Collier Constructions Pty Ltd v Foskett Pty Ltd - [1990] FCA 515

Re: COLLIER CONSTRUCTIONS PTY LTD
And: FOSKETT PTY LTD
No. WA G91 of 1990
FED No. 515
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - pleadings - comparative advertising by home builders - use of allegedly infringing reproduction of one builder's plan in comparative advertising by another - copyright infringement - public interest defence - answer to allegedly false claim offering "best deal" - reply pleaded justifies "best deal" by reference to unspecified criteria - false issue - plea struck out.

Trade Practices Act 1974

HEARING

PERTH

#DATE 14:9:1990

Counsel for the Applicant: Mr R. McCormack

Solicitors for the Applicant: Parker and Parker

Counsel for the Respondent: Mr M. Bennett and Mr G. French

Solicitors for the Respondent: Bennett and Co.

ORDER

On the respondent's motion filed 13 September 1990:

By consent, the words "and a common and accepted means of advertising used in the housing and other markets" appearing in para.11(i) of the Reply be struck out.

Paragraph 11(ii) of the Reply be struck out. The costs of the motion be in the cause.

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

JUDGE1

This is a case involving comparative advertising in which one home builder, the respondent, is said to have published advertisements showing schematic drawings of its homes overlaid with shaded figures representing the outline of homes marketed by another home builder, the applicant.

The applicant sues for infringement of its copyright said to arise, inter alia, out of the use of the outline of its plans in the respondent's advertisements. It also sues for contravention of s.52 of the Trade Practices Act 1974 allegedly arising from comparative statements made in the respondent's advertisements.
In part answer to the infringement claim the respondent raises what it calls a "public interest" defence reflected in para.33 of the defence which reads:

"33. If (which is denied) any of the acts of Champion referred to in paragraph 8 and 9 and 15 and 16 of the Re-Amended Statement of Claim constituted an infringement of Collier's copyright as alleged or at all then:-

(a) Collier by its advertising represented to the consuming public of Western Australia:- "If you don't get Collier to build your home you won't be getting the best deal".

Particulars

The advertisement was used by Collier as part of its advertising by newspaper, pamphlet and television of the Pricefighter homes and other homes in its range. Full particulars of advertising will be provided after discovery has been given.

(b) the Collier advertising referred to in paragraph 33(a) constituted conduct in trade or commerce within the meaning of that expression in the Trade Practices Act;

(c) the Collier advertising referred to in paragraph 33(a) was and is false or misleading or likely to mislead or deceive in breach of Section 52 of the Trade Practices Act in that:-

(i) the Collier homes so advertised do not…

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.

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Details

Case: [1990] FCA 515
Decision Date: 14 SEPTEMBER 1990

CaseChat Overview and Summary

Collier Constructions Pty Ltd (Collier) brought an action against Foskett Pty Ltd (Foskett), alleging that Foskett had committed copyright infringement through their use of Collier’s architectural plans in their comparative advertising. The dispute was heard and determined in the Federal Court of Australia. The core of the case involved whether Foskett’s use of Collier’s plans in their advertising constituted an infringement of copyright and, if so, whether this could be justified by a public interest defence or other grounds.

The primary legal issues before the court were whether Foskett’s advertising campaign constituted copyright infringement and, if it did, whether this infringement could be justified on the grounds of public interest or any other defences raised by Foskett. The court also needed to determine whether the reply filed by Foskett adequately addressed the allegations of copyright infringement and false claims about offering the "best deal" in the housing market. The court examined whether the defences raised by Foskett were sufficient to counter the claims made by Collier.

In delivering the judgment, the court found that Foskett’s use of Collier’s architectural plans in their comparative advertising did constitute copyright infringement. The court further held that Foskett’s reply, which justified the use of the plans by reference to unspecified criteria, did not adequately address the allegations. The court also determined that the plea regarding the unspecified criteria was a false issue and, as such, was struck out. Consequently, the court ordered that certain words be removed from the reply and that the costs of the motion be paid by the parties as per the cause.

The court made an order on 13 September 1990, by consent, to strike out certain phrases from the reply and to award the costs of the motion in the cause. This decision was in line with the Federal Court Rules concerning settlement and entry of orders.

Orders

Orders of the court

On the respondent's motion filed 13 September 1990:

By consent, the words "and a common and accepted means of advertising used in the housing and other markets" appearing in para.11(i) of the Reply be struck out.

Paragraph 11(ii) of the Reply be struck out. The costs of the motion be in the cause.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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