Australian Olympic Committee Inc v The Big Fights Inc - [1999] FCA 1042

FEDERAL COURT OF AUSTRALIA

AUSTRALIAN OLYMPIC COMMITTEE INC v THE BIG FIGHTS INC
[1999] FCA 1042
NG 41 of 1997
NG 481 of 1998
SUMMARY
Introduction
In accordance with the practice of the Federal Court in certain cases of public interest, I have prepared a brief summary to accompany the reasons for judgment that are being delivered today. But the only authoritative pronouncement of my reasons is that contained in the full reasons for judgment. This summary is necessarily incomplete.
Summary of Judgment
Between 22 November and 8 December 1956, the sixteenth modern Olympic Games were held in Melbourne. The main issue in this case is the present ownership of the copyright in certain films of those Games. There is also a dispute over the present ownership of certain copies of those films which are being held in safe storage pending this decision. In both respects, I decide that the Australian Olympic Committee, or the AOC, succeeds.
The case has involved facts extending over some forty years and many complex issues – too many to relate here. What follows is a summary of some of the issues and my conclusions on them.
In 1956, the Australian Olympic Federation, or AOF, was the National Olympic Committee for Australia, recognised by the International Olympic Committee, or IOC. Organisation of the Games was entrusted to a company formed for the purpose called the “Organising Committee for the Games of the XVIth Olympiad Melbourne 1956”, known as “OCOG”. OCOG established an “Official Film Unit” and appointed Reginald Peter Whitchurch, known as Peter Whitchurch, as its director.
Cameramen in the Official Film Unit shot a large quantity of footage during the Games. The rules of the IOC required that certain edited films of the Games be produced. OCOG engaged Peter Whitchurch to produce those edited films from the unedited ones.
This case has concerned the unedited films shot by the Official Film Unit, the edited films subsequently produced by Peter Whitchurch, and certain newsreel type films which OCOG permitted two private companies to produce, using their own cameramen.
In 1960, OCOG granted certain rights in respect of the edited films to Peter Whitchurch in return for payment by him of £100. This was done, not by way of a professionally prepared legal document, but by an exchange of letters between OCOG and Peter Whitchurch. The letters have given rise to this question in the case: Did OCOG assign the copyright in the edited films to Peter Whitchurch or did it give him only a non-exclusive right to reprint and sell copies of them?
The main protagonists in these proceedings are the AOC on the one hand, and The Big Fights Incorporated on the other. The AOC is the successor to the AOF. The business of The Big Fights was the building up and commercial exploitation of extensive libraries of films of sporting events, in particular, boxing films and films of Olympic Games. Part of its business involved the licensing of others, such as television broadcasters, to use its films.
The AOC is supported in the proceedings by Mr John Whitchurch, the son of the late Peter Whitchurch. The Big Fights is supported by Mrs Lynette Benson and Mrs Diane Talbot, daughters of the late Peter Whitchurch and sisters of John. The Big Fights is also supported by ESPN Enterprises Inc which purchased The Big Fights’ film libraries, including its Olympic Library, after the proceedings began.
The AOC claims that OCOG originally owned the copyright in all the films as well as the copies of them that are in storage, and that in one of two possible ways, the AOC is now the owner. One way is this. Following the dissolution of OCOG on 30 April 1974, OCOG’s remaining assets passed under companies legislation, eventually to the Australian Securities Commission, or the ASC. On 20 October 1997 the ASC executed a deed assigning to the AOC all the interest in the films and the copyright in them which OCOG had upon its dissolution in 1974.
The Big Fights, on the other hand, claims that in one of various possible ways it is now the owner of the copyright in the edited films and of the copies of them in storage. It claims either that Peter Whitchurch was the original owner of the edited films and of the copyright in them once he completed his editing work, or that OCOG assigned both to him in 1960. Alternatively, The Big Fights claims that the AOC is now prevented from asserting that it owns the films and the copyright, because Peter Whitchurch, a company established by him and his wife, and his three children, dealt with the films for many years as though they owned the copyright in them, without protest by the AOF or the AOC. It is true that it was not until 1996, some forty years after the Games, that the AOC became active in asserting its rights. Mr Coates, the President of the AOC, gave evidence in relation to the delay.
The Big Fights claims that the films and the copyright were sold to it by Peter Whitchurch’s company. At the time, Mrs Benson and Mrs Talbot constituted a majority of the board of directors, and Mr John Whitchurch, a minority. In substance, the sale was effected by the majority.
I will now summarise my conclusions:
·     OCOG was the owner of the copyright in the films as well as the copies of those films now held in storage;
·     OCOG did not assign to Peter Whitchurch the copyright in the edited films, nor did it sell to him the copies of the edited films now held in storage;
·     in 1960, OCOG granted to Peter Whitchurch, for the duration of the copyright, a non-exclusive right to reprint and sell copies of the edited films, and, for that purpose, the right to possess the copies of the edited films now held in storage;
·     OCOG’s copyright in the films and the copies of the films now held in storage are transferred to the AOC pursuant to a deed between the AOC and the ASC dated 20 October 1997;
·     the AOC therefore now owns the copyright in the films as well as the copies held in storage;
·     the AOC is not prevented from asserting its copyright or its ownership of the copies;
·     the AOC is not, however, entitled to terminate the 1960 contract between OCOG and Peter Whitchurch;
·     the rights of reprinting and selling the edited films granted by OCOG to Peter Whitchurch passed through his estate and that of his wife to their three children in equal shares;
·     Mr John Whitchurch has transferred his one third interest in those rights to the AOC;
·     Mr Whitchurch and Mrs Benson, who were the executors of the will of Mrs Whitchurch, now hold those rights on trust for Mrs Benson, Mrs Talbot and the AOC in three equal shares;
·     the AOC has not at this stage shown that any of the respondents have infringed its copyright or are threatening to do so.
I will now proceed to make the formal orders of the Court.

LINDGREN J
3 AUGUST 1999

FEDERAL COURT OF AUSTRALIA
Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042
COPYRIGHT – cinematograph films – whether films of sporting events made before enactment of Copyright Act 1968 (Cth) original dramatic works or only artistic works consisting of individual photographs constituting films – ownership of copyright – whether copyright in edited films owned by person who owned material on which photographs comprising films taken or person who edited films – whether copyright assigned to producer of edited films or whether producer simply licensed to reprint and sell copies of edited films – whether producer’s estate has repudiated agreement.
ESTOPPEL – whether owner of copyright estopped from asserting copyright by reason of representations and silence in face of competing assertion of ownership – whether representations or silence relied upon – whether detriment suffered in reliance upon representations or silence – whether successor in title entitled to rely on estoppel – whether delay by owner of films amounted to laches or abandonment – whether proceedings for delivery up of films barred by statute of limitations.
ADMINISTRATION OF DECEASED ESTATES – whether estate fully administered – whether one co-trustee has power to bind other co-trustees and those beneficially entitled.
Copyright Act 1968 (Cth) ss 31, 35, 204, 207, 208, 213, 221, 222
Copyright Act 1912 (Cth) s 8
Copyright Act 1911 (UK) ss 1(2), 35(1)
Companies Act 1961 (Vic) ss 264, 308, 310
Companies (Application of Laws) Act 1981 (Vic) s 23
Companies (Victoria) Code ss 460 – 464
Australian Securities Commission Act 1989 (Cth) ss 253 – 257
Limitation Act 1969 (NSW) s 65
Berne Convention for Protection of Literary and Other Artistic Works art 14(2)
Nordisk Films Co Ltd v Onda [1917-1923] MCC 337, referred to
Canadian Admiral Corporation Ltd v Rediffusion Inc (1954) 20 CPR 75, considered
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, applied
Helstan Securities Ltd v Hertfordshire County Council [1978] 3 All ER 262, applied
United Dominions Trust (Commercial) Ltd v Parkway Motors Ltd [1955] 1 WLR 719, referred to
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85, referred to
Re Turner Corp Ltd (in liq) (1995) 17 ACSR 761, referred to
Don King Productions Inc v Warren [1998] 2 All ER 608, referred to
Westgold Resources NL v St George Bank Ltd (1998) 29 ACSR 396, referred to
Liverpool and District Hospital for Diseases of the Heart v Attorney-General [1981] Ch 193, considered
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, applied
Commonwealth v Verwayen (1990) 170 CLR 394, applied
Thompson v Palmer (1933) 49 CLR 507, applied
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641, applied
Hamilton v Geraghty (1901) 1 SR (NSW) (Eq) 81, applied
Willmott v Barber (1880) 15 Ch D 96, considered
Svenson v Payne (1945) 71 CLR 531, followed
Re Vandervell’s Trusts; White v Vandervell Trustees Ltd [1974] 1 All ER 47, referred to
Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] 1 QB 133, considered
Horn v Cole (1871) 51 NH 287; 12 Am Rep 111, considered
Vine Products Ltd v Mackenzie & Co Ltd [1969] RPC 1, considered
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700, referred to
Johnstone & Wilmot Pty Ltd v Kaine (1928) 23 Tas LR 43, considered
Moorhouse v Angus and Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700, applied
Cook v Saroukas (1989) 97 FLR 33, applied
Orr v Ford (1989) 167 CLR 316, applied
Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417, referred to
Union Bank of Australia v Harrison (1910) 11 CLR 492, applied
Luke v South Kensington Hotel Co (1879) 11 Ch D 121, applied
Sky v Body (1970) 92 WN(NSW) 934, applied
In the estate of Dunn, deceased [1963] VR 165, applied
Re Ponder [1921] 2 Ch 59, considered
Stokes v Churchill (1994) NSW ConvR ¶55-694, considered
AUSTRALIAN OLYMPIC COMMITTEE INC v THE BIG FIGHTS INC
NG 49 of 1997
NG 481 of 1998
LINDGREN J
3 AUGUST 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 49 OF 1997
NG 481 OF 1998

BETWEEN:

AUSTRALIAN OLYMPIC COMMITTEE INC
First Applicant

JOHN PETER ELLIOTT WHITCHURCH
Second Applicant

AND:

THE BIG FIGHTS INC
First Respondent

PETER WHITCHURCH PRODUCTIONS PTY LTD
ACN 000 213 258
Second Respondent

BECK HOLDINGS PTY LTD
ACN 000 166 594
Third Respondent

FILMWORLD PTY LTD
ACN 008 565 222
Fourth Respondent

LYNETTE JUNE BENSON
Fifth Respondent

DIANE YVONNE TALBOT
Sixth Respondent

AUSTRALIAN SECURITIES COMMISSION
Seventh Respondent

ESPN ENTERPRISES INC
Eighth Respondent

JUDGE:

LINDGREN J

DATE OF ORDER:

3 AUGUST 1999

WHERE MADE:

SYDNEY

IN EACH PROCEEDING
THE COURT DECLARES THAT:
1.As at the date of the dissolution of The Organising Committee for the XVIth Olympiad Melbourne 1956 (“OCOG”) on 30 April 1974, copyright in the films described in the First Schedule below (“the Films”) and the general property in the copies of the Films now held by Comcopy Pty Ltd were vested in OCOG.
2.The deed expressed to be made between the applicants on or about 20 October 1997 is void and of no effect.
3.The second applicant and the fifth respondent hold, as trustees for the first applicant and the fifth and sixth respondents in three equal undivided shares, the rights granted on or about 23 November 1960 by OCOG to Peter Whitchurch in respect of the edited films described in the Second Schedule below.
4.The first applicant is the owner of copyright in the photographs of which the Films consist.

5.The first applicant is the owner of the copies of the Films currently held by Comcopy Pty Ltd.

THE COURT DIRECTS THAT:
1.The proceedings be stood over to 9.30am on 11 August 1999 for the making of directions and orders as may be appropriate.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FIRST SCHEDULE

SECOND SCHEDULE
The films numbered 1 to 90 (inclusive), 92 to 120 (inclusive) and 122 to 176 (inclusive) in the First Schedule.

