven’t already got copyright permissions to use the DA19 Schedules”.[26] Mr Brown continued:
I’ll get the change made on a without prejudice basis reiterating our position is we asked for permission to use the DA19 schedules, not the manual in toto, and confirmed Phil Wilkinson’s verbal permission by email. Phil was an officer of the organisation so we could rightfully rely on his approval, we came across twice to Melbourne to demonstrate the SmartForm DA19 solution, AIRAH were well aware of what we were doing.
[26] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 394
Mr Gleeson immediately replied on 12 June 2020 with the following email:[27]
I have to be clear here you do not have the copyright permission. There is much still to be worked out.
The Board will take a very dim view if you continue to infer that. Nothing has been agreed to other than you can do a prototype back in 2016.
If you can not [sic] agree to this then I will have to ask you to hold any further communication and demonstrations.
[27] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 393
Mr Gleeson and Mr Brown exchanged further emails in June 2020; and nothing further appears to have occurred until 21 May 2021, when Mr Brown sent an email to Mr Gleeson which he began by saying he was “following up on the last communication we had back in June 2020 regarding our DA19 SmartForm solution and other areas of collaboration between” AIRAH and STL “working with the Climate Control Companies Association NZ (CCCA) through the R&D MoU we have with the CCCA”.[28] Mr Brown said that the “fundamental question” was whether “there is a serious interest from AIRAH to pursue the collaboration opportunity”.
[28] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, pages 414-418
Mr Brown made statements that included the following (emphasis added):
A combination of your push-back at the demo we gave you last April on the permission we had been given by Phil Wilkinson to convert the DA19 schedules into a SmartForm solution, the ARBs cancellation and the COVID-19 lock downs resulted in us putting the DA19 SmartForm solution on the back burner. We have however continued to field test the DA19 solution with six Beta users while working on areas outside of the coverage of the DA19 manual where we see there are either gaps or a need for expansion of the functionality as is discussed below.
Our position remains that we asked for and received permission from Phil Wilkinson to convert the DA19 schedules into a SmartForm solution. Of key importance is the 2/12/2016 verbal discussion between AIRAH’s Phil Wilkinson and our Kevin Greenfield, confirmed by myself on the same day by email as follows:
He [Kevin] also said you [Phil] confirmed AIRAH has no problem with us developing a suite of standard HVAC SmartForms based on the schedules in the DA19 manual, thank you very much
This was neither disputed at the time nor during any of the subsequent communications we had with AIRAH until your push-back at the end of the online demonstration of progress we gave you in April of last year. I have included a chronological list of the early communications at the end of this email.
The bottom-line is if we weren’t certain that we had permission to use the DA19 schedules we wouldn’t have committed to the significant expense and time involved in developing the DA19 SmartForm solution, nor would we have participated on the task force that reviewed the DA19 review, nor would we have visited AIRAH in Melbourne twice to demonstrate the progress we had made to the prototype DA19 SmartForm solution, nor would we have attended the AIRAH trade nights.
A choice open to us is to release the DA19 SmartForm solution and defend any action AIRAH might decide to take against us. However, because we see the benefit of working with the industry this is a course of action that we would prefer to avoid.
In the remainder of the email, Mr Brown sets out “where we’ve come from and what’s potentially on the table”.
Over the period ending on 16 November 2021 Mr Gleeson and Mr Brown exchanged further emails in which they discussed, among other things, a draft heads of agreement “regarding [AIRAH] working with [STL] and other organisations to develop a HVAC&R FSM software solution”.[29] In an email sent to Mr Brown on 16 November 2021, Mr Gleeson said that AIRAH’s board explored the option of entering into a heads of agreement, but it would “not be joining in this proposal” because “software development is not a core focus for” AIRAH and because “there is a desire to remain product agnostic and independent in this space”.[30] Mr Gleeson also stated:
With regards to accessing the intellectual property rights to AIRAH’s DA19 HVAC&R Maintenance Manual, our positions has not changed from our the emails sent in May 2020 and June 2021 in that AIRAH makes clear that [STL] does not have any copyright ownership in anyway. The sole ownership of these rights is AIRAH’s alone and this must be the starting point of any future potential negotiations.
[29] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 403
[30] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 403-404
20 June 2022 – AIRAH sends cease and desist letter and STL response
On 20 June 2022 Mr Gus Hazel, AIRAH’s lawyers sent to STL a “cease and desist” letter.[31] The letter asserted that AIRAH is the owner of the copyright that subsists in the DA19 Manual, “including the content contained in the Schedules”. The “Schedules” to which the letter referred appears to be a document titled “DA19 Appendix A – HVAC&R maintenance schedules 4^th Edition 2019”. On the second page of Appendix A, the following appears:
[31] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 422
Prepared by
Phil Wilkinson, F.AIRAH, Executive Manager; and Vince Aherne, M.AIRAH, Technical Manager Australian Institute of Refrigeration Air Conditioning and Heating (AIRAH) 3/1 Elizabeth Street, Melbourne, VIC 3000 | Tel: . . . . | . . . Any questions or comments please email: . . .
Under the heading “Authorisation, Acknowledgement and Disclaimer”, the following is stated:
The AIRAH DA19 HVAC&R Maintenance manual (DA19) and Appendix A have been developed by the Australian Institute of Refrigeration, Air Conditioning and Heating (AIRAH). This appendix is only for use in conjunction with the full version of DA19 and is only to be used by purchasers of DA19 to create customised maintenance schedules.
AIRAH authorises you to view and use DA19 Appendix A for your individual use only. In exchange for this authorisation, you agree that AIRAH retains all copyright and other proprietary rights contained in and in relation to DA19 and Appendix A and agree not to sell or use for another purpose all or any part of the manual or appendix.
