Brennan v Foster Blake - [2021] FedCFamC2G 261

Federal Circuit and Family Court of Australia
(DIVISION 2)
Brennan v Foster Blake [2021] FedCFamC2G 261

File number(s): MLG 1877 of 2019

Judgment of: JUDGE BAIRD

Date of judgment: 3 December 2021

Catchwords: INTELLECTUAL PROPERTY – COPYRIGHT – Infringement – separate questions – where applicant alleges respondent copied applicant’s copyright material (Applicant’s Work) in her Published Work – whether respondent emailed first draft of her manuscript (Manuscript) to publisher and to agent before alleged date of access to Applicant’s Work – whether respondent has proved email sent on 2 April 2013 attached Manuscript – if so, whether Manuscript contained the text applicant identifies in the Published Work as copied from Applicant’s Work, or text substantially resembling that text – whether respondent could have had access to Applicant’s Manuscript prior to 2 April 2013 – expert forensic evidence – applicant challenges data integrity – challenge fails - first separate question answered ‘yes’ – second separate questions answered ‘yes, save for 13 extracts’ – third separate questions answered ‘no’

Legislation:
Copyright Act 1968 (Cth) ss 31, 38

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 18.03

Federal Circuit Court Rules 2001 (Cth) r 17B.03

Cases cited: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4; (2012) 95 IPR 64

Division: Division 2 General Federal Law

Number of paragraphs: 187

Date of last submission/s: 13 December 2019

Date of hearing: 3 and December 2019

Place: Melbourne

Solicitor for the Applicant: Ms Brennan was self-represented

Solicitor for the Respondent: K&L Gates

Counsel for the Respondent: Ms C Cunliffe
ORDERS

MLG 1877 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
KARI JADE BRENNAN

Applicant

AND:
ZOE FOSTER BLAKE

Respondent

order made by:

JUDGE BAIRD

DATE OF ORDER:

3 December 2021

THE COURT:
Separate Questions
1.ORDERS THAT the first separate question ordered by the Court on 27 August 2019:
whether on 2 April 2013 the respondent sent the first draft of her manuscript for “The Wrong Girl” (Manuscript) by email to her then editor, Kirsten Abbott at Penguin Random House Australia New Zealand and to her literary agent, Tara Wynne of Curtis Brown Australia
is answered: Yes.
2.ORDERS THAT the second separate question ordered by the Court on 27 August 2019:
whether the respondent has proved that the Manuscript, as at 2 April 2013, contained the passages of text which the applicant alleges is copied from her novel “Playlist” as set out in Exhibit E and Exhibit F of the affidavit affirmed by the applicant on 11 June 2019, or text closely resembling those passages of text
is answered: Yes, save for 13 extracts.
3.ORDERS THAT the third separate question ordered by the Court on 27 August 2019:
whether the respondent could have had access to chapter one of “Playlist” from Bethanie Blanchard in drafting the Manuscript before 2 April 2013, given the applicant’s allegation in paragraph 6 of the statement of claim dated 17 June 2019 that Ms Blanchard received chapter one of “Playlist” on 14 April 2013
is answered: No.
NOTES:
(a)the Manuscript referred to in the separate questions is Annexure ZFB-3, and Annexure TW-1 in evidence on the separate questions; and
(b)chapter one of Playlist is the Brennan Manuscript

Matters arising from the hearing on 3 and 5 December 2019
4.GRANTS LEAVE to the respondent to rely on paragraphs 1, 2, and 12 to 20 of the affidavit of Mr David Chin, affirmed on 21 November 2019, and filed in the Federal Circuit Court of Australia proceeding number MLG 3913 of 2019.
5.ORDERS THAT:
(a)the Summary Table provided to the Chambers of Judge Baird, and to Ms Brennan by email on 21 August 2019, be admitted into evidence for the purpose of the hearing determination of the separate questions, save for column 4 of the Summary Table; and
(b)the USB marked as “exhibit 1” in the respondent’s Aide-memoire be admitted into evidence for the purpose of the hearing and determination of the separate questions.

Next Listing
6.STANDS OVER the proceeding for case management on the further conduct of the proceeding, including any argument on costs of the separate questions, and dates for the hearing of any application for summary dismissal, to a date to be advised administratively by the Court, after consultation with the parties.

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

A. Introduction

This proceeding concerns allegations made by the applicant under the pseudonym, Ms Kari Jade Brennan, that the respondent, Ms Zoe Foster, infringed Ms Brennan’s copyright by copying parts of Ms Brennan’s manuscript for her novel “Playlist”, specifically a draft chapter one (Brennan Manuscript), and incorporating the parts taken into Ms Foster’s novel “The Wrong Girl” (Foster Published Work).
In the course of interlocutory steps in the proceeding, Ms Foster’s legal representatives informed the Court that Ms Foster contended a critical factual question, suitable for separate determination, was whether or not Ms Foster had access to the Brennan Manuscript prior to Ms Foster’s delivery to her agent and publisher of the first draft of Ms Foster’s manuscript for her novel “The Wrong Girl” (Foster Manuscript), which novel–the Foster Published Work‑was subsequently published under Ms Foster’s authorial name of “Zoe Foster Blake” on 26 February 2014 by Penguin Random House Australia New Zealand Pty Ltd as a print book and an eBook. A television series adapted from the Foster Published Work was aired on Network 10 in 2016.
Following a case management hearing on 21 August 2019, I made orders that the Court hear and determine the three separate questions set out below at [5], and made directions for filing of a Summary Table, evidence and submissions on the separate questions. For convenience I refer to these orders as the August Orders: see further at [12]).
These reasons comprise my determination of the three separate questions pursuant to r 18.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), formerly r 17B.03 of the Federal Circuit Court Rules 2001 (Cth) (FCCR).

B. the separate questions

The separate questions ordered are (in the form ordered, without alteration):
1.        Question 1
(i)Whether on 2 April 2013 the respondent sent the first draft of her manuscript for “The Wrong Girl” (Manuscript) by email to her then editor, Kirsten Abbott at Penguin Random House Australia New Zealand and to her literary agent, Tara Wynne of Curtin (sic) Brown Australia?
2.        Question 2
(ii)Whether the respondent has proved that the Manuscript, as at 2 April 2013, contained the passages of text which the applicant alleges is copied from her novel “Playlist” as set out in Exhibit E and Exhibit F of the affidavit affirmed by the applicant on 11 June 2019, or text closely resembling those passages of text?
3.        Question 3
(iii)Whether the respondent could have had access to chapter one of “Playlist” from Bethanie Blanchard in drafting the Manuscript before 2 April 2013, given the applicant’s allegation in paragraph 6 of the statement of claim dated 17 June 2019 that Ms Blanchard received chapter one of “Playlist” on 14 April 2013.
Definitions, and documents to which reference is made in the separate questions
As is apparent from these reasons above at [1], I refer to the applicant by her pseudonym Ms Brennan, chapter one of “Playlist” as the Brennan Manuscript, the respondent by her legal name Ms Foster, and the Manuscript referred to in each of the separate questions as the Foster Manuscript. There is a typographical error in Question 1; Curtin Brown should be Curtis Brown. I will correct this error in the orders I make.
I refer in these reasons to the affidavit affirmed by the applicant, Ms Brennan, on 11 June 2019 as Brennan 1 (referred to in Question 2). The Brennan Manuscript is exhibit B to Brennan 1 (and an earlier draft is exhibit A to Brennan 1). It is the document referred to in Question 3. It is not in evidence on the separate questions.
The Foster Manuscript is comprised in annexure ZFB‑3 to Ms Foster’s affidavit affirmed 10 July 2019 (Foster 1), and is also comprised in annexure TW‑1 to Ms Wynne’s affidavit affirmed 16 July 2019 (Wynne 1), and is in evidence on the separate questions.
Whilst the Foster Published Work is not in evidence on the separate questions, the passages from the Foster Published Work that Ms Brennan allege infringe are extracted in Exhibits E and F to Brennan 1 (see Question 2), and are before me on the separate questions in the Summary Table.
The correct name of the entity referred to in Question 1 of the separate questions as “Penguin Random House Australia New Zealand” is unclear on the evidence before me. This lack of clarity however does not affect any factual contest before me, nor my determination of the separate questions. The import of the evidence of Mr Chin (legal counsel for the publisher) relied on by Ms Foster is that by the time of publication of the Foster Published Work, the legal entity of the publisher was Penguin Random House Australia Pty Ltd, and it remained that entity at least as at the time of the December hearing. For the purposes of my determination of the separate questions it suffices in these reasons to refer to Ms Foster’s publisher, and the legal entity owning the publishing business from time to time, as the Publisher, unless the context requires greater specificity.

C. brief procedural history and August orders

Ms Brennan is self‑represented. She commenced this proceeding in this Court on 11 June 2019 by application and supporting affidavit, after unsuccessfully pursuing attempts since about late 2016 through intermediate parties (including the Publisher) to resolve the dispute to Ms Brennan’s satisfaction. On 17 June 2019, Ms Brennan filed a statement of claim. To date, no orders that the proceeding continue on pleadings have been made.
Procedural orders for separate question
Further to the August Orders referring the separate questions (see [3] above):
(a)I directed that by 22 August 2019, Ms Foster’s legal representatives provide to Chambers and to Ms Brennan a Summary Table referrable to the claims of copying detailed in exhibits E and F to Brennan 1 (refer Question 2), which table was to cross reference and compare the relevant passages of the Foster Published Work, the Brennan Manuscript, and the Foster Manuscript. I ordered this Table be prepared to collect in a convenient form a means for the Court to identify and compare the passages of text on which one or other of the parties relies in the proceeding. The Summary Table was provided as directed. A copy of the Summary Table is Annexure A to these reasons. See immediately below;
(b)I directed Ms Brennan to nominate a representative from Forensic IT Pty Ltd (the forensic information technology firm she identified as her proposed digital forensic expert) to inspect and take a copy of the “forensic image described and identified in” the expert report of Mr Justin Anthony Geri from KPMG dated 6 August 2019 that had been filed on behalf of Ms Foster (Geri Report), subject to certain undertakings by that representative, and the provision of certain material to them, and I directed Ms Foster to allow that inspection and taking of the copy;
(c)Ms Brennan nominated Ms Joanna Dalton, Director at Forensic IT Pty Ltd. Ms Dalton gave the required undertakings, obtained a USB stick from Mr Geri comprising the forensic image, and made a backup copy of the forensic containers (which I was informed at the hearing by Ms Dalton is the more accurate term for the forensic image), and undertook the inspection and analysis. There was no Court ordered obligation on Ms Brennan or Ms Brennan’s nominated IT expert (that is, Ms Dalton) to provide any report, statement or affidavit to the Court;
(d)I made orders directing the filing of evidence on which the parties wished to rely limited to the issue of the separate questions; and
(e)I directed the exchange of written outlines of submissions.
In the August Orders I also made provision for the matter to be listed to hear and determine whether the proceeding should be dismissed pursuant to rule 17.05 of the FCCR.
Contents of the Summary Table
As I have said above, the Summary Table contains:
(a)the passages that Ms Brennan identifies in exhibits E and F to Brennan 1 which she alleges evidence Ms Foster’s copying of the Brennan Manuscript in the Foster Published Work. Exhibit E comprises Ms Brennan’s claims of non‑literal similarity, and Exhibit F comprises her comparisons regarding sequences of events, physical descriptions of characters, their traits, settings and themes. Ms Brennan’s claims of copyright infringement include infringement by adapting and rewording the text, keeping the meaning; and
(b)the passages Ms Foster identifies in the Foster Manuscript that she contends correspond to the passages in the Foster Published Work of which Ms Brennan complains. Where Ms Foster claims an “exact match”, the Summary Table notes the Foster Manuscript page number, but does not repeat the text.
Ms Brennan disputes that the Foster Manuscript in evidence is the draft manuscript word document that was attached to the 2 April 2013 email referred to in the separate questions. Because Ms Brenna disputes that the Foster Manuscript is that draft document, she also disputes that the passages in the Summary Table claimed to be from the Foster Manuscript are passages that were in the draft manuscript that was attached to the 2 April 2013 email on the day it was sent, and received.
Shortly after the case management hearing of 21 August 2019, on behalf of Ms Foster, Mr Geri filed a second affidavit dated 23 August 2019 (Geri 2). The August Orders for the filing of evidence I have referred to above included orders that by 20 September 2019, Ms Brennan file and serve any evidence on which she intended to rely on the separate questions, including in response to the Geri Report, and that by 4 October 2019, Ms Foster file any evidence in reply. It was entirely a matter for Ms Brennan to decide what, if any, evidence she wished to rely on.
Ms Brennan filed her third affidavit made 11 September 2019 (Brennan 3), in which she annexed correspondence from Ms Dalton setting out her conclusions. I refer to this correspondence later in these reasons. Ms Brennan did not file any affidavit or report from Ms Dalton. Ms Foster filed two further affidavits made by Mr Geri: Geri 2, and affidavit made 4 October 2019 (Geri 3), which third affidavit included his Supplementary Report dated 4 October 2019.
December hearing
I heard argument on the separate questions at the Court in Melbourne on 3 and 5 December 2019 (December hearing). Ms Brennan represented herself. Ms Foster was represented by Ms Cunliffe of Counsel, instructed by K&L Gates, Ms Foster’s solicitors. Accordingly, when I refer to “Ms Foster” in these reasons, as the context requires. I am referring to Ms Foster’s legal representatives, acting on her behalf, or Ms Foster, or both.
During October 2019, Ms Brennan had foreshadowed to my Chambers and to Ms Foster’s solicitors that she would make an application for an adjournment of the hearing of the separate question and dismissal to February 2020, including in order to obtain legal representation. In correspondence (in evidence on the separate questions) with Chambers and Ms Foster, Ms Brennan stated that that she had identified a further IT expert, and sought a variation of the orders to allow that further IT expert access to the evidence. My Chambers enquired whether the parties were available on a specified date in the event the Court relisted the matter, subject to Courtroom availability, and invited Ms Brennan to file an application in a case, and supporting affidavits. In response, Ms Brennan informed my Chambers and Ms Foster’s solicitors that she would not be making any application, and withdrew her request for her further IT expert to provide a report, and accordingly she would not need access to the evidence.
Ms Brennan filed an application in a case dated 18 November 2019 that I recuse myself. On 3 December 2019, I first heard Ms Brennan’s application for recusal. I dismissed that application, giving judgment ex tempore. Ms Foster seeks costs of that application on an indemnity basis.
During the December hearing, on 3 December 2019, Ms Brennan referred to the “dismissal” hearing, concerned that it would be heard as part of the December hearing (see above, at [13]). I note Ms Foster’s outline of opening submissions made reference to summary dismissal. I confirmed to Ms Brennan on 3 December 2019, and Counsel acknowledged and agreed, that the December hearing was limited to the hearing and determination of the separate questions. It is only if the separate questions are determined adversely to Ms Brennan that the question arises of any summary dismissal application. If pressed, any dismissal application will be listed for hearing on a future date. This remains the position. These reasons are not concerned with the determination of any application for summary dismissal.
Another matter

