Goodall v Nationwide News Pty Ltd (No.2)

[2007] FMCA 1427

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOODALL v NATIONWIDE NEWS PTY LTD (No.2) [2007] FMCA 1427

TRADE PRACTICES – Whether misleading and deceptive conduct – publication of article concerning domestic violence and photographs of five murdered children – exemption for prescribed information provider in respect of prescribed publication.

COPYRIGHT – Alleged breach of copyright – photographs of five murdered children – subsistence and ownership of copyright – whether copyright breached – whether copyright claimed – whether damages payable – whether additional damages payable.

DEFAMATION – Meaning to be imputed – whether of and concerning the Applicant.

Copyright Act 1968 (Cth), ss.10(1); 22(1); 32(1)(a) & (2); 35(2); 36(1)(A) & (2); 126(a) & (b)
Trade Practices Act 1974 (Cth), ss.52, 65A(1), (2) & (3)

Columbia Pictures Industries Inc and Another v Luckins (1996) 34 IPR 504
Concrete Systems Pty Ltd v Devon Symonds Holdings Limited (1978) 20 SASR 79
Farquhar v Bottom [1980] 2 NSWLR 380
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Milpurrurru v Indofurn Pty Ltd (1994) 30 IPR 209
Mirror Newspapers v Harris (1982) 149 CLR 293
Polygram v Golden Editions Pty Ltd (1997) 38 IPR 451
Prior v Landsowne Press (1977) VR 65
Southerland Publishing Co Limited v Caxton Publishing Co Limited (1936) 1 Ch 323
Hansard, 13 September 1984, p.1296

Applicant: TRAVIS EDWARD CHARLES GOODALL

Respondent: NATIONWIDE NEWS PTY LIMITED

File Number: PEG 281 of 2006

Judgment of:	Lucev FM
Hearing date:	9 March 2007

Date of Last Submission: 9 March 2007

Delivered at: Perth

Delivered on: 24 August 2007

REPRESENTATION

Applicant in person: Mr T.E.C Goodall

Counsel for the Respondent: Mr P.C. Doherty

Solicitors for the Respondent: Edwards Wallace

DECLARATION & ORDERS

The Court Declares:

That the Respondent infringed the Applicant’s copyright by publication of five photographs of the Applicant’s deceased children in the Sunday Times on 16 April 2006.

And the Court Orders that:

1. The Respondent pay the Applicant damages under s.115(2) of the Copyright Act of $1250.00 for infringement of the Applicant’s copyright by 4:00 pm on 14 September 2007;

2. The Respondent pay the Applicant additional damages under s.115(4) of the Copyright Act of $7500.00 payable by 4:00 pm on 14 September 2007.

3. Otherwise, the Application be dismissed.

4. The Court will hear the parties as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 281 of 2006

TRAVIS EDWARD CHARLES GOODALL

Applicant

And

NATIONWIDE NEWS PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Background facts

1. On 3 July, 1999 Travis Edward Charles Goodall (“the Applicant”) got up for work around 4.30am.  It was the eighth birthday of his eldest son, Mark, who was up, and happy.  Initially the Applicant intended to take Mark with him to work, but ultimately decided that Mark “should stay home and go shopping to spend the money that he got for his birthday”.[1]  The Applicant came home around 5.30pm to 6.00pm after finishing work.  There was no-one home.  The Applicant turned on the television.  He was watching the news when he noticed a car that looked like his family car, and was shocked when he heard how many people were found in the car.[2]  The Applicant contacted the Police.  The Applicant was told “there was a boy in the front seat holding a card, with the name Mark … 4 other children in the back … a female behind the steering wheel … all deceased.”[3]   Later that evening the Applicant identified the bodies of his five children and his de facto wife.[4]

   [1] Applicant’s Affidavit, para 2.

   [2] Applicant’s Affidavit, 18 December 2006, para 3.

   [3] Applicant’s Affidavit, 18 December 2006, para 3.

   [4] Applicant’s Affidavit, 18 December 2006, paras 3-8.

