Flinders v Lauren Joy Photography
[2011] QCAT 513
•28 October 2011
| CITATION: | Flinders v Lauren Joy Photography [2011] QCAT 513 |
| PARTIES: | Renee Flinders (Applicant) |
| v | |
| Lauren Joy Photography | |
| (Respondent) |
| APPLICATION NUMBER: | MCDO333-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Williams, Adjudicator |
| DELIVERED ON: | 28 October 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent, Lauren Joy Photography, within 21 days from the date of this Order to: (a) All edited colour images forming the Silver Wedding Package; and (b) All images previously requested by the applicant to be edited in ‘black and white’ with spot colour as a special effect; 2. Reimburse the applicant the sum of $19.60 for the cost of converting images to colour; and |
| CATCHWORDS: | Minor Civil Dispute – Consumer Trader – Application for refund of money, rectification of work, payment of filing fee – Where applicant claims respondent breached terms of contract for the provision of photographic services – Where applicant claims misleading and deceptive conduct |
APPEARANCES and REPRESENTATION:
APPLICANT: | Renee Flinders |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
Background
The applicant contracted the respondent to take photographs, as part of a package, during an engagement portrait session and then later at her wedding.
The applicant claims the respondent breached the terms of their contract and sought the following orders:
(a) “The respondent to provide colour copies of all images that were taken at our wedding and at our engagement portrait, in a timely manner. All photos should be of a high quality, high resolution and printable without pixilation. There is to be no visible smudges or watermarks on any of the images. [We do not care if the images are not edited, we just want all the photos in colour, estimated to be in excess of 1500 images – to date currently have approximately 350];
(b) The respondent to reimburse the amount of $19.60 paid by the applicant to have some photographs converted to colour (from black and white) for the DVD slideshow;
(c) The respondent to reimburse $400 paid for the $1,200 photography package for the wedding, as she failed to meet conditions of the contract. [For example, we did not receive what we order, she took longer than agreed to deliver the package); and
(d) The respondent to reimburse for filing fee.”
The matter was first listed for hearing on 28 June 2011. Prior to hearing, the respondent electronically filed with Registry a response and supporting evidence. Consequently the matter was adjourned so a copy could be provided to the Applicant. The parties were further ordered “to file a request in writing no less than five (5) business days prior to the date of the next hearing, if they wish to attend via telephone.”
On 1 August 2011 the matter was heard by the Tribunal in the absence of the respondent. Contrary to the Tribunal orders, no application was made to appear by telephone. At the conclusion of the hearing the Tribunal reserved its decision so it could consider the applicant’s oral and documentary evidence with that of the evidence and written submissions earlier filed by the respondent.
The standard of proof required to support a claim in the minor civil dispute jurisdiction is not as high as the standard ‘beyond a reasonable doubt’ required in criminal matters. Instead the ‘civil standard’ requires the applicant to provide on the ‘balance of probabilities’ the respondent contravened the Act.[1] The High Court case of Briginshaw v Briginshaw[2] is the leading case concerning the ‘civil standard of proof.’ In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be ‘reasonably satisfied’ or feel ‘comfortably satisfied’ it can reach ‘a correct and just conclusion’ for each complaint as alleged against the respondent.
[1] Fair Trading Act 1989 (Qld).
[2] (1938) 60 CLR 336.
Relevant Facts
The terms and conditions of the contractual arrangement are set out in a written agreement entered into by the parties[3]. The applicant booked the Silver Wedding Package with the specific details of the photography package listed on the respondent’s website to include:
[3]The applicant dated her signature for 23 August 2010 and the respondent dated her signature for 12 August 2010.
·“Engagement portrait session”
·“Bride or groom getting ready”
·“Ceremony”
·“Group & family shots”
·“1 hour of location”
·“1 hour of reception shots”
·“Online viewing gallery”
·“DVD slideshow”
·“High resolution CD of all images” [emphasis added]
·“2 [two] 8 x 12 prints of your choice”.
In her letter of demand emailed on 1 February 2011, Mrs Flinders alleges the respondent breached certain provisions under the Trade Practices Act 1974 (Cth). This legislation is not applicable in the present case, as there is no evidence before the Tribunal indicating the respondent is a ‘corporation’ as defined by the statute. Nonetheless, similar provisions exist in the Fair Trading Act 1989; which is a complimentary state-based legislation and applies broadly to ‘persons’.