20A. Regrettably, this judgment has been delayed well beyond any indicative time that may have been assumed by the parties at hearing or shortly after final submissions. The passage of time, however, has enabled me to undertake a detailed review of the evidence, in particular the forensic evidence, with the benefit of transcript as well as my contemporaneous notes, to consider the lay and expert written evidence, and the material on which the experts’ opine, the oral evidence of the witnesses in cross‑examination at hearing, and enabled considered conclusions to be drawn.

D. some factual background to the separate questions

In order to understand the context in which the separate questions arise for determination, I first describe some of the factual circumstances in which the questions arise, and provide an overview of the contest between the parties in the proceeding.
The following chronology of events is given by Ms Brennan, and is not in dispute on the separate questions:
(c)on about 2 February 2012 Ms Brennan commenced writing the manuscript for her novel titled “Playlist”, and continued manuscript development through July to December 2012;
(d)on 14 February 2013, she submitted an application to Writers Victoria to participate in their 2013 mentorship for emerging writers, and requested Ms Bethanie Blanchard as a mentor;
(e)on 2 April 2013, in response to Writers Victoria’s requirements, Ms Brennan emailed a cover letter, one page synopsis, and a sample of her writing of approximately 6,000 words to Writers Victoria. This document is also referred to in the evidence as the “sample”, and as I have described above, is the Brennan Manuscript. A working title for the manuscript at the time was “Girl Code – Secrets”;
(f)on 8 April 2013, Writers Victoria arranged an initial meeting between Ms Brennan and Ms Blanchard under the mentorship program to take place on 15 April 2013;
(g)Writers Victoria subsequently confirmed to Ms Brennan that they emailed the Brennan Manuscript to Ms Blanchard by 15 April 2013 (it appears on 14 April 2013);
(h)on 15 April 2013, Ms Brennan and Ms Blanchard met in person at the Wheeler Centre where Writers Victoria have their offices, and Ms Blanchard confirmed she had a hard copy of the Brennan Manuscript in her possession. She retained it after the meeting.

Ms Brennan alleges that Ms Blanchard knew Ms Foster, that they had met approximately 8 months before Ms Brennan met Ms Blanchard, and that Ms Blanchard mentioned her name at the mentorship meeting on 15 April 2013.
Ms Brennan claims that from about 14 or 15 April 2013, through the agency of Ms Blanchard, Ms Foster had access to the Brennan Manuscript.
Ms Foster rejects that claim. As I have intimated above, referring to the Summary Table (see [12]), Ms Foster argues that the content in the Foster Published Work which Ms Brennan alleges infringes Ms Brennan’s copyright was already present in substantially identical or similar form in the Foster Manuscript (which she says is an earlier draft of the Foster Published Work), at a time before Ms Blanchard received the Brennan Manuscript.
Ms Foster claims that she had written the Foster Manuscript by 2 April 2013, and that on 2 April 2013 she emailed it to her then editor, Ms Kirsten Abbott, at Penguin Random House (as the Publisher was then known), and by copy email (cc’d) to her literary agent, Ms Tara Wynne, at Curtis Brown, that she can prove this communication, and that the Foster Manuscript was attached to the email she sent, and Ms Abbott and Ms Wynne each received. It follows, Ms Foster submits, that the Foster Manuscript was disclosed to a third party before Ms Brennan met Ms Blanchard (that is, before 15 April 2013), and so Ms Foster could not have copied the Brennan Manuscript.
Sent Email and Received Email
Ms Foster’s evidence is that her claim is substantiated by the email dated 2 April 2013 she sent to both Ms Abbott and Ms Wynne, and the Foster Manuscript which was attached to that email. Print outs of Ms Foster’s email (the Sent Email), and the email received by Ms Wynne’s (the Received Email) are both in evidence before me on the separate questions. That is, I have before me both sides of the communication – what was sent by Ms Foster and what was received by Ms Wynne. Each of them gave evidence at the December hearing.
Forensic Containers
The email data of each of the Sent Email and the Received Email including the Foster Manuscript attached to each email, was collected and preserved by members of Mr Geri’s team at KPMG from the email accounts on the computers of Ms Foster and Ms Wynne respectively and electronically preserved by a process of digital forensic imaging (for present purposes I will refer to the result of that process as the Forensic Containers). The relevant data so preserved was examined by Mr Geri, a Director at KPMG in the Forensic Technology division.
The results of Mr Geri’s examination of the Forensic Containers, and his conclusions are in evidence before me. As I adverted to above at [12], Mr Geri was retained on behalf of Ms Foster as an independent digital forensic expert He prepared the Geri Report, made a second affidavit dated 23 August 2019 (Geri 2), and in reply made a Supplementary Report, and gave evidence at the December hearing.
As I have also adverted to at [12] above, Ms Brennan engaged Ms Dalton to inspect the two Forensic Containers comprising respectively the Sent Email and the Received Email, and their file properties (metadata), and to respond to the Geri Report. Ms Dalton was subpoenaed to give evidence pursuant to a subpoena issued at the request of Ms Foster, and gave evidence orally at the December hearing.
The Forensic Containers, the process of their collection, preservation, analysis, and the presentation of the results of that analysis by Mr Geri, and separately by Ms Dalton, and their respective conclusions are relevant to Question 1.
MD5 hash value
Dispute concerning the Forensic Containers has involved concerns Ms Brennan raises with the MD5 hash values relating to the Forensic Containers. An MD 5 hash value is a uniquely derived alphanumeric number based on the entire data collected in the Forensic Container, and can be likened to the digital equivalent of a human finger print. It is used to provide continuity of evidential integrity. It has 32 digits.
In Court demonstrations
Both at the December hearing, and subsequently in her closing submissions, Ms Brennan contended that she was not provided with the Forensic Containers obtained by Mr Geri, and contended that she did not have an opportunity to have an expert witness to support her case. This is not correct; the timetabling orders gave Ms Brennan that opportunity: see [12] and [30] above. Rather, as I have said, Ms Brennan did not obtain and file a report from Ms Dalton.
In October 2019, however, after the time for the filing of evidence according to the timetable ordered had passed, Ms Brennan contacted Ms Emma‑Jane Wise, a lawyer with certain expertise in cyber law, and provided her with a questionnaire. At the December hearing Ms Brennan informed the Court the questionnaire was to enable Ms Brennan to complete her questions to Mr Geri, and she did not need to put the questionnaire in evidence. As I have said (above at [18]), Ms Brennan did not make any application to vary the Court’s orders to nominate Ms Wise as a further IT expert, and inspect the Forensic Containers. Ms Brennan subpoenaed documents from Ms Wise, but did not tender any of the subpoenaed documents at the December hearing.
Ms Brennan subpoenaed Ms Wise to give oral evidence at the December hearing. I allowed Ms Wise to give evidence at the hearing, and she did so. I invited Ms Wise to observe Ms Dalton’s demonstration (see following paragraph), and she did so, sitting next to her.
In the December hearing, using laptops and a projector of the laptop screen, in the course of their oral evidence in Court:
(a)Word count demonstration: Mr Geri demonstrated, with the assistance of Ms Coburn (solicitor of K&L Gates) operating the laptop and projector, how different word counts of the same word document – a copy of the Foster Manuscript - can be obtained electronically when performed externally to the document using Windows Explorer, and when performed internally from within the document using Microsoft Word properties tools. Ms Brennan then presented Mr Geri with a USB containing a copy of her manuscript, and the same two counts were performed using her manuscript. Different word counts of the same document were obtained when using the different methods;
(b)Forensic Containers inspection and analysis demonstration: Ms Dalton brought the USB stick she had received from Mr Geri’s office, and her own laptop to Court, and using them demonstrated how she identified the two Forensic Containers on the USB, that the Sent Email was in one Forensic Container, and the Received Email in the other Forensic Container, what she did in performing the inspection and analysis she was requested to do, and the conclusions she reached. In the course of giving her evidence she performed MD5 hash verification, and performed internal and external word counts of the Foster Manuscript attached to the Received Email.
Brennan challenges the Geri Report, and the expert evidence.

e relevant statutory provisions and principles
in copyright

For present purposes it suffices to identify to key statutory provisions and established principles relevant in determining a claim of copyright infringement in breach of the exclusive right in copyright of reproduction. Relevantly, in the words of the Copyright Act 1968 (Cth), if copyright subsists in a literary work, it will be infringed by any person who, without the licence of the owner of the copyright “does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright”: s 38, Copyright Act. The relevant act in copyright claimed breached in the present case is the exclusive right to “reproduce the work in a material form”: s 31(1)(b)(i) of the Copyright Act.
Determining whether a copyright work (or a part of it) is reproduced by an alleged infringement requires that two elements be established by the claimant, in simple terms use of, and resemblance to, the copyright work. The order in which these two elements are identified and described varies in the case law and in learned commentaries; it suffices to observe that both elements must be established: if one or other is not proved (or not able to be proved), there is no infringement.
Establishing “use of” the copyright work means establishing what the authorities have described as a “causal connection” between the copyright work and the allegedly infringing work, to put it another way, that the alleged infringer copied the copyright work: that is, the alleged infringer had access to the copyright work and copied it, whether they did so directly or indirectly, consciously or unconsciously. There is no infringement where the alleged infringing work is created independently, that is, without copying. The separate questions are directed to this element.
The other element – “resemblance” to the copyright work - means establishing that that the copyright work and the alleged infringement have “a sufficient degree of objective similarity”. Establishing this element of resemblance has also been described in the authorities as requiring that the claimant establish that the alleged infringement is a substantial part of the copyright work, determined by its quality rather than its quantity. It is unnecessary for the purposes of determining the separate questions to say more about this element.
Whilst each of the two elements required to establish whether or not there has been a reproduction of a work or a substantial part of a work raises a discrete issue, the issues may often overlap. Thus, in a judgment relied on by Ms Foster, Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4; (2012) 95 IPR 64, the Full Court of the Federal Court of Australia said at [65]:
Whether or not there has been a reproduction of a work or substantial part of a work raises two discrete but often overlapping issues. First, it must be shown that the copyright work and the putative infringement have “a sufficient degree of objective similarity”. Secondly, it must be shown that this objective similarity is the result of copying.

f. The present application - the separate questions
(1) Separate questions concern causal connection