2. The Applicant’s de facto wife, Barbara Wyrzkowski, had killed herself and the couple’s five children by suffocation from carbon monoxide poisoning from a car exhaust, at Karragullen, a suburb in the hills of Perth in the State of Western Australia.[5]

   [5] Applicant’s Affidavit, 18 December 2006, paras 3 and 6 and Annexures C and D.

3. One to two days after this tragedy the Applicant says that the media were outside his family home trying to talk to him about what happened.[6]  At this time the Applicant did not want anything to do with the media.  The Applicant says that reporters continued ‘hounding’ him for the following week,[7] after which time the Applicant said:

   After a week or so the reporters just hadent stopped, I had to come to terms with burying my 5 children, I had no money and my family couldent help, the government said they could help only with cardboard coffins and they had to be cremated in cardboard boxes with no headstones.

   After a gutwrenching conversation with my mum, some friends, also my brother inlaw, I decided to talk to the media, no1.to get them off my back, and the other priority was to bury my children who were worth a whole lot more than being burned in a cardboard box, they were my world.

   [Transcribed from the original without amendment]

   [6] Applicant’s Affidavit, 18 December 2006, para 8.

   [7] Applicant’s Affidavit, 18 December 2006, para 9.

4. The Applicant then spoke to the next reporter who arrived at his door.  As a result the Applicant appeared in a television interview with Monika Kos from Today Tonight, agreed to a written story with New Idea magazine and a radio interview with Howard Sattler on Perth radio station 6PR.  The Applicant says he agreed to these interviews to set up a fund to pay for his children’s funeral expenses from the payment by the media organisations concerned.[9]  The Applicant says that any remaining money in the fund was to be donated to two charities.[10]

   [9] Applicant’s Affidavit, 18 December 2006, para 12.

   [10] Applicant’s Affidavit, 18 December 2006, para 15.

5. The Applicant allowed some of his photographs (“the Photographs”) of his children to be used in the New Idea magazine story.  The Photographs were taken on the Applicant’s second eldest daughters third birthday.[11]  The Applicant stated:

   …at the time they were taking photos of my photo album they did state to me that copyright was mine and I was the sole owner of these images, I let them do this because I dident think I had a future after burying my kids, other than joining them myself.

   [Transcribed from the original without amendment]

   [11] Transcript, p. 7-8.

1. The Photographs appeared in an edition of New Idea published on

   
   

   17 July 1999, and were the subject of “a limited 1 off licence”.[13]

   [13] Applicant’s Affidavit, 6 October 2006, para 7.

2. Since his children were murdered, the Applicant has had two relationships.  The child born from the first relationship is now the Applicant’s only son.  Since the end of the Applicant’s relationship with the son’s mother in 2003 there have been ongoing Family Court disputes in relation to the Applicant’s access to his son.[14]  The second relationship began in 2004 and resulted in the Applicant being married in December 2005 to the now Rosanne Meredith Goodall (“Mrs Goodall”).[15]

   [14] Applicant’s Affidavit, 18 December 2006, paras 50-56 and 60.

   [15] Applicant’s Affidavit, 18 December 2006, para 27; Mrs Goodall’s Affidavit, para 4.

3. The Applicant’s evidence, and that of his wife, was that by December 2005, the Applicant was coping well with the trauma associated with the death of his five children in 1999 and the breakdown of the relationship between himself and his son’s mother and was making plans and focusing on the future.[16] 

   [16] Applicant’s Affidavit, 18 December 2006, paras 27-30; Mrs Goodall’s Affidavit, paras 4 & 5.

4. On Sunday 9 April 2006, the Applicant says that all of this changed. As many of the people of Perth have done over many years the Applicant went to the shop that Sunday morning to get the Sunday Times.  The Applicant says:

   I walked over to where they [the Sunday Times] were and noticed a very bold front page, there would have been a pile of at least 150 papers on the trolley all with the front cover exposed, the first thing I noticed was the photos of 5 of my children spread across the front page, my heart hit the ground instantly, In less than 5 second my happyness was destroyed, I tried to conduct myself properly while buying the paper, it had brought back memories strait  away and triggered instant anxiatey.