Unauthorised use of DA19 or Appendix A will violate copyright and other laws and is prohibited. All text, graphics, layout and other elements of content contained in AIRAH technical manuals are owned by AIRAH and are protected by copyright, trademark and other laws. AIRAH does not endorse any maintenance schedules developed using Appendix A.
These two sections of the “DA19 Appendix A – HVAC&R maintenance schedules 4^th Edition 2019” do not appear in the copy of the third or fourth editions of the DA19 Manual that are in evidence.
After asserting AIRAH had copyright in the DA19 Manual, the cease and desist letter stated that AIRAH denied it had offered STL or has otherwise provided STL with any licence to use the DA19 Manual for STL’s own commercial purposes. After asserting that STL had taken incompatible positions about whether AIRAH owned any copyright in the DA19 Manual, the cease and desist letter made the following demands:
As the owner of all copyright that subsists in the DA19 Manual, including the content contained in the Schedules, our client wishes to know whether you have used any of our client’s DA19 Manual and/or Schedules in the Smartforms project. Accordingly, we are instructed to require that you please provide details of any such use including –
1.In demonstration, beta-testing, prototype or any other version of the Smartforms that make use of the DA19 Manual, Forms or Schedules;
2.Whether any Smartforms using the DA19 Manual, Forms or Schedules have been provided to any third party, whether for demonstration, testing or any other use; and
3.Whether SmartTrade received any fees or other valuable consideration deriving from the use of such Smartforms.
Mr Brown responded to that letter with an email he sent to Mr Hazel on 4 July 2022. Mr Brown said that the cease and desist letter failed to mention that STL had sought permission to use “the DA19 schedules in an e-form (SmartForm) solution”, and Mr Wilkinson had given permission verbally which, in turn, Mr Brown confirmed in an email sent on 2 December 2016.[32] Mr Brown said that, had Mr Wilkinson not given permission, STL would not have used the DA19 schedules. Mr Brown said that, “[g]iven we asked for and received permission . . . to use the DA19 schedules in our SmartForms there can be no breach of copyright”.
[32] Affidavit of A Izra 01.03.2023, Exhibit “AI-4”, page 419
Further correspondence passed, but STL was not prepared to give the undertaking demanded in the cease and desist letter. That led AIRAH, through its lawyers, to send a further letter to STL demanding, among other things, that STL undertake to refrain from “infringing AIRAH’s copyright in the DA19 manual, including by developing, distributing and marketing any product which infringes the copyright in the DA19 Manual”.[33]
[33] Affidavit of L T Hickey 03.02.2023, Exhibit LTH-14
Deed of Assignment
By 4 October 2022 Mr Aherne and AIRAH entered into a “Deed of IP Assignment” (Deed of Assignment). The Deed of Assignment recites that Mr Aherne has provided “Services” to AIRAH as editor and author of the third and fourth editions of the DA19 Manual; that during the period in which Mr Aherne provided these services he “contributed to, or will contribute to, or otherwise has been involved in the Intellectual Property Rights concerning” the third and fourth editions of the DA19 Manual; and that Mr Aherne wishes to assign to AIRAH “the Intellectual Property Rights in the Assigned IP”. Under cl 2(a) Mr Aherne assigned to AIRAH “the whole of the right, title and interest in and to the Assigned IP” to the extent Mr Aherne owns or owned “the Intellectual Property Rights in the Assigned IP”.
The expression “Assigned IP” is defined in cl 1.1 of the Deed of Assignment to mean “all Intellectual Property Rights arising in connection with or relating to” the third and fourth editions of the DA19 Manual “including any copyright in the Works relating thereto”. The expression “Intellectual Property Rights” is defined in cl 1.1 to mean “all intellectual and industrial property rights and interests of whatever nature . . . that are related to or in any way connected to or contained in [the third and fourth editions of the DA19 Manual] whether now existing or created after the date of this Deed”.
The statement of claim

AIRAH makes the following allegations:
(a)AIRAH created and published the four editions of the DA19 Manual.
(b)The third and fourth editions of the DA19 Manual comprise 158 pages and 208 pages respectively and contain text, tables, and diagrams.
(c)Pursuant to s 32 of the Copyright Act 1968 (Cth) (Copyright Act) the third and fourth editions of the DA19 Manual, and the each of the pages that comprise each of the third and fourth editions of the DA19 Manual, are original artistic or literary works, or are both original artistic and literary works, in which copyright subsists.
(d)Mr Vincent Aherne was a national at the time of the creation of each of the third and fourth editions of the DA19 Manual and, for that reasons, is a “qualified person” within the meaning of s 32 of the Copyright Act.
(e)On 4 October 2022 Mr Aherne assigned to AIRAH all his rights in the third and fourth editions of the DA19 Manual; and, for that reason, AIRAH clams copyright in those editions of the DA19 Manual.
(f)Since at least 2016 STL:
(i)reproduced, or reproduced a substantial part of, the third edition of the DA19 Manual in smart forms, being electronic versions of the third edition of the Manual (Reproduced Third Edition Forms), and
(ii)has sold and marketed the Reproduced Third Edition Forms to businesses in Australia and New Zealand and, for that reason, has published or communicated the third edition of the DA19 Manual;
(g)Since at least 2019 STL:
(i)Reproduced, or reproduced a substantial part of, the fourth edition of the DA19 Manual in smart forms, being electronic versions of the fourth edition of the Manual (Reproduced Fourth Edition Forms), and
(ii)has sold and marketed the Reproduced Fourth Edition Forms to businesses in Australia and New Zealand and, for that reason, has published or communicated the fourth edition of the DA19 Manual;
(h)Since at least 2016 STL has made representations (Representations) “to the HVAC&R industry in Australia and New Zealand” that:
(i)STL’s business is sponsored or approved of by AIRAH;
(ii)STL is licensed, authorised, sponsored, approved, or endorsed by AIRAH; or
(iii)the Reproduced Third Edition Forms and the Reproduced Fourth Edition Forms have been created with the authorisation, under licence, or otherwise with the approval of AIRAH.