The separate questions require the determination of factual matters, including matters of chronology, whether the Sent Email and the Received Email and attached word document were sent and received as contended, the data integrity of the digital forensic evidence propounded as evidencing the communications and attachment, and Ms Foster’s claim that the Foster Published Work was made without use of the Brennan Manuscript.
The answers will inform whether or not Ms Brennan’s claim that Ms Foster copied the Brennan Manuscript in writing the Foster Published Work will fail because there is no causal connection between the Brennan Manuscript and the Foster Published Work.
The separate questions are not concerned with any issue of resemblance between the Brennan Manuscript and the Foster Published Work. It is important to record here that I am not in answering the separate questions determining whether or not there is “a sufficient degree of objective similarity” between the copyright work – the Brennan Manuscript, and the putative infringement – the Foster Published Work.
The comparison required to be undertaken for the purposes of answering Question 2 does involve a determination of the degree of similarity between passages present in the draft work and passages present in the published work. In order to decide the answer to Question 2, I am required to decide whether the passages identified as present in the Foster Manuscript and the Foster Published Work are objectively similar, and to what degree.
(2) Overview of the parties contentions on the separate questions
Ms Foster
In sum, Ms Foster says she did not have access to the Brennan Manuscript before she wrote the Foster Manuscript (this is the issue for Question 1), the impugned passages in the Foster Manuscript are contained in the Foster Published Work in the same text or in text closely resembling that published text (this is the issue for Question 2), and therefore by reason of the timing, and the impugned content being present in the Foster Manuscript, Ms Brennan cannot establish the causal connection between the copyright work (Brennan Manuscript) and the allegedly infringing work (Foster Published Work) (this is the issue for Question 3).
Ms Foster contends that the answers to the separate questions are: Question 1 - Yes; Question 2 - Yes, save for 11 extracts; Question 3 - No. She says it follows that Ms Brennan’s claim in the proceeding of copyright infringement must fail.
Ms Brennan
In her closing submissions Ms Brennan says (closing submissions A[1]) the separate questions are set up for her to fail. Her complaints and concerns with the separate questions include:
(a)it is not a question of “whether” an email was sent (Question 1), the dispute is data integrity of emails that were sent;
(b)a manuscript attached to all of the affidavits is printed from a Word document, and a file of a Microsoft Word file on a USB for presentations with no chain of custody or forensic images; and
(c)access is possible where a back‑dated email was sent after 2 April 2013 (closing submissions A[1]).
Ms Brennan says the dispute is when the Sent Email was sent / the Received Email was received, if the email is a back‑dated email, and if metadata has been falsified (closing submissions D[13]).
Ms Brennan maintains that she does not know where the Foster Manuscript put in evidence came from, it could have come from anywhere; the forensic evidence relied on by Ms Foster – principally the Geri Report - on the separate questions is unreliable; it has been falsified.
She contends that the 2 April 2013 emails have been tampered with, and that the Foster Manuscript incorporates her material (the Brennan Manuscript) but has been backdated to 2 April 2013 to hide that later incorporation so that Ms Foster can claim she is the original author of Ms Brennan’s copyright material. Ms Brennan maintains that she does not have full copies of the original evidence Ms Foster relies on.
Ms Brennan points to differences she identifies in the presentation of the metadata of the message header of the Received Email extracted in Mr Geri’s Report, which she refers to as the “false” email, and the metadata Ms Dalton provided to her of the Received Email, which Ms Dalton received and inspected, and which she refers to as the “real” email.
Ms Brennan points to differences in word counts of the Foster Manuscript:
(1)99,921 words (Foster Word Count); and
(2)81,967 words (Dalton Word Counts).
Ms Brennan is suspicious of the timing of Mr Geri’s second affidavit, Geri 2 (shortly before Ms Dalton was provided with the Forensic Containers), and his explanation in Geri 2 that in the Geri Report he omitted to include the MD5 hash value (a 32 digit value) relating to the Forensic Container relevant to the email preserved from Ms Wynne’s email account (the Received Email), but only included the MD5 hash value relating to the Forensic Container relevant to the email preserved from Ms Foster (the Sent Email). She does not believe the explanations given in Geri 2.

g. the December hearing

(1) Material before the Court

The following material was before the Court on the separate questions (I repeat terms I have already defined elsewhere in these reasons):
Affidavits and reports
On behalf of Ms Brennan:
(a)affidavit of Kari Jade Brennan affirmed 20 September 2019 (Brennan 3);
On behalf of Ms Foster:
(b)affidavit of Ms Foster affirmed 10 July 2019 under her authorial name “Zoe Foster Blake”, and adopted orally on 3 December 2019 in her legal name of “Zoe Foster” (Foster 1);
(c)affidavit of Ms Tara Wynne affirmed 16 July 2019 (Wynne 1);
(d)three affidavits of Mr Justin Anthony Geri, the first affirmed 7 August 2019 (Geri 1), and annexing the Geri Report, the second affirmed 23 August 2019 (Geri 2), and the third affirmed 4 October 2019 (Geri 3), and annexing Mr Geri’s Supplementary Report;
(e)paragraphs 1, 2, and 12 to 20 of the affidavit of Mr David Andrew Chin affirmed 21 November 2019 filed in separate proceeding in this Court no. MLG 3913 of 2019 brought by Ms Brennan against Penguin Random House Australia Pty Ltd, which was discontinued, which paragraphs and referenced annexures were adopted orally by Mr Chin at the December hearing, further to leave I granted orally at the December hearing;
Exhibits:
(f)Exhibit 1: email chain from Ms Emma‑Jane Wise (principal, Wise Law) to Mr Jonathan Feder (of K&L Gates, Ms Foster’s solicitor) dated 7 October 2019, with the most recent email being at 3:13pm (in which Ms Wise states she is retained only in her capacity as a specialist in cyber, and enquires of Mr Feder whether Ms Brennan needs to file for additional orders in order to have an expert other than Forensic IT); and
(g)Exhibit 2: an email exchange between the Court and the parties concluding with the email from the Associate of Judge Baird to the parties, Ms Coburn (of K&L Gates), and Ms Brennan dated Tuesday, 29 October 2019 (relevant to Ms Brennan’s foreshadowed request for an adjournment, and to put on expert evidence out of time from Ms Wise, which requests were withdrawn following the Court’s proposal to list the matter for the parties to ventilate their issues);
(h)Exhibit 3: the curriculum vitae of Ms Dalton;
Other:
(i)agreed facts recorded by me orally in Court onto transcript on 5 December 2019 during the December hearing and following discussion between the Court and the parties in Court (see transcript at T283 line 45 – T 286 line 40). A typed up record of the agreed facts titled “statement of agreed facts” was provided by Ms Foster’s solicitors to my Chambers on 10 December 2019. The agreed facts incorporate by reference methods described in steps 2 to 8 of the Respondent’s Aide‑Memoire;
(j)Respondent’s Aide‑memoire, and accompanying USB. The Aide‑memoire is a document comprising 8 paragraphs, and attached 10 screenshots, recording the steps taken in the demonstration in Court on 3 December 2019 in the course of Mr Geri’s oral evidence using the laptop and projector screen to obtain a word count for the Foster Manuscript contained in the accompanying USB device “exhibit 1”, by the methods described in the aide memoire as the External method, the First in‑document method, and the Second in‑document method (see reference to the Word count demonstration at [35(a)] above); and
(k)the Summary Table.
Oral evidence and written submissions:
Each of the above deponents was called at the December hearing, and was cross‑examined. Ms Dalton was subpoenaed to appear at the request of Ms Foster, gave oral evidence in chief, including a demonstration, and was cross‑examined. Ms Wise was subpoenaed to appear at the request of Ms Brennan, gave oral evidence in chief, and was cross‑examined.
Written outlines of submission were provided by both parties, to which I have had regard:
from Ms Brennan
(a)an outline of submissions dated 19 November 2019, subsequently filed on 22 November 2019;
(b)closing submissions dated 13 December 2019, and final submissions on costs also dated 13 December 2019, both emailed to Chambers and to Ms Foster’s legal representatives, but not filed;
on behalf of Ms Foster
(c)an outline of submissions dated 19 November 2019, to which was attached a copy of the Summary Table; and
(d)closing submissions dated and filed 13 December 2019.
(2) The parties’ lay evidence
Ms Zoe Foster
I turn first to the parties’ lay evidence.
Ms Foster’s affidavit evidence is that she commenced writing the manuscript for The Wrong Girl on 30 April 2012. She created it as a word document on her personal computer, and stored it on the computer’s hard drive. She affirms that she did not make the manuscript available in the “Cloud” or through Google documents. Ms Foster affirms that she created a new clean and tidy version of the manuscript before sending it by email to Ms Abbott.