   [Transcribed from the original without amendment]

1. The photos of the Applicant’s deceased children were on the front cover of the Sunday Times in connection with a story titled “Special Investigation: Staggering Toll of Domestic Murder Revealed” and “Victims of an Epidemic”.[18]

   [18] Applicant’s Affidavit, 18 December 2006, Annexure B – Front page of the Sunday Times, 9 April 2006 (“9 April 2006 Article”). 

2. The relevant text of the 9 April 2006 Article is as follows:

   “A West Australian is murdered by a family member or loved one every 19 days, latest police statistics show.

   From 1994 to 2005, 231 – more than 19 a year on average – were murdered in WA domestic violence.  This page contains the faces of 16 of those victims.  The statistics show:

   ·    36, or 16%, were aged 10 or younger, including 7 who had not yet reached their first birthdays

   …

   The Sunday Times’ analysis of the data found that in 30 of the murders of children aged 10 or younger, the killer was a parent.  In nearly all these cases, the parents were separated and undergoing family court hearings.

   …

   The domestic homicide register, which lists all WA’s domestic homicides, from 1994 to 3 most recent domestic murders last month at Derby and Attadale, was compiled by the Major Crime Divisions’ Family Protection Unit earlier this year.

   The register marks the first time WA’s domestic murder statistics have been separated from the State’s general homicide statistics and provides and insight into the serious nature of domestic violence in WA.

   Ann O’Neill, who formed the domestic homicide support group Angelhands after her estranged husband murdered her children … in 1994 and shot her, said everyone deserved to live free from fear.

   “Domestic violence is about  power and control,” she said.

   “These offenders choose violence and in some cases homicide, as the solution to their problems.  It’s horrific and it affects the whole community.”

   “Abusers need to be supported and be made aware that it is their behaviour that is unacceptable, not them as a person, and that there are services available to help and change their behaviours if they want to.”

   …

   … Police said many victims of domestic violence killed themselves to stop the abuse.  After years of violence from her husband, a Joondalup woman shot herself in front of her young children last year.

   …

   A senior police officer said that the murders of children were particularly distressing and many officers were “scarred by” attending such crime scenes.

   “The multiple murder of the five children of Karragullen has had a profound effect on nearly every officer who attended.  …”  He said.[19]

   [19] 9 April 2006 Article.

3. The text of the 9 April 2006 Article was accompanied by sixteen individual victims photographs on the front page of the Sunday Times.  Five of those photographs were of the Applicant’s children (“the Photographs”).

4. A separate text box appearing with the 9 April 2006 Article was headed “Domestic Homicides: WA’s Worst”.  In that text box there are 19 domestic homicides referred to, including the following entry:

   “July 1999: Barbara Wyrzykowski, 25, gasses herself and her 5 children – Mark, 8, Twins Luke and Sarah, 5, Jessie, 4, Jade, 1 – in their van near Karragullen.  It remains Australia’s largest domestic child killing.”[20]

   [20]9 April 2006 Article.

5. In a further photo and text box with the 9 April 2006 Article the front page of the Sunday Times is repeated with the photographs of the victims obliterated by numbers.  The numbers relate to the text box under the heading “WA’s most heartbreaking list” which is next to the photo box, and in which the following entry for the photographs numbered 2 – 6 appears:

   “2.    Mark Goodall, 8, gassed by mother Barbara Wyrzykowski in a murder-suicide.

   3.     Sarah Goodall, 5, gassed by mother Barbara Wyrzykowski in a murder-suicide.

   4.     Luke Goodall, 5, gassed by mother Barbara Wyrzykowski in a murder-suicide.

   5.     Jessie Goodall, 4, gassed by mother Barbara Wyrzykowski in a murder-suicide.

   6.     Jade Goodall, 22 months, gassed by mother Barbara Wyrzykowski in a murder-suicide.”[21]

   [21]9 April 2006 Article.

