Dunn v Green

[2007] NSWSC 1369

CITATION:	Dunn v Green [2007] NSWSC 1369
HEARING DATE(S):	28 September 2007
JUDGMENT DATE :	30 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Proceedings against second defendant dismissed with costs.
CATCHWORDS:	CONTRACT [2]- General contractual principles- Matters not giving rise to formal contract- Plaintiff claims second defendant published photographs of her baby in contravention of alleged oral agreement- Fact plaintiff understood agreement to be binding not proof of formal contract between parties- Plaintiff's contract claim fails. INTELLECTUAL PROPERTY [1336]- Confidential information- Equitable obligations of confidence- Photographs held not to be confidential information- Plaintiff's breach of confidence claim fails.
LEGISLATION CITED:	Fair Trading Act 1987 Legal Profession Act 2004, s 347 Trade Practices Act 1974 (Cth)
PARTIES:	Beth Gurney Dunn (P) Maxine Green (D1) Limelight Press Pty Ltd (D2)
FILE NUMBER(S):	SC 3962/06
COUNSEL:	M Tibbey (P) No appearance (D2)
SOLICITORS:	Jane Gouldstone (P) No appearance (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 30 November 2007

3962/06 – DUNN v GREEN

JUDGMENT

1 HIS HONOUR: On 27 July 2006, the plaintiff filed a statement of claim against two people, but she has since discontinued as against the first defendant. Accordingly, the case has proceeded only against the second defendant, Limelight Press Pty Ltd.

2 The plaintiff says that she is the mother of a baby, Hannah Elizabeth. She says, in para 4:

“The plaintiff entered into a contract (hereafter ‘the contract’) on terms that Hannah could be photographed for a book to be published about baby massage”

on certain conditions.

3 The statement of claim never deigns to say with whom the contract was made. However, it pleads in para 5 that the contract was breached by “the first and/or second defendant”. Particulars were given that there were 37 photographs of Hannah in the book, only 5 had been shown to the plaintiff prior to publication, and none of these would identify the body as Hannah’s, 32 other photographs were never shown to the plaintiff, some of which showed Hannah’s head and shoulders, buttocks and part of her vulva. The plaintiff also sues for breach of confidence and breach of the Trade Practices Act 1974 (Cth) and Fair Trading Act 1987.

4 The second defendant filed a defence on 16 November 2006. As to the allegation of contract, it admitted that the plaintiff gave permission to it for her baby Hannah to be photographed and for those images to be used in the relevant book. However, it denied that there was any term that the plaintiff be shown copies of the photographs before their inclusion, or that she had a right of refusal in relation to any photograph, or that no photograph in the book would show the area usually covered by a baby’s nappy. The second defendant says that there was an actual agreement made in writing which it sent to the plaintiff and which she marked and returned and by her conduct implied her acceptance to it.

5 To this, the plaintiff says that whilst she marked the agreement, she did not sign it and returned the document to the second defendant. She says, “The plaintiff understood and was entitled to understand that the second defendant was bound by the terms of the agreement reached with the first defendant and would honour them.”

6 The matter came on for hearing before me on 28 September 2007. Ms M Tibbey appeared for the plaintiff; there was no appearance for the second defendant. The plaintiff produced evidence that her solicitor had been in contact with the lady who seems to control the second defendant, who had made it quite clear that she was not going to appear, that the second defendant was in the course of deregistration and it was merely a shell which was being abandoned. The plaintiff’s solicitors made enquiries of ASIC and found that the deregistration process had commenced and took some steps to delay that until these proceedings were finalised. However, the chance of anything being ever paid by the second defendant if the plaintiff is entitled to a verdict must be minimal.

7 At the end of the oral hearing I said to Ms Tibbey that I thought the plaintiff’s case was quite hopeless and that she had not even established any contract with the second defendant. Ms Tibbey was not content to accept what I said, and asked for further time to put in written submissions which she duly did. Despite those submissions I am still of the view that I formed at the end of the hearing.