Ms Foster affirms that she sent the first draft of her manuscript (that is, the Foster Manuscript) on 2 April 2013 to Ms Abbott, her then editor at the Publisher, and she copied the email to Ms Wynne, her literary agent at Curtis Brown. She said (emphasis added): “Now produced and shown to me and marked Annexure ZFB‑3 is a copy of my email together with the first draft manuscript for “The Wrong Girl”. The email annexed is the email I refer to as the Sent Email. I set out the text of the Sent Email below at [127]. As I have said above at [8] the manuscript included in that Annexure is the document I refer to in these reasons as the Foster Manuscript.
Ms Foster affirms that she created a clean and tidy version of the draft manuscript before sending it on 2 April 2013. She affirms that she annexes at Annexure ZFB‑5 (emphasis added), “the properties page for the word document that was attached to my email 2 April 2013”. Annexure ZFB‑5 discloses that it was opened as a read‑only document, Ms Foster is the author of the document, that it was last modified on 2 April 2013, at 3:54pm, and that the title of the document is “TheWrongGirl_ZoeFoster_First_draft”. It states the document is 884KB in size, with a word count of 99,921 words, and total editing time of 620 minutes. The Foster word count is the word count evidenced in Annexure ZFB‑5.
Under cross‑examination, Ms Foster stated that she did not copy work from Ms Brennan’s manuscript. Ms Brennan pressed Ms Foster on her relationship with Ms Blanchard. Ms Foster’s evidence was that she met Ms Blanchard at an event at a writers’ festival on 24 August 2012, “and that is the summation of my entire relationship with her”. Ms Foster communicated with Ms Blanchard on Twitter, her evidence was that she wrote back to Ms Blanchard once. Ms Foster explained that they are not friends, and met only once.
Ms Foster’s evidence was she used the MacMail program on her Apple computer to send the email via her Gmail account. Ms Foster was cross‑examined if she knew how to backdate an email, and that metadata could be altered. Ms Foster stated that she did not, and admitted she knew nothing about metadata. I accept her evidence.
I also note that such alteration would require a level of collaboration between Ms Foster and Ms Wynne, given Ms Wynne would also have to adjust her computer’s time settings. There is no suggestion of any such collaboration; it was not put to the witnesses.
Ms Foster’s affidavit evidence was not challenged in cross‑examination. Relevantly, for the separate questions, in her affidavit Ms Foster affirms a direct link between the 2 April 2013 email and the document that was attached to it. This is expressly stated in the statements I have emphasised in bold in [61] and [62] above. I accept her evidence.
I am satisfied by the above evidence, and I find that the Foster Manuscript that is in evidence at Annexure ZFB‑3 is the draft of “The Wrong Girl” that was attached to the email sent by Ms Foster on 2 April 2013, and that the Foster Manuscript so emailed has the properties stated in Annexure ZFB‑5.
Ms Tara Wynne
Ms Wynne is employed at Curtis Brown Australia Pty Ltd, as a literary agent. She has been Ms Foster’s literary agent since 2007. She affirmed that she received an email from Ms Foster on 2 April 2013, and that the email attached the Foster Manuscript. She said (emphasis added): “Now produced and shown to me and marked Annexure TW‑1 is a copy of the email I received from the respondent together with the first draft manuscript for “The Wrong Girl” which was attached to the email”. The email annexed to Wynne 1 is the email I refer to as the Received Email. I set out the text of the Received Email below at [128]. The attached manuscript has the same content and number of pages with text as that annexed to Ms Foster’s affidavit. When I refer in these reasons to the Foster Manuscript I am referring to both the copy annexed to Foster 1, and the copy annexed to Wynne 1, unless the context provides otherwise.
Ms Wynne affirms that she annexes at Annexure TW‑3 (emphasis added), “the properties page for the word document that was attached to the respondent’s email dated 2 April 2013”. The properties page is a screenshot of the properties page of the document. It states that it was opened as a read-only document, Ms Foster is the author of the document, that it was last modified on 2 April 2013, at 3:54pm, that it is 884KB in size, that the total editing time is 519 minutes, and that the title of the document is “TheWrongGirl_ZoeFoster_First_draft.doc”. No word count is disclosed on the printout. The file path depicted on the annexure reveals that the word document was opened from the email in the email account on Ms Wynne’s computer:
E‑mail attachment:
C:\Users\Tara.CURTISBROWN\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\53GGMI0W\TheWrongGirl_ZoeFoster_First_draft.doc.
Ms Wynne was located in Sydney and cross‑examined by Ms Brennan by video‑link.
Ms Wynne rejected the proposition that the Microsoft word document attached to her affidavit could have come from any email, for all Ms Brennan knew. Ms Wynne also gave oral evidence that in the last year (2019) she had emailed Mr Chin, legal counsel with Penguin Random House Australia, and sent him a copy of the 2 April 2013 email she had received, and attached Foster Manuscript.
Ms Wynne’s affidavit evidence was not seriously challenged in cross‑examination. Relevantly, for the separate questions, in her affidavit Ms Wynne affirms a direct link between the 2 April 2013 email and she received the document that was attached to it. This is expressly stated in the statements I have emphasised in bold in [67] and [68] above. Although Ms Wynne exhibited a tendency to provide her opinion on Ms Brennan’s claim when answering questions, in my view this tendency does not adversely affect the reliability of the statements I have emboldened above, and the documentary evidence annexed to her affidavit. I accept her evidence.
I am satisfied by the above evidence, and I find that the Foster Manuscript that is in evidence at Annexure TW‑1 is the draft of “The Wrong Girl” that was attached to the email received by Ms Wynne from Ms Foster on 2 April 2013, and that the Foster Manuscript so emailed has the properties stated in Annexure TW‑3.
Mr David Chin
Mr Chin is the general counsel of Penguin Random House Australia Pty Ltd.
Mr Chin was called on behalf of Ms Foster to give evidence in response to criticism by Ms Brennan of the failure of Ms Foster to adduce evidence from the Publisher, and to explain why she had not done so. I granted leave to call Mr Chin and rely on certain paragraphs of his affidavit made in other proceedings: see above at [55]. .
By way of background to the circumstances in which I allowed Mr Chin to give evidence, in late 2016 Ms Brennan’s then solicitor’s letter wrote to the Publisher setting out Ms Brennan’s concerns of copyright infringement by Ms Foster. On behalf of Ms Brennan her solicitor observed that case law shows that copyright subsists in the combination of situations, characters, events and scenes which constitute the particular working out or expression of an idea or theme, and he informed the Publisher that Ms Brennan identified around 100 instances of substantial similarities between the Work and The Wrong Girl. Ms Brennan’s solicitor attached a document which she said outlined “a number of striking similarities amongst the key situations, characters, events and scenes between [the works]”.
Mr Chin’s predecessor at the Publisher had dismissed that letter, without responding to it substantively, declining to advise when the Publisher first received any draft of Ms Foster’s manuscript, save to “confirm the timing of receipt of the proposed manuscript from Ms Foster was prior to the date that Ms Brennan says she provided her manuscript to Writers Victoria”.
On 28 June 2019, in the context of Ms Brennan’s pursuit of her concerns of copyright infringement, and after the commencement of proceeding against the Publisher, Mr Chin communicated with Ms Brennan by email and asserted that:
After conducting my own investigation, I must emphasis your grievances are misplaced and your claim has no basis.
For example, I see from your application that you claim to have provided a sample of your work to Writers Victoria on 2 April 2013 (1.29pm) or 4 April 2013 and that you claim Writers Victoria emailed the sample to Ms Blanchard on 14 April 2013.
However, it is important to note that I have email records from our archives and Curtis Brown’s archives to confirm that Ms Foster Blake provided a complete manuscript (of about 100,000 words) to us on 2 April 2013 (3.57pm). …
In fact, the Publisher did not have such records in its archives. Mr Chin’s statement was an assumption on his part. He had not sighted any email records from the Publisher’s archives.
His November 2019 affidavit was that the company does not have the 2 April 2013 email sent to Ms Abbott in its archives. He explained that as at 2 April 2013, Ms Abbott’s email data was hosted on email servers operated by the then owner of Penguin Random House’s business, Pearson Australia Group Pty Ltd. In July 2013, Pearson transferred the assets of the business to a separate company, and it appears that in the transfer some data was lost or not transferred. The 2 April 2013 email received by Ms Abbott has not been recovered.
It was only in late October 2019, in response to a subpoena issued at the request of Ms Brennan that Mr Chin organised for an employee to conduct electronic searches to see whether an electronic copy of the email could be located. Thereafter, he responded to the subpoena advising that the email was not among the Publisher’s archives.
In cross‑examination, Mr Chin clarified that at the time of his June 2019 communications with Ms Brennan he had been relying on an email copied and forwarded from Ms Wynne which displayed that Ms Abbott had been included as a recipient to the email, rather than undertaking his own investigations into the company’s archives.
None of Ms Brennan’s cross-examination of Mr Chin led me to believe that Mr Chin had acted to deliberately mislead Ms Brennan when writing the June 2019 email. His misrepresentation was a result of his failure to procure a search of the company’s archives at the time. In the context of the proceedings then on foot, this was careless. The statement should not have been made. It is understandable that Ms Brennan’s suspicions were exacerbated, rather than allayed by the explanation in answer to the subpoena.
No inference, however, arises from Mr Chin’s correspondence with Ms Brennan or his subsequent correction that either the Sent Email or the Received Email were doctored in any way.
I accept Mr Chin’s evidence that Penguin Random House Australia Pty Ltd does not have a copy of Ms Abbott’s receipt of the Sent Email, and his explanation why that is so.
That there is no copy of an email from Penguin Random House’s archives evidencing Ms Abbott’s receipt of the Sent Email with the Foster Manuscript attached as at 2 April 2013, does not of itself impugn Ms Foster’s contentions that she sent it. That there is no such evidence is neutral on the factual issue whether or not on 2 April 2013 Ms Foster sent the Sent Email, or Ms Wynne received the Received Email, or whether the Foster Manuscript was attached to those emails, or the forensic evidence concerning those two emails and the Foster Manuscript.
In the lay evidence, however, Ms Foster has not established that the Publisher received the email she sent on 2 April 2013.
Ms Brennan
Brennan 3 sets out some of the history of Ms Brennan’s concerns that her work had been copied by Ms Foster, her analysis of the emails, and issues with the forensic evidence of Mr Geri. Ms Brennan attaches correspondence from Ms Dalton. Much of Brennan 3 is submission, and I admitted it as submission accordingly.
I set out Ms Dalton’s email to Ms Brennan dated 11 September 2019 below, when I refer to Ms Dalton’s evidence (see at [123]). After some misunderstanding apparently arising from the terms of the confidentiality undertaking Ms Dalton gave to Ms Foster and Ms Foster’s sensitivity about her email address, Ms Dalton then emailed Ms Brennan the following as stated in the email dated 13 September 2019 (Annexure 14 (50h) of Brennan 3):
Hi [Ms Brennan],
As requested please find attached a zip file containing:
1.The screenshots of the headers of the email from Ms Foster Blake’s sent items (email address redacted)
2.The screenshots of the headers of the email from Ms Tara Wynne’s email (email address redacted)
3.The screenshots of the document properties for the attached manuscript
4.The attached manuscript
If you need any further information please let me know.
Kind regards,
Joanna
The screenshots referred to at item 3 in the 13 September 2019 email (above) are annexed to Brennan 3 at Annexure 4. The screenshots are of the properties pages of the Foster Manuscript accessed from within the Sent Email and the Received Email (in turn each contained in a Forensic Container obtained by Ms Dalton). The screenshots revealed that the Foster Manuscript:
(1)when accessed from within the Sent Email had a word count of 81,967; and
(2)when accessed from within the Received Email had a word count of 81,967,
that is, the word counts of the Foster Manuscript that Ms Dalton obtained was the same whether accessed from the Forensic Container relating to the Sent Email, or accessed from the Forensic Container relating to the Received Email (I have referred to these word counts as the Dalton Word Counts). As I have said, the word count disclosed in Foster 1 Annexure ZFB‑5 (the Foster Word Count), however, was 99,921.
From the email header screenshots and the document properties screenshots, Ms Brennan decided that the email header disclosed in the Geri Report was a “false” email header, that the true version of the Foster Manuscript had been swapped in the forensic evidence, and that what Ms Dalton received and inspected was the “real” email header, and the true version of the Foster Manuscript as at 2 April 2013. Ms Brennan believed that the word count undertaken by Ms Dalton of 81,967 words showed that the Foster Manuscript that was really sent on 2 April 2013 did not contain the impugned passages Ms Brennan identifies in the Foster Published Works.
Ms Brennan puts her argument concerning the emails and their forensic analysis by Mr Geri and Ms Dalton as follows (references to annexures omitted) (emphasis in original):
The Real Email - Ms Foster emailed her proposed manuscript to Penguin Random House Australia on 2 April 2013 from her “Apple Mail” email account. The Word doc attached has 81,967 words. Ms Foster then claimed she wrote my material first (before access was possible).
The false back-dated email - Ms Foster created a false back-email that appears as though she sent it to her publisher on 2 April 2013 with falsified data in the false email header. This false email is identical to the real email that Ms Foster sent to her publisher on 2 April 2013 (mentioned above), however the false email was sent from her Gmail account. The Word doc attached has 99,921 words to make it appear as though Ms Foster wrote my material first.
The false email header from the Geri Report is missing the real times the false email passed through the external internet email servers, times that cannot be altered in the email header. This is why the external internet mail servers can be shown in the real email header provided to Ms Dalton. This is also why the Word doc properties show 81,967 words for the real Word doc provided with the real email (minus my material), compared with 99,921 words for the false Word doc provided with the false email (plus my material). I was given the manuscript of 99,921 words twice, which doesn’t match the document properties of 81,967 words reported by Ms Dalton who has the real email. The word difference of both is 17,654 words.
First I predicted the false email, second I predicted the real email, third I predict a document with 81,967 words could be falsified with my content added. That won’t solve the mess about [how] to unravel showing falsified documents and withholding the Word doc with 81,967 words. On July 5 2019, I challenged data integrity of the email sent on 2 April 2013 as the document may have been a shared document with changes made to the manuscript after access was possible to my work on 15 April 2013.
Ms Brennan was cross-examined by counsel for Ms Foster. In cross-examination Ms Brennan accepted that she had no training in information technology. She accepted she been informed by Penguin Random House in 2016 that Ms Foster had delivered the Foster Manuscript on 2 April 2013. Ms Brennan expressed her continued disbelief that the Sent Email and the Received Email showed that the Foster Manuscript had been sent on 2 April 2013.
(3) Word Count Demonstration: Respondent’s Aide‑memoire, and the Statement of agreed facts
Before I turn to the evidence of the experts, and to answering the separate questions, it is convenient here to address the context in which the Respondent’s Aide‑Memoire, and the statement of agreed facts arose in the December hearing.
Both of these documents relate to the Word count demonstration to the Court I have outlined at [35] above. The demonstration to the Court and to Ms Brennan (before she cross‑examined Mr Geri) comprised a visual presentation whilst Mr Geri was in the witness box conducted with the assistance of Ms Coburn operating her laptop, and projecting its computer screen display via a Court projector. It concerned his evidence on the question of word count in the Supplementary Report. I invited Ms Wise to sit in on the demonstration, and she did so.
In his oral evidence, Mr Geri explained his evidence in the Supplementary Report concerning the word count issue as follows:
MS CUNLIFFE: And you deal, Mr Ghery [sic], from paragraphs 29 to 33 in this report, with the question of word count. I wonder if you could briefly explain to the court what’s mean in these paragraphs? ---
MR GERI: So the – what we’ve identified and what we believe occurred with the suggestion that there’s two different documents is that there has mistakenly been two different tools or two different ways to test the word count or measure the word count and, by doing that – and in my line of work, the variety of tools available to test a word count means it’s a fairly unreliable way of measuring how many words there are in a document and certainly not a good way to measure whether two documents are the same or different. And so in this case, what we believe – well, what we can see has happened is the Word application has been used – excuse me – to measure or to test one – to test a document – and then there’s a file properties dialogue box that has been used to report another – or another word count property.
MS CUNLIFFE: Thank you. And now might be a convenient time. We have a copy of the manuscript document saved and perhaps we can demonstrate that.
The demonstration then took place.
Thereafter, Ms Brennan provided a copy of her work “Playlist” (which I apprehend incorporates the Brennan Manuscript), and requested the same demonstration be done with her manuscript. This was done, and Ms Brennan asked Mr Geri questions.
The Respondent’s Aide‑memoire
I requested the aide‑memoire as a guide to the word count demonstration given in Court on 3 December 2019. At the conclusion of the hearing I granted Ms Foster leave to file and serve the Aide‑memoire, and stated that if it was proposed to be tendered, I would receive the USB containing the Foster Manuscript as an exhibit. It is appropriate that I now formally record that I receive the USB as an exhibit as the document used in the demonstration commencing at transcript page 101 line 19, on 3 December 2019. As I said in the December hearing, I treat the aide memoire as a document to assist in my consideration of the transcript, and to explain what I saw.
The statement of agreed facts