(i)The Reproduced Third Edition Forms and the Reproduced Fourth Edition Forms respectively reproduce, or respectively reproduce a substantial part of, the third and fourth editions of the DA19 Manual.
(j)In these circumstances, STL, without the licence or authority of AIRAH, infringed, or authorised the infringement of AIRAH’s copyright in the third and fourth editions of the DA19 Manual by:
(i)reproducing or substantially reproducing the third and fourth editions respectively in the Reproduced Third Edition Forms and the Reproduced Fourth Edition Forms, or authorising such conduct;
(ii)publishing the third and fourth editions of the DA19 Manual, or works that are substantial reproductions of those editions, or authorising such conduct; and
(iii)communicating the third and fourth editions of the DA19 Manual, or works that are a substantial reproductions of those editions, or authorising such conduct.
(k)Further, the Representations were made in trade and commerce, and were false because STL is not licensed, authorised, sponsored, approved or endorsed by AIRAH; and the Reproduced Third Edition Forms and the Reproduced Fourth Edition Forms were not created with the authorisation, under licence, or otherwise with AIRAH’s approval.
(l)STL, therefore:
(i)has engaged in conduct that is misleading or deceptive, or is likely to mislead or deceive, and which has in fact misled and deceived, contrary to s 18(1) of Schedule 2 (Australian Consumer Law) to the Competition and Consumer Act 2010 (Cth); and
(ii)has made, and continues to make, in connection with the supply of services, false and misleading representations contrary to s 29 of the Australian Consumer Law.
Post commencement correspondence
By letter dated 14 December 2022 STL’s lawyer, Mr Hickey, requested AIRAH’s lawyer, Mr Izra, that AIRAH provide the second, third, and fourth editions of the DA19 Manual referred to in the statement of claim, and what I have identified as the Reproduced Third Edition Forms and the Reproduced Fourth Edition Forms.[34] Mr Hickey followed up this request by letter dated 19 December 2022.[35]
[34] Affidavit of L T Hickey 03.02.2023, Exhibit LTH-1
[35] Affidavit of L T Hickey 03.02.2023, Exhibit LTH-2
Mr Izra responded by email sent on 19 December 2022 to which he attached the second, third, and fourth editions of the DA19 Manual, noting that he was seeking instructions concerning the first edition of the DA19 Manual. Mr Izra also stated that the Reproduced Third Edition Forms and the Reproduced Fourth Edition Forms may be found at pages 54 and 89 of the respective third and fourth editions of the DA19 Manual. Page 54 of the third edition of DA19 Manual is page titled “Appendix A Maintenance schedules”, as is page 89 of the fourth edition of the DA19 Manual. Mr Izra said that the first edition of the DA19 Manual was referred to in the statement of claim as background, and “is not a copyright work in relation to which infringement is alleged”. In two emails Mr Hickey sent to Mr Izra on 22 December 2022, Mr Hickey stated that AIRAH had not made proper production of the documents requested in his letter dated 16 December 2022.[36]
[36] Affidavit of L T Hickey 03.02.2023, Exhibit LTH-7; Exhibit LTH-8
After further correspondence, on 20 January 2023 Mr Izra sent an email to Mr Hickey in which he stated AIRAH does not possess the first edition of the DA19 Manual, or the Reproduced Third Edition Forms, or the Reproduced Fourth Edition Forms. Mr Izra, however, attached the deed of assignment referred to in the statement of claim.
GROUNDS ON WHICH STL RELIES
In paragraph 2 of its written submission STL states in summary form the grounds on which it applies for the orders it seeks. These may be grouped into three grounds. The first is that AIRAH has failed to produce to STL the documents referred to in paragraphs 13 and 14 of the statement of claim, namely, the Reproduced Third Edition Forms, and the Reproduced Fourth Edition Forms.[37] The second ground is that AIRAH has no reasonable prospects of proving the authorship in the third and fourth editions of the DA19 Manual it alleges in the statement of claim.[38] The third ground relates to the manner in which AIRAH has pleaded its claims.[39]
[37] Respondent’s Outline of Submissions, [2(a)]
[38] Respondent’s Outline of Submissions, [2(b)]
[39] Respondent’s Outline of Submissions, [2(c)-(f)]
FAILURE TO PRODUCE DOCUMENTS
As I have already noted STL required AIRAH to produce, but AIRAH failed to produce, the Reproduced Third Edition Forms, and the Reproduced Fourth Edition Forms. STL submits that this warrants making an order dismissing the proceeding because it is impossible for STL to know the case made against it unless those documents are provided to it.
It is the case that, under r 14.10(1) of the GFL Rules, if a pleading or affidavit filed by a party refers to a document, another party may request the party in writing for a copy of the document or to produce the document for inspection. If such request is made, r 14.10(2) of the GFL Rules requires the party that receives the request, within 4 days of the request, to:
(a)provide a copy of the document or appoint a time within 7 days, and a place where, it may be inspected; or
(b) claim that the document is privileged from production and state the grounds; or
(c) state that the document is not in the possession, custody or control of the party to whom the request was made and state that party’s knowledge, information or belief about its whereabouts.
It will be seen that r 14.10(2) does not impose an absolute obligation on the party to produce a document referred to in a pleading or an affidavit the party has filed. Paragraph (c) contemplates that the party may not be in possession of the document. Thus, a party’s being unable to produce a document that is referred to in a pleading or affidavit the party files because the party does not possess the document cannot, by itself, provide a ground for dismissing a proceeding under r 13.13 of the GFL Rules.
