Collier Constructions Pty Ltd v Foskett Pty Ltd - [1991] FCA 130

Re: COLLIER CONSTRUCTIONS PTY LTD
And: FOSKETT PTY LTD
No. WA G123 of 1990
FED No. 130
Copyright
(1991) AIPC 90-803
20 IPR 666

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lochart(1), French(1) and Hill(1) JJ.

CATCHWORDS

Copyright - Infringement - Whether substantial part taken - Plans for project houses.

Copyright Act 1968

HEARING

PERTH

#DATE 5:4:1991

Counsel for the Appellant: Mr A.C. Archibald Q.C. and Mr R.J.L. McCormack

Solicitors for the Appellant: Parker and Parker

Counsel for the Respondent: Mr M.L. Bennett

Solicitors for the Respondent: Bennett and Co.

ORDER

The appeal be dismissed.

The appellant pay the costs of the respondent of the appeal.

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

JUDGE1

This appeal from the judgment of a single Judge of the Court (Gummow J.) concerns copyright in plans for project houses. At the trial the issues were in a larger compass than on the appeal, relating to questions of contravention of s.52 of the Trade Practices Act 1974 and breach of contract, in addition to infringement of copyright in the plans.

The learned trial Judge found that the respondent, Foskett Pty Limited, had contravened s. 52 of the Trade Practices Act in causing the publication of certain advertisements and that it had broken its contract with the appellant, Collier Constructions Pty Ltd; but his Honour found that the respondent had not infringed the appellant's copyright in the plans. The appeal to this Full Court was confined to the copyright issue.
The relevant facts are stated fully by Gummow J. in his reasons for judgment and it is only the essential facts relating to the copyright issue that need to be mentioned.
The appellant carries on the business of building project houses in Western Australia under the business name "Collier Homes". Collier Homes markets a range of project houses including two houses known as the "Price Fighter 201" and its "Price Fighter 210". The respondent also builds project houses, carries on business as "Champion Homes" and is a competitor of the appellant. The copyright dispute concerns the use made by the respondent of the appellant's plans for the Price Fighter 201 and the Price Fighter 210 in the advertising for the respondent's "Venus" and "Thor" houses respectively. It was conceded by the respondent at the trial that copyright subsisted in the floor plans and electrical plans for the "Price Fighter 201 and 210 houses" and that the title to the copyright was vested in the appellant. The copyright dispute was confined at the trial and on appeal to the question of infringement.
The case arose out of the publication on 4 August 1990 in the "New Homes Liftout" section of "The West Australian" newspaper, of an advertisement placed by the respondent ("the first advertisement") which compares the Price Fighter 201 and the "Venus" in price and size.
On 11 August 1990 the respondent caused to be published in the "New Homes…

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.

Keep reading for free

Create a free CaseChat account to read Collier Constructions Pty Ltd v Foskett Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1991] FCA 130
Decision Date: 05 APRIL 1991

CaseChat Overview and Summary

The case of Collier Constructions Pty Ltd v Foskett Pty Ltd before the Federal Court of Australia involved a dispute over the alleged infringement of copyright in relation to plans for project houses. Collier Constructions, the appellant, asserted that Foskett Pty Ltd, the respondent, had infringed on its copyright by using plans for project houses that were substantially similar to those created by Collier Constructions. The core of the dispute centred around whether Foskett had indeed used a substantial part of Collier's copyrighted plans without permission, thereby constituting an infringement of copyright law.

The legal issues the court needed to address were primarily whether Foskett Pty Ltd had indeed taken a substantial part of the copyrighted plans created by Collier Constructions and whether such use constituted an infringement under the Copyright Act 1968 (Cth). The court was tasked with determining the extent of similarity between the two sets of plans, assessing whether the similarity was significant enough to be deemed a substantial part, and whether the use by Foskett amounted to infringement. The court also had to consider the qualitative aspects of the plans, such as their originality and the skill and labour invested in creating them, to ascertain the scope of protection afforded by copyright law.

In its reasoning, the Federal Court held that while there were similarities between the plans created by Collier Constructions and those used by Foskett Pty Ltd, these similarities did not amount to a substantial part of the copyrighted work. The court found that the plans, while containing some common elements, were not substantially similar in a way that would infringe on the copyright held by Collier Constructions. Consequently, the appeal by Collier Constructions was dismissed. The court's decision was based on a careful analysis of the specific elements of the plans and the degree of similarity, concluding that Foskett's use did not infringe on the copyright as claimed by Collier. The court further ruled that the appellant should bear the costs of the respondent for the appeal, as per Order 36 of the Federal Court Rules.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the costs of the respondent of the appeal.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.