AUSTRALIAN OLYMPIC COMMITTEE INC v THE BIG FIGHTS INC........ ........ ........ ........ ........ ........ ........ ....... 2
INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 2
THE FIRST OWNER OF THE COPYRIGHT IN THE FILMS........ ........ ........ ........ ........ ........ ........ ........ ........ .. 10
Subsistence and nature of copyright in respect of cinematograph films........ ........ ........ ........ ........ ........ ........ ........ .... 10
Who owned the copyright in the photographs comprised in the Unedited Films and the Edited Films?........ ........ 167
Who owned the copyright in the photographs comprised in the Newsreels and the Sports TV Films?........ ........ ... 25
THE AGREEMENT OF 23 NOVEMBER 1960........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 28
Events from the end of the Games on 8 December 1956 to the dealings between OCOG and Peter Whitchurch in 1960 28
OCOG’s transaction with Peter Whitchurch........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . 34
THE PASSING OF COPYRIGHT FROM OCOG TO THE AOC........ ........ ........ ........ ........ ........ ........ ........ ...... 50
ESTOPPEL........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 56
Factual background........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 56
The case of estoppel as pleaded........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 1012
The first pleaded estoppel case........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 1023
The second pleaded estoppel case........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 104
1.     Did the Whitchurch interests make or maintain the assumption in question?........ ........ ........ ........ . 1067
2.     The AOC’s role in relation to the making or maintenance of the relevant assumption by the Whitchurch interests 10910
3.     Did the AOC know that the Whitchurch interests would act or refrain from acting in reliance on the assumption or intend them to do so?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 1145
4.     The Whitchurch interests’ reliance upon the assumption; and........ ........ ........ ........ ........ ........ ........ . 11920
5.     The suffering of detriment by reason of reliance upon the assumption........ ........ ........ ........ ........ .. 11920
6.     In all the circumstances, would it be unconscientious for the AOC to depart from the
assumption?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 1212

the limitation ACT 1969 (NSW), abandonment AND LACHES........ ........ ........ ........ ........ ........ ...... 1289
Limitation Act 1969 (NSW)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 12930
Abandonment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 1312
Laches........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 1334
THE CROSS CLAIM BY BENSON AND TALBOT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 1367
Was John Whitchurch entitled as surviving executor of the will of Peter Whitchurch to enter into the deed of assignment to the AOC dated 20 October 1997?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 1389
Was John Whitchurch entitled to enter into the deed of assignment to the AOC dated 20 October 1997 as a co-executor of the will of Elsie Whitchurch?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 140
REPUDIATION OF THE 23 NOVEMBER 1960 AGREEMENT........ ........ ........ ........ ........ ........ ........ ........ . 1445
INFRINGEMENT OF COPYRIGHT BY TBF, ESPN, BENSON AND TALBOT........ ........ ........ ........ ........ ........ 1478
CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 1478

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 49 OF 1997
NG 481 of 1998

BETWEEN:

AUSTRALIAN OLYMPIC COMMITTEE INC
First Applicant

JOHN PETER ELLIOTT WHITCHURCH
Second Applicant

AND:

THE BIG FIGHTS INC
First Respondent

PETER WHITCHURCH PRODUCTIONS PTY LTD
ACN 000 213 258
Second Respondent

BECK HOLDINGS PTY LTD
ACN 000 166 594
Third Respondent

FILMWORLD PTY LTD
ACN 008 565 222
Fourth Respondent

LYNETTE JUNE BENSON
Fifth Respondent

DIANE YVONNE TALBOT
Sixth Respondent

AUSTRALIAN SECURITIES COMMISSION
Seventh Respondent

ESPN ENTERPRISES INC
Eighth Respondent

JUDGE:

LINDGREN J

DATE:

3 AUGUST 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION

In the year 776 BC a cook called Koroibos (or Coroebus) from the city of Elis in Greece won a foot race 192 metres long which was held in the city of Olympia as part of a festival in honour of Zeus, the father of the Greek gods and goddesses. He is the first known champion of a festival that was held every four years afterwards and became known as the “Olympic Games”. Over the centuries, events were added and competitors were attracted from further afield. There were many famous competitors such as Milo of Kroton who won the wrestling competition five times between 532 and 516 BC and Leonidas of Rhodes who won three foot races in each of four Games between 164 and 152 BC. The ancient Olympic Games were also host to scandal and political controversy. In the second century BC, following the conquest of Greece by the Roman Empire, the Games lost their religious significance and contestants became interested only in winning money. The Olympic Games of the ancient world were ended in 393 AD by the Roman Emperor Theodosius I because of a decline in quality.

National Olympic Games were held in Greece on four occasions between 1859 and 1889. Then, in 1894, Baron Pierre de Coubertin proposed resurrecting the quadrennial festival and involving athletes from around the world. His suggestion was well received and the first modern Olympic Games were held in Athens in 1896. Since then, the Games have been held every four years except in 1918, 1940 and 1944, although, unlike their ancient counterparts, they are not held in the same city each time. Since 1924, separate Winter Olympic Games have also been held.
The present case concerns a contest over claims to ownership in respect of certain films of the Olympic Games held in Melbourne in 1956 (after this, “the 1956 Games” or simply “the Games”). There are, in substance, two claimants. One is the first applicant (“the AOC”) which is supported by the second applicant (“John Whitchurch”), the son of the late Reginald Peter Whitchurch (“Peter Whitchurch” – as he was known and will be called). Peter Whitchurch was the Director of the Official Film Unit of The Organising Committee for the XVIth Olympiad Melbourne 1956 (which was referred to by the parties and to which I will refer as “OCOG”) which was responsible for the filming of the Games. The opposing claimant is the first respondent (“TBF”), a corporation incorporated in the United States of America. TBF is supported by the second respondent (“PWP”), an Australian company which was originally under the control of Peter Whitchurch, and by the fifth and sixth respondents (respectively “Benson” and “Talbot”) who are the daughters of Peter Whitchurch, sisters of John Whitchurch and a majority of the directors of PWP. In fact, by the time the present proceedings were heard, TBF had purported to assign its interest in the films to the eighth respondent (“ESPN”) which also supports TBF. The third respondent (“Beck”) also at one stage asserted ownership of the property in question but apparently no longer does so.
Resolution of the dispute has called for an investigation of facts spanning some forty years. Three features of the case deserve to be noted at once. First, in the early years following the Games, OCOG dealt with the matters of ownership of the films in question and of the copyright in them and of the granting of rights in respect of them to Peter Whitchurch, in what can only be described as a relatively informal and amateurish way. There was evidence before me that “amateurishness” was characteristic of sports administration at the time. Second, neither the AOC nor its predecessor body did anything to assert any claim in respect of the films until after, and as a response to, the commencement of a proceeding in 1996 by TBF against the fourth respondent Filmworld Pty Ltd (“Filmworld”). By that proceeding TBF asserted that it was entitled to possession of the films, which were at that time in the possession of Filmworld as bailee. Third, unfortunately the children of the late Peter Whitchurch and of his widow the late Elsie Mavis Whitchurch (“Elsie Whitchurch”) are divided over the present dispute. As I noted above, John Whitchurch supports the AOC while Benson and Talbot support TBF. Accordingly, the proceeding has involved the unseemly spectacle of a funding of John Whitchurch’s stance in a family dispute by the AOC and a funding of Benson’s and Talbot’s stance in that dispute by TBF.
The modern Olympic Games are conducted under the auspices of the International Olympic Committee (“the IOC”). The IOC is based in Lausanne, Switzerland. It has governed the modern Olympic movement since its formation in 1894 and has directed and controlled the summer Olympic Games since 1896 and the winter Olympic Games since 1924. The IOC recognises “National Olympic Committees”. When the IOC decides that the Olympic Games are to be held in a particular city, it entrusts the organisation of them to the National Olympic Committee of the country in which that city is located.
In 1914, the “Olympic Federation of Australia and New Zealand”, an unincorporated association, was constituted as the National Olympic Committee for Australia and New Zealand. In 1920 the Australian and New Zealand contingents separated, the Federation was dissolved, and a committee called the “Australian Olympic Council” took its place in respect of Australia. That body changed its name to the Australian Olympic Federation (“the AOF”) in 1923. The AOF was the National Olympic Committee of Australia recognised by the IOC from 1923 until 24 April 1985 – a period of sixty two years. That period embraced the period 1956-1960 in which the Games were held and in which certain dealings between OCOG and Peter Whitchurch in 1960, which are the genesis of the present proceeding, took place.
The AOF was a non-profit unincorporated association. On 24 April 1985, it became incorporated under the Associations Incorporation Act 1981 (Vic) under the name Australian Olympic Federation Inc (“the AOF Inc”) and replaced the AOF as the National Olympic Committee for Australia. The AOF Inc later resolved to change its name to its present name, “Australian Olympic Committee Inc”. Apparently the resolution for the change of name was passed on 25 June 1990 but it was not registered until 17 February 1994. Accordingly, the incorporated entity that is the AOC has been the National Olympic Committee of Australia since 24 April 1985, although it has been incorporated under its present name only since 17 February 1994. Although I will refer to “the AOF”, “the AOF Inc” and “the AOC” it must be remembered that the last two references are to the same legal entity. Accordingly, it will be correct to refer to the AOF as the predecessor (unincorporated body) of the AOC (and also of the AOF Inc), but incorrect to refer to the AOF Inc as the predecessor of the AOC.
At its 43^rd Session, in April 1949, the IOC awarded the right to host the 1956 Games to the City of Melbourne. It was therefore the responsibility of the AOF to organise the Games. The AOF established as the organising committee for the Games, OCOG, which was incorporated as a company limited by guarantee under the Companies Act 1938 (Vic) on 17 September 1951.
Rule 49 of the Rules and Regulations of the IOC (“IOC Rule 49”) provided as follows:
“The Organizing Committee [OCOG in this case] must make the necessary arrangements for the production of a complete moving picture of the Games including shots of at least the final of each sport without interfering with the conduct of the events. It shall have the exclusive commercial rights to this film until one year after the close of the Games. At that time [one year after the Games] a copy of this complete record must be given to the International Olympic Committee for its museum without charge. National Olympic Committees and International Federations are allowed to purchase copies at a reasonable price. Immediately after the Games, a thirty minute 16 mm. film covering the highlights of the Games must be provided [by the Organising Committee] at cost for National Olympic Committees and International Federations, for their own non-commercial use only.
International Federations are permitted to take 16 mm. technical films of the events in their sports for non-commercial use only. News reel coverage available at a reasonable cost must be arranged by the Organising Committee.” (emphasis supplied)
Accordingly, OCOG was required by IOC Rule 49 to produce a “record” film (including at least shots of the final of each sport) and a “highlights” film. IOC Rule 49 said little about commercial exploitation. It provided that OCOG was to have the right, to the exclusion of all others, to exploit the record film commercially for one year after the Games but otherwise its terms were silent on the subject. The intention seems to have been that after the year following the Games OCOG would no longer have a right of commercial exploitation to the exclusion of all others, or, perhaps, even at all.
On 28 March 1956, OCOG placed advertisements in the Sydney Morning Herald and The Age newspapers seeking tenders for the filming of the Games in the following terms:
“Olympic Games Organising Committee
Filming of Games
The Organising Committee recently decided to throw the film and television rights to the Olympic Games open to World Wide tender. That invitation is still open to all organisations likely to be interested, but tenders should be submitted by April 21 next.
At the same time the Organising Committee is considering the more likely alternative of accepting a quotation from an organisation whose facilities are considering competent to handle the job. Under this arrangement the Committee would itself market the film footage.
Invitations to Quote
Quotations are invited, on or before April 21, 1956, for the production of a black and white film in either 35mm or 16mm of the finals of the Olympic games. This covers the filming of day and night events, processing, assembling and editing as required, supply and delivery to the Committee of the master negative and one print. Additional fine grain and standard prints will be needed to a strict time-table for use in Australia and for air despatch overseas, and the price of such prints and time of delivery should be quoted. Footage of each day’s filming should be assembled in sequence, but not finally edited.
The negative and all rights in all footage shot will be the property of the Olympic Organising Committee.
A firm quoting must indicate its capacity in terms of cameras, trained manpower, and other facilities, to film events spread over eight to ten venues and also state the time required to process and assemble each day’s filming for delivery, with adequate dope-sheets, ready for despatch within Australia and overseas. Normally each day’s footage will need to be available for censoring and despatch overseas on the morning of the following day.
In addition, quotes will be required for a film edited from the footage shot with commentary, music, sound effects and titles is to be supplied, of a total approximate length of 45 minutes.
Particulars of the extent to which individual events are to be filmed, the number and time of the events to be covered, and other information required will be supplied on application to the Organising Committee for the Games, Post Office Building, Elizabeth Street, Melbourne. The lowest or any quotation will not necessarily be accepted.” (emphasis supplied)
The two films described in the advertisement correspond roughly to those described in IOC Rule 49, although there is a discrepancy of fifteen minutes in the duration of the second one.
Only one tender was received in response to the advertisement but it was from a group which was considered to have no “real financial backing” and whose technical competence was also described as “suspect”. No contract was entered into with it.
By a letter dated 6 July 1956, OCOG offered to appoint Fremantle Overseas Radio & TV Inc (“Fremantle”) of New York as its agent in respect of the sale of film rights. An OCOG minute of 24 July 1956 records that Mr Paul Talbot (“Paul Talbot”), the President of Fremantle, wrote accepting OCOG’s offer. By a letter dated 20 November 1956, OCOG advised Paul Talbot that it had appointed him as its “representative for all negotiations with respect to the filming of the Games” and authorised him “to sign contracts on behalf of the Olympic Organising Committee, Melbourne”.
On 24 July 1956, an OCOG sub-committee resolved to accept an offer by Peter Whitchurch, who was Fremantle’s agent in Australia, “to take charge of the Managerial side of production of the film” in return for a lump sum payment of “£750, plus expenses”. The sub-committee’s minutes record that “a letter ... was accordingly sent to Mr Whitchurch accepting his offer as Manager of the Games film activities”. His appointment commenced on 1 August 1956. OCOG assembled an “Official Film Unit” with him as its Director.
The Games were held in Melbourne between 22 November and 8 December 1956. It is the films produced by the Official Film Unit, both during the Games and shortly afterwards, along with certain films of the Games produced by others with which this litigation is concerned.
The films in question fall into four categories:
1.“Unedited Films”: These films constitute the complete film record of the Games as filmed by the Official Film Unit. They are also called “rushes” and were referred to by Peter Whitchurch as “negative (x)”. According to him, negative (x) constituted the “most comprehensive coverage” of the 1956 Games, comprising “all worthwhile footage on each sport, assembled and tinned under the heading of that sport”. The Unedited Films also included “all the offcuts on each sport”, that is, lengths of exposed film left over after the making of the “Edited Films” referred to below. The Unedited Films are said to comprise some 216 rolls of 16 mm film along with separate 16 mm soundtracks.
It appears that there may no longer exist a complete copy of the Unedited Films in a physical form separate from the Edited Films. What exists are the Edited Films and the remainder of the Unedited Films, that is, those parts of the Unedited Films that were not used in the Edited Films.
2.“Edited Films”: These are the following three 16 mm Edited Films of individual sports and of overviews of the Games: (a) a one hour colour film entitled “Olympic Games 1956” which is sometimes referred to in the evidence as the “official” film (this film or the next one to be mentioned must represent the thirty minute “highlights” film called for by IOC Rule 49); (b) a twenty minute “summary” film in black and white with soundtrack; (c) the “films of record”, being several hours of edited films of the finals of the individual sports, either in colour or black and white, and in all cases but one, with soundtrack (these constitute the film first referred to in IOC Rule 49).
The Edited Films comprise some 174 rolls of film and range from twenty minutes to sixty minutes in duration. In all, the Edited Films number twenty five and are of some nine hours in duration.
3.“Newsreels”: These films are both edited and unedited films of a “newsreel” type and are in addition to the Unedited Films and the Edited Films. The edited prints state that they were “distributed by Pacific Films”. They consist of eighteen rolls of 35 mm film and were not the work of OCOG’s Official Film Unit.
4.“Sports TV Films”: These films consist of thirty seven rolls of 16 mm film, negatives and positives, which are identified either by a clapperboard at the beginning of the footage or by a marking on the canister in which the film is stored, as footage shot for or by “Sports TV”. These films were also not the work of OCOG’s Official Film Unit.
I will call all four classes of film “the Films”. These proceedings involve a dispute as to ownership of the copyright in the Films and ownership of certain particular physical copies of them. I will call those particular copies “the physical Films” but this is not to say that there are not other physical copies of the Films in existence. Moreover, it will be appreciated that the Films and the physical Films are referring to the same thing looked at from different perspectives.
The course of the parties’ forensic contest has been unusual. On 30 August 1996, TBF commenced proceeding NG 715 of 1996 against Filmworld. Filmworld had refused to release the physical Films to TBF because it was not satisfied that TBF was entitled to possession of them. That proceeding came to the attention of the AOC which then commenced the first of the two proceedings presently before me, proceeding NG 49 of 1997, against TBF seeking, inter alia, declarations that the AOC was the owner of copyright in the Films and was entitled to immediate possession of the physical Films and an order for delivery up of the latter. On 4 February 1997, I ordered that the physical Films be removed to the custody of Comcopy Pty Limited for safekeeping pending resolution of the dispute as to their ownership. Subsequently, on 7 March 1997, the AOC discontinued as against Filmworld.
The AOC claims that it owns the physical Films and the copyright in the Films on any one of the following bases:
(1)the physical Films and the copyright in the Films were owned by OCOG to which the AOC is the successor in title, the AOC’s title as successor having, in any event, been perfected by two deeds entered into by the AOC and the Australian Securities Commission (“the ASC”) on 8 December 1997 and 5 June 1998, referred to later;
(2)the physical Films and the copyright in the Films were owned by the AOF to which the AOC is the successor in title;
(3)if, which the AOC denies, the late Peter Whitchurch had any proprietary rights in respect of the Films and the copyright in the Films, the AOC is the assignee of those rights by deed dated 20 October 1997 executed by John Whitchurch, who is not only the son of Peter Whitchurch, but is also the sole surviving executor of his will, and a co-executor with Benson of the will of Peter Whitchurch’s widow, the late Elsie Whitchurch, who was alone beneficially entitled to Peter Whitchurch’s estate.
It will be noted that the deed referred to in (3) above was entered into on 20 October 1997. This was long after the commencement of proceeding NG 49 of 1997. The other proceeding with which I am presently concerned, NG 481 of 1998, was brought to overcome this difficulty. However, there is no difference in substance between the two proceedings. John Whitchurch was added as second applicant to proceeding NG 49 of 1997 on 20 October 1997. Benson and Talbot have filed cross-claims in both, seeking declarations that the deed dated 20 October 1997 between John Whitchurch and the AOC is void.
The deed between the AOC and the ASC of 5 June 1998 referred to in (1) above was entered into after the commencement of both proceedings, that is, NG 49 of 1997 and NG 481 of 1998. TBF at one stage objected to the AOC’s seeking to rely on that deed but has since withdrawn that objection, while reserving its position as to costs. On 12 December 1997, the applicants discontinued as against Beck and the ASC.
TBF, Benson and Talbot have, together with the eighth respondent (“ESPN”), filed a second cross-claim seeking, inter alia: a declaration that TBF was, as at 6 May 1998, the owner of the copyright in the Films and of the physical Films; a declaration that on 6 May 1998 TBF assigned the whole of its right, title and interest in the copyright in the Films and the physical Films to ESPN; and an order for delivery up of the physical Films.
TBF, and through it, ESPN, claims to have derived title through PWP. TBF claims that PWP acquired title through Peter Whitchurch. Alternatively, TBF claims that it derived title through an assignment effected by Benson who was, with her brother John, an executrix of Elsie Whitchurch’s will. TBF claims that Peter Whitchurch acquired copyright in the Edited Films by virtue of his having been the author of them and by virtue of an assignment in his favour from the AOC on 23 November 1960. Alternatively, TBF claims that the AOC is estopped from denying the title of Peter Whitchurch (and of his successors in title, PWP, TBF and ESPN) to the Films, by virtue of the AOC’s acquiescence in, and encouragement of, the Whitchurch interests’ dealings with the Films over many years. TBF also claims that John Whitchurch is estopped from denying that PWP had title to the copyright in the Films and from denying that Benson and Talbot had authority to bind PWP in dealing with TBF in respect of that copyright.
It will be seen from the above brief outline that the issues involved in the proceedings are numerous and complex. I do not propose to outline them further at this stage. Rather, I will deal with them in turn in approximately chronological order, starting with the question who originally owned the copyright in the Films.