The statement of agreed facts is received as formally recording the agreed facts that Ms Brennan agreed with as I stated on the transcript at 4pm on 5 December 2019 in the December hearing. The agreed facts are:
Ms Brennan’s document
1.At the hearing on 3 December 2019, Olivia Coburn of K&L Gates in Court using a laptop computer and projector undertook the methods described in steps 2 to 8 of the Respondent’s Aide-mémoire using a Microsoft Word document for the Applicant’s manuscript “Playlist” with the file name containing the phrase “Playlist_Final Form_PDF” (or substantially the same name) which was provided by the Applicant on a USB to Ms Coburn (Applicant’s Document).
2.Using the external method described in steps 2 to 5 of the Respondent’s Aide‑mémoire, a word count of 65,121 words was displayed for the Applicant’s Document.
3.Using the in‑document methods described in paragraphs 6 to 8 of the Respondent’s Aide‑mémoire, a word count of 75,164 words was displayed for the Applicant’s Document.
4.Two different counts were obtained for the Applicant’s Document even though the document tested was the same document; that is, the words [sic] counts are irregular.
The last phrase in paragraph 3 above was included at the specific request of Ms Brennan: “that is, the words counts are irregular”. In an email sent to Chambers on 11 December 2019, Ms Brennan states that “the word counts are irregular is in the context [of] the presentation is unrealiable (sic). … The point is that I don’t agree with the presentation results because they are unreliable, which needs to be specified …”. Ms Brennan expanded on this submission in her closing submissions.
The matter was agreed, and recorded by the Court. There is no warrant to reconsider it. This is because the demonstration referred to in the statement of agreed facts which Ms Brennan asked to be done appeared to be sought to allay Ms Brennan’s concerns about how and why different word count results were obtained in relation to the one word document that different word counts were also obtained for Ms Brennan’s manuscript (as well as for the Foster Manuscript), using different calculation tools in relation to the same document. It is not relevant to my determination of the separate questions.
Relevance of the Summary Table
I have earlier referred to the Summary Table (inter alia in these reasons at [12], [14], [25], and at [55(k)]). It was not tendered at the December hearing, although a copy was attached to Ms Foster’s outline of submissions dated 19 November 2019.
The Summary Table is relevant to Question 2. I return to the Summary Table in the context of my determination of that Question later in these reasons.
(4) Expert witnesses
As I have said, Mr Geri, Ms Dalton and Ms Wise were called as expert witnesses and each gave evidence. I discuss their evidence in the following section (H) of these reasons.
Mr Justin Geri
Mr Geri is a Director at KPMG in the Forensic Technology division. He specialises in the field of digital forensics, and as at 2019 had 12 years’ experience as a forensic practitioner, prior to which he was an IT Systems and Security Advisor to one of the world’s largest food manufacturing companies. He has previously appeared as an expert witness. He has a Bachelor of Applied Science and Government Level Security Clearance.
Ms Joanna Dalton
Ms Dalton gave oral evidence. She affirmed that she would abide by the Expert Evidence Practice Note when giving her evidence.
As at the December hearing Ms Dalton had over 13 years’ experience in IT forensics and security, had previously appeared as an expert witness, and been involved in forensic investigations such as international corruption cases, classification of child exploitation material, to smaller copyright infringement cases. Her qualifications include a Batchelor of Science with First Class Honours in computer science, and a PhD in computer science, specialising in network file systems and artificial intelligence. Her professional qualifications are as an ISACA CISM (Certified Information Security Manager) and a GIAC NFA (Network Forensic Analyst).
As I have said earlier in these reasons, Ms Brennan nominated Ms Dalton to conduct a forensic analysis of the relevant emails and the Geri Report. Ms Dalton undertook that analysis, and on 11 September 2019 provided Ms Brennan with her findings.
Ms Emma‑Jane Wise
Ms Wise holds qualifications in law, and science in the area of ecology and natural resources. Whilst she studied computer programming as part of her undergraduate degree the focus of her degree was not on IT. It appears she was a member of the Australian Air Force for 21 years as a legal officer, in the last 10 years or so of which she was “in a cyber-field”. She stated that her qualifications received from the Air Force “were not unclassified”. Whilst Ms Wise had to know what the IT forensic team were doing, her role as a uniformed legal officer in the unit was “to make sure that the operations they would proceed to undertake were legal”.
Her present work is as principal of a law firm, which it appears commenced recently.
Whilst Ms Wise had personally undertaken authentication work, she did not do so for Ms Brennan. Relevantly, Ms Wise was not engaged by Ms Brennan to provide a report, and did not obtain a copy of the Forensic Containers, or review any of the forensic evidence or the Geri Report, or indeed any evidence before me on the separate questions. Ms Wise did not see any evidence until she appeared at the December hearing, and thence to the extent she observed in Court.
I have already explained the context in which Ms Brennan approached Ms Wise, and that Ms Brennan did not proceed with any application for Ms Wise to be an expert on her behalf. As Ms Brennan said to the Court, all Ms Wise can talk of is general terms on IT and how metadata works. At the conclusion of her evidence Ms Wise stated that she had not seen enough to form an opinion as to whether the emails, and/or the manuscript were legitimate.
Conclusion on expertise
I accept that each of Mr Geri and Ms Dalton are well qualified by their expertise and experience, and by their inspection and analysis of the Forensic Containers to assist the Court in this matter. They each gave their evidence clearly and objectively, and endeavoured to answer questions in such a way as to ensure that the Court and the parties could understand, further explaining or clarifying their answers as required.
Both experts were independent in their analysis, and their evidence. This strengthens my view that their evidence is reliable and based upon their specialised knowledge and expertise in this area. I place significant weight on the evidence of Mr Geri and Ms Dalton.
Whether or not Ms Wise could qualify as a relevant expert, I consider that her evidence to the Court was of such generality and speculation, and given in the absence of any considered review or analysis of the Forensic Containers, so as to be of no assistance to the Court. It follows that in the present case I do not accept Ms Wise is a relevant expert. I have had regard to the evidence of Ms Dalton, and Mr Geri, in preference to any opinion proffered by Ms Wise.
The Forensic Containers (collection, preservation, and provision)
It is convenient here to state my conclusion from my consideration of their evidence which follows on the Forensic Containers:
(1)that I am satisfied that Mr Geri caused to be taken (a) a forensic image from Ms Foster’s email account on her computer of the Sent Email, and (b) a forensic image from Ms Wynne’s email account on her computer of the Received Email, and that each of these collections was preserved in a separate Forensic Container;
(2)I am satisfied that each of the Forensic Containers was secure, a unique MD5 hash value relating to the Forensic Container relevant to the Sent Email – that collected from Ms Foster which is “F998199ABA988ACC75B55D1E0B1EE0F”, and a unique MD5 hash value relating to the Forensic Container relevant to the Received Email – that collected from Ms Wynne which is “F848F3ED8546387BF3AC7D2A351E8426”
(3)I am satisfied that Mr Geri received and analysed the two Forensic Containers, and that the results of his analysis as relevant to the questions he was asked to answer are reflected in his opinions, and explanations in the Geri Report, Geri 2, and his Supplementary Report. I accept the explanation in Geri 2 of the omission of the MD5 hash value of the Forensic Container relevant to the Received Email, whilst observing that that oversight, and the manner of presentation of the MD5 hash value in the Geri Report has caused confusion; and
(4)I am further satisfied that the two Forensic Containers Mr Geri received and analysed are the two Forensic Containers he provided to Ms Dalton on the USB stick she brought to Court, which she inspected and analysed.
Ms Dalton’s oral evidence
Ms Dalton gave oral evidence that she collected a USB from KPMG on which were the Forensic Containers, returned to her office to make back‑up copies for her analysis, did so, and conducted her analysis. As I have summarised at [35(b)] earlier in these reasons, Ms Dalton had the USB she collected from KPMG in Court, and using her laptop and the Court projector explained the steps she took, the analysis she performed of the metadata of the emails to verify them, and also the word counts of the documents.
Ms Dalton stated that upon opening the files provided on the USB to make back‑up copies for her analysis, she noted that there were two files contained [on the USB] that were both forensic format files, meaning that they can only be opened by specialist forensic software. She identifies these as forensic software containers which once created, the contents of the forensic containers cannot be changed without being noticeable. Ms Dalton opened those forensic software containers, (that is the Forensic Containers) and verified that the MD5 hashes of the files as reported on the software when she opened it matched that which was stated in the Geri Report. Ms Dalton then summarised the analysis she performed, and her conclusion that she reached, that Mr Geri’s conclusions were sound, and she reached the same.
Ms Dalton’s explained that within each of those Forensic Containers were a number of email gathered from the two different locations of collection, and within those emails she identified the relevant emails, that each one had the appropriate headers and the appropriate attachments showing both sides of the conversation for both the sender and the recipient.
She explained:
Upon identifying this email, I then undertook an analysis of the metadata of the email including the date and time it was sent, the location in terms of the IP address that it was sent from, the route which it travelled through the internet between Zoe Foster Blake’s email provider and her publisher’s email server and any other relevant items in the headers. I then also performed an analysis of the manuscript file that was attached to that email including the date and time of creation, the approximate size and whether it matched what had been reported in Mr Ghery’s [sic] report.
…
The word counts of the documents I assessed only through Microsoft Windows Explorer. From my perspective, I wanted to ensure that the file was – the manuscript, apologies, had words in it and enough words to be considered a manuscript rather than the exact word count. So once I had seen that there were a lot of words in there, I did not perform any further analysis.
I am satisfied from Ms Dalton that Ms Dalton’s analysis of the Manuscript file was undertaken by accessing the Foster Manuscript word document file from within the relevant emails.
Ms Dalton confirmed she sent the zip file to Ms Brennan, including the Foster Manuscript.
After she had undertaken her analysis of the Forensic Containers, Ms Dalton informed Ms Brennan by email dated 11 September 2019 (Brennan 3, Annexure 13):
Subject: Analysis results:
I have completed my analysis of the forensic image files provided by KPMG where I extracted the relevant emails and attachments and performed the following analysis:
1. Md5 hash of the image files: I found that these matched those detailed in the Geri report;
2. Dates and times of the image files: These matched those detailed in the Geri report;
3. The IP addresses that the email passed through between Ms Foster-Blake and Ms Wynne: these were consistent with the webmail service used by Ms Foster-Blake and the email system used by Ms Wynne.
4. The dates and times reported by the servers the email passed through: These were consistent with the dates and times contained within both the email metadata and email contents.
5. Whilst a DKIM value was recorded in the headers of the email, it cannot be used to prove (or disprove) the integrity of the email as it was not authenticated by any of the receiving servers (this omission is not suspicious, some mail servers do not validate DKIM values). The DKIM certificate values are consistent with those used by the online service provider of Ms Foster-Blake’s email.
6. The file attached to the email that Ms Foster‑Blake states is her manuscript was created on 26/03/13 and has been edited for a total of 10 hours and 19 minutes. It contains 238 pages and over 80,000 words. It was last saved just prior to the email being sent. This is consistent with the file provided being the one that was attached to the email in question and sent on the date and time stated by Ms Foster‑Blake.
7. The metadata of the file lists the software that was used to create it as a Macintosh version of Word. This is consistent with the device type reported by the email headers.
I have not identified any inconsistencies in the relevant emails that indicate that the emails or attached files have been tampered with or were not originally sent on the date and time reported. My findings agree with those in Mr Geri’s report and therefore I don’t believe there is any use in preparing a formal report or performing any further work on this matter. …

H. Question 1

Question 1 requires that I determine whether Ms Foster emailed the Foster Manuscript (being the document in evidence before the Court) to Ms Abbott and Ms Wynne by email on 2 April 2013.
Ms Foster relies on her and Ms Wynne’s affidavit evidence, and the expert forensic evidence. As I have said, the main issue in dispute between Ms Brennan and Ms Foster is the data integrity of the Sent Email, the Received Email, and the Foster Manuscript. The data integrity of these documents – by which expression I include the date, time, and contents of each email, and its attachment, and the properties of that attachment – is the subject of the expert evidence. As will be apparent from my consideration and conclusions, the expert evidence of Mr Geri and Ms Dalton is determinative of the answers to the separate questions.
In respect of the absence of evidence of receipt by Ms Abbott (and the Publisher) of the relevant email, I have expressed my conclusions on Mr Chin’s evidence above. The import of Mr Chin’s evidence, and my conclusions expressed about his evidence is that Ms Foster’s lay evidence that she sent the Sent Email to Ms Abbott is not verified by Ms Abbott or the Publisher giving any evidence that in fact they received the Sent Email. Ms Foster submits however, and for the reasons I expand upon below, I accept, that for the purposes of answering Question 1 it suffices if Ms Foster establishes that Ms Foster emailed the Foster Manuscript to Ms Wynne by email on 2 April 2013. For the reasons I expand upon below, and supported by the findings on the lay evidence I have reached above, I am satisfied that Ms Foster has established that she emailed the Foster Manuscript to Ms Wynne.
(1) The Sent Email and the Received Email
The Sent Email is as follows (in the form depicted in Annexure ZFB-5, including the email chain forwarded to K&L Gates, which email addresses I have omitted):
From:
Sent:
To:
Subject: No big deal.
Attachments: TheWrongGirl_ZoeFoster_First_draft.doc
Importance: High
From: Zoe Foster Blake [redacted]
Subject: No big deal.
Date: 2 April 2013 at 3:57:29 pm AEDT
To: Kirsten Abbott < [email protected]>
Cc: Tara Wynne <[email protected]>
... But please find attached the first draft of my new baby, The Wrong Girl!
I hope you enjoy it.
“I very much did.”
-Zoe Foster
Zo x
[signature box, and associated social media addresses not reproduced]
The Received Email (in the form duplicated in Annexure TW-1) is as follows:
From: Zoe Foster Blake <[redacted]>
Sent: Tuesday, 2 April 2013 3:57 PM
To: Kirsten Abbott
Cc: Tara Wynne
Subject: No big deal.
Attachments: TheWrongGirl_ZoeFoster_First_draft.doc; ATT67756.htm
Importance: High
... But please find attached the first draft of my new baby, The Wrong Girl!
I hope you enjoy it.
“I very much did.”
-Zoe Foster
Zo x
(2) The Email Headers
Both the Sent Email and the Received Email show that the email was sent and received at 3:57pm on 2 April 2013. Ms Brennan alleges that the metadata in those email headers has been doctored or fabricated.
In the Geri Report, Mr Geri depicted the email header metadata of the Received Email and explains as follows at [33] of the Geri Report (Geri Header):