Section 38 prohibits a person, in trade or commerce from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Hence in simple terms, misleading means conduct which has led the other party into error; with no element of fault. The applicant submits it is the vague language used by the respondent on her website to describe the features of the wedding package (as set out above at paragraph 6) which is inter alia misleading. In particular Mrs Flinders argues the respondent’s promise to provide a ‘high resolution CD of all images’ should be interpreted broadly, to include “every image taken at our wedding and at our engagement portrait.”
The respondent seeks a narrow interpretation of the term “all images”. As such Lauren Joy Photography maintains the applicant is only entitled to a ‘high resolution CD of all edited images’ and not the raw digital proofs.
A.Is the respondent required to provide the applicant with a copy of all images taken at the engagement portrait session and wedding?
The Tribunal looks to the terms of the written contract to determine where ownership of ‘all images’ (including digital proofs) lies. Clause 10 of the contract states “[c]opyright in all photographs is owned” by the photographer. Clause 3 in the second half of the contract provides “the negatives remain property of Lauren Joy Photography and will be kept on file a period of 2 years.”
Ownership of copyright in photographs is separate from the ownership of physical items, such as the prints or negatives. Therefore the Tribunal finds the respondent owns the copyright in the negatives and thus has the right to reproduce the image and remains the owner of the negatives; whereas the applicant is the purchaser of the print and commences ownership of such prints once “full payment has been made.”[4]
[4]Clause 11(a): All orders shall remain the property of Lauren Joy Photography until full payment has been made.
Evidence before the Tribunal shows the applicant paid the contract price in full and consequently received a number of photographic prints from the respondent, as well as a CD with some of the digital images taken at her wedding. To date, the applicant claims to have received approximately 350 images selected by the photographer respondent, to form part of the wedding package. Yet the applicant argues an entitlement to every digital image taken by the respondent – estimated by her to be in excess of 1,500 images – and not merely those edited or selected by Lauren Joy Photography.
However the crux of the respondent’s defence is that “under no circumstances are raw (unedited) images given to clients” because they may not be of an appropriate standard due to poor lighting, bad facial expressions including blinking and duplicate shots. The respondent referred the Tribunal to clause 3 in the second half of the contract (as earlier cited above at paragraph 10) as a term prohibiting release.
Clause 3 expressly refers to ‘negatives’. However the Tribunal notes the increasing use of digital cameras by photographers in recent years; therefore negatives or proofs of the image, as they were once known, may not be produced. Instead the convenience of a digital image allows the photographer to take multiple images of subject – testing various angels and lighting – and then select a preferred image, similarly to a negative. An example of this practice in the present case was when the applicant emailed the respondent on 25 January 2011 and asked “[i]s there another picture of me and my mum (sic), my facial expression looks funny?” Further on 25 January 2011 the respondent sought to explain to Mrs Flinders why a shot of her posing on a bridge did not eventuate in the applicant’s wedding package because “I decided not to go with that on the day as the lighting wasn’t perfect.”
However even if the Tribunal were to interpret the word ‘negative’ in clause 3 to include digital image, the contract for photography services is still ambiguous in part, because the respondent’s promise to provide a “high resolution CD of all images”[5] (emphasis added) is conflicting. This is discussed further at paragraph 18 of these reasons.
[5]As provided by the respondent’s description of the Silver Wedding Package features on her business website.
Consideration of possible terms implied in the contract
A term can be implied by a court if it is obvious, certain terms were intended by both parties[6], but through inadvertence or bad drafting, were not expressly included in the formal agreement. In limited circumstances terms can be implied where there is an established practice or custom in a particular trade, industry, market, local or workplace. Whether a particular practice or custom is such that it justifies being implied into a contract is, in all cases, a question of fact.[7] However, the custom or usage must be notorious, certain and reasonable. His Honour Griffiths CJ in Young v Tockassie (1905) 2 CLR 470 at 478 held, the custom must be:
“…so well known that everyone making a contract in the terms used must be taken to have contracted with respect to [it].”
[6] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266.
[7] Summers v Commonwealth (1918) 23 CLR 144.