On 6 May 1998, I ordered that the trial be limited to the issue of liability. I will have occasion to refer to the significance of that order later. Submissions were made on behalf of the applicants jointly and on behalf of the first, fifth, sixth and eighth respondents (“the respondents”) jointly. For convenience, when speaking of the respective parties’ submissions, concessions and forensic positions generally, I will usually refer to “the AOC” as representing the applicants and to “TBF” as representing the respondents.
THE FIRST OWNER OF THE COPYRIGHT IN THE FILMS
Subsistence and nature of copyright in respect of cinematograph films
The parties agree that copyright subsists in the Films. However, they disagree as to the nature of the copyright that subsisted in the Edited Films.
The filming and editing took place before the commencement of the Copyright Act 1968 (Cth) (“the Act”) on 1 May 1969. Section 207 of the Act provides that except as otherwise provided in Part XI (ss 204-248 – “Transitional”) of the Act, the Act applies in relation to things existing at its commencement in like manner as it applies in relation to things coming into existence after its commencement. But s 221 in Part XI provides:
“Copyright does not subsist by virtue of section 90 in a cinematograph film made before the commencement of this Act.”
Section 90 is the section of the Act which, for the first time, provided for the subsistence of copyright in cinematograph films.
Part XI provides specially in relation to cinematograph films made before the commencement of the Act. Although copyright does not subsist in such films, this does not mean that they lacked or lack all copyright protection. Section 222 of the Act provides:
“(1) Where a cinematograph film made before the commencement of this Act was an original dramatic work as defined by section 204, this Act (other than this subsection) has effect in relation to the film as if the film had been an original dramatic work as defined by section 10 and the person who was the author of the work for the purposes of the Copyright Act, 1911 shall be deemed to be the author of the work for the purposes of this Act as having effect by virtue of this subsection.
(2) This Act has effect in relation to photographs forming part of a cinematograph film made before the commencement of this Act in like manner as it has effect in relation to photographs not forming part of a cinematograph film.” (emphasis supplied)
Section 10 (referred to in s 222(1)) is the general definition section of the Act. The definition of “dramatic work” in that section need not be discussed for present purposes. Section 204(2) of the Act defines “dramatic work” to include:
“a piece for recitation, a choreographic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise, and a cinematograph production where the arrangement, the acting form or the combination of incidents represented gives the work an original character”. (emphasis supplied)
This definition is substantially the same as that found in s 35 of the Copyright Act 1911 (UK) (“the 1911 UK Act”), which applied in Australia at the time the Films were made by virtue of s 8 of the Copyright Act 1912 (Cth) (“the 1912 Act”). The definition of “photograph” in s 204(2) of the Act is also substantially the same as the definition of “photograph” in s 35 of the 1911 UK Act, but the terms of the definition are not of present importance.
Section 10 of the Act defines “artistic work” to include a “photograph” as s 35 of the 1911 UK Act had done. The parties accept that the Unedited Films are not original dramatic works, and that in respect of the Unedited Films, copyright subsists only in the photographs which constitute them and not in the films as a whole.
In relation to the Edited Films, however, TBF submits, contrary to the AOC’s submission, that those films were original “dramatic works” as defined by s 204(2) of the Act.
The Edited Films are not in evidence, but they are described in evidence which reveals their general nature. The one hour colour film (2(a) earlier) and the twenty minute black and white “summary” film (2(b) earlier) contain selected highlights of the 1956 Games as a whole. The record film (2(c) earlier) contains highlights of individual sports. All the Edited Films have narrated soundtracks. It is apparent, therefore, that skill and labour, perhaps considerable skill and labour, was exercised in selecting and editing from the Unedited Film and in writing and narrating the soundtracks in order to produce the Edited Films. Peter Whitchurch undertook this work for which he was paid by OCOG.
There is a paucity of authority on the question when a cinematograph film constitutes an original dramatic work. The issue was raised in Nordisk Films Co Ltd v Onda [1917-1923] MCC 337 but the report does not describe the nature of the film or disclose Eve J’s reasons for concluding that it was not a dramatic work, beyond recording that it was submitted that there was no evidence that the film satisfied the statutory definition. Moreover, the decision was interlocutory and Eve J was satisfied that whether or not the film as a whole was a dramatic work, the plaintiff had copyright in the artistic work consisting of the individual photographs constituting the film, and that this afforded a sufficient basis for the grant of an injunction. It seems that detailed consideration was not given to the present question.
In Canadian Admiral Corporation Ltd v Rediffusion Inc (1954) 20 CPR 75, Cameron J in the Exchequer Court of Canada had to consider whether films of football games were original dramatic works. The relevant definition was the same as that in the Act. His Honour held that they were not and quoted (at 93-94), with apparent approval, the following passage from Copinger and Skone James on Copyright (8^th ed, 1948 at p 221):
“Turning now to the protection which is accorded to the film itself, we do not find the Act [the 1911 UK Act] to be very clear upon the point. The difficulty arises from the fact that the film may be regarded from two points of view: it consists of a series of photographs, and from this point of view it is an ‘artistic work’ (Pathé Frères v Bancroft (1933) Macg Cap Cas 403); but where scenes are arranged for the purpose of being filmed there may be copyright in these arrangements as a dramatic work, for dramatic work is defined (s 35(1) [of the 1911 UK Act]) as including ‘any cinematograph production where the arrangement or acting form, or the combination of incidents represented give the work an original character’. It seems fairly clear that the cinematographing of a series of events in real life is not a ‘production’ within the meaning of the definition since there is no acting form or arrangement. Even where the work is a ‘production’ it must have an original character; this would seem to be so apart from the definition since copyright only subsists in original dramatic works, but the effect of the definition is no doubt to point out where the originality in a cinematograph production must subsist.”
The following passage had appeared in the sixth edition of the same work, the first published after the passing of the 1911 UK Act:
“The producer of [a] film may adopt one of several courses:
1.He may photograph a single incident or series of consecutive incidents actually occurring in life – eg, the race for the Derby.
2.He may photograph a series of disconnected incidents and combine them in such a way as to make them appear as though they had happened consecutively – eg, by photographing incidents in the life of an individual which actually happened on different days, but which, upon the cinematograph, are made to appear as though no interval of time had elapsed between the various incidents.
3.He may re-enact, by his own actors, in front of the camera selected incidents as he may conceive them to have in fact happened – eg, a life of Mary Queen of Scots or Queen Victoria.
4.He may dramatise the novel of another and perform his work in front of the camera, arranging the scenery and engaging the performers....” (p 217)
Referring to examples 1 and 2 above, the learned author stated:
“It seems fairly clear that the cinematographing of a series of events in real life is not a ‘production’ within the meaning of the definition since there is no acting form or arrangement. Even where the work is a ‘production’ it must have an original character; … Thus it is submitted that a person could not obtain copyright in an existing non-copyright play merely by making a film from a stage performance, but that if he imparted originality to the arrangement or acting form for the purposes of the film he would obtain copyright in such new arrangement.” (p 220)
The correctness of the passage from the eighth edition of Copinger set out earlier was questioned in Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs (1^st ed, 1980) in the following passage (at para 7.9, pp 273-274):
“We can see that in the definition there are two references to ‘original’. The first, [is] in the expression ‘original dramatic work’ .... The second reference, in the words ‘give the work an original character’, is used to limit further the scope of this category of copyright work but the extent of this limitation is unclear. Presumably the legislature intended to give extra protection to works which involved greater intellectual effort than was necessary merely to produce a photograph…. It has been suggested … that filming events occurring in real life or filming a performance of a stage play would not produce a cinematograph film within the definition of dramatic works. [Copinger (8^th ed) p 221] It is submitted that there is no reason why such films should fall outside the scope of the definition. For example in the case of a natural history documentary great skill and care will normally go into selecting the subject matter and the manner in which the film is shot and then into editing the final product. The resulting film will be more than just a record of naturally occurring phenomena but will have its own ‘story’ and frequently will be designed so as to provoke sympathy or awe in the mind of the viewer. It is submitted that a court would be more than likely in such a case to say that the ‘combination of incidents represented give the work an original character’. [By similar reasoning, there is no good reason why a documentary such as Leni Reifenstahl’s on the 1936 Munich Olympics should not qualify as a dramatic work.] Similarly there can be little doubt that a film of, say, a live performance of ‘Aida’ would have original character qua film and there is no good reason why that should be denied the greater protection afforded to other films which qualify as dramatic works.” (emphasis supplied)
TBF suggests that Peter Whitchurch likened his film to Riefenstahl’s. In a letter to OCOG written in 1960 (discussed in detail later) Peter Whitchurch said:
“I would draw your attention to the fact that prints of the 1936 film (Berlin), are occasionally required. They can be obtained from the Producer, Leni Riefenstahl. Twenty five years later she knows exactly what happened and can answer queries. The copyright and sales exclusivity of prints are apparently, and I consider rightly, vested in her.” (emphasis in original)
Even if the letter should be taken to be an assertion by Peter Whitchurch that his films were, for copyright purposes, of the same nature as Riefenstahl’s, the assertion would not be probative in relation to any issue I have to decide.
Importantly, the authors of Laddie, Prescott and Vitoria changed their opinion on the present issue in the second edition of their book published in 1995. After referring to the passage from their first edition set out above, they said (at 5.13),
“on further reflection we perceive weighty arguments to the contrary”
and concluded:
“It is therefore suggested that the function of the concluding words [of the definition of “dramatic work”] was to specify what sorts of material, present in a film, would count as relevant for dramatic copyright purposes. The mere shooting of a real life scene eg a street procession, would not. The originality would have to reside in the arrangement, acting form or combination of incidents represented, these being the original contribution of the author. He might also get a copyright merely by capturing living images, but this would have to be photographic and not dramatic copyright.”
The authors’ change of mind seems to have been due in part to the discussion of the topic by Professor Ricketson in his book, The Berne Convention for the protection of literary and artistic works: 1886-1986 (Centre for Commercial Law Studies, Queen Mary College, University of London, 1987). The definition of “dramatic work” in the 1911 UK Act apparently reflected an attempt to give effect to art 14(2) of the Berne Convention. The United Kingdom acceded to the Berne Convention on its own behalf and on behalf of Australia on 1 July 1912, the day from which the 1911 UK Act was deemed to have been in force in the Commonwealth: see s 8 of the 1912 Act. Article 14(2) of the Berne Convention provided:
“(2) Cinematographic productions shall be protected as literary or artistic works, if, by the arrangement of the acting form or the combination of the incidents represented, the author has given the work a personal and original character.”
In construing the statutory definition of “dramatic work”, one may refer to the provisions of the Convention to which the statute was intended to give effect: see Acts Interpretation Act 1901 (Cth) s 15AB(2)(d) and the cases referred to in Pearce and Geddes, Statutory Interpretation in Australia (Butterworths, 4th ed, 1996) at [3.13].
Ricketson (above) says of art 14 (2) (at 550-551):
“It seems clear from the wording of this paragraph that protectable ‘cinematographic productions’ were regarded simply as another species of dramatic work, and little, if any, account was to be taken of the technical skills required to make them – skills that were usually required in equal measure for films of ‘unordered’ subjects such as landscapes, street scenes or public events. In other words, under para (2) cinematographic films were not to be protected because they themselves represented ‘productions in the literary, scientific and artistic domain’, but only insofar as they might embody works that came within this definition by reason of the personal and original character given them by the arrangement of the acting form or combination of incidents. The necessity for a provision limited in this way may be questioned, as such works should already have been protected as dramatic or dramatico-musical works that were simply expressed in a novel form.”
In other words, the intention was, perhaps unnecessarily, to protect the intellectual contribution to that which was filmed, not the skill and effort involved in filming or editing.
The AOC submits that the definition of “dramatic work” requires that the “author” orchestrate or dictate the events captured on film. It emphasises the definition’s reference to “cinematograph production”. The word “production” does indeed suggest that more is required than the recording of real life events. In my opinion, the notion of “cinematograph production” in the definition necessarily presupposes that the “producer” has been responsible for “the arrangement, the acting form or the combination of incidents” which gives the end product an original character. The expression “dramatic work” itself also suggests that the action must be staged, contrived or directed, and not simply recorded. Perhaps it is possible to film naturally occurring events and then, through a process of editing, create a drama or story that is not otherwise present in them. There is no suggestion that this happened in the present case. The editing process may have highlighted the drama of events at the Games but it did not “produce” that drama. In my view, the exertion of skill and labour in filming and editing does not characterise what remains essentially a film of real life events over which the producer of the film had no control as an original dramatic work for the purposes of s 222(1) of the Act.
