Coles v Dormer - [2015] QSC 224

SUPREME COURT OF QUEENSLAND

CITATION:

Coles v Dormer & Ors [2015] QSC 224

PARTIES:

STEPHEN VINCENT COLES
(Plaintiff)

v
JAMES DORMER
(First Defendant)
and
MICHAEL CLARK
(Second Defendant)
and
JOHN ARTHUR BREDEN and
EDITH MARY KATHRYN BREDEN
(Third Defendants)

FILE NO/S:

SC 177 of 2014

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

4 August 2015

DELIVERED AT:

Cairns

HEARING DATE:

20, 21, 22 April 2015

JUDGE:

Henry J

ORDERS:

1. Judgment for the plaintiff.

2. The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas:

Feature: Dormer roofs(a)

Action: Remove the dormer roofs.

Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.(b)

Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering.

Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.(c)

Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim.

3. I will hear the parties at 10 am on 28 August 2015 as to:

any appropriate variations or additions to order 2;(a)

the plaintiff’s election as to damages or an account;(b)

directions to advance the final determination of damages or the taking of an account, as the case may be, and costs.(c)

CATCHWORDS:

INTELLECTUAL PROPERTY – COPYRIGHT - REMEDIES FOR INFRINGEMENT – where the plaintiff seeks an injunction and damages pursuant to s 115 and 116 of the Copyright Act 1968 (Cth) for breach of copyright - what remedies should be awarded if breach of copyright is established

INTELLECTUAL PROPERTY – COPYRIGHT – ORIGINAL WORK IN WHICH COPYRIGHT SUBSISTS – GENERALLY – whether the original house plans were an artistic work as defined in the Copyright Act 1968 (Cth) – whether copyright subsists in the original plans of the plaintiff’s house

INTELLECTUAL PROPERTY – COPYRIGHT – ASSIGNMENTS, LICENCES AND ROYALTIES –ASSIGNMENT – GENERALLY – whether the original author owned the copyright in the house plans – whether the assignment of the plans to the plaintiff by the original author was effective

INTELLECTUAL PROPERTY – COPYRIGHT – INFRINGEMENT – ARTISTIC WORKS – whether the plans for the plaintiff’s house had been converted by the first and second defendants to plans for the third defendants’ house – whether the third defendants’ house plans were a reproduction or substantial reproduction of the plaintiff’s house plans – whether the construction of the third defendants’ house was a reproduction or substantial reproduction of the plaintiff’s house –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coles v Dormer

Details

AGLC: Coles v Dormer [2015] QSC 224
Case: [2015] QSC 224
Decision Date: 4 August 2015

CaseChat Overview and Summary

In the matter of Coles v Dormer, the plaintiff sought relief for alleged copyright infringement in relation to house plans. The plaintiff claimed that the defendants had built a house that infringed on the copyright of the original plans for the plaintiff’s house. The defendants denied the allegations and counterclaimed for a declaration that the copyright did not subsist in the original plans and that, if it did, the assignment of the copyright to the plaintiff was ineffective.

The primary legal issues before the court were whether the original house plans were an artistic work, whether copyright subsisted in those plans, and whether the assignment of the copyright to the plaintiff was valid. The court found that the original plans were an artistic work as they were an expression of creativity in a graphical form, and copyright subsisted in those plans. The court also held that the assignment of the copyright to the plaintiff was effective as the original author had the capacity to assign the copyright, and the assignment was in writing.

The court awarded judgment in favour of the plaintiff and ordered the defendants to take specific actions to remove the infringing features of their house. The court also scheduled a further hearing to determine the appropriate remedy for the infringement, whether the plaintiff would elect for damages or an account of profits, and to provide directions for the final determination of damages or the taking of an account.

Orders

Orders of the court

1. Judgment for the plaintiff.

2. The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas:

Feature: Dormer roofs(a)

Action: Remove the dormer roofs.

Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.(b)

Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering.

Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.(c)

Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim.

3. I will hear the parties at 10 am on 28 August 2015 as to:

any appropriate variations or additions to order 2;(a)

the plaintiff’s election as to damages or an account;(b)

directions to advance the final determination of damages or the taking of an account, as the case may be, and costs.(c)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Coles v Dormer & Ors [2015] QSC 224
PARTIES:	STEPHEN VINCENT COLES (Plaintiff) v JAMES DORMER (First Defendant) and MICHAEL CLARK (Second Defendant) and JOHN ARTHUR BREDEN and EDITH MARY KATHRYN BREDEN (Third Defendants)
FILE NO/S:	SC 177 of 2014
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	4 August 2015
DELIVERED AT:	Cairns
HEARING DATE:	20, 21, 22 April 2015
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff. 2. The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas: Feature: Dormer roofs(a) Action: Remove the dormer roofs. Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.(b) Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering. Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.(c) Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim. 3. I will hear the parties at 10 am on 28 August 2015 as to: any appropriate variations or additions to order 2;(a) the plaintiff’s election as to damages or an account;(b) directions to advance the final determination of damages or the taking of an account, as the case may be, and costs.(c)
CATCHWORDS:	INTELLECTUAL PROPERTY – COPYRIGHT - REMEDIES FOR INFRINGEMENT – where the plaintiff seeks an injunction and damages pursuant to s 115 and 116 of the Copyright Act 1968 (Cth) for breach of copyright - what remedies should be awarded if breach of copyright is established INTELLECTUAL PROPERTY – COPYRIGHT – ORIGINAL WORK IN WHICH COPYRIGHT SUBSISTS – GENERALLY – whether the original house plans were an artistic work as defined in the Copyright Act 1968 (Cth) – whether copyright subsists in the original plans of the plaintiff’s house INTELLECTUAL PROPERTY – COPYRIGHT – ASSIGNMENTS, LICENCES AND ROYALTIES –ASSIGNMENT – GENERALLY – whether the original author owned the copyright in the house plans – whether the assignment of the plans to the plaintiff by the original author was effective
INTELLECTUAL PROPERTY – COPYRIGHT – INFRINGEMENT – ARTISTIC WORKS – whether the plans for the plaintiff’s house had been converted by the first and second defendants to plans for the third defendants’ house – whether the third defendants’ house plans were a reproduction or substantial reproduction of the plaintiff’s house plans – whether the construction of the third defendants’ house was a reproduction or substantial reproduction of the plaintiff’s house –…