From the evidence available at hearing, the Tribunal is not satisfied such a uniform standard exists in the photography industry. Mrs Flinders cited examples of other traders negotiating differing terms in relation to the release of raw, unedited images and from this evidence, there does not appear to be uniformity across the industry. Thus there is no basis upon which the Tribunal can find it was an implied term of the agreement, based on an established practice or custom, to withhold unedited images.
Interpreting uncertain terms
The terms of the contract entered into by the parties are uncertain as both the applicant and respondent each held a different belief at the time of forming the contract as to the meaning of particular terms of the contract. At paragraphs 8 to 15, the Tribunal has discussed broadly the parties’ different interpretation of the Silver Wedding Package inclusions as listed on the respondent’s website.
In Cheshire and Fifoot’s Law of Contract[8] the law of uncertainty is summarised as follows: “when confronted by unclear language, the courts will prefer to interpret an ambiguous clause so that it provides for a sensible rather than an irrational meaning.”[9]The applicant’s construction of the term “all images” would therefore mean every single image taken by the respondent’s camera, which she estimates to be “in excess of 1500.”
[8] At page 254.
[9]Watson v Phipps (1985) 63 ALR 321 at 324 per Lord Brighmann; Distillers Co Bio-Chemicals (Australia) Pty Ltd v Ajax Insurance Co (1974) 130 CLR 1 at 11 per Gibbs J.
In Watson v Phipps[10] and Westpac Banking Corporation v Tanzone Pty Ltd[11] it was held where words are plain but nonetheless lead to an absurdity, they may be modified to accord with the evident intentions of the parties.
[10] (1985) 63 ALJR.
[11] [2000] NSWCA 25.
From the evidence, the Tribunal finds a degree of photo editing should have been reasonably expected by the applicant. Although the written contract is silent on whether images would be edited, Ms Lauren Ladgrove maintains in her submissions “Renee & Jason were well aware of the fact that their images were to be airbrushed/edited.”[12] This is consistent with the respondent’s email to the applicant (and her husband), whereby she explains the delay in finalising the ‘Flinders Wedding Package’ is because “Christmas break adds two extra weeks to the editing process…”.
[12]This statement is consistent with the respondent’s email to the applicant, dated 1 February 2011 “‘It is clearly told in initial meetings with clients that you will receive your edited photos on a disc …..”.
The Tribunal also notes the wording of the respondent’s automatic ‘out of office reply’ received by the applicant when she attempted to contact Lauren Joy Photography over the festive season: “Please note that we will be on holidays until January 5, 2011. Please note that editing of wedding images will still be continuing.”
For the reasons discussed above, the weight of evidence supports the respondent’s interpretation that photographs forming part of the Silver Wedding Package would be edited and the applicant expected as such. Therefore, the Tribunal is not satisfied the applicant can established her claim of being mislead or deceived by the respondent.
The Tribunal finds the ordinary plain meaning of the word “all” should be construed as “all edited images” – thus, the applicant is only entitled to a ‘high resolution CD of all edited images’ and not the raw digital proofs.
Subsequent conduct of parties
In her claim filed with QCAT the applicant states that since “outlining all the breaches of our contract” the respondent has “changed her website” – from ‘high resolution CD of all images’ to ‘high resolution CD of all edited images’. This, Mrs Flinders argues, “clearly highlight[s] her admission of guilt.”
Conversely the respondent submits “any amendments to my website are in no way ‘an admission’ guilt, it was simply updated to avoid any future misunderstanding.” The Tribunal accepts this argument as it is consistent with existing jurisprudence whereby courts have recognised contracts are dynamic by nature and that parties’ conduct subsequent to formation may expressly or by implication clarify or illuminate that was uncertain as the outset.[13] This appears to be the case in the present matter – hence no adverse finding is made as to the respondent’s subsequent conduct.
[13]Farmer v Honan and Dunne (1991) 26 CLR 183 at 197 per Isaacs and Rich JJ; and more recently in Re Galaxy Media Pty Ltd (2001) 167 FLR which was affirmed on appeal by Santow J in New South Wales Court of Appeal [2002] NSWCA 214.