6. The author of the Sunday Times articles, Ms Peta Hellard (“Ms Hellard”) says that she tried to contact the Applicant prior to publication of the Photographs in the 9 April 2006 Article, but that a search of the electoral roll and white pages telephone directory did not provide contact details for the Applicant.[22]  Ms Hellard says that because of the scale of publicity surrounding the murder-suicide of the Applicant’s children in 1999 she considered it likely that family photos would be in existence.[23]

   [22] Ms Hellard’s Affidavit, para 8.

   [23] Ms Hellard’s Affidavit, paras 10 and 11.

7. A search for photos of the Applicant’s family was undertaken by Ms Karin Calvert-Borshoff, the Sunday Times Picture Editor.[24]  Ms Calvert-Borshoff was able to source photos of the Applicant’s children in the News Limited Photographic archive.[25]  The photographs sourced by Ms Calvert-Borshoff contained no alerts, usage details or restriction information and were captioned as being photographs courtesy of Today Tonight, Seven Network and New Idea magazine.[26] Ms Calvert-Borshoff assumed the pictures had been supplied by the police or the family to the media for general use.[27]  Mr Ibbs’ gave evidence about this process, but it is largely irrelevant to what occurred in April 2006 as it details investigations undertaken by him after he became aware of the Applicant’s application to bring these proceedings.[28]

   [24] Ms Hellard’s Affidavit, para 12; Ms Calvert-Borshoff’s Affidavit, para 2.

   [25] Ms Calvert-Borshoff’s Affidavit, para 3.

   [26] Ms Calvert-Borshoff’s Affidavit, paras 4 and 5.

   [27] Ms Calvert-Borshoff’s Affidavit, para 6.

   [28] Mr Ibbs’ Affidavit, para 2.

8. There is no evidence that any enquiry was made of any person, and in particular any person at New Idea Magazine or the Seven Network, concerning any publication restrictions that might exist in relation to the Photographs.  The Court finds that no enquiries were made prior to such publication.

9. Enquiries were made after these proceedings were commenced, and it appears that New Idea normally purchase photographs on a “once use” basis.[29]  This corroborates the Applicant’s evidence that he allowed publication by New Idea on the basis of an exclusive licence arrangement concerning the photographs.  The Respondent says that the photographs should not have appeared in the News Limited photographic archive without some kind of warning relating to reproduction of the photographs if they had been purchased on the basis of an exclusive licence.[30]  It is not in dispute that if the images been marked with a warning or copyright restriction the Sunday Times would not have published the pictures without consent of the copyright owner.[31]

   [29] Mr Ibbs’ Affidavit, para 6.

   [30] Mr Ibbs’ Affidavit, para 6.

   [31] Mr Ibbs’ Affidavit, para 10; Ms Calvert-Borshoff’s Affidavit, para 7.

10. There is no dispute that the Photographs did not contain a warning alerting potential users to any copyright or reproduction restrictions.[32]

    [32] Ms Calvert-Borshoff’s Affidavit, paras 5; Ms Hellard’s Affidavit, para 14; Ibbs 27 February 2007 Affidavit, para 3.

11. The Applicant says that he tried to call the author of the Sunday Times articles, Ms Peta Hellard, in the week after the 9 April 2006 publication and he left a message for her to call back as she was not available.[33]  Ms Hellard returned the Applicant’s phone call on 12[34] or 13 April 2006.[35]

    [33] Applicant’s Affidavit, 18 December 2006, para 37. There is some confusion over when and how the Applicant contacted Ms Hellard, suffice to say that, at some point, the Applicant contacted Ms Hellard, left a voice message, and she then returned his call.

    [34] Ms Hellard’s Affidavit, para 24, 26 & 38-39; Witness Bundle, Tab 8 – Copy of Ms Hellard’s diary for week beginning Monday 10 April 2006.

    [35] Applicant’s Affidavit, 18 December 2006, para 37.

