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”

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…

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 Dunn v Green

Details

AGLC: Dunn v Green [2007] NSWSC 1369
Case: [2007] NSWSC 1369
Decision Date: 30 November 2007

CaseChat Overview and Summary

In Dunn v Green, the plaintiff sought to enforce an alleged oral agreement and a breach of confidence claim against the second defendant, who had published photographs of the plaintiff's baby. The case was heard in a relevant Australian court, where the plaintiff contended that the second defendant had violated an oral agreement by publishing the photographs and breached an obligation of confidence by using the baby's images without authorisation.

The primary legal issues in the case involved the existence of a formal contract based on the alleged oral agreement and whether the photographs constituted confidential information warranting protection under equitable principles of confidence. The court examined the evidence to determine if the parties had indeed entered into a binding agreement and if the photographs could be classified as confidential information, thereby attracting equitable protection.

The court found that the plaintiff's understanding of the agreement being binding did not establish the existence of a formal contract. The court held that the absence of a formal contract meant the plaintiff's contractual claim could not succeed. Additionally, the court ruled that the photographs did not qualify as confidential information, and therefore, the plaintiff's claim for breach of confidence also failed. Consequently, the court dismissed the plaintiff's claims in their entirety.

The court concluded with an order dismissing the plaintiff's claims and indicating that no party was to bear the costs of the proceedings. The decision emphasised the need for clear, formal agreements and the specific criteria required to classify information as confidential for the purposes of equitable protection.

Orders