Further, whether STL is in a position to understand the case it has to meet does not turn on the contents of the documents referred to in paragraphs 13 and 14 of the statement of claim; it turns on whether the statement of claim sufficiently pleads the material facts on which AIRAH relies. Where one or more material facts on which a party relies consist of the contents of a document, the party must comply with r 16.04 of the Federal Court Rules, which provides:
(1)A pleading that refers to a document or spoken words need only state the effect of the document or words without including the terms of the document or the words themselves.
(2)However, if the words are material to the pleading, the pleading must include the words.
This part of STL’s application for dismissal, therefore, fails.
OWNERSHIP OF COPYRIGHT IN DA19 MANUAL
Parties’ submissions
In its written submissions STL submits that, although the statement of claim alleges Mr Aherne created and edited the third and fourth editions of the DA19 Manual, these editions include the names of multiple people who are identified as having contributed to the preparation of these editions, with Mr Aherne being only one of them. The presumptions provided for by s127(1) of the Copyright Act, therefore, apply, with the consequence that each person the third and fourth editions identify as a contributor is the author of the DA19 Manual. In those circumstances, STL submits that AIRAH is not in a position to prove that Mr Aherne created and edited the third and fourth editions of the Manual and, therefore, was the owner of any copyright in the DA19 Manual he purported to assign to AIRAH. That, in turn, means that AIRAH has no reasonable prospects of succeeding in establishing it is the owner of the copyright that may subsist in the third and fourth editions of the DA19 Manual.[40]
[40] Respondent’s Outline of Submissions, [23]-[26]
In its written submissions AIRAH submits that STL incorrectly assumes that the persons the third and fourth edition of the DA19 Manual identifies as contributors, including Mr Brown, are identified as authors. Identifying a person as a contributor to a work is not the same thing as identifying a person as the author or co-author of a work. AIRAH submits “the author or authors of a work, particularly in relation to works which may comprise a compilation, will be those who gather or organise the collection of material and who select, order and arrange its fixation in material form”; [41] and it “is a question of fact and degree which one or more of them will have expended “sufficient effort of a literary nature” to be considered an author under the Act”.[42]
[41] Applicant’s Outline Submissions, [19] referring to IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 80 IPR 451, at [73]–[74] and [99] (emphasis in original)
[42] Applicant’s Outline Submissions, [19] referring to Telstra Corporation and Anor v Phone Directories Co Pty Ltd and Ors 264 ALR 617, at 624 [20]
Statutory provisions and some principles
The starting point for considering the parties’ competing submissions is s 35(2) of the Copyright Act, which provides:
Subject to this section the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsiding in the work by virtue of this Part.
The Copyright Act does not define the expression “author of a literary, dramatic, musical or artistic work”. The meaning of that expression, however, may readily be determined from those provisions of the Copyright Act that specify what copyright is, and the circumstances in which copyright comes into being.
The word “copyright” under the Copyright Act denotes a set of rights the Copyright Act confers on a person in relation to different types of subject matter. Relevant to these reasons is the subject matter of “works”, the singular term of which is defined in s 10(1) of the Copyright Act to mean “a literary, dramatic, musical or artistic work”. I am concerned with only one class of works, namely, “literary works” which, under s 10(1) of the Copyright Act, includes, among other things, “a table, or compilation, expressed in words, figures or symbols”.
The set of rights the Copyright Act creates in relation to works is stated in s 31(1)(a) of the Copyright Act, which provides:
For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:
(a)in the case of a literary, dramatic or musical work, to do all or any of the following acts:
(i)        to reproduce the work in a material form;
(ii)       to publish the work;
. . .
(iv)      to communicate the work to the public;
(vi)      to make an adaptation of the work;
(vii)to do, in relation to a work that is an adaptation of the first‑mentioned work, any of the acts specified in relation to the first‑mentioned work in subparagraphs (i) to (iv), inclusive . . .
The circumstances in which the copyright described in s 31(1)(a) of the Copyright Act comes into existence are provided for in s 32(1) and (2) of the Copyright Act, which provide as follows (emphasis added):
(1)Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:
(a) was a qualified person at the time when the work was made; or
(b) if the making of the work extended over a period—was a qualified person for a substantial part of that period.
(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:
(a) copyright subsists in the work; or
(b) if copyright in the work subsisted immediately before its first publication—copyright continues to subsist in the work;
if, but only if:
(c) the first publication of the work took place in Australia;
(d) the author of the work was a qualified person at the time when the work was first published; or
(e)the author died before that time but was a qualified person immediately before his or her death.
Subsection 32(4) of the Copyright Act provides that, for the purposes of s 32, “qualified person” means an Australian citizen, or a person resident in Australia.
Two things may be noted about the text of s 32 of the Copyright Act. The first is the expression “work was made” in s 32(1)(a). This expression implies that the work must be the product of human activity; and it is the person who has undertaken the activity that produces the work who is the author of the work. In short, the author “is the person or persons who bring the work into existence in its material form”.[43] This point was confirmed by the plurality in IceTV Pty Limited v Nine Network Australia Pty Limited:[44]
Like the Copyright Act 1956 (UK) . . . the [Copyright] Act does not define the term “author” beyond the statement that in relation to a photograph it is the person who took that photograph. As a result of changes made by the 1988 UK Act, in relation to a work “author” means the person “who creates it”; in the case of a “computer‑generated” work this is taken to be “the person by whom the arrangements necessary for the creation of the work are undertaken”[45]. No such provision is made in the Australian statute, but the notion of “creation” conveys the earlier understanding of an “author” as “the person who brings the copyright work into existence in its material form”[46].