12. The Applicant says he discussed with Ms Hellard his concern that his children’s photographs had been used without permission, and the stress that this had caused the Applicant.  The Applicant then says he told Ms Hellard that:

    “I wouldent of sold any news material to any one for under a truckload of money, even as much as a story, her reply was, oh WE don’t pay for stories, and I said what u just steel them, there was no reply to that, she still was persisting on talking to me and I told her, she would get nothing from me unless a truckload of money was delivered to my door, Miss Hellard then asked me, so how much is a truckload of money, I told her no less than a million dollars, she said she might get back to me, the call then ended.”[36]

    [Transcribed from the original without amendment]

    [36] Applicant’s Affidavit, 18 December 2006, para 37.  There is a dispute as to whether the Applicant said “truckload” or “fuckload” (see Ms Hellard’s Affidavit, para 35) – but this is immaterial to the disposition of these proceedings.

13. Ms Hellard’s account of the conversation is as follows:

    a)the Applicant told her that “he had been very distressed when he saw the story in the newspaper” and that she “expressed sympathy” to the Applicant “and apologised for his distress”;[37]

    b)that the Applicant was “very angry” that no one had contacted him prior to the story being published and had not sought his permission to use the photos”;[38]

    c)that she told the Applicant that she had been unsuccessful in trying to contact him, and that she had obtained the Published Photographs from “the company’s image system after having been published in earlier stories”[39]; and

    d)that at no time did the Applicant mention “any copyright issues in relation to the publication of the photographs” or “that he did not want the photographs to appear again”.[40]

    [37] Ms Hellard’s Affidavit, para 25.

    [38] Ms Hellard’s Affidavit, para 29.

    [39] Ms Hellard’s Affidavit, para 31.

    [40]Ms Hellard’s Affidavit, para 29.

14. Ms Hellard says that then there was a discussion concerning the possibility of payment for a further story, with her indicating that the Sunday Times did not pay for stories, but that she may ring back after discussing the matter with the editor.[41]  Ms Hellard then goes on to say:

    “As far as I was concerned, [the Applicant] had explained his distress and that was the end of the complaint.  He had not brought to my attention any copyright issues, nor had he directly said that he did not want the photographs to be published again.”[42]

    [41] Ms Hellard’s Affidavit, paras 35-41.

    [42] Ms Hellard’s Affidavit, para 42.

15. The Court finds that the Applicant did in fact raise, or at least put in issue, the question of copyright by indicating to Ms Hellard that the Sunday Times “had not sought his permission to use the photos”.  Further, the Court finds that whilst the Applicant did not seemingly directly say that he did not want the Photographs to be used again, it was evident from the discussion that the Applicant had with Ms Hellard that he was not granting permission to republish the Photographs.

16. On Sunday 16 April 2006, the Sunday Times published, on page 10, a new story also written by Ms Hellard titled “Jail them before they kill”.[43]

    [43] Applicant’s Affidavit, 18 December 2006, para 40 – the Sunday Times, 16 April 2006, p.10 (“16 April 2006 Article”).

17. The relevant text of the 16 April 2006 Article is as follows:

    “People who breach violent restraining orders should get mandatory jail to combat the State’s domestic murder toll, according to a former top policeman.

    Retired Superintendent John Watson said that if the Government did not get touch on VRO breaches many more lives would be lost.

    the Sunday Times last week revealed that 231 West Australians were murdered by a family member of loved one between 1994 and 2005 – an average of one every 19 days.

    …

    And the [Attorney General’s] department could not say how many domestic murders were committed after a VRO breach, but police said that there were many instances where the killer had breached a VRO at least once before committing a murder.”

1. The article contains a photo box which is a replication of the front page of the Sunday Times from 9 April 2006, but without the bottom row of seven photographs (those numbered 10-16 in the photo box in the

   
   

   9 April 2006 Article).

2. Of the 16 April 2006 Article the Applicant says:

   “I was astonished to see these 5 photos again the reporter, Peta Hellard or the Sunday Times did not notify me of this even after knowing my telephone no, I wasent even warned that they would use these images again, then to make it worse the story again was not in the context of the photos, this has defamed me, also by cutting off the bottom line of the photos had just highlighted the images of my children, this was a very sickening attack, not to mention insaulting, they had done this to see what they could get away with, without care or concern to my mental health or happyness.