In the result, neither the filming nor editing work produced an original dramatic work. It follows that the Edited Films, like the Unedited Films, attract copyright only in the artistic work that is constituted by the individual photographs of which those Edited Films consist.
Who owned the copyright in the photographs comprised in the Unedited Films and the Edited Films?
As noted earlier, s 207 of the Act provides that except in so far as Part XI otherwise expressly provides, the Act applies in relation to things existing at the commencement of the Act in like manner as it applies in relation to things coming into existence after that commencement. The photographs constituting the Films were “things existing at the commencement of” the Act.
Section 208 of the Act provides that in relation to a photograph taken before the commencement of the Act, a reference in the Act to the “author” of a photograph is a reference to the person who, at the time the photograph was taken, was the owner of the material on which the photograph was taken. Subject to subss 213 (5) and (6) of the Act, it is the “author” of such a photograph who is the owner of copyright in it: ss 35(2) and 213(3) of the Act. Subsections 213(5) and (6) are special provisions which are, relevantly, as follows:
“(5) Where, in the case of a work being a photograph, ... :
(a) a person made, for valuable consideration, an agreement with another person for the taking of the photograph, ... by the other person; and
(b) the work was made in pursuance of the agreement;
the first-mentioned person is the owner of any copyright subsisting in the work by virtue of Part III.
(6) Where the work was made by the author [the owner of the material on which the photograph was taken] in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of Part III.”
I will consider first the operation of s 208. There is no suggestion that Peter Whitchurch or any of the cameramen owned the unexposed film on which the photographs were taken. There is no suggestion that anyone other than OCOG was the owner of the unexposed film. Either OCOG is shown to have been the author or no one is shown to have been the author.
The AOC submits that OCOG was the owner of the copyright in the photographs constituting both the Edited Films and the Unedited Films on two alternative bases. The first is that it was the owner of the film that was exposed to create the photographs and was therefore the author of the photographs: see s 35(2) of the Act. The alternative ground is that by reference to s 213(5), OCOG made, for valuable consideration, an agreement with Peter Whitchurch and the other cameramen for the taking of the photographs. I will turn first to the evidence relevant to the first ground.
1.Peter Whitchurch presented to OCOG a “Report on TV and Films Operation”. It is undated but must have been presented in around August 1956. We know this because OCOG appointed Peter Whitchurch as Director of the Official Film Unit from 1 August 1956, and because the Official Report of OCOG published in 1958 referred to a major change in policy that OCOG made at that time from allowing outsiders to film the Games to undertaking the task itself (see 8 below) and this change of policy is reflected in the document as a recent development.
Peter Whitchurch’s report to OCOG contained the following:
“BACKGROUND
1.When Fremantle – Overseas Radio and TV Inc, New York were appointed by the Olympic Committee to be sole Agents for the world wide sale of Olympic Games film rights, Mr Peter Whitchurch as Mr Talbot’s Australian Film Representative no longer had any responsibility as a ‘go-between’ or liaison officer for Mr Talbot and the Committee.
2.Mr Talbot is now the Agent of the Olympic Committee and all correspondence should be direct and not through any third party (Mr Whitchurch or any other deputy acting as Australian representative of Fremantle).
3.There are NO different viewpoints to be reconciled. In the event of a divergence of opinion Mr Talbot must conform with the policy (if any) laid down by the Committee.
4.Mr Talbot has been appointed to SELL on a commission basis and it is therefore clearly the responsibility of the Olympic Committee to PRODUCE that which Mr Talbot is selling.
5.This means that the Olympic Committee finances the entire film operation, recouping costs plus profit from sales, less commission, from Mr Talbot.
6.These costs include those services provided by agreement with the ‘Pool’ for which there will be a contractual arrangement covering reimbursement of its costs of procurement in Australia.
7.Recommendation. It is essential that there be legal contracts:
(a)Between the Olympic Committee and Fremantle.
(b)Between Fremantle and the ‘Pool’.
(c)The Pool must be clearly defined listing the legally liable
members.This list is subject to the approval of the Committee.
(d)Provision must be made for all other users to purchase under
separate contract from Fremantle.
(e)It is of vital importance that aggressive steps be taken to
protect the world wide copyright to all film exposed in areas
under the control of the Committee.
PRESENT POSITION
8.For technical liaison work and to safeguard the Committee’s Film operations step by step the Olympic Committee has appointed a TV and FILM EXECUTIVE, ie Mr Peter Whitchurch
9.Production will require an outlay of considerable expense and the immediate appointment of KEY PERSONNEL in order to undertake this mammoth task.
10.It is clear that the TV and FILMS project has been seriously handicapped by a late start and no effort and expense should be spred [sic] in organising this project with the same efficiency and attention to detail which has been characteristic of all other aspects of the Games.
11.In fact we are so far behind schedule in film and TV preparation by comparison with previous Olympic Games that the situation should be treated as an EMERGENCY and Mr Whitchurch given PRIORITY assistance in everything that he calls for.
12.One small compensation for the late TV and FILM start is that little expense has been incurred to date.
PLAN OF ACTION – PERSONNEL
13......... ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
PLAN OF ACTION – FINANCE
14.It is recommended that the financing of the film and TV operation be handled on the following basis:
(A)A preliminary Budget is attached covering the complete operation and estimating every contingency it is possible to foresee at this stage [the document is not attached to the copy of the Report in evidence]. This is in the nature of a forecast and by necessity can only be in broad terms. Attached to this Budget is all available information re Fremantle negotiations to date.
(B)This Budget to be revised and resubmitted to the Committee as soon as it is possible to more accurately obtain quotations and establish more detailed costing. In any case this Budget to be resubmitted before 31st September.
(C)Thereafter, the Budget to be revised and resubmitted to the Committee as often as called for together with a complete accounting report.
(D)Payments of accounts, wages, and expenses to be by the IMPREST system. The Committee to pay into a nominal Bank A/c a working sum of, say £500, on which amounts may be drawn by Mr Whitchurch, the Administrative Assistant and/or other approved signatory.
(E)A weekly reconciliation and reimbursement of expenses to be carried out with proper analysis of items in accordance with the accounting requirements of the Committee’s Auditors.
(F)Items of a capital nature, ie, camera stands in arena, sound proofing of studios etc, to be the subject to competitive quotations in writing and approved by the Committee before entering a commitment.
(G)Other items involving considerable expense such as importing cameramen and/or equipment and film stock to be approved by the Committee before entering a commitment.” (emphasis supplied)
2.At a meeting of “the Executive Committee (Directors)” of OCOG on 31 August 1956 at which Peter Whitchurch was present, there was discussion of the arrangements for the filming of the Games. The minutes included the following:
“The Chairman advised that Mr Peter Whitchurch, ... was in attendance. The Committee accordingly asked Mr. Whitchurch in for discussion of filming arrangements.
The Chairman reported discussions with Mr Talbot in New York. From these, it appeared that sales of film would be effected to an extent that would more than cover costs. It was still not clear whether the newsreel pool would come into existence as a filming unit or whether the newsreel companies would prefer to purchase film from the Organising Committee. It does seem to be quite clear that the newsreel companies want film. On the expenses side, the arrangement is that production costs will be to the account of the Organising Committee, while all sales expenditure will be to the account of Fremantle Radio.
Mr Whitchurch spoke briefly on detail [sic] arrangements made to date and answered general questions from members. Mr Whitchurch said that he anticipated that manpower requirements for the international news service would be about 30 operators, at a cost of about £20,000.
Further action in relation to filming was left in the hands of the chairman and Filming Sub-Committee, with power to act.” (emphasis supplied)
3.A memorandum drafted by Peter Whitchurch on or about 5 October 1956 to be sent by OCOG to Australian television stations proposed that they have access to footage of the Games, that its use be the subject of individual negotiation with the Committee’s “film section”, and that the charge be “£20 per day plus physical cost of print, air freight, etc”.
4.A memorandum dated 23 October 1956 from Peter Whitchurch to the Chairman of OCOG relating to his (Peter Whitchurch’s) remuneration included the following:
“As I understand the situation Talbot’s percentage is based on the gross turnover. You probably appreciate that as his representative I have a financial arrangement with him.
Although I am still prepared to wait I would be grateful to have a clear understanding of my present situation. As I see it the Sales Organisation [apparently a reference to Talbot and his company, Fremantle] is in existence to sell what is provided by the Organising Committee. In other words I could effectively be his representative while somebody else was organised for film coverage. I advised against this and asked to be appointed in my present capacity. At the time I asked for a remuneration of £750 (£40 per week average) to act in this Managerial capacity. This was accepted.
I later gathered the impression that you were of a different opinion. I later forwarded a memo which endeavoured to set out the reasons for my own outlook.
Although several things could still go wrong I am now confident that your film coverage will be firstclass. However I would like to be assured of your agreement that the responsibility being carried is greater than would be the case if I were simply Talbot’s representative.
I am finding it impossible to employ suitable talent unless we pay at the rate of £3000 per year for a short term period.
May I arrange similar payment to myself terminating December 15th 1956.
There are two other points I would like to discuss with you for mental reassurance:-
(a)The Organising Committee has no objection to my having first refusal on the equipment we are purchasing. I have in mind a 10% rebate. I would like to ask for a few months to arrange definite settlement.
(b)In order to know my own future, when the Games are over, may I take it as definite that the Organising Committee will commission me to finish the record film either on the basis of a) continued salary or b) an approximate £5000 (not to exceed) to do a worthwhile job. This latter quotation would, of course, incorporate all attendant costs once the kodachrome negative was in my hands. As I expect there will be more than 100,000 feet of 16 mm this will be a really big assignment. However, I look forward to it and, at this stage, only desire your ratification of the commission.” (emphasis supplied)
5.The evidence of Basil Catterns, the Administrative Officer of the Official Film Unit, was that Dennis Hill, who was employed by OCOG as the Unit’s director of photography, was involved in choosing the “film and equipment” to be used by the Unit and in interviewing the cameramen to be employed in it.
6.The evidence of Mr Catterns was also that he (in effect, OCOG) was responsible for ensuring that cameramen had film stock for their cameras during the Games.
7.A memorandum dated 16 December 1956 (eight days after the end of the Games) from Peter Whitchurch to the Chairman of OCOG reported on, inter alia, the “cost of operation – not including equipment”. I accept that the reference is to the cost of the operation of OCOG’s Official Film Unit. The figure mentioned is £33,500 which is described as including “an estimate of depreciation on equipment but not its capital cost”. Although the memorandum does not give particulars of the equipment, surely it was referring to depreciation on OCOG’s equipment. The memorandum also stated:
“You will recall my letter of October 23^rd [see 4 above] and subsequent discussions on the matter of equipment and residual unexposed film. I am forming a Company for Film production to service Television. [PWP was incorporated on 6 September 1957 under the name “Peewhit Pty Limited”] We will need equipment identical with that purchased for the Organising Committee’s Filming.
Much of this equipment was purchased at favourable discount prices as the result of sub Agencies I procured while overseas in 1955. This discount was passed straight on to the Organising Committee in anticipation of my being able to purchase later and thus obtain my Agency benefits.
Although most of the gear has only been used for about a month, the type of use and the variety of cameramen using it has caused a depreciation equal to a normal six months wear and tear. I suggest a 10% discount as being reasonable.
The figure involved is nearly £20,000 and I would appreciate being given until the end of March to settle the total account. I would be prepared to deposit £4,000 immediately, if required, as an earnest of good faith.
....
If permission is given for the purchase of all this gear may I assume control of it as soon as possible.” (emphasis supplied)
8.The Official Report of OCOG published in 1958 dealt with “Film and Television” at pp 156-160. It stated that in July 1956, frustrated in dealing with competing (and conflicting) “news gatherers” and “entertainment providers”, OCOG decided to cover the filming of the Games in its own way. The Report referred to the “large-scale organization of facilities, film and cameramen” that this change of policy involved; to the purchase by OCOG of “all essential equipment”; to the fact that “film issue” and other activities all took place from the one administration room; to the nightly despatch of 16mm and 35mm gauge film material; and to the production by a small team after the Games of “a one-hour colour documentary” and “record films of the various sports”. The Report recorded an “estimated expenditure” on “Filming” of £50,000.
9.The evidence of Robert McAuley, an employee of the Official Film Unit, was that “[i]mmediately the Games were over OCOG was left with a great amount of developed film and camera, sound, processing and film editing equipment” (emphasis supplied).
10.As will be seen, in November 1960 Peter Whitchurch bought from OCOG for £85 “unused US film”. This was apparently film which was exposed during the Games for the purpose of making films for the “US Army Unit”. It was considered that this film was “obsolete”, having only “minor value as ‘leader’ for joining to other used film”.
The AOC also submits that “the assumption underlying many references to sales of film organised by [Fremantle] is that the film was owned by OCOG”. Reference may also be made to the invitation for tenders published by OCOG in the Sydney Morning Herald and The Age newspapers on 28 March 1956 set out earlier, which noted that “[t]he negative and all rights in all footage shot will be the property of” OCOG.