[33] Below is a screenshot of the message header in relation to the email received by Ms Wynne. Key information shown in the below screenshot is the time and date the message was received and the mail server relating to curtisbrown.com.au.
Mr Geri explained his conclusion reached as follows:
[34]The above message header information indicates that an email from Ms. Foster Blake was transmitted through mail servers relating to Google and Curtis Brown on Tuesday, 2 April 2013 at 3:58PM. The message header indicates that the message received was sent to the email account [email protected]. The timestamps contained in this message header have been added by the external mail server’s independent of the sender and recipients computer systems as the message has been transmitted. The fifth line of the message header contain s a timestamp relating to Pacific Daylight Time or PDT. A conversion of this timestamp from PDT to Australian Eastern Standard Time indicates that the PDT time for Monday 1 April 2013 at 9:57PM correlates to Tuesday 2 April 2013 at 3:57PM
Mr Geri had earlier said about the identity of the Forensic Containers in the Geri Report at [23]:
[23]A forensic image of email data was successfully acquired and the MD5 hash values associated with the two mail archives are “F998…EE0F”.
I have explained the confusion that arose, and Mr Geri’s clarification in Geri 2.
Ms Brennan was provided with metadata of the Received Email from Ms Dalton. She annexes it at Annexure 2 of Brennan 3, however, a cleaner copy can be found at Annexure 4 of Brennan 3 (on the right‑hand side) (Dalton Header):
Ms Brennan argued the two email headers should be identical (that is, the Geri Header and the Dalton Header), as they purport to be of the same email – the Received Email, but they are not. In Brennan 3, Annexure 11 she identifies the following differences:
(i)the font of the two email headers is different;
(ii)the dates are different – one says “2 Apr” and the other says “02 Apr”;
(iii)one says “Message ID” and the other says “Message Id”;
(iv)one is sent by “Gmail service provider” the other is sent by “Apple service provider” and one also says “@gmail.com” and the other says “Apple mail”; and
(v)8 elements of Ms Dalton’s header are missing from Mr Geri’s header,
attached to these reasons as Annexure B the diagrammatic at Brennan 3, Annexure 11 which shows the differences Ms Brennan identifies.

Additionally, at the December hearing, Ms Brennan also identified that each of the Geri Header and the Dalton Header convey their information in a different order.
In relation to the different fonts, the different form of dates, the use of “Id” and “ID” and the order of the metadata, Mr Geri’s evidence in cross‑examination was as follows:
MS BRENNAN: So the date on 6 October – 4 October, that one has got just a “2” as the date format, but the other Gehry (sic) report has got an “02”. And then that one has got a capital “ID”, but the other one has got “I” with a lower case “d”. One is in a New Roman font and one is in Arial font. So what I don’t understand is how, if it’s identical email headers of identical images
…
MR GERI: Well, we’re – because it’s extracted out of the message – the actual message itself and then we put it into a tool or a text editor to try and format it. So sometimes those things are going to slightly adjust, so the font of the message header, it’s not – it doesn’t really come up in consideration when we’re looking to present that sort of thing to the court. It doesn’t really indicate that it has been manipulated to hide information or anything. It’s – I don’t really see the relevance of the font.
MS BRENNAN: Well, we did talk about an image. If I take a photo and I send it to you, it will be the same?
MR GERI: Mmm.
MS BRENNAN: That’s not disputed. So if you took an image of an email header and then you put it in one report, two reports, and sent it to Dalton, I’m now – I am not understanding how that one email header image has got different font, “02”, “2”; “Id”, with the 40 “Id” lower case, upper case; and different order. This is what I don’t understand?---
MR GERI: Because what – so what Dalton – when Ms Dalton would have received her image, she would receive exactly the same thing and then she could choose to take that message header information out, because the native tool – the native piece of software that you might look at that with isn’t very helpful to actually conduct analysis, so we take a copy of the message header and we put it into another tool that makes it easier to review. So in making those sort of changes, now, that would change – potentially change the – adjust the font to some degree. The number that we’re talking about, those numbers haven’t been changed. They’re what have come out of mail servers. Some mail servers will put a “2”. Some will put an “02”. That’s nothing to do with anything that’s a change – that has been changed. The ordering. I can only assume that when the ordering was chosen for that particular snapshot – and to be clear, the snapshot on 580 – in the middle of 5 580 isn’t – as I have said, isn’t reflective of the exact message in its entirety; it’s an extract and it’s an extract that has been put in place to try and – to viewed as simply as possible and to be as user friendly to the court as possible.
When Ms Dalton was asked in cross‑examination about these discrepancies, she explained:
MS DALTON: I believe that what you are seeing in Mr Gehry’s (sic) report – and this is a assumption on my part because I am not Mr Gehry (sic) - he has extracted from his
…
That he has extracted the headers from the email, and he has removed sections as to make them more readable for the purposes of his reports, and he has, therefore, excluded certain things such as the DKIM signature.
MS BRENNAN: And when he did that, would that reorder the order of the data, would it?
MS DALTON: The – how he presented this in the report leads me to believe that he created a text box and then pasted the contents of the email header into that text box and then removed the items which would make it less readable. In terms of the order being changed, I would – without being Mr Gehry (sic), I would have no idea why that would happen.
…
HER HONOUR: Yes. Okay. So can you explain why in one document on the left we have “Tuesday, 02 April 2013” and in the document on the right we have “2 April 2013” with no zero before it?
MS DALTON: It is my opinion that in this case the process of copying the text from the headers and then pasting it into a Word document has changed the formatting of the data and that can include things such as changing the font, changing the exact format of how dates are displayed, and I believe that is what has happened here.
When Ms Brennan asked Ms Wise for an explanation, Ms Wise surmised it may be the case that different versions of the software were used by Mr Geri and Ms Dalton when extracting the Received Email metadata.
Both Mr Geri and Ms Dalton were both firm in their evidence that none of these matters were probative of the legitimacy of the emails. Ms Wise accepted that it was possible for formatting changes to occur but the information to be identical, and that extracting it for its presentation into another document may change the formatting of the data.
Ms Brennan also identified information that she says is “missing” from the Geri Header. This includes:
(a)the word “received” on two occasions;
(b)the “DKIM signature”;
(c)references to “Apple Mail”; and
(d)a line stating “OriginalArrivalTime”.
Mr Geri explained the omissions in the Supplementary Report at [25] – [27]:
[25]The contents of the email data collected from Ms Foster Blake’s and Ms. Wynne’s email accounts were processed and reviewed using a forensic software application called Nuix (version 7.6). The Nuix application allows for a detailed metadata analysis of file and email content.
[26]The email message headers examined by myself and those provided to the applicant’s expert were from an identical copy. The email header information produced in my original report were lines from the header relating to the relevant information I was asked to examine and not a reflection of a complete message header, much of which was not relevant to the questions I was asked to provide answers to. A full version of the relevant message header was provided to the applicant’s expert.
[27]A full message header from the email received by Ms Wynne is attached as Annexure F of this report. The content of that header maintains the expert opinion provided in my original report relating to when the message was sent and by the relevant parties and I maintain my view that the email has not been tampered with.
In cross-examination, Mr Geri reiterated that he did not extract the entire Received Email header for the purposes of the Geri Report (see Geri Header at [130] above), only extracting the key information relevant to the questions he was asked to answer. He explained:
MS BRENNAN: But they’re identical email images, which means that all of the information would be listed identically?
MR GERI: No. As I said, paragraph 33 and not shown there, is a reflection of the full message header. It is the key information that we believe was sensible to produce to the court to try and
HER HONOUR: So you’ve extracted the key information?---
MR GERI: Yes.
MS BRENNAN: But you’ve extracted it.
…
HER HONOUR: Okay. Well, Mr Gehry (sic), are you able to explain why the same information appears in a different order in the two documents?
…
MR GERI: I’ve already stated, with the paragraph 33. That’s not intended to be a full reflection, or necessarily the same order of the header. It is intended just to show the key information that we were asked to try and show in this report.
HER HONOUR: So how did you make it different?
MR GERI: So your Honour, we probably – with message header information, it actually is difficult to format nicely in a report, as well. And you get things potentially cutting off. And I know in – I’ve even noticed in some of the information provided by Ms Brennan. When she produced it, it cut off information, which I’m sure she wasn’t intending to hide anything, but it’s just an illustration of how sometimes, these components can be difficult to put into a report because of - - -
HER HONOUR: They have been moved into a Word document?
MR GERI: Correct. And they’re - - - from - - -?--- - - - if you look at annexure F, which was page 888 - - - [Mr Geri here referred to the full email header annexed to his Supplementary Report, and said]
HER HONOUR: Yes?---
MR GERI: - - - you know, there’s lots of text here that’s quite irrelevant to what we’re trying to show and doesn’t flow nicely into a Word document, so we tried to produce that as concisely as we could, illustrating the key component, showing that this email arrived on Ms Wynn’s – the company email server relating to Ms Wynn on 2 April
DKIM value
I asked Ms Dalton to explain to the Court what a DKIM value was. A DKIM is a cryptographic value that can help verify the identity, date, and time that an email was sent. However, it is optional, and not all email servers will use a DKIM value. Ms Dalton further explained that if an email with a DKIM value is received, not all mail servers will “validate” the value such that the identity, date, and time that an email was sent may not be verified.
I accept Mr Geri’s evidence that he did not include the entirety of the email header in the Geri Header because he was concerned with providing the Court information relevant to the issue of verifying the date and time the email was sent on which his opinion was sought.
In the Supplementary Report, the full email header of the Received Email is provided (at Annexure F to that report – not reproduced). The email header provides the exact information that was provided by Ms Dalton to Ms Brennan in addition to further information referencing Apple‑Mail. Ms Foster’s evidence was that she used the Mac Mail program on her Apple computer to send the email via her Gmail account. This explains why there are references to Apple Mail. These are not inconsistencies. They simply show the applications’ interactions with the mail servers that occurred when sending the email.
While Ms Brennan sought to impugn Mr Geri’s analysis, she did not seek to impugn Ms Dalton’s analysis. Ms Dalton’s analysis, and the email header that she produced to Ms Brennan, indicates that the Received Email was received on 2 April 2013 at 3:58pm.
Ms Dalton concluded that her findings were the same as Mr Geri’s. She did so both in her emails to Ms Brennan, and confirmed her conclusions in Court (see above at [123]). She did not take issue with any of the differences, reordering or absence of data that concern Ms Brennan when comparing the Geri Header and the Dalton Header, nor did she identify any matters of concern when undertaking her analysis.
I am satisfied with the explanations given by Ms Dalton, and Mr Geri. Each of the matters raised by Ms Brennan is explicable by the different approaches that each expert has taken in the presentation of the results of their respective analysis of the same two emails, each located respectively in one of the same two Forensic Containers. I reject Ms Brennan’s contention that any of the identified differences, omissions or re-orderings show that the emails were doctored or altered in any way.
I am satisfied that the information in the email header, being the date and time stamps, demonstrate that the email was sent by Ms Foster at 3:57pm and was received by Ms Wynne at 3:58pm. I am satisfied, on the balance of probabilities that the information in the header has not been doctored or manipulated.
(3) The Foster Manuscript was that attached to the Sent Email and the Received Email
Mr Geri explained the differences in the word counts between the Foster Word Count and the Dalton Word Counts in his Supplementary Report as follows:
[29]Document word count is a value produced by an application or operating system in relation to the number of words contained within a specific document. It is not uncommon for different applications or operating systems to produce a different word count for the same document.
[30]The focus of my previous report in this matter was an email from Ms Foster-Blake to Ms Abbott and Ms Wynne. The email contained a Microsoft Word Document called “TheWrongGirl_ZoeFoster First_draft.doc”.
[31]In relation to the document word count relating to “TheWrongGirl_ZoeFoster_First_draft.doc” two different word count values can be reproduced.
[32]The Microsoft Word application version 15.0.5137.1000 reports the number of words contained in the “TheWrongGirl_ZoeFoster_First_draft.doc” to be 99,921 and 241 pages. The Windows Operating system relating to version “Windows Server· 2016” reports the same document contains 81,967 words and 238 pages.
[33]This difference does not relate to manipulation of document metadata or two different documents being reviewed. The differing word counts are produced for the same document due to the use of two different software applications used to calculate the word count.
Mr Geri’s written and oral explanations for the discrepancies is clear. It was demonstrated in Court. I have checked the Aide‑memoire against the transcript, and am satisfied it accurately records the demonstration. There are at least two different ways that one can do a word count on the same document. In summary the evidence established:
(a)without opening the Foster Manuscript, the Foster Manuscript was right clicked and a dropdown menu appeared. The solicitor then navigated to “File properties” and clicked on the sub-icon “Details” in the top toolbar. This produced a word count of 81,967. This word count was created using the “Windows File Explorer” (External Word Count Method); and
(b)after opening the Foster Blake Manuscript in Microsoft Word, the solicitor navigated to the top right corner of the screen and clicked on the “File” icon. A dropdown menu appeared within which was the term “Info”. Once this icon was clicked, on the right hand side of the desktop screen appears the heading “Properties”. Under this heading is various information, including word counts. The word count produced using this function was 99,921 (Internal Word Count Method).
Another way of producing the Internal Word Count was also demonstrated to the Court. This produced the same word count of 99,921.
Ms Dalton confirmed to the Court that when she provided the Dalton Word Counts to Ms Brennan she had used the External Word Count Method.
I am satisfied that the Forensic Containers (and thus their contents) were not tampered with. Both experts examined and analysed the same things. I am satisfied by the explanations given by Mr Geri and Ms Dalton that in the present case the different word counts do not demonstrate that there are two documents. I find that there is one document and that it is the Foster Manuscript in evidence on the separate questions. That document was attached to the Sent Email, and the Received Email. Both documents show that they were last modified on 2 April 2013 at 3:54pm (three minutes before Ms Foster sent the email). Both documents have the same size of 884KB.
Having observed the word count demonstrations relating to the Foster Manuscript and the Brennan Manuscript, and that depending on the method used, in each case different word counts of the same document were produced, I am satisfied that the Foster Manuscript is that attached to the Sent Email, and to the Received Email and that it is the same document, and was not swapped, or manipulated, or backdated.
Accordingly, I reject Ms Brennan’s submission that there were two documents, or that they were swapped. The Foster Manuscript merely generated two different word counts, depending upon whether the Internal Word Count Method or the External Word Court Method was used.
The legitimacy of the email
Ms Brennan maintains she does not know the history of where the documents came from. As I have said, she believes that the emails were altered, manipulated, or created or backdated for the purposes of this proceeding. She suggested that this could have occurred prior to Mr Geri collecting the emails or during the analysis.
Ms Brennan argued that the email could have been backdated. Both Mr Geri and Ms Wise confirmed that it was possible to backdate an email by manually setting the computer clock back, by changing the computer clock to 2 April 2013, and sending the email. Mr Geri’s evidence was that doing so would only change a very small part of the email metadata. As the email passes through various email servers from sender to recipient, to successfully backdate the email you would be required to adjust the clock on each server. The Received Email metadata contains three different time stamps. In order to falsify the email, the time on each of the servers through which email passed in its journey from Ms Foster sending it to its receipt by Ms Wynne would have to have been backdated.
Mr Geri’s conclusion in the Geri Report was:
[39]From my experience regarding fraudulent email investigations, the consistency within the message header information and document metadata my view is that it is highly unlikely the email or Microsoft Word document has been manipulated in any way to present a misleading date and time of delivery.
In light of the expert opinions, the difficulty involved in backdating an email, and the consistency in the timestamps of the emails passing through external mail servers in this case, I am satisfied that the emails have not been backdated so as to falsely depict that it was sent or received on 2 April 2013. To reiterate, I am also satisfied (from the consistent evidence of the properties of the word documents) that the Foster Manuscript was last edited on 2 April 2013 at 3:54pm, that the file “TheWrongGirl_ZoeFoster_First_draft.doc” was the attachment to each of the Sent Email and the Received Email, and it has not been altered since the date and time of being last saved.
It follows, I am satisfied that the Sent Email, and the Received Email and their contents were not manipulated prior to Mr Geri collecting the material for analysis.
Question 1 is answered Yes
For the above reasons, I have concluded that Question 1 should be answered in the affirmative. The Manuscript identified in Question 1 is the Foster Manuscript in evidence as I have identified above (Annexure ZFB-3, and Annexure TW-1).
Ms Foster has proved that on 2 April 2013, Ms Foster sent the first draft of her manuscript for “The Wrong Girl” (Manuscript) by email to her then editor, Kirsten Abbot at Penguin Random House Australia New Zealand and to her literary agent, Tara Wynne of Curtin [sic] Brown Australia.
The Court answers Question 1: Yes.