   [Transcribed from the original without amendment.]

3. There was evidence for the Applicant concerning a number of issues including shock and illness said to arise from the publication of the Photographs in the 9 and 16 April 2006 Articles.  The Court accepts that seeing the first publication of the Photographs in conjunction with the 9 April 2006 Article would have shocked the Applicant and caused him significant distress.  The Court also finds that the Applicant would have been caused further distress by the publication of the 16 April 2006 Article with the Photographs republished.

4. The evidence of the Applicant subsequent illnesses and medical conditions was not the subject of professional medical or health evidence.  As such, the Court can not properly make any findings as to the nature or extent of any illnesses said to be a consequence of the publication of the 9 and 16 April 2006 Articles with the Photographs.

5. The Court also accepts that the Applicant’s former partner (the mother of his son) has used the 9 and 16 April 2006 Articles and the Photographs in subsequent family law proceedings.  The use to which the Applicant’s former partner has put the 9 and 16 April 2006 Articles and the Photographs appears to be entirely inappropriate, and the Court finds that the Articles and Photographs provide no basis for asserting that the Applicant was domestically violent to his deceased de facto partner, Ms Wyrzkowski, or his five murdered children.

6. The Sunday Times is a weekly Sunday paper published in Perth for distribution throughout Western Australia.  There is no particular evidence of those facts but they are sufficiently notorious for judicial notice to be taken of them.

7. The Respondent admits that:

   a)it published the relevant articles on 9 April 2006 and 16 April 2006;

   b)the articles contained photographs of the Applicant’s five deceased children; and

   c)the Respondent did not obtain the Applicant’s consent before publishing the photographs. [45]

   [45] Respondent’s Contentions of Fact and Law, paras 1.1 & 1.2.

8. Some other factual details appear where relevant below.

The Application

1. The Applicant seeks:

   1. A declaration that the Defendant has engaged in conduct that is misleading and deceptive or intended to mislead or deceive contrary;

   2. Damages for breach of section 52 of the Trade Practices Act 1974 (Cth);

   3. A Declaration that the Defendant has breached the copyright of the Applicant in the publication of the photographs of his children.

   4. Damages for breach of copyright.

   5.   Additional damages for breach of copyright.

   6. A Declaration that the publications on 9 April 2006 and 16 April 2006 have defamed the Applicant.

   7. Damages for defamation of the Applicant;

   8. Exemplary damages for defamation of the Applicant.

   9. An Order not to re-publish the photographs;

   10. An Order to remove the photographs and any associated story or stories from the Defendant’s data base or bases.

   11. Such further order or other order or orders that the Court sees fit.

2. It is relevant to note that in the original Application the Applicant appeared to rely on causes of action in:

   a)negligence;

   b)contract; and

   c)defacing,

   but these were not included in the Amended Application and Statement of Claim filed on 29 January 2007.[47]  The proper inference to be drawn is that those causes of action have been abandoned.

   [47] The Court notes that the Amended Application was drawn by experienced junior counsel then acting pro-bono for the Applicant.

Evidence

1. The affidavit evidence before the Court is:

   a)for the Applicant:

   i)

   affidavit of Travis Edward Charles Goodall affirmed on

   
   

   6 October 2006 (“Applicant’s Affidavit 6 October 2006”);

   ii)

   affidavit of Travis Edward Charles Goodall affirmed on

   
   

   18 December 2006 (excluding Annexure G) (“Applicant’s Affidavit 18 December 2006”);

   iii)affidavit of Rosanne Meridith Goodall affirmed 18 December 2006 (being Annexure G to Applicant’s Affidavit 18 December 2006) (“Mrs Goodall’s Affidavit”);

   b)for the Respondent:

   i)affidavit of John Ibbs sworn 27 February 2007 (“Mr Ibbs’ Affidavit”);

   ii)affidavit of Brett McCarthy sworn 27 February 2007 (“Mr McCarthy’s Affidavit”);

   iii)affidavit of Karin Calvert-Borshoff sworn 27 February 2007 (“Ms Calver-Borshoff’s Affidavit”);

   iv)affidavit of Peta Hellard sworn 1 March 2007 (“Ms Hellard’s Affidavit”).