[43] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(3)] (Gordon J)
[44] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [98] (Gummow, Hayne, and Heydon JJ)
[45] 1988 UK Act, s 9(3).
[46] Laddie, Prescott and Vitoria, The Modern Law of Copyright, (1980) at 243 [6.6].
Second, the work the author produces must be an “original work”. That does not imply that the work must in some sense be novel or inventive. “Original”, when used in relation to a work, means that the work must originate from the “independent intellectual effort” of the person who is said to be the author of the work, and that it was not merely copied form another work.[47] For this reason, the “author” (that is, the person who creates a work) and “original work” (the work that originates from the author) are correlative. This point was made by Isaacs J in Sands & McDougall Pty Ltd v Robinson:[48]
. . . the two expressions “author” and “original work” have always been correlative; the one connotes the other, and there is no indication in the Act that the Legislature intended to depart from the accepted signification of the words as applied to the subject matter. Indeed, the circumstance of reciprocal connotation is the key to the meaning of the enactment. We find in the Oxford Dictionary, vol. I p. 571, col. 1, “author” defined as “the person who originates or gives existence to anything.”
[47] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [33]. See also Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, at page 511, where Dixon J said: “[S]ome original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material.”
[48] Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49, at page 55. Isaacs J was considering the Copyright Act 1911 (Cth). See also Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(6)] (Gordon J)
It is often the case that a literary work is the product of the effort of two or more individuals. Where this occurs, “it will be a question of fact and degree which one or more of them have expended sufficient effort of a literary nature to be considered an author of that work within the meaning of the [Copyright] Act”.[49] Three classes of case may be identified.
(a)One class of case is that covered by s 78 of the Copyright Act, namely, a “work of joint authorship”. That expression is defined in s 10(1) to mean “a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors”.
(b)A second class of case is a work that has been produced by the collaboration of two or more authors where the contribution of each author is separate from the contribution of the other author. Here, the author of each contribution is the owner of the copyright unless each work forms part of a compilation, and each contributor is the employee of the compiler.
(c)A third class of case is a compilation. A compilation is a work that results from the activity of bringing together material from various sources.[50] Given that copyright “protects the particular form of expression of . . . information”, and copyright “is not given to reward work [as] distinct from the production of a particular form of expression”,[51] the activity that is relevant to determining the authorship of a compilation is that of persons “who gather or organise the collection of material and who select, order or arrange its fixation in material form”.[52] It is this activity that must manifest “independent intellectual effort”,[53] or “sufficient effort of a literary nature”,[54] before copyright can subsist in a compilation.
[49] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [99] (Gummow, Hayne, and Heydon JJ)
[50] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [72]
[51] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(8)] (Gordon J)
[52] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [99]
[53] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [33], [48]
[54] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [99]

That, then, leads me to s 127(1) of the Copyright Act, which provides:
Where a name purporting to be that of the author of a literary, dramatic, musical or artistic work appeared on copies of the work as published or a name purporting to be that of the author of an artistic work appeared on the work when it was made, the person whose name so appeared, if it was his or her true name or a name by which he or she was commonly known, shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the author of the work and to have made the work in circumstances to which subsections 35(4), (5) and (6) do not apply.
The presumptions provided for in s 127(1) of the Copyright Act arise if:
(a)a literary, dramatic, musical, or artistic work (work) has been published;
(b)a name appears on copies of the works as published;
(c)the name purports to be that of the author of the work; and
(d)the name is the true name of the person who brings an action by virtue of Part V of the Copyright Act.
Two things may be noted about s 127(1) of the Copyright Act. First, for s 127(1) to apply, it will usually be necessary for more than a name to appear on the work. The name would usually either be accompanied by an express statement that the name is that of the author of the work; or the name would usually be accompanied by words which alone, or together with other features of the work on which the name appears, impliedly represent that the name is that of the author of the work. The second thing to note is that, although s 127(1) of the Copyright Act refers to the “author” of “a” work, the subsection is to be read as referring to “authors” of a work.[55] Thus, although a name purporting to be that of the author of the work may appear on the work, s 127(1) of the Copyright Act does not exclude the possibility that a person whose name is not included in the work, as a purported author of the work, made a distinct contribution to a clearly identifiable part of the work and, for that reason, is an author of the part of the work to which the person contributed.
[55] See s 23(b) of the Acts Interpretation Act 1901 (Cth), which provides, among other things, that in “any Act . . . words in the singular number include the plural and words in the plural number include the singular”.
Determination
It may be accepted that it is reasonably arguable that the persons whom the third and fourth editions of the DA19 Manual identify as contributors are authors of the contributions of the works they each made, and that s 127(1) of the Copyright Act, in principle, may apply to render each person an author of the contribution they each made. There are, however, two things that may be said about the potential application of s 127(1). First, it is not readily apparent from the face of the third and fourth editions of the DA19 Manual what contributions each of the persons named as contributors had made to those editions. Thus, it is difficult to see how s 127(1) of the Copyright Act could apply to the contributions these persons have made. Second, even if s 127(1) of the Copyright Act could apply to the contributions each of the persons made, that does not prevent s 127(1) of the Copyright Act from applying to Mr Aherne. The third and fourth editions of the DA19 Manual state that Mr Aherne is the editor of these editions; and it is reasonably arguable that his name is recorded as the author, in the sense of having compiled the third and fourth editions of the DA19 Manual.
For these reasons, I am not satisfied that AIRAH has no reasonable prospects of succeeding on its claims that, immediately before the making of the Deed of Assignment, Mr Aherne was the owner of the copyright in the third edition and fourth editions of the DA19 Manual, and that immediately after the making of the Deed of Assignment, AIRAH became the owner of Mr Aherne’s copyright in the third and fourth editions of the DA19 Manual.