Although some of the evidence referred to above is of limited assistance, taken as a whole it establishes that the unexposed film used to make the Unedited Films, and therefore the Edited Films, was purchased and owned by OCOG and, through its Official Film Unit, issued to its cameramen for use in the filming of the Games.
The matters referred to in (1) and (2) above point to an arrangement according to which all the expenses of the Official Film Unit were to be borne by OCOG. There is no reason why OCOG’s approval would be required for the purchase and importing of film stock if OCOG was not to bear its cost. Then there is Peter Whitchurch’s proposal in (7) above. The first paragraph shows that Peter Whitchurch, who, as Director of the Official Film Unit, should have understood what the true position was, regarded OCOG as the owner of the remaining unexposed film. There is every reason to believe that he regarded OCOG also as the owner of the film that was exposed to produce the Unedited Films and that it was the owner of it in fact. This conclusion is supported by the matter referred to in (10) above.
Another matter which emerges from Peter Whitchurch’s memorandum to OCOG of 16 December 1956 is that he had originally asked to be paid £750 which he described in the letter as £40 per week as his “remuneration for undertaking the Managership of the Film Unit”. His letter spoke of other staff being paid between £50 and £55 per week. In the letter he requested that his own remuneration be increased from £750 to £1,100, which, he said, would represent £60 per week. On 10 January 1957, the Film Sub-Committee of OCOG’s Finance and General Purposes Committee agreed to his request. Since Peter Whitchurch and his subordinate staff at the Official Film Unit were being paid in this way, with no suggestion that their remuneration was to include the cost of the film stock they were to use, it is very unlikely that they were buying it. As noted in (6) above, the cameramen were provided with film stock by Basil Catterns, who was the administrative officer of OCOG’s Official Film Unit. Again, the strong inference is that OCOG itself paid for the film stock.
I find that OCOG purchased and owned the film stock, the exposure of which created the photographs constituting the Unedited Films and, therefore, the Edited Films, with the consequence that it was the author of them: s 208 of the Act. Section 35(2) of the Act therefore produces the result that subject to s 213(5) and (6), OCOG was the owner of the copyright in those photographs.
Is subss (5) or (6) of s 213 inconsistent with this conclusion? Not at all. Those provisions (set out earlier) are directed primarily to situations in which, relevantly, the owner of the unexposed film took the photographs pursuant to a contract with another person or as an employee of another person. OCOG did not do that.
Even if the cameramen had provided their own film stock and had therefore been the authors of the photographs, they took the photographs either pursuant to agreements with OCOG, for valuable consideration (payment to them by OCOG), to film the Games (cf s 213(5) of the Act), or pursuant to the terms of their employment by OCOG under contracts of service (cf s 213(6) of the Act). On either basis, OCOG would again have been the owner of the copyright subsisting in the artistic works constituted by the photographs comprised in the Films.
Since the Edited Films were produced by the cutting and splicing of the original Unedited Films, or, alternatively, by the copying of parts of them, with or without cutting and splicing, OCOG also owned the copyright in the photographs constituting the Edited Films.
It also follows that OCOG also had the immediate right to possession of the original physical Unedited Films and Edited Films. It has not been in issue that those are the films now held by Filmworld.
These conclusions are, of course, subject to any rights that OCOG may have granted to others and other matters to be considered later. But first, it is necessary to refer to the position of the Newsreels and the Sports TV Films.
Who owned the copyright in the photographs comprised in the Newsreels and the Sports TV Films?
The Newsreels were made by a New Zealand company, Pacific Film Productions Ltd (“Pacific Films”). There is in evidence an unsigned copy of a letter from OCOG to Pacific Films dated 24 November 1956. It contains some underlining marked by asterisks. These direct attention to a footnote which states:
“NOTE .... All parts underlined in the above represent additions or alterations to the form originally submitted, all such having been initialled by R. Mirams and P. Talbot.”
Under the words “Yours faithfully” appears:
“(Signed) Paul Talbot
Film and TV Sales Agent”
To the left of this appears the following:
“ACCEPTED –
(Signed) R. Mirams
Pacific Film Productions Ltd.”
I infer that the document contains the terms of an agreement made between OCOG through its Film and TV Sales Agent, Paul Talbot (no doubt representing Fremantle), and Pacific Films through Mr Mirams.
According to the letter, OCOG agreed to provide Pacific Films with appropriate stands and services to enable it to produce news films of the Games. Each film was to be of no more than 3 minutes’ duration. Pacific Films was to be responsible for all costs including “raw stock”. However, the film was to be developed under OCOG’s control and the negatives were to “remain the property of [OCOG]”. The negatives were also to remain in the possession of OCOG, subject to a right in Pacific Films to issue once every four days a “news type Olympic round up” for distribution to motion picture theatres in Australia and New Zealand. The Newsreels were not to be released after 15 December 1956 (seven days after the end of the Games) and all released prints were to be returned to OCOG or destroyed by 31 March 1957. For the right to release the three minute “news type” Olympic films in Australia and New Zealand, no payment was to be made by Pacific Films to OCOG. But further releases required the approval of OCOG which was to receive 50 per cent of the income derived from them.
The AOC submits that by agreeing that the negatives remained the property of OCOG, Pacific Films was agreeing that OCOG was to own the copyright in the photographs constituting the Newsreels, as distinct from merely being entitled to possession of the physical Film. TBF does not appear to dispute this. It does seem that on a fair reading of the letter, OCOG was to own the copyright as well as the general property in the physical Newsreels. It is not in dispute that OCOG was entitled to stipulate the terms on which filming of the Games might take place. The agreement gave Pacific Films very limited rights, but for no payment on its part. The rights were to make three minute newsreels and to distribute them only to cinemas in Australia and New Zealand and only until 15 December 1956. It would, moreover, be inconsistent with the provision for return or destruction of all released prints, that Pacific Films should have the copyright in the Newsreels.
In a manner not revealed by direct evidence, the physical Newsreels ended up in the custody of Filmworld in company with the Unedited Films and the Edited Films. I infer that they were returned by Pacific Films and in one way or another came to be stored with the Unedited Films and the Edited Films.
I turn now to the Sports TV Films. These were produced by an American company called Sports TV Inc (“Sports TV”). There is in evidence an unsigned copy of an agreement between Fremantle “as sole and exclusive agents of” OCOG and Sports TV dated 22 October 1956 and an undated and unsigned amendment to that agreement. The former concludes:
“FREMANTLE OVERSEAS RADIO & TV INC.
Signed
Paul Talbot
President
SPORTS TV, INC
Signed
Charles S. Leeds
President”
I infer that the documents express the terms of an agreement that was entered into between Fremantle as agent for OCOG and Sports TV.
According to the agreement, Sports TV undertook, at its own cost and using its own cameramen, equipment and raw stock, to produce a minimum of six half hour films of the Games with sound narration for television (“the Olympic Shows”). Sports TV was granted the exclusive right to photograph and produce film of the Games “for distribution through the media of television in the United States, its possessions and Canada for a period of six months, following the last day of the Olympic Games”. Accordingly, although the Sports TV Films were to be longer (half an hour) than the Newsreels (three minutes) and were directed to television in North America rather than cinemas in Australia and New Zealand, both shared the feature that they represented a grant of rights limited by reference to a market closely associated in point of time with the Games.
The agreement provided for the sale and distribution of the Olympic shows and the apportionment of royalties between Fremantle and Sports TV. Importantly, clause 1 concluded:
“It is understood that the original negatives produced by Sports’ camera crews will be the property of the Organizing Committee to use at their discretion for any and all purposes and exploitation other than those reserved for Sports as provided herein.”
Clause 14 provided that “at the expiration of the rights granted” to Sports TV, Sports TV was to “turn over” to Fremantle “all negatives, duplicate negatives, fine grains and release prints in the possession or under the control of [Sports TV] without cost to Fremantle for such use or exploitation as Fremantle may wish to make thereof”.
It is important to recall that Fremantle entered into the agreement as sole and exclusive agent of OCOG. As in the case of the Newsreels, I think that the copyright in the Sports TV Films, as well as the general rights of ownership of the physical Sports TV Films, including the right to immediate possession of them six months after the end of the Games, was vested in OCOG pursuant to the agreement. Again, TBF does not appear to submit to the contrary.
I will, as in the case of the Newsreels, proceed on the assumption that the physical Sports TV Films were delivered up by Sports TV to OCOG or its agent in New York, Fremantle, pursuant to the contract, and came to be stored with the Unedited Films and the Edited Films.
THE AGREEMENT OF 23 NOVEMBER 1960
Events from the end of the Games on 8 December 1956 to the dealings between OCOG and Peter Whitchurch in 1960
After the Games, a question arose as to what was to be done with the Unedited Films. On 10 January 1957, OCOG
“decided that the film exposed at the Olympic Games should be used to make the following: -
(a)A Commercial documentary of about one hour in length.
(b)A Record film of approximately three hours duration.
(c)Such special shorts as might be specially ordered by Sports Federations or National Olympic Committees.
(d)A short film of 10/20 minutes.”
It will be seen that (a), (b) and (d) approximately correspond to my earlier description of the Edited Films, although the “Record film” proved to be much longer than the three hours contemplated by the OCOG decision.
OCOG decided to accept a quote of £8,500 from Peter Whitchurch to make the record film. It also accepted his suggestion that he make the one hour “commercial documentary” and the ten to twenty minute film, on the basis that the added production costs be “recouped in the sale price to the consumer, whilst ensuring a profit to the Committee”. Accordingly, Peter Whitchurch was to make for OCOG, out of its Unedited Films (or “negative (x)”), and for payment by OCOG, the three Edited Films.
At a meeting of the “Winding-Up Executive” of OCOG on 26 July 1957, Peter Whitchurch advised those present:
“that the Committee’s one hour colour film [(a) in OCOG’s decision of 10 January 1957] had been completed, that the first copy had that morning been delivered to Olympic Tyre and Rubber Co Ltd and that the first public showings would take place on Wednesday, 21st July [sic].”
He also said that he expected “the record film” [(b) in OCOG’s decision of 10 January 1957] to be finished before the end of 1957. Robert McAuley, who had worked for OCOG in the Official Film Unit, has testified that “the 30 individual sports films” (the record films) were indeed finished at about the end of 1957.
At a meeting of the Winding-Up Executive on 23 January 1958, Peter Whitchurch reported that he had completed:
“a 20 minute black and white 16 mm film (approximately 790 feet in length), of the highlights of the Ceremonies and finals, which the Committee had approved for production for sale on the local market.”
This film was apparently film (d) in OCOG’s decision of 10 January 1957.
In addition to OCOG’s contracts with Peter Whitchurch (for production of the Edited Films), Pacific Films and Sports TV, OCOG made other arrangements in respect of the filming of the Games and the right to exploit the resultant films. First, in around November 1956, OCOG entered into an agreement with a French Company called “Productions CSA”. The agreement itself is not in evidence but there are references to it in documents which are in evidence. According to a “list of contracts” prepared before the Games, CSA had the right to produce and exploit, at its cost, a full length film, apparently called “Rendezvous au Melbourne”. The summary said that OCOG’s agent “Fremantle [was] not to grant any rights to other parties which compete[d] with or derogate[d] from the rights granted [to] CSA”, but that those rights were only for the period of the Games and twelve months afterwards. Correspondence in evidence suggests that Mr P W Nette (“Nette”), the Administrative Director of OCOG, thought that as CSA was granted the right to broadcast its film on television, neither OCOG nor anyone else was at liberty to screen on television any of the films made by the Official Film Unit, including those that resulted from Peter Whitchurch’s editing. In a memorandum to Paul Talbot of 14 December 1957, Peter Whitchurch referred to the fact that he had been “telling Olympic Tyres [see below] that they could not use television because television belonged to the Frenchmen until, at least, 12 months after 8^th December, 1956 [the closing day of the Games]”. The AOC submits that there was in fact no such time limit. This submission receives support from a letter from Nette to Peter Whitchurch of 19 December 1957 (just over twelve months after the Games) in which Nette stated that the contract gave CSA the right to exploit its film, including on television, for an “indefinite period”, and that OCOG had “agreed not to grant to any third party any rights which compete[d] with or derogate[d] from the rights granted to” CSA.
The second of these “other arrangements” made by OCOG occurred in early June of 1957, when OCOG apparently entered into an agreement with the Coca Cola Company. Again, no copy is available. According to the minutes of a meeting of the “Winding-Up Committee” of OCOG on 10 May 1957,
“Mr Whitchurch advised having received information from Fremantle Overseas Corporation (Mr Talbot) [OCOG’s agent in the United States] that the commercial world rights, not including Australia, for the one-hour film had been sold to Coca Cola for $26,000, say £11,500. The effect of this is that the Committee is now left with possible sales to National Olympic Committees in accordance with the Rules [IOC Rule 49 referred to earlier] and with possible sale of rights or of individual copies of the film in Australia.
….
The Executive … decided that the rights of the one-hour film be disposed of in Australia to one purchaser if a reasonable price could be received for it. As an alternative it will be necessary to sell individual copies, sales tax to be allowed for.” (emphasis supplied)
A letter from The Olympic Tyre & Rubber Co Pty Ltd (“Olympic Tyre & Rubber”) to Peter Whitchurch dated 4 June 1957 referred to the rights granted to Coca Cola as being “for non-commercial exhibition of the [one hour colour film] under the auspices of Coca-Cola” (emphasis added). There is also a letter from Paul Talbot to CSA dated 2 April 1958 which enclosed a copy of clause 8 (c) of the agreement between OCOG and Coca Cola which was as follows:
“The Committee [OCOG] grants to the Producer [apparently Coca Cola] the right to exploit his films in all gauges for non-commercial and educational use, except for the making of sponsored and industrial films, which however the Producer may make with the written permission of the Committee. The Committee reserved to itself the right to grant licenses for the use of film material other than that of the Producer on the Olympic Games in industrial and other films which are purely educational in character and which may not be shown in commercial cinemas.” (emphasis supplied)
The third of the other arrangements relates to Olympic Tyre & Rubber. I referred above to the information given by Peter Whitchurch to the Winding-Up Executive of OCOG at its meeting on 26 July 1957. On 23 August 1957, OCOG entered into an agreement with Fremantle and Olympic Tyre & Rubber by which OCOG sold to Olympic Tyre & Rubber the “exclusive non-commercial Australian rights” in respect of “a colour 16 mm motion picture film running approximately one hour in length, covering the major events of the 1956 Olympic Games”. The agreement purported to relate only to “screening rights” and provided that “[t]he master film and the sound track will remain the property of [OCOG]”. The agreement provided that Olympic Tyre & Rubber might:
“non-commercially exploit exclusively [the] one-hour film in Australia to non-paying audiences but not including television.”
The agreement continued:
“Before authorising the televising of this one-hour film in Australia, should that become a possibility, [Olympic Tyre & Rubber] will be consulted and will be given an option to purchase the rights to arrange for television of the film in Australia.”
The first copy of the film was included in the purchase price of £5,000 payable by Olympic Tyre & Rubber. Further copies were to be paid for by Olympic Tyre & Rubber and obtained through the representative in Australia of Fremantle, that is, through Peter Whitchurch. While the films to be produced were only for screening to non-paying audiences and for the purpose only of promoting sport, Olympic Tyre & Rubber was authorised to insert advertisements into the film “within the limits of good taste”, subject to the prior approval of Fremantle on behalf of OCOG.
OCOG agreed not to extend the right to exploit the one hour film in Australia to any commercial organisation other than Olympic Tyre & Rubber. However, it reserved a right for the AOF to screen the one hour film “to non-paying audiences for the promotion of amateur sport”. The agreement also provided that nothing in it would “infringe” or “interfere with” OCOG’s obligation under IOC Rule 49 a copy of which was annexed to the agreement, to supply the films described in that Rule to the IOC and to National Olympic Committees.
Fourth, it appears that in early 1959 there was a dealing between OCOG and William Cayton (“Cayton”) who was the President and “owner” of Radio & Television Packages [sometimes “Packagers”] Inc. Cayton is now the President and “owner” of TBF. In early 1959 Cayton apparently paid a licence fee for the purchase of film to be used in the production of “Olympic Committee spots”, the nature of which is not disclosed by the correspondence in evidence. In a letter dated 19 February 1959 to Paul Talbot of Fremantle, Cayton complained about a problem he had experienced with “the delivery ... of reverse printed negatives from Australia”. Cayton suggested that the licence fee payable by his company be reduced on this account from $2,000 to $1,500. His letter concluded:
“I trust you will agree that this suggestion is entirely proper and entirely fair to your principal and yourself.”
The reference to “your principal” was probably a reference to OCOG because, as noted earlier, Fremantle was OCOG’s agent in the United states. The letter, and in particular its reference to payment of licence fees to Fremantle’s principal, suggests that Cayton understood at that stage that Fremantle’s principal was the copyright owner.