Images taken at engagement portrait session
The portrait sitting took place well in advance of the wedding. The respondent explains the “purchase of images after the [portrait engagement] session is optional… Renee & Jason were aware of this, and after our photo shoot placed an order and paid for it and were happy with their purchase.” In the absence of contrary evidence, the Tribunal accepts the respondent’s version of events – suggesting the applicant understood the ‘engagement portrait session’ was for the sitting only and accepted the terms by placing an order for prints[14] (and received same).
[14]At hearing the applicant did not dispute the respondent’s claim that she placed an order after the photo shoot.
There is no evidence of the applicant being mislead or deceived by these terms, nor does the evidence support the argument, that the applicant is somehow entitled to receive all images taken during her ‘engagement portrait session.’ The Tribunal dismisses this part of the claim.
B.Is the respondent required to provide the applicant with coloured images?
After receiving a CD containing images (as part of the finalised wedding package) in a mixture of black and white, full colour and “strange effects”;[15] the applicant wrote to the respondent with the following query: “I thought we got black and white AND colour copies of all pictures?”[16]
[15] As described by Mrs Flinders.
[16] Email dated 25 January 2011.
The respondent replied later that day, arguing “in your package you get all photos in black and white OR colour.” Yet this differs to the respondent’s later response on 1 February 2011 where she asserts via email:
“It is clearly told in initial meetings with clients that you will receive your edited photos on a disc which will contain a mixture of colour and [emphasis added] black and white, and in your case spot colour, which is exactly what you have received.”
Inconsistencies in the respondent’s language are further highlighted in her email dated 30 January 2011 where she advises: “colour, black & white and special effects are standard in every package unless stated otherwise which was not.”
There is no evidence before the Tribunal to support the respondent’s position, as this was not an express term of the contract nor does the evidence show it was implied – to enforce such a term would be unconscionable.
When contracting Lauren Joy Photography, the applicant completed a detail’s form which asks the client to list “ideas you may have for photos or anything … you want photos taken of.” The applicant wrote: “black and white with spot colour (flowers)” – she also attached clippings of photos.
The respondent argues the applicant “never stated [she] wanted every single photo in colour. As well as that [she] attached photo clipping of images which also contain black and white and different colour tones images (sic).” The Tribunal places minimal weight on this argument and is not convinced that the colour of the clippings justifies the respondent’s conversion of the images from their original colour to ‘black and white’ and sepia. Instead, the attachment of clippings (which also included close up shots of bouquets and of wedding rings) could very well have been for the purposes of providing the respondent with ideas of what the applicant “wanted photos taken of” – as prompted by the form.
The Tribunal considers the production of an image in its original colour to be standard – and the altering of an image from its original colour to be a special effect. There is insufficient evidence before the Tribunal to find the applicant wanted any other special effects for wedding images, other than “black and white with spot colour (emphasis added).” Therefore the images forming the wedding packing should have comprised of ‘original colour’ and ‘black and white with spot colour’ for effect.
Hence the applicant should be refunded the amount of $19.60 she paid to have black and white images restored to their original colour.
Remedies
The applicant sought, in part (along with a claim of compensation), specific performance of the contract. Section 100(5) of the Fair Trading Act1989 permits a court to make any order it “thinks appropriate”[17] including “the return of property.”[18] Further, section 13(2)(a)(iv) of the Queensland Civil and Administrative Act 2009 provides for an order requiring a party to return goods, that relate to the claim and are in the party’s possession or control, to a stated person.
[17] Section 100(5)(g).
[18] Section 100(5)(d).
A decree of specific performance places parties in a position contemplated by their contract, effectively by enforcing the terms of the agreement. In the present circumstances this is an equitable remedy, given the applicant retained the services of the respondent to photograph a unique or once-off event, namely her wedding.
As a partial remedy, the applicant sought $400 compensation for the respondent’s failure to meet the terms of the contract, including “we did not receive what we order and she took longer than agreed to deliver the package.” For the reasons outlined about at paragraph 38, damages in lieu of specific performance of the contract would not be adequate. Further as a separate remedy, the applicant failed to provide evidence to the Tribunal establishing the quantum of her loss; other than the reimbursement of $19.60 for the cost of restoring images back to their original colour and filing fees.
In consideration of all of the matters mentioned above, the Queensland Civil and Administrative Tribunal is satisfied Mrs Flinders has partially established the grounds of her claim.
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