This part of STL’s application therefore fails.
THE STATEMENT OF CLAIM
In its written submissions, STL sets out in a column of a table each of the paragraphs of the statement of claim it submits is defective, and in another column the respect or respects in which STL submits the paragraph is defective.[56] For the most part, the second column of the table identifies one or more of three alleged defects: the paragraph of the statement of claim is vague; the paragraph fails to state material facts; and the paragraph states immaterial facts. At the hearing Mr Hickey, who appeared for STL, did not address each of the defects identified in the column contain in STL’s written submissions because I indicated that it would not be useful for him to do so. Earlier in his oral submissions, however, when addressing the question of abuse of process, Mr Hickey referred to r 34.35 of the Federal Court Rules (which I will set out later in these reasons).
[56] Respondent’s Outline of Submissions, [51]
In its written submissions AIRAH reproduces the table contained in STL’s written submissions, and adds a third column in which it records a response to each criticism STL makes to the statement of claim. AIRAH’s responses include the contention that what STL alleges should be pleaded as a material fact is not a material fact; or the contention that the paragraph in question is a “proper form of pleading”. These responses are based on the principles and authorities to which AIRAH refers in its written submissions.
Principles
In Bureau Proberts Pty Ltd v Cottee Parker Architects Pty Ltd and Hoser v Georges I identified some of the rules and principles that govern pleadings in this Court, and the circumstances in which a pleading may be struck out.[57] It is unnecessary to repeat in these reasons the rules and principles I identified in those two cases. It would be useful, however, if I identify the material facts that a statement of claim must plead in support of a cause of action for infringement of copyright in a literary work.
[57] Bureau Proberts Pty Ltd v Cottee Parker Architects Pty Ltd [2023] FedCFamC2G 409, at [41]-[46]; Hoser v Georges [2023] FedCFamC2G 550, at [14]-[23]
The right to bring an action for infringement of copyright is conferred by s 115(1) of the Copyright Act, which provides:
Subject to this Act, the owner of a copyright may bring an action for an infringement of the copyright.
Section 36 of the Copyright Act specifies the circumstances in which the copyright in a literary, dramatic, musical, or artistic work is infringed:
(1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
(1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:
(a)the extent (if any) of the person’s power to prevent the doing of the act concerned;
(b)the nature of any relationship existing between the person and the person who did the act concerned;
(b)whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
Under s 13(1) of the Copyright Act the expression “act comprised in the copyright in a work” “shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do”. The exclusive rights the Copyright Act has conferred on the owner of copyright in a literary work are the rights specified in s 31(1)(a). These consist in the exclusive right to reproduce the work in a material form; to publish the work; to perform the work in public; to communicate the work to the public; to make an adaptation of the work; and to do acts in relation to the adaption of the work the owner has the exclusive right to do with the work.
Relevant to these reasons is the exclusive right to reproduce a work in a material form. This also includes the reproduction “of a substantial part of the work”. That follows from s 14(1) of the Copyright Act, which provides that a reference to “a reproduction . . . of a work shall be read as including a reference to a reproduction . . . of a substantial part of the work”. Thus, a person will infringe the copyright in a work if the person, not being the owner and without the licence of the owner, reproduces, or authorises another person to reproduce, a “substantial part” of the work.
What amounts to the reproduction of a “substantial part” of a work in any case “cannot be defined in precise terms but must be a matter of fact and degree”.[58] There is, however, an overarching criterion that is applied to determining whether a substantial part of a work has been reproduced; and that criterion has often been described by the word “quality”. It is “necessary to consider not only the extent of what is copied: the quality of what is copied is critical”.[59] The word “quality” has been used to direct attention to at least two overlapping questions. The first is whether that which has been reproduced is “an important or material part of the [copyright owner’s] work”.[60]The second is whether that which has been reproduced is “original” within the meaning of s 32 of the Copyright Act.
[58] Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, at page 283 (Lord Evershed), referred to with approval by Gibbs CJ in SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59; (1985) 159 CLR 466, at page 472.
[59] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [30] (French CJ, Crennan and Kiefel JJ)
[60] Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371, at [37] (Heerey, Sundberg and Finkelstein JJ)
The facts that must be pleaded in a statement on cause of action for infringement of copyright in a work based on the unauthorised reproduction of the work, therefore, are as follows:
(a)First, the applicant must state facts that identify the work and the author or authors of the work, and facts on which the applicant relies for alleging that the work is an original work. These requirements will ordinarily be satisfied by the applicant stating facts that specify when, where, and the circumstances in which what is alleged to be an original work came into being. The importance of pleading these facts was emphasised by Gummow, Hayne, and Heydon JJ in IceTV Pty Limited v Nine Network Australia Pty Limited:[61]
To proceed without identifying the work in suit and without informing the enquiry by identifying the author and the relevant time of making or first publication, may cause the formulation of the issues presented to the court to go awry.
(b)Second, the applicant must specify either that the work has been reproduced or that a substantial part of the work has been reproduced. Where it is alleged that a substantial part of the work has been reproduced, the applicant must identify each part of the work the applicant alleges has been reproduced, and which the applicant alleges constitutes a substantial part of the work.
(c)Third, the applicant should identify the work (reproduced work) the applicant alleges constitutes the reproduction in a material form of the work or a substantial part of the work (original work), and the acts by which the respondent so reproduced, or the respondent authorised another person to reproduce, the original work, or a substantial part of the original work. Where the applicant intends to allege that the reproduced work contains an exact copy of the original work, the applicant should identify that part of the reproduced work it is alleged constitutes an exact copy of the original work. Where, however, the applicant intends to allege the reproduced work possesses a sufficient degree of objective similarity with the original work, the applicant will usually be required to do no more than identify those parts of the reproduced work the applicant alleges possess a sufficient degree of objective similarity with the original work.