8 Although para 4 of the statement of claim does not deign to say with whom the contract was made, particular 4(f) seems to suggest that it was made with the first defendant. The mere fact, if it be the fact, that the plaintiff understood or even was entitled to understand, that the second defendant was bound by the terms of that agreement does not make it a contract.

9 Secondly, even if it might otherwise be a contract, the plaintiff never gave any consideration. It may be that the baby had rights with respect to her photographs and it may be that the baby also may have been subject to legislation protecting children from exploitation. Neither of these matters were explored at the hearing. The plaintiff paid no money in respect of the taking of the photographs; the most she did was to take Hannah to a house in Ourimbah relatively close to where the plaintiff lived. At that stage, a Ms Bateman, of the second defendant, presented her and her children with several books as a thank you gesture, and the photographs were taken. This is hardly any detriment that was suffered in exchange for the promise of the publisher.

10 Thirdly there is great doubt as to whether the parties intended to enter into legal relations.

11 Finally, the photographic shoot took place on 23 November 2005. On 18 November 2005, the second defendant had sent the plaintiff a form which said, “I give my permission for my child to be photographed for the forthcoming book”. The covering letter asked the plaintiff to return this form, or alternatively, bring it with her to the photo shoot. The plaintiff marked and returned the document, but she never signed it.

12 The plaintiff acknowledges in the statement of claim that she marked the agreement and returned it to the second defendant by mail. It is hard to resist the inference that, without any adverse comments, the second defendant could have assumed that the plaintiff agreed with it and the plaintiff is estopped from contending otherwise.

13 I just cannot see any contract there at all.

14 The plaintiff also sues for breach of confidence. Ms Tibbey says:

“ … the circumstances in which the photographs of Hannah were taken were such that it was clear that there was a duty of trust and confidence to use the information (ie photographs and any other electronic images thereby produced) in accordance with the basis and conditions upon which they were obtained and given … “.

15 However, there could be no confidential information in the sense in which those words are used in the rules of equity. There was no trust, again, in the sense in which that word is used in the law of equity. It may be, on her evidence, that the plaintiff expected that the defendants would behave in a certain way, but that is not sufficient to give her any relief.

16 I take into account the fact that the only person to give evidence was the plaintiff and that the plaintiff gives a version of the relevant conversations which, whilst the second defendant denies them in pleadings, was not contested at the trial by way of contrary evidence. However, despite this, I cannot see how there is any cause of action under the Trade Practices Act or the Fair Trading Act. All there really is is a conversation between the plaintiff and the first defendant and the plaintiff saying, as Ms Tibbey puts it in para 14 of her submissions:

“ … the plaintiff was entitled to understand that the first and second defendants were working together on a common enterprise and that [the first defendant] was acting not only on her own account in obtaining the oral agreement from the plaintiff to allow her daughter to be photographed, but was also acting on behalf of the publisher … “.

Ms Tibbey also puts in para 16:

“The conduct of the second defendant that was misleading or deceptive or … was a representation by silence in the face of the plaintiff asserting the terms of the agreement in front of one of the directors of the second defendant, as set out in paragraph 18 of the plaintiff’s affidavit. The second defendant failed to advise the plaintiff that it did not intend to honour the agreement reached with the first defendant.”

17 Paragraph 18 of the plaintiff’s affidavit, however, merely says:

“While we were preparing Hannah for the shots I recall saying words to the effect of: ‘what will show in the photos? I don’t want her nappy area to be in the photos”

and either Ms Bateman (the second defendant’s representative) or the first defendant said words to the effect of:

“The shots will be photoshopped”.

18 This does not make out the case that the plaintiff wants to make. Accordingly, in my view the only order I can make is to dismiss the proceedings against the second defendant with costs. As the second defendant did not appear at the hearing, the costs will doubtless only be the costs of the paper work done earlier, though as the second defendant is about to be deregistered, this is probably academic.

19 I am concerned when a solicitor of, at that stage, 8 years’ standing signed a certificate under s 347 of the Legal Profession Act 2004, on the claims made in the statement of claim, but as the only hurt was to her own client, it is probably of no value to do anything about it.

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