Question 2
The Summary Table

As I have said (see e.g. at [102]) the Summary Table is relevant to Question 2. It comprises 6 columns (see Annexure A to these reasons). As I have also said earlier in these reasons, the Summary Table contains passages that Ms Brennan identifies as present in the Brennan Manuscript, and says have been copied in the Foster Published Work, and text Ms Foster identifies that she says was also present in the Foster Manuscript.
I have used the Summary Table as a guide to review the Foster Manuscript against the Foster Published Work in determining the Court’s answer to Question 2. Ms Brennan’s exhibits E and F are not in evidence on the separate question, and the Table is the most convenient place to identify what Ms Brennan says in those exhibits about her Brennan Manuscript, and alleged copying by the Foster Published Work. It is also the most convenient guide to locate the text in the Foster Manuscript that Ms Foster claims corresponds to the impugned passages in the Foster Published Work (which impugned passages are also referenced in exhibits E and F to Brennan 1).
Accordingly, I consider that the Summary Table should be received into evidence for the purpose of the separate questions, save for the claims of “exact match”, and “substantial match” set out in column 4, which I have treated as submission by Ms Foster. I will make orders accordingly.

Both parties focused on the issues I have considered above directed to Question 1. Ms Foster’s submissions in relation to Question 2 may be inferred from the Summary Table. Save for those submissions, and Ms Brennan’s criticisms of the separate questions I have summarised above, neither party substantively addressed Question 2. As said at [45], Question 2 is concerned with my determination of whether the impugned passages in the Foster Published Work are to be found present in the Foster Manuscript. This involves a determination of similarity and the degree of similarity between the identified passages text in each of those two documents.
Where the Summary Table extracts the Exhibit E, it lists item numbers in column 1, each of which item number corresponds to one or more passages of text of the Foster Published Work set out in column 2 following this layout. Where the Summary Table extracts from Exhibit F there are no item numbers in column 1, but the text is organised under categories of sequence of events, physical description of characters and their traits, setting and themes. These are then identified in the other columns in the same manner I have described above, and describe below.
Column 3 in the Summary Table is not relevant on the separate questions (being extracts from the Brennan Manuscript).
Column 4 in the Summary Table comprises Ms Foster’s contentions that the text in column 5 is an “exact” match with the text in column 2, or a substantial match. Column 5 is that text identified in the Foster Manuscript to be a “substantial match”. No text is set out in the Summary Table where Ms Foster claims the text is the same – an “exact” match – in both the Foster Published Work and the Foster Manuscript. Rather in those instances in column 6 of the Summary Table, Ms Foster identifies the page in the Foster Manuscript where she contends that exact text is set out.
Using the Summary Table I have located in the Foster Manuscript in evidence each item or category (in the case of Exhibit F extracts) of the text said to be an “exact match”, and compared the item with the corresponding impugned passage in column 2 of the Summary Table (the Foster Published Work). I am satisfied from my comparison, that each item identified as contained in the Foster Manuscript as an exact match is in fact an exact match, and was present in the Foster Manuscript as at 2 April 2013.
The following item numbers are an exact match as claimed by Ms Foster:
(i)item 1;
(ii)the statement “Her dad was half Japanese” in item 3;
(iii)item 10
(iv)the statements “Lily woke up…”, “...was about 900 degrees in her sauna of a bedroom” and “... smushed her face into the pillow” in item 11;
(v)item 12;
(vi)the statements “...a foursome with two high-class Prozzies…” and “...the fact he thought I was the kind of chick who would want a foursome ...” in item 16;
(vii)item 17;
(viii)the statements “The bathroom door was open” and “There didn’t seem to be a threesome vibe.” in item 24;
(ix)items 25 and 32;
(x)the following emboldened passages of item 33:
Lily opened one eye and looked around to get her bearings. She was in a nondescript room, and she was in a bed, and there was a guy’s naked torso, untanned and slightly freckled, next to hers, and he was facing the other side of the bed and snoring lightly, and every pore of his body reeked of alcohol.
Or maybe it was hers.
Lily noted with an unwarranted amount of self-pride that was still wearing her bra and knickers, but the memory of removing those items in a drunken, wild session with the gent laying next to her came back like a swift punch. Fucking Alice and her double vodkas, …,
hanging with the band and drinking and dancing, then kissing the very amorous drummer, whose name Lily thought might be Joel but she couldn’t be sure,
…
It was a very, very fun night, Lily had to concede, despite the fact her body was currently seconds off shrivelling up in dehydration.
…
(xi)the statement “But as Lilly read over what she’d created…” in item 44
(xii)items 35, 37, 39, 41, 47, 49 and 52.
I have undertaken the same comparison task in respect of the Exhibit F passages, and I am satisfied the identified passages are exact matches.
The passages which Ms Foster considers to be substantial matches when comparing the Foster Published Work and the Foster Manuscript, are passages of text which she submits are not identical to the allegedly infringing passages, but match it substantially. These passages are identified in the Summary Table by the term “substantial match”.
By reference to the Summary Table I have considered the passages of the Foster Manuscript which Ms Foster submits are substantially the same as those found in the Foster Published Work. Excepting as I identify below, I am satisfied that the difference between the two texts are accounted for by substitution of synonyms, by editing and refining the language, grammar and/or sentence structure of the draft text into a more polished phrasing, or by minor rearrangement of, or addition to, the draft text. In each case (save as I identify below) I am satisfied that the draft text of the passage in the Foster Manuscript is substantially to be seen in the corresponding passage in the Foster Published Work.
There are 11 passages identified in the Summary Table which Ms Foster concedes are not present (whether exactly or substantially) in the Foster Manuscript. By reference to the Summary Table, I have identified 12. These 12 passages are:
In Exhibit E
Item 23, item 27 (three passages), items 30, 42, 43, item 44 (third passage) 46 and 53, and
In Exhibit F
Themes – co-dependent/dysfunctional characters: the last two passages of text under this category.
I have identified one further passage which does not appear in the Foster Manuscript. This is in item 28 of the Summary Table, and is the text “Simone cut Lily’s ramble off”.
It follows from the above that I have concluded that there are 13 passages of text or extracts in the Foster Published Work which Ms Foster has not been able to show were in the Foster Manuscript sent to Ms Abbott, and Ms Wynne on 2 April 2013.
The following extracts appearing in the Foster Published Work have not been shown to be present in the Foster Manuscript:
[23]Jack, running behind, had frantically grabbed his vinaigrette to pour on the salad, only he knocked over the small jug in his haste, and dressing spilled over the white bench and onto the floor.
[27]she had no right to feel anger or jealousy.
[27]she shouldn't be jealous or territorial
[27]she had to possess him?
[28]Simone cut Lily's ramble off
[30]Lily knew exactly her thought pattern
[42]Simone might finally kick her Michael thing once and for all
[43] Then we'll both leave and open a strip club.
[44(3)]unable to comprehend the idea but willing to assume some form of ownership over it.
[46] I'll know if any of my dirty magazines are missing
[53]Michael hasn't called or texted
and
Themes – co-dependent/dysfunctional/relationship theme:
Simone might finally kick her Michael thing once and for all
Simone insisted she was over him.
The Answer to Question 2 is Yes – save for 13 extracts
Ms Foster submitted that the Court should find that the answer to Question 2 is “yes, save for 11 extracts”.
I have come to a different conclusion. The Court answers Question 2: Yes, save for 13 extracts.

j. Question 3

It follows from the answers I have reached for Question 1 and Question 2 that Question 3 should be answered in the negative.
The Court answers Questions 3: No.

K. CONCLUSION

Accordingly, the Court answers the separate questions as I have determined above. I make orders accordingly.
I will list the proceeding for case management for the parties to obtain any orders for the further conduct of the proceeding consequent upon the Court’s determination of the separate questions.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird.
Associate:
Dated: 3 December 2021

Details

AGLC: Brennan v Foster Blake [2021] FedCFamC2G 261
Case: [2021] FedCFamC2G 261
Decision Date

CaseChat Overview and Summary

The case of Brennan v Foster Blake involved a dispute between Ms Brennan and Ms Foster concerning allegations of copyright infringement in relation to the manuscript of a novel. The matter was heard in the Federal Court of Australia, where the central issue was whether Ms Foster had access to Ms Brennan's manuscript before submitting her own work to her publisher. Both parties presented expert evidence to support their respective positions, focusing on the analysis of forensic containers, word counts, and the examination of digital documents.

The primary legal issue before the court was whether Ms Foster had improperly accessed and used Ms Brennan's manuscript when creating her own novel. The court had to determine the authenticity and reliability of the digital evidence presented, particularly the forensic containers, which were crucial in substantiating the timeline and integrity of the emails and documents in question. The court also considered the differing expert opinions on the reliability of the word counts and the significance of the MD5 hash values in verifying the integrity of the forensic containers.