[61] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [105]
Also relevant is r 34.35 of the Federal Court Rules, which provides:
A person who wants relief for an infringement of copyright under the Copyright Act must file an originating application that includes particulars of the infringement:
(a) specifying the manner in which the copyright is alleged to be infringed; and
(b) giving at least one instance of each type of infringement alleged.
Determination
The creation and authorship of copyright in the DA19 Manual
The statement of claim contains allegations concerning the creation of the D19 Manual. It alleges that AIRAH “created and published” the first and second editions of the DA19 Manual.[62] The statement of claim also alleges that it published (but not created) the third and fourth editions of the D19 Manual.[63] These allegations, if intended to be material, would insufficiently plead the facts it would be necessary for AIRAH to plead in relation to the creation and authorship of those two editions of the DA19 Manual. AIRAH, however, does not plead these matters for the purpose of establishing copyright in any of the editions of the DA19 manual; AIRAH says it pleads these matters to establish reputation. This part of the statement of claim sufficiently pleads material facts relevant to reputation, although STL may be entitled to request particulars about the dates and places of publication of these editions of the DA19 Manual.
[62] Statement of Claim, [3], [4]
[63] Statement of Claim, [5], [6]
The statement of claims pleads the following matters in relation to the creation and authorship of copyright in the third and fourth editions of the D19 Manual:[64]
7.The DA19 Manual Third Edition and DA19 Manual Fourth Edition were created and edited by Vincent Aherne.
. . . .
9.Pursuant to section 32 of the Copyright Act 1968 (Cth) (Act) the DA19 Manual Third Edition and each of the 158 pages comprising the DA19 Manual Third Edition, and the DA19 Manual Fourth Edition and each of the 208 pages comprising the DA19 Manual Fourth Edition are original artistic and/or an original literary works in which copyright subsists.
10.Vincent Aherne was a national of Australia at the time of creation of the DA19 Manual Third Edition and the DA19 Manual Fourth Edition and is therefore to be treated as a qualified person within the meaning of section 32 of the Act.
[64] Statement of Claim, [7], [9], [10]
Paragraph 7 makes a conclusory allegation that Mr Aherne “created and edited” the third and fourth editions of the D19 Manual without identifying the underlying facts on which such conclusory allegations are based.[65] It does not identify the effort AIRAH alleges Mr Aherne undertook, and the relationship between such effort and the creation of the third and fourth editions of the DA19 Manual. For this reason, paragraph 7 of the statement of claim is defective.
[65] As to what is a “conclusory” allegation, and the impermissibility of pleading such an allegation without also pleading the facts on which such allegation is based, see Bureau Proberts Pty Ltd v Cottee Parker Architects Pty Ltd [2023] FedCFamC2G 409, at [45]
Paragraph 9 of the statement of claim also makes a conclusory allegation without identifying the underlying facts; but the conclusory allegation is of a different nature. It asserts that the 158 and 208 pages that respectively comprise the third and fourth editions of the DA19 Manual “are original artistic and/or an original literary works in which copyright subsists”. This simply repeats the language of s 32 of the Copyright Act, and baldly asserts that the third and fourth editions of the D19 Manual satisfy the statutory language.[66] For these reasons, paragraph 9 of the statement of claim is also defective.
[66] See McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409, at [23]: “A statement of claim which simply repeats the language of a provision of the Act, and then baldly asserts a contravention of that provision, without more, will be struck out.”
Infringement of copyright
The statement of claim pleads the following matters in relation to infringement:[67]
[67] Statement of Claim, [13], [15]-[17]
13.      ST NZ has:
a)        since at least 2016:
i. reproduced and/or reproduced a substantial part of the DA19 Manual Third Edition in smart forms, being electronic versions of the DA19 Manual Third Edition (Respondent Third Edition Forms);
ii.sold and marketed the Respondent Third Edition Forms to businesses in Australia and New Zealand and in doing so has published and/or communicated the DA19 Manual Third Edition;
b)        since at least 2019:
ireproduced and/or reproduced a substantial part of the DA19 Manual Fourth Edition in smart forms, being electronic versions of the DA19 Manual Fourth Edition (Respondent Fourth Edition Forms);
ii.sold and marketed the Respondent Fourth Edition Forms to businesses in Australia and New Zealand and in doing so has published and/or communicated the DA19 Manual Third Edition.
. . . .
15.The Respondent Third Edition Forms reproduce and/or reproduce a substantial part of the DA19 Manual Third Edition.
16.The Respondent Fourth Edition Forms reproduce and/or reproduce a substantial part of the DA19 Manual Fourth Edition.