The starting point, in my view, is to identify the rights of the applicants that the remedies sought are designed to protect. The primary right sought to be protected is the AOC’s copyright. The duration of copyright in a pre-Act photograph is provided for in s 212 of the Act and it has not yet expired. There seems to be no reason why a declaration should not be made accordingly. The AOC will be entitled to protect that copyright during the remainder of its term.
The second right which the AOC is entitled to protect is its general property in the physical Films. Again, there seems to be no reason why the challenge to its title to them should not be quashed by the making of a declaration.
Beyond those two declarations, the question of relief is less straightforward. In the first place it is arguable that the defence of laches has no application to remedies provided by statute. That is, in the context of the remedies of injunction, damages, an account of profits and additional damages under s 115 of the Act and delivery up under s 116 of the Act, it is arguable that the defence of laches is not available because those remedies are not equitable ones: cf Masterton Homes Pty Ltd v LED Builders Pty Ltd (1996) 33 IPR 417 at 419, 423-425 per Lockhart J. This issue was not debated before me.
Moreover, the defence may operate differentially as between various equitable claims to which laches is an answer.
In my view, the appropriate course here is not, at this stage, to grant any relief beyond declaratory relief.
On 20 May 1998, I ordered that the present trial be limited to the issue of liability. All the ramifications of that order may not have been foreseen at that time. Having regard to the way in which the case has been conducted and the foregoing reasons, I treat “liability” as not including infringement and as referring only to questions of title.
These Reasons for Judgment have made it clear that upon the Court’s finding or holding that OCOG was entitled to the copyright in the Films and the general property in the physical Films, the deeds between the ASC and the AOC dated 8 December 1997 and 5 June 1998 operate to vest title in the AOC. It may be that the AOC will not wish to press claims for monetary relief. It may be that in the light of the declarations to be made, there will be no ongoing threat by ESPN to infringe the AOC’s copyright.
Be all this as it may, I would need to have the benefit of further submissions in the light of these Reasons for Judgment before I would be in a position to deal with the claims for relief other than the claims for the declarations.
I do not think it profitable to discuss much further the issue of laches. As I said earlier, that defence would fall to be considered in the light of any particular equitable relief sought in respect of any particular infringement. Laches is not made out in respect of an equitable remedy sought for a particular infringement merely by a failure to seek relief in respect of earlier infringements. Notwithstanding what I have just said, I make the following observations in relation to the defence of laches as the parties argued it.
The respondents submit that the AOC and the AOF have remained “inactive” for over thirty six years in the face of “knowledge of the belief held by the Whitchurch interests that they were entitled to act as owners of all rights in connection with the Melbourne Olympic Films including all copyright and all physical Film materials associated therewith”. They submit that by reason of the delay, documentary evidence which might have “cast a different complexion” on the matters in dispute has been lost and important testimonial evidence is lacking because the relevant witnesses, notably Peter Whitchurch and Jacobs, have died. They submit, therefore, that they have been prejudiced by the AOC’s “gross delay”.
The AOC submits, inter alia, as follows:
“76 As against Big Fights there is no evidence of a single overt act at any time by Big Fights of which the AOC or its predecessors was, or ought to have been, aware which constituted a breach of the AOC’s rights and which the AOC or its predecessors ought to have retained.
77 The rights of Big Fights which are disputed in these proceedings only arose in September 1993 on a best case basis. Three years before commencement is not undue delay.”
The reference to “September 1993” is, no doubt, a reference to TBF’s letter dated 17 September 1993 to Benson proposing that TBF’s licence be extended so as to be world-wide, so as to cover all media, and so as to be exclusive in “the United States, its territories and possessions, and Puerto Rico”, and non-exclusive elsewhere. (In fact that offer from TBF was not accepted by Benson on behalf of PWP until 3 February 1994.) Apart from any other difficulty that may have confronted the AOC in suing in respect of earlier alleged infringements of the copyright is the provision of s 134 of the Act that an action shall not be brought for an infringement of copyright after the expiration of six years from the time when the infringement took place.
In the light of para 77 of the AOC’s submissions set out above, I presume that the AOC seeks relief in respect of only the following transactions as alleged infringements:
·     The first “enlargement of licence” agreement between PWP (Benson) and TBF concluded on 3 February 1994 referred to in the preceding paragraph;
·     The second “enlargement of licence” agreement between PWP (Benson) and TBF concluded on 12 December 1995 (making the world-wide rights exclusive);
·     The sale by TBF to ESPN on 6 May 1998.
It could hardly be suggested that a defence of laches is made out in respect of these infringements. (The AOC commenced the first of the present proceedings on 21 January 1997). This does not mean that the AOC would necessarily succeed in obtaining any relief in respect of them. But it will be the proper occasion to pursue that question if and when such relief is sought.
THE CROSS CLAIM BY BENSON AND TALBOT
The conclusions that the AOC owns the copyright in the Films as well as the general property in the physical Films and is not estopped from asserting both, do not dispose of the proceedings because a question remains as to the status of the agreement of 23 November 1960. Are the rights granted by that agreement still on foot and enforceable against the AOC, and, if so, who holds them?
It will be recalled that by the deed dated 20 October 1997, John Whitchurch purported to assign to the AOC all the rights granted by OCOG to Peter Whitchurch by letters dated 15 February 1960 and 23 November 1960 (in the Deed and here referred to as “the Rights”). It is convenient to address first the question whether that deed was effective to vest the Rights in the AOC.
The respondents put their case on the present issue in various ways. First, they say that the estates of Peter Whitchurch and Elsie Whitchurch are both fully administered with the result that John Whitchurch and Benson held the Rights as trustees for John Whitchurch, Benson and Talbot as the persons beneficially entitled to the estate of Elsie Whitchurch, and that John Whitchurch was not entitled, as only one of two trustees, to dispose of the Rights.
Second, and in the alternative, they submit that the estate of Peter Whitchurch was fully administered with the result that the Rights were held upon trust absolutely for Elsie Whitchurch, the executors of whose will held them for the purposes of the administration of her estate, and that John Whitchurch was not entitled, as only one of two executors, to dispose of them.
Third, they submit that if John Whitchurch did have power as one co-executor to dispose of the Rights, so did the other co-executor, Benson, and that she had previously disposed of them to TBF by the agreements dated 17 September 1993, 28 February 1994 and 8 December 1995.
Fourth, they submit that John Whitchurch entered into the deed dated 20 October 1997 with the AOC in breach of fiduciary obligations he owed to those beneficially entitled to the estates of Peter Whitchurch and Elsie Whitchurch.
As noted earlier, by their cross-claim Benson and Talbot seek to have the deed dated 20 October 1997 declared void or set aside.
John Whitchurch submits that he had a right to assign the Rights as (a) the surviving executor of the will of Peter Whitchurch; or (b) one of the two executors of the will of Elsie Whitchurch.
John Whitchurch had also agreed, by an earlier agreement dated 11 December 1996, to assign to the AOC “all his [personal] right, title and interest in the entire copyright throughout the world and all other rights of a like nature subsisting now or conferred in respect of the” Films. The respondents submit that this assignment is ineffective because Benson and Talbot have not assigned their own respective one-third interests.
Was John Whitchurch entitled as surviving executor of the will of Peter Whitchurch to enter into the deed of assignment to the AOC dated 20 October 1997?
So long as persons remain co-executors, each has authority to bind the other or others and to act in right of the deceased: Union Bank of Australia v Harrison (1910) 11 CLR 492 at 499, 502 (Griffith CJ), 508 (Barton J), 516-517 (Isaacs J), 527 (Higgins J). However, once the estate is fully administered, the executors hold any remaining property, not as executors but as trustees, and one co-trustee cannot dispose of trust property without the concurrence of the other or others: Luke v South Kensington Hotel Co (1879) 11 Ch D 121 (CA) at 125-126 (Jessel MR); Sky v Body (1970) 92 WN(NSW) 934 (Street J) at 935-936.
John Whitchurch and Elsie Whitchurch were the executors of the will of Peter Whitchurch to whom Probate of that will was granted in the Supreme Court of New South Wales on 11 May 1982. The evidence as to the administration of Peter Whitchurch’s estate is sparse. John Whitchurch, the surviving executor of Peter Whitchurch’s will, testified that all of Peter Whitchurch’s debts and funeral expenses had been paid but that final accounts in respect of his estate were not filed in the Supreme Court of New South Wales. Benson and Talbot did not know what the position was in relation to the administration of the estate and could speak only of their “understandings”. I accept the evidence of John Whitchurch. On the basis of that evidence and the length of the period of time between Peter Whitchurch’s death on 17 October 1981 and the execution of the deed of 20 October 1997 without, apparently, any recent assertion of claims by creditors, I find that by 20 October 1997 all his debts and the funeral and testamentary expenses associated with his estate had been paid but that the executors’ accounts in respect of the administration of the estate were not filed in the Supreme Court of New South Wales.
When John Whitchurch and Benson applied for probate of the will of their mother, Elsie Whitchurch, they made a joint affidavit of assets and liabilities to which was attached an “inventory of property” which included the following item:
“Property Estimated or known value
….
Other personal property
Cinematography Films – estimated 500,000”.
I infer that this entry was meant to refer to or include all the Rights. I also infer that John Whitchurch and Benson meant, when swearing the affidavit, to indicate that in their view by the time of Elsie Whitchurch’s death on 11 September 1986, the Rights did not form part of the unadministered estate of Peter Whitchurch and were the property of Elsie Whitchurch.
The executors of Peter Whitchurch’s will were required by s 85(1) of the Wills, Probate and Administration Act 1898 (NSW) to file accounts relating to the estate within twelve months after the grant of probate, that is, by 11 May 1983 (Rules of the Supreme Court of New South Wales Pt 78 r 71(1)). Sanctions for failure to file accounts as required are provided for in ss 86 and 87 of the that Act, including disentitlement to executor’s commission. But in my view, the failure to file accounts did not exclude the possibility that by the time of Elsie Whitchurch’s death on 11 September 1986, John Whitchurch and Elsie Whitchurch had come to hold the assets in Peter Whitchurch’s estate as trustees for Elsie Whitchurch. Elsie Whitchurch was the only person beneficially entitled to the estate of Peter Whitchurch and was a co-executor of his will. She could hardly have been heard to complain about the failure of herself and her son to file accounts in respect of Peter Whitchurch’s estate. Nor, in the light of the joint affidavit of assets and liabilities in Elsie Whitchurch’s estate, could Benson, a co-executor of Elsie Whitchurch’s will, be heard to complain in right of her mother. Of course, neither could John. Talbot had no beneficial interest in Peter Whitchurch’s estate.
The fact that the children of Peter Whitchurch have for some time been in dispute as to what should be done with the Rights does not, contrary to the AOC’s submission, affect the position. Elsie Whitchurch was the sole beneficiary under Peter Whitchurch’s will and the dispute between her children had no effect on the devolution of the Rights.
For the above reasons, in my view as at the date of the deed between John Whitchurch and the AOC dated 20 October 1997 the Rights no longer formed part of the estate of Peter Whitchurch. It was therefore not open to John Whitchurch as surviving executor of Peter Whitchurch’s will to assign them to the AOC on 20 October 1997.
Was John Whitchurch entitled to enter into the deed of assignment to the AOC dated 20 October 1997 as a co-executor of the will of Elsie Whitchurch?
John Whitchurch and Benson were co-executors of the will of Elsie Whitchurch to whom Probate of that will was granted on 21 January 1987.
The AOC submits that the estate of Elsie Whitchurch, who, it will be recalled, died on 11 September 1986, was not fully administered as at 20 October 1997, and that John Whitchurch as one co-executor had authority to enter into the deed of that date. TBF, on the other hand, submits that by that date the estate was fully administered and that John Whitchurch, as one co-trustee, had no authority to enter into that deed without the consent of Benson.
Again, the evidence as to the state of the administration of Elsie Whitchurch’s estate is sparse. John Whitchurch’s evidence is that certain property forming part of that estate remained and remains undistributed due to the dispute between himself, Benson and Talbot. He refers first, to an amount of $4,948.89 held in a bank account on which he and Benson are joint signatories, and second, to “[his] father’s film collection”. The account is a “Passbook Saver Account” held at the Warrawong Branch of Westpac Banking Corporation in the name of Elsie Whitchurch’s estate on which both Benson and John Whitchurch were required signatories. The account appears to have been opened on 17 March 1987, that is, some six months after Elsie Whitchurch’s death, and the last active operation on it was a deposit made on 30 September 1993.
John Whitchurch also testified that the “final accounts” in respect of his mother’s estate have not been filed in the Supreme Court. He annexed to his affidavit a ten-page document, which he said he prepared, entitled “Stage 1 – ESTATE RECEIPTS & DISTRIBUTION – Proposed for EM Whitchurch Estate”. The document was signed by Benson on 9 April 1987, that is, some seven months after her mother’s death. Benson signed and wrote “9-4-87”, at the top left hand corner of the front page and she initialled in the top left corner of the remaining nine pages. Unfortunately, the evidence does not reveal the context in, intention with, or purpose for, which, John Whitchurch created the document or Benson signed and initialled it. The document appears to be an attempt to give an account of the assets in the estate, their realisation, the “loan account” positions as between the three individual beneficiaries and the estate, and distributions among the beneficiaries that had occurred or were proposed. It included the following entry as describing an asset still held:
“Cinematogrphic [sic] Film Collection
Incomplete at this time.”
Talbot gave evidence that her understanding was that
“the only matter remaining to be done in relation to the estate of [her] late mother was to sell the remaining assets and distribute the proceeds or distribute the assets, to the beneficiaries”.
She said that she had unsuccessfully over a long time pressed John Whitchurch to distribute their mother’s estate and that it was to that end that she signed the document on 24 January 1987 referred to earlier, authorising PWP to “commence sale negotiations for all possible cinematographic film together with any associated right/s therein”. I accept this testimony.
Benson said that her understanding was that all the debts of her mother’s estate had been paid and that “all matters to do with the estate have been resolved other than matters relating to the family trust and the shareholding in PWP”. For example, she testified that certain land at Robertson owned by the estate was subdivided in 1986, that two lots were transferred to each of the three beneficiaries and the remaining lots sold, and that her parents’ home at 100 Windang Road, Primbee was sold about twelve months after her mother’s death, that is, apparently in or about September 1987.
Subject to one complication to which I refer below, I think that the administration of the estate of Elsie Whitchurch was complete and that John Whitchurch and Benson had come to hold the Rights as trustees (a) by the time Benson on behalf of PWP entered into the agreement with TBF on 12 December 1995, and therefore (b) by the time John Whitchurch purported to assign the Rights to the AOC on 20 October 1997.
The case is similar to that of In the estate of Dunn, deceased [1963] VR 165 (Herring CJ). Harriet Dunn died in 1931 intestate. Her eldest son was appointed administrator of her estate. He discharged all liabilities but did not realise the most valuable asset, some farming property. Rather, apparently with the consent of the other persons beneficially entitled, he carried on the farming business for the benefit of all. When the eldest son died in 1946, the applicant was appointed administrator in his place. He continued to farm the property, but in 1962, when aged 80 years, he applied to the Court for an order discharging him and appointing a new administrator in his place. Herring CJ refused, as he considered that the administration was already complete and that the applicant held the property as trustee, not as administrator. His Honour said (at 166):
“It cannot be said … that the applicant has carried on the business for the purpose of administering the estate of the deceased or to enable a satisfactory sale to be made. He has carried it on for the benefit of the persons beneficially entitled because they have desired that it should be carried on in this way rather than that it should be sold. It is as owners of the property in equity that they have given this direction and the applicant has treated them as such in carrying it out. His relationship to them has been throughout that of trustee and cestui que trust, not that of administrator and next of kin. During the period he has performed no duty as administrator, there has been no such duty to perform. The case is, therefore, one where there should be a new trustee appointed and not an administrator de bonis non.”
His Honour found support for his view in Re Ponder [1921] 2 Ch 59. He referred to the following headnote as summarising Sargant J’s decision in that case:
“An administrator who has paid all expenses and debts and cleared the intestate’s estate stands in the same position towards the next of kin as that which an executor who has cleared the estate stands in towards the residuary legatees; he ceases to be an administrator and becomes a trustee”.