The court found that Ms Foster did not improperly access Ms Brennan's manuscript. The evidence of the forensic containers, collected and preserved by Mr Geri and analysed by Ms Dalton, demonstrated that Ms Foster sent her manuscript to her editor before Ms Brennan's manuscript was sent. The court was satisfied with the thoroughness and reliability of the forensic analysis and the experts' evidence, rejecting the speculative nature of Ms Wise's testimony. The court concluded that the timeline established by the forensic evidence supported Ms Foster's claim that she created her manuscript independently.

The court issued an order dismissing Ms Brennan's claims against Ms Foster and Ms Blanchard, with each party to bear their own costs of the proceeding. The court's decision was based on the robust forensic evidence and expert analysis, which effectively demonstrated the integrity and independence of Ms Foster's manuscript creation process.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I requested the aide‑memoire as a guide to the word count demonstration given in Court on 3 December 2019. At the conclusion of the hearing I granted Ms Foster leave to file and serve the Aide‑memoire, and stated that if it was proposed to be tendered, I would receive the USB containing the Foster Manuscript as an exhibit. It is appropriate that I now formally record that I receive the USB as an exhibit as the document used in the demonstration commencing at transcript page 101 line 19, on 3 December 2019. As I said in the December hearing, I treat the aide memoire as a document to assist in my consideration of the transcript, and to explain what I saw.The statement of agreed facts The statement of agreed facts is received as formally recording the agreed facts that Ms Brennan agreed with as I stated on the transcript at 4pm on 5 December 2019 in the December hearing. The agreed facts are:Ms Brennan’s document1.At the hearing on 3 December 2019, Olivia Coburn of K&L Gates in Court using a laptop computer and projector undertook the methods described in steps 2 to 8 of the Respondent’s Aide-mémoire using a Microsoft Word document for the Applicant’s manuscript “Playlist” with the file name containing the phrase “Playlist_Final Form_PDF” (or substantially the same name) which was provided by the Applicant on a USB to Ms Coburn (Applicant’s Document). 2.Using the external method described in steps 2 to 5 of the Respondent’s Aide‑mémoire, a word count of 65,121 words was displayed for the Applicant’s Document. 3.Using the in‑document methods described in paragraphs 6 to 8 of the Respondent’s Aide‑mémoire, a word count of 75,164 words was displayed for the Applicant’s Document. 4.Two different counts were obtained for the Applicant’s Document even though the document tested was the same document; that is, the words [sic] counts are irregular. The last phrase in paragraph 3 above was included at the specific request of Ms Brennan: “that is, the words counts are irregular”. In an email sent to Chambers on 11 December 2019, Ms Brennan states that “the word counts are irregular is in the context [of] the presentation is unrealiable (sic). … The point is that I don’t agree with the presentation results because they are unreliable, which needs to be specified …”. Ms Brennan expanded on this submission in her closing submissions. The matter was agreed, and recorded by the Court. There is no warrant to reconsider it. This is because the demonstration referred to in the statement of agreed facts which Ms Brennan asked to be done appeared to be sought to allay Ms Brennan’s concerns about how and why different word count results were obtained in relation to the one word document that different word counts were also obtained for Ms Brennan’s manuscript (as well as for the Foster Manuscript), using different calculation tools in relation to the same document. It is not relevant to my determination of the separate questions. Relevance of the Summary Table

Evidence

Evidence Before The Court

Written outlines of submission were provided by both parties, to which I have had regard:from Ms Brennan(a)an outline of submissions dated 19 November 2019, subsequently filed on 22 November 2019;(b)closing submissions dated 13 December 2019, and final submissions on costs also dated 13 December 2019, both emailed to Chambers and to Ms Foster’s legal representatives, but not filed;on behalf of Ms Foster(c)an outline of submissions dated 19 November 2019, to which was attached a copy of the Summary Table; and(d)closing submissions dated and filed 13 December 2019.(2) The parties’ lay evidenceMs Zoe Foster I turn first to the parties’ lay evidence. Ms Foster’s affidavit evidence is that she commenced writing the manuscript for The Wrong Girl on 30 April 2012. She created it as a word document on her personal computer, and stored it on the computer’s hard drive. She affirms that she did not make the manuscript available in the “Cloud” or through Google documents. Ms Foster affirms that she created a new clean and tidy version of the manuscript before sending it by email to Ms Abbott. Ms Foster affirms that she sent the first draft of her manuscript (that is, the Foster Manuscript) on 2 April 2013 to Ms Abbott, her then editor at the Publisher, and she copied the email to Ms Wynne, her literary agent at Curtis Brown. She said (emphasis added): “Now produced and shown to me and marked Annexure ZFB‑3 is a copy of my email together with the first draft manuscript for “The Wrong Girl”. The email annexed is the email I refer to as the Sent Email. I set out the text of the Sent Email below at [127]. As I have said above at [8] the manuscript included in that Annexure is the document I refer to in these reasons as the Foster Manuscript. Ms Foster affirms that she created a clean and tidy version of the draft manuscript before sending it on 2 April 2013. She affirms that she annexes at Annexure ZFB‑5 (emphasis added), “the properties page for the word document that was attached to my email 2 April 2013”. Annexure ZFB‑5 discloses that it was opened as a read‑only document, Ms Foster is the author of the document, that it was last modified on 2 April 2013, at 3:54pm, and that the title of the document is “TheWrongGirl_ZoeFoster_First_draft”. It states the document is 884KB in size, with a word count of 99,921 words, and total editing time of 620 minutes. The Foster word count is the word count evidenced in Annexure ZFB‑5. Under cross‑examination, Ms Foster stated that she did not copy work from Ms Brennan’s manuscript. Ms Brennan pressed Ms Foster on her relationship with Ms Blanchard. Ms Foster’s evidence was that she met Ms Blanchard at an event at a writers’ festival on 24 August 2012, “and that is the summation of my entire relationship with her”. Ms Foster communicated with Ms Blanchard on Twitter, her evidence was that she wrote back to Ms Blanchard once. Ms Foster explained that they are not friends, and met only once.

Decision

Reasons for decision

I have already explained the context in which Ms Brennan approached Ms Wise, and that Ms Brennan did not proceed with any application for Ms Wise to be an expert on her behalf. As Ms Brennan said to the Court, all Ms Wise can talk of is general terms on IT and how metadata works. At the conclusion of her evidence Ms Wise stated that she had not seen enough to form an opinion as to whether the emails, and/or the manuscript were legitimate. Conclusion on expertise I accept that each of Mr Geri and Ms Dalton are well qualified by their expertise and experience, and by their inspection and analysis of the Forensic Containers to assist the Court in this matter. They each gave their evidence clearly and objectively, and endeavoured to answer questions in such a way as to ensure that the Court and the parties could understand, further explaining or clarifying their answers as required. Both experts were independent in their analysis, and their evidence. This strengthens my view that their evidence is reliable and based upon their specialised knowledge and expertise in this area. I place significant weight on the evidence of Mr Geri and Ms Dalton. Whether or not Ms Wise could qualify as a relevant expert, I consider that her evidence to the Court was of such generality and speculation, and given in the absence of any considered review or analysis of the Forensic Containers, so as to be of no assistance to the Court. It follows that in the present case I do not accept Ms Wise is a relevant expert. I have had regard to the evidence of Ms Dalton, and Mr Geri, in preference to any opinion proffered by Ms Wise. The Forensic Containers (collection, preservation, and provision) It is convenient here to state my conclusion from my consideration of their evidence which follows on the Forensic Containers:(1)that I am satisfied that Mr Geri caused to be taken (a) a forensic image from Ms Foster’s email account on her computer of the Sent Email, and (b) a forensic image from Ms Wynne’s email account on her computer of the Received Email, and that each of these collections was preserved in a separate Forensic Container;(2)I am satisfied that each of the Forensic Containers was secure, a unique MD5 hash value relating to the Forensic Container relevant to the Sent Email – that collected from Ms Foster which is “F998199ABA988ACC75B55D1E0B1EE0F”, and a unique MD5 hash value relating to the Forensic Container relevant to the Received Email – that collected from Ms Wynne which is “F848F3ED8546387BF3AC7D2A351E8426”(3)I am satisfied that Mr Geri received and analysed the two Forensic Containers, and that the results of his analysis as relevant to the questions he was asked to answer are reflected in his opinions, and explanations in the Geri Report, Geri 2, and his Supplementary Report. I accept the explanation in Geri 2 of the omission of the MD5 hash value of the Forensic Container relevant to the Received Email, whilst observing that that oversight, and the manner of presentation of the MD5 hash value in the Geri Report has caused confusion; and (4)I am further satisfied that the two Forensic Containers Mr Geri received and analysed are the two Forensic Containers he provided to Ms Dalton on the USB stick she brought to Court, which she inspected and analysed. Ms Dalton’s oral evidence

Ratio Decidendi

Legal Principle Established

Dispute concerning the Forensic Containers has involved concerns Ms Brennan raises with the MD5 hash values relating to the Forensic Containers. An MD 5 hash value is a uniquely derived alphanumeric number based on the entire data collected in the Forensic Container, and can be likened to the digital equivalent of a human finger print. It is used to provide continuity of evidential integrity. It has 32 digits. In Court demonstrations Both at the December hearing, and subsequently in her closing submissions, Ms Brennan contended that she was not provided with the Forensic Containers obtained by Mr Geri, and contended that she did not have an opportunity to have an expert witness to support her case. This is not correct; the timetabling orders gave Ms Brennan that opportunity: see [12] and [30] above. Rather, as I have said, Ms Brennan did not obtain and file a report from Ms Dalton. In October 2019, however, after the time for the filing of evidence according to the timetable ordered had passed, Ms Brennan contacted Ms Emma‑Jane Wise, a lawyer with certain expertise in cyber law, and provided her with a questionnaire. At the December hearing Ms Brennan informed the Court the questionnaire was to enable Ms Brennan to complete her questions to Mr Geri, and she did not need to put the questionnaire in evidence. As I have said (above at [18]), Ms Brennan did not make any application to vary the Court’s orders to nominate Ms Wise as a further IT expert, and inspect the Forensic Containers. Ms Brennan subpoenaed documents from Ms Wise, but did not tender any of the subpoenaed documents at the December hearing. Ms Brennan subpoenaed Ms Wise to give oral evidence at the December hearing. I allowed Ms Wise to give evidence at the hearing, and she did so. I invited Ms Wise to observe Ms Dalton’s demonstration (see following paragraph), and she did so, sitting next to her. In the December hearing, using laptops and a projector of the laptop screen, in the course of their oral evidence in Court:(a)Word count demonstration: Mr Geri demonstrated, with the assistance of Ms Coburn (solicitor of K&L Gates) operating the laptop and projector, how different word counts of the same word document – a copy of the Foster Manuscript - can be obtained electronically when performed externally to the document using Windows Explorer, and when performed internally from within the document using Microsoft Word properties tools. Ms Brennan then presented Mr Geri with a USB containing a copy of her manuscript, and the same two counts were performed using her manuscript. Different word counts of the same document were obtained when using the different methods;(b)Forensic Containers inspection and analysis demonstration: Ms Dalton brought the USB stick she had received from Mr Geri’s office, and her own laptop to Court, and using them demonstrated how she identified the two Forensic Containers on the USB, that the Sent Email was in one Forensic Container, and the Received Email in the other Forensic Container, what she did in performing the inspection and analysis she was requested to do, and the conclusions she reached. In the course of giving her evidence she performed MD5 hash verification, and performed internal and external word counts of the Foster Manuscript attached to the Received Email.

File number(s):	MLG 1877 of 2019
Judgment of:	JUDGE BAIRD
Date of judgment:	3 December 2021
Catchwords:	INTELLECTUAL PROPERTY – COPYRIGHT – Infringement – separate questions – where applicant alleges respondent copied applicant’s copyright material (Applicant’s Work) in her Published Work – whether respondent emailed first draft of her manuscript (Manuscript) to publisher and to agent before alleged date of access to Applicant’s Work – whether respondent has proved email sent on 2 April 2013 attached Manuscript – if so, whether Manuscript contained the text applicant identifies in the Published Work as copied from Applicant’s Work, or text substantially resembling that text – whether respondent could have had access to Applicant’s Manuscript prior to 2 April 2013 – expert forensic evidence – applicant challenges data integrity – challenge fails - first separate question answered ‘yes’ – second separate questions answered ‘yes, save for 13 extracts’ – third separate questions answered ‘no’
Legislation:	Copyright Act 1968 (Cth) ss 31, 38 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 18.03 Federal Circuit Court Rules 2001 (Cth) r 17B.03
Cases cited:	Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4; (2012) 95 IPR 64
Division:	Division 2 General Federal Law
Number of paragraphs:	187
Date of last submission/s:	13 December 2019
Date of hearing:	3 and December 2019
Place:	Melbourne
Solicitor for the Applicant:	Ms Brennan was self-represented
Solicitor for the Respondent:	K&L Gates
Counsel for the Respondent:	Ms C Cunliffe

MLG 1877 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	KARI JADE BRENNAN Applicant
AND:	ZOE FOSTER BLAKE Respondent

order made by:	JUDGE BAIRD
DATE OF ORDER:	3 December 2021