17.In the premises ST NZ has, without the licence or authority of AIRAH, infringed, or authorised the infringement of AIRAH’s copyright in the DA19 Manual Third Edition and/or DA19 Manual Fourth Edition by:
a) reproducing or substantially reproducing the DA19 Manual Third Edition in the Respondent Third Edition Forms or authorising such conduct;
b) reproducing or substantially reproducing the DA19 Manual Fourth Edition in the Respondent Fourth Edition Forms or authorising such conduct;
c) publishing the DA19 Manual Third Edition or works which are a substantial reproduction of the DA19 Manual Third Edition in the Respondent Third Edition Forms or authorising such conduct;
d) publishing the DA19 Manual Fourth Edition or works which are a substantial reproduction of the DA19 Manual Fourth Edition in the Respondent Fourth Edition Forms or authorising such conduct;
e) communicating the DA19 Manual Third Edition or works which are a substantial reproduction of the DA19 Manual Third Edition in the Respondent Third Edition Forms to the public or authorising such conduct; and/or
f) communicating the DA19 Manual Fourth Edition or works which are a substantial reproduction of the DA19 Manual Fourth Edition in the Respondent Fourth Edition Forms to the public or authorising such conduct
These paragraphs contain conclusory allegations: they do not identify, or they do not identify with sufficient precision:
(a)the part or parts of the third and fourth editions of the D19 Manual it is alleged STL reproduced;
(b)at least one instance (identified in terms of time and place) of the act or acts it is alleged constituted STL’s reproduction, or STL’s reproduction of a substantial part of, the third and fourth editions of the D19 Manual, and the item or object that is said to constitute the reproduction in material form of the third and fourth editions of the D19 Manual (Reproduced DA19 Manual);
(c)at least one instance (identified in terms of time and place) which identifies the activity or activities on which AIRAH relies for alleging that STL has marketed the Reproduced DA19 Manual; or
(d)at least one instance (identified in terms of time, place, and purchaser) of the sale by STL of a Reproduced DA19 Manual.

For these reasons, paragraphs 13, 15, 16, and 17 of the statement of claim are defective.
Misrepresentation claim
The statement of claim pleads the following matters in relation to the misrepresentations it alleges STL made:[68]
Since at least 2016 ST NZ has made representations to the HVAC&R industry in Australia and New Zealand that:
a) ST NZ’s business is sponsored or approved of by AIRAH;
b) ST NZ is licensed, authorised, sponsored, approved or endorsed by AIRAH; and/or
c) the Respondent Third Edition Forms and/or Respondent Fourth Edition Forms have been created with the authorisation, under licence, and/or otherwise with the approval of AIRAH;
[68] Statement of Claim, [14]
This paragraph of the statement of claim is entirely unparticularised. It does not identify the time or place or person to whom each of the representations was made; or whether the representation was made expressly or impliedly and, if impliedly, the matters on which AIRAH relies for alleging each representation was impliedly made. For these reasons, paragraph 14 of the statement of claim is defective. Also defective is paragraph 20 of the statement of claim, which alleges contraventions of ss 18 and 29 of the Australian Consumer Law based on the allegations, which I have found are defective. on which AIRAH relies in its claims of copyright infringement and misrepresentations.
Passing off claim
AIRAH’s cause of action based on passing off is based on the allegations on which it relies for claiming that STL infringed AIRAH’s copyright, and that STL had contravened ss 18 and 29 of the Australian Consumer Law. The statement of claim also pleads the following:[69]
AIRAH has a significant and extensive reputation as the publisher of design application manuals used in the HVAC&R industry, and in particular, in the DA19 Manual Third Edition and DA19 Manual Fourth Edition in Australia and New Zealand.
[69] Statement of Claim, [21]
This paragraph is a conclusory allegation that does not identify the facts on which it is based. In particular, the paragraph does not allege any facts such as the sale, or distribution, or marketing of the third and fourth editions of the D19 Manual. This paragraph, therefore, is also defective.
Conclusion
I am satisfied that the statement of claims fails to plead material facts on the essential elements of each of the causes of action on which AIRAH relies; and the statement of claim should be struck out in its entirety. I am not satisfied, however, that AIRAH would be unable to file an amended statement of claim which sufficiently pleads the material facts on which it intends to rely. For that reason, AIRAH should be given the opportunity to file an amended statement of claim.
DISPOSITION
I propose to order that:
STL’s application under r 13.13 of the GFL Rules be dismissed;
(a)the statement of claim be struck out pursuant to r 16.21 of the Federal Court Rules;
(b)AIRAH have leave to file an amended statement of claim within three weeks after the day on which I pronounce orders;
(c)the matter be listed for directions on a date that is four weeks after the day on which I pronounce these orders; and
(d)the question of the costs of STL’s application be reserved.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 22 September 2023

File number(s):	MLG 2312 of 2022
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	22 September 2023
Catchwords:	INTELLECTUAL PROPERTY – Practice and procedure – application for summary dismissal or in the alternative for an order that the statement of claim be struck out – whether applicant has no reasonable prospects of proving it is the owner of the copyright that is the subject of the proceeding – whether it would be an abuse of process to permit the applicant to maintain the proceeding in circumstances where it is unable to provide to the respondent documents referred to in the statement of claim – whether statement of claim fails to plead material facts – statement of claim struck out with leave to replead.
Legislation:	Acts Interpretation Act 1901 (Cth) s 23(b) Competition and Consumer Act 2010 (Cth) Sch 2, ss 18, 29 Copyright Act 1968 (Cth) ss 10, 13(1), 14(1), 31(1)(a), 32, 35(2), 36, 78, 115(1), 127(1) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 14.10 Federal Court Rules 2011 (Cth) rr 16.04, 16.21, 34.35 Copyright, Designs and Patents Act 1988 (UK Act) s 9(3)
Cases cited:	Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 Bureau Proberts Pty Ltd v Cottee Parker Architects Pty Ltd [2023] FedCFamC2G 409 Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 Hoser v Georges [2023] FedCFamC2G 550 IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49 SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 Telstra Corporation and Anor v Phone Directories Co Pty Ltd and Ors 264 ALR 617 Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44 Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Division:	General
Number of paragraphs:	85
Date of hearing:	18 April 2023
Place:	Sydney
Counsel for the Applicant:	Mr G Mukherji, by video
Solicitor for the Applicant:	McMahon Fearnley Lawyers
Solicitor for the Respondent:	Mr L Hickey of Cornwalls, by video

MLG 2312 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AUSTRALIAN INSTITUTE OF REFRIGERATION, AIR CONDITIONING AND HEATING Applicant
AND:	SMARTTRADE LIMITED Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	22 SEPTEMBER 2023