In the present case, apparently all the debts of the estate had been paid and most of the property had been distributed. The direction of 24 January 1987 indicates that the beneficiaries, unlike those in In the estate of Dunn, wished to have the remaining property in the estate realised. However, as they were having difficulty in finding a purchaser, John Whitchurch, and subsequently Benson, on behalf of PWP continued to deal with the films.
The AOC refers to Stokes v Churchill (1994) NSW ConvR ¶55-694, in which Santow J made the following observations on the question when the administration of an estate is complete (at 59,967-59,968):
“Obtaining probate, collecting all the assets of the estate and paying the debts and expenses of the estate, are necessary conditions for the completion of the administration. But completing those tasks may not suffice to complete administration. Thus if there were some further impediment to transferring an asset to ... those presently entitled thereto under the will, being sui juris, then at least so far as that asset were concerned, the duties of administration would not be completed.
It is when administration is complete, that the executor becomes functus officio as executor and thereafter holds as trustee for the beneficiaries of the estate. However, if there were no impediment to transferring title to an asset, such as land, to those who are sui juris and presently entitled under the will, while that task might be characterised as one of the duties of administration, albeit conditional on completion of the others, the better view is that completion of this task is not necessary before the executor becomes a trustee.
… if all other executorial duties have been completed, except that the lands have not been transferred, there being no impediment to their transfer to beneficiaries presently entitled and sui juris, the executor becomes a trustee with no longer any statutory power of sale.”
The AOC submits that in the present case there was an impediment to the completion of the administration of the estate of Elsie Whitchurch. It submits that the impediment consisted of the uncertainty surrounding the question whether the estate or PWP owned the Rights and the precise nature of the Rights. It submits that this uncertainty prevented any sale of the Rights or the transmission of them to the three beneficiaries.
According to John Whitchurch, the conversations in which he and Benson debated whether the Rights were owned by PWP or the estate of Elsie Whitchurch took place in about September 1993. In January 1987, when the three beneficiaries and the two executors signed the direction to PWP to “commence sale negotiations”, that controversy had apparently not emerged: all accepted that the Rights had belonged to Elsie Whitchurch and previously to Peter Whitchurch.
The ill defined nature of the Rights did not prevent TBF from agreeing to buy them for US$10,000 pursuant to the agreement with PWP dated 28 February 1994 and for US$15,000 pursuant to the agreement with PWP concluded on 12 December 1995. Apart from this, on general principle I consider that the disputation does not stand in the way of a conclusion that the Rights, however they might be properly defined, had come to be held by John Whitchurch and Benson as co-trustees of the estate of Elsie Whitchurch.
It follows that John Whitchurch, being at the time only one of the two trustees of the estate of Elsie Whitchurch, was not entitled to enter into the deed of 20 October 1997. The AOC does not submit that if this should be my conclusion, I should nonetheless not declare that deed void.
TBF submits that the Rights had passed to PWP. If this were correct, there would be obvious consequences for the deed dated 20 October 1997 by which John Whitchurch purported to assign them to the AOC. First, PWP is not the assignor. Second, John Whitchurch purported to execute the deed in capacities other than on behalf of PWP. Third, if he had signed on behalf of PWP, he would not have bound PWP because he did not possess either actual or ostensible authority to do so.
If, as TBF submits, the Rights had passed to PWP and Benson had had authority to bind PWP, the earlier agreement dated 28 February 1994 and the agreement concluded on 12 December 1995 which she made with TBF did not purport to assign the Rights. The Rights were only a right of “reprint and sale”. Peter Whitchurch was not granted
“the sole and exclusive world-wide rights in all media in perpetuity ...”
to use the language of the agreement of December 1995. In any event I am not satisfied that the Rights were ever assigned to PWP.
John Whitchurch’s purported assignment on 11 December 1996 for $10,000 of all his “personal” right, title and interest in the Films remains to be considered. Since, at the time, he and Benson held the Rights as trustees of the estate of Elsie Whitchurch for the three children in equal shares, all that John Whitchurch had to assign was an undivided one third equitable interest in the Rights. The assignment was, in my view, effective to assign that interest to the AOC. Accordingly, John Whitchurch and Benson now hold the Rights as trustees for the AOC, Benson and Talbot as tenants in common in equal shares.
REPUDIATION OF THE 23 NOVEMBER 1960 AGREEMENT
The AOC submits that if the deed of 20 October 1997 between it and John Whitchurch is void, it is entitled to accept as a wrongful repudiation of the agreement of 23 November 1960, the attempts by Benson through PWP to assign the benefit of that agreement to TBF and to sell the physical Films.
TBF submits in reply, first, that it is not open to the AOC to accept a repudiation of the 23 November 1960 agreement because the AOC was not a party to it. OCOG’s letter of that date did, in fact, reserve the right, not only of OCOG but also of “the Australian Olympic Committee to obtain a copy of any of [the Edited Films] for their own purposes at laboratory cost plus cans and reasonable handling charges”. The letter also directed Peter Whitchurch to “get in touch with Mr Tanner (AOF)” about the action required in respect of the “remnants of film”.
As noted earlier, the terminology, “International Olympic Committee” and “National Olympic Committees”, was well established in the Olympic movement. The AOF was the “National Olympic Committee” for Australia. There is nothing improbable in the view that in writing the letter of 23 November 1960, OCOG and the signatory of the letter, Nette, should be taken to have intended the expression “Australian Olympic Committee” to bear its ordinary meaning in Olympic usage, that is, to refer to the National Olympic Committee for Australia as recognised by the IOC from time to time. Accordingly, in my view, the expression encompasses the AOC.
But the simple fact remains that the AOC was not a party to the agreement of 23 November 1960. Let it be assumed that the ASC was entitled to accept the supposed repudiation: the ASC did not assign that right to the AOC on 20 October 1997.
Did the Whitchurch interests repudiate the agreement? To be more precise, did the trustees of the estate of Elsie Whitchurch, namely, John Whitchurch and Benson, do so? The instruction signed by the trustees (as executors according to the document) on 24 January 1987 in favour of PWP was for PWP:
“to commence sale negotiations for all possible cinematographic film together with any associated rights therein now held and or exploited under implied and or approved terms of contract which have existed over a number of years ... ” (emphasis supplied)
Let it be assumed that this exposed an intention of the trustees to act inconsistently with the agreement of 23 November 1960. If it was a repudiation by them of that contract, the fact is that the ASC did not accept it and it occurred more than six years before the commencement of these proceedings. (As we know, PWP did not find a buyer for its principals and so nothing came of the instruction.)
The purported dealings by PWP with TBF of February 1994 and December 1995, occurred within six years before the commencement of these proceedings. But they were not acts of the trustees, John Whitchurch and Benson. Benson did not purport to contract on behalf of them both: she signed as a director of PWP. If she had purported to contract on behalf of them both, she would have failed in the attempt to bind her brother: the estate was fully administered and the Rights were held by her and her brother as trustees with the result that she could not bind him. Her act would not have been a repudiatory act by “the trustees”.
Nor were PWP’s dealings of February 1994 and December 1995 within the terms of the authority given by the trustees to PWP in January 1987. That authority was “to commence sale negotiations”. PWP was only in this limited respect, that is, “to commence sale negotiations”, the agent of the trustees. Benson states that her brother said to her:
“I want you to sign this to finalise mother’s estate, so that PWP can go ahead with the sale of the films.”
Talbot testifies that he said:
“We have to sign this if we are to dispose of the films.”
John Whitchurch disagrees: he states that the conversation was to the effect that PWP should be enabled only
“to seek expressions of interest in the films so that [they could] find out how much people would be prepared to pay for them.”
On 5 March 1987, John Whitchurch, on behalf of PWP sent out the first “invitations to treat” calling for expressions of interest from prospective purchasers. The “To Whom it May Concern” letter that Benson, on behalf of PWP, sent out at the end of 1988 or early in 1989, was to a similar effect.
By its terms, the authority dated 24 January 1987 did not authorise PWP to sell. On the evidence, the trustees did not give PWP authority beyond that stated in the document. It would require clear evidence to persuade me that they intended to authorise PWP to conclude a sale without referral back to them. Even if Benson’s and Talbot’s versions of the conversation are correct, what was said was not so clear as to produce that result. It is consistent with those versions that the signing of the authority was being put forward by John Whitchurch as a condition precedent to the matter of a sale progressing and that PWP would need to obtain further authority from the trustees before actually selling.
It follows that the dealings which PWP, acting through Benson, concluded with TBF without the consent of John Whitchurch, were not repudiatory acts by the trustees and were not effective to bind the trustees or to divest them of any property.
The AOC submits that it was an implied term of the agreement of 23 November 1960 that it could terminate that agreement at any time, or, in the alternative, that it could do so at any time after giving reasonable notice to Peter Whitchurch or his estate. I do not accept the submission. In my opinion, the intention of OCOG and Peter Whitchurch was that for a one-off payment of £100, Peter Whitchurch was to be given the limited rights of “reprint and sale” referred to in the agreement for as long as the copyright in the Films subsisted. There is nothing in the terms of the exchange of letters between Peter Whitchurch and OCOG to suggest the right of unilateral termination contended for by the AOC. Nor do I find it necessary to imply such a term in order to give the parties’ agreement commercial efficacy. The Rights remain held by John Whitchurch and Benson as trustees.
INFRINGEMENT OF COPYRIGHT BY TBF, ESPN, BENSON AND TALBOT
As noted earlier, the AOC has not identified in its submissions what conduct it claims amounts to infringement of copyright. Therefore, I do not, at least at this stage, make any finding of infringement or give injunctive relief.
CONCLUSION
In summary,
·     copyright subsisted in the photographs of which the Films consisted as artistic works and not in the Films as dramatic works;
·     OCOG was the owner of the copyright in the photographs and of the physical Films;
·     OCOG granted to Peter Whitchurch non-exclusive rights of reprint and sale of the Edited Films and, for that purpose, the right to possession of the physical Edited Films for the duration of the copyright in the photographs constituting the Edited Films;
·     OCOG did not assign to Peter Whitchurch the copyright in the photographs in the Edited Films or the general rights of property in the physical Edited Films;
·     OCOG owned the copyright in the photographs constituting the Films and the general property in the physical Films at the time of OCOG’s dissolution on 30 April 1974;
·     OCOG’s copyright in the Films and general property in the physical Films are now vested in the AOC via the ASC pursuant to the deed between them dated 20 October 1997;
·     the AOC is not estopped from asserting title to the copyright in the Films or its general property in the physical Films and is not defeated by the operation of the Limitation Act 1969 (NSW), abandonment or laches;
·     the AOC is not able to terminate the contract dated 23 November 1960 between OCOG and Peter Whitchurch by accepting a wrongful repudiation of it;
·     the contract dated 23 November 1960 is not terminable by the AOC at will or upon the giving of reasonable notice;
·     in view of the assignment by deed between them dated 11 December 1996 by John Whitchurch to the AOC of John Whitchurch’s one third interest in the rights granted by OCOG to Peter Whitchurch on 23 November 1960, John Whitchurch and Benson now hold those rights in trust for Benson, Talbot and the AOC in three equal undivided shares; and
·     the AOC has not at this stage shown that any of the respondents have infringed its copyright or that it is entitled to injunctions restraining them from infringing it or to any other relief except declaratory relief and an order for delivery up of the physical Films other than the Edited Films.
I will at this stage make only certain declarations. Directions will have to be given for the further conduct of the proceedings. I will stand them over to a date when the parties should bring in short minutes of any orders and directions to be made.

I certify that the preceding four hundred and forty nine (449) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:
Dated: 3 August 1999

Counsel for the Applicant:

Mr A J Bannon SC with Ms J R Baird of counsel

Solicitor for the Applicant:

Clayton Utz

Counsel for the First, Fifth, Sixth and Eighth Respondents:

Mr R B S Macfarlan QC with Mr R Cobden of counsel

Solicitor for the First, Fifth, Sixth and Eighth Respondents:

Mallesons Stephen Jaques

Date of Hearing:

1-5 June, 14-15 September 1998

Date of Judgment:

3 August 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 49 OF 1997 NG 481 OF 1998

BETWEEN:	AUSTRALIAN OLYMPIC COMMITTEE INC First Applicant JOHN PETER ELLIOTT WHITCHURCH Second Applicant
AND:	THE BIG FIGHTS INC First Respondent PETER WHITCHURCH PRODUCTIONS PTY LTD ACN 000 213 258 Second Respondent BECK HOLDINGS PTY LTD ACN 000 166 594 Third Respondent FILMWORLD PTY LTD ACN 008 565 222 Fourth Respondent LYNETTE JUNE BENSON Fifth Respondent DIANE YVONNE TALBOT Sixth Respondent AUSTRALIAN SECURITIES COMMISSION Seventh Respondent ESPN ENTERPRISES INC Eighth Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	3 AUGUST 1999
WHERE MADE:	SYDNEY

JUDGE:	LINDGREN J
DATE:	3 AUGUST 1999
PLACE:	SYDNEY

Counsel for the Applicant:	Mr A J Bannon SC with Ms J R Baird of counsel
Solicitor for the Applicant:	Clayton Utz
Counsel for the First, Fifth, Sixth and Eighth Respondents:	Mr R B S Macfarlan QC with Mr R Cobden of counsel
Solicitor for the First, Fifth, Sixth and Eighth Respondents:	Mallesons Stephen Jaques
Date of Hearing:	1-5 June, 14-15 September 1998
Date of Judgment:	3 August 1999