2. Each of the witnesses were cross-examined (except Ms Calvert-Borshoff) and each of the Respondent’s witnesses cross-examined were re-examined.

Misleading and deceptive conduct

1. In 1984 s.65A of the Trade Practices Act 1974 (Cth) (“TP Act”) was amended to exempt a “prescribed information provider” from an action under s.52 of the TP Act in respect of statements made in “prescribed publications”. The purpose of the amendment to s.65A was described in parliament as follows:

   “New section 65A will operate to exempt the media and other persons who engage in businesses of providing information from the operation of those provisions of Division 1. of Part V of the Trade Practices Act which could inhibit activities relating to the provision of news and other information.”[48]

   [48] House of Representatives, Hansard, 13 September 1984, p.1296. Section 52 is in Division 1 of Part V of the TP Act.

2. Section 65A(3) of the TP Act defines “prescribed information provider” to mean “a person who carries on a business of providing information”.  The Court finds that the Respondent is a prescribed information provider, it being in the business of providing information via the publication of the Sunday Times.

3. Section 65A(2) of the TP Act provides that a publication by a prescribed information provider is a “prescribed publication” if it was “made by the prescribed information provider in the course of carrying on a business of providing information”.  The Court finds that the editions of the Sunday Times in which the 9 and 16 April 2006 Articles appeared were prescribed publications as they were made by the prescribed information provider in the course of carrying on a business of providing information.

4. Given that under s.65A(1) nothing in s.52 “applies to a prescribed publication of matter by a prescribed information provider” the publication of the 9 and 16 April 2006 Articles cannot give rise to a causes of action for misleading and deceptive conduct under s.52 of the TP Act.

Copyright

1. Because the questions of ownership and subsistence of copyright were sufficiently put in issue by the Respondent[49] the presumptions as to those issues under s. 126 of the Copyright Act 1968 (Cth) (“Copyright Act”) do not apply.

   [49] See Respondent’s Contention of Fact and Law, para 5.3.

2. Under the Copyright Act there are no formal requirements, such as registration, for copyright protection to subsist.  It is unnecessary for an original work or other subject-matter capable of protection under the Copyright Act to have a notice attached to the work or subject-matter identifying the work or subject-matter as copyright protected.

3. Copyright protection is limited to categories of original works and subject-matter other than works as defined in the Copyright Act.[50]  Original works are classified in the Copyright Act as literary, dramatic, musical and artistic works. Most of these classifications are defined in s.10(1) of the Copyright Act, and “artistic work” is defined to include a photograph, whether the work is of artistic quality or not, and “author, in relation to a photograph, means the person who took the photograph”.[51]  A “photograph” is defined as follows:

   “photograph” means a product of photography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied, and includes a product of xerography, and “photographic” has a corresponding meaning.[52]

   [50] See Part III and Part IV, Division 3 of the Copyright Act.

   [51] Copyright Act, s.10.

   [52] Copyright Act, s.10(1).

4. The evidence establishes that the Applicant took the photographs at his second eldest daughter’s third birthday,[53] and is therefore the author of the photographs.

   [53] Transcript, pp. 7-8.

5. By reason of s.35(2) of the Copyright Act the Applicant is therefore the owner “of any copyright subsisting” in the photographs.

6. The Court finds that the Applicant is the author of the photographs in question.

7. Section 32 of the Copyright Act specifies the requirements for copyright to subsist in original works as follows:

   32  Original works in which copyright subsists

   (1)     Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:

   (a)     was a qualified person at the time when the work was made; or

   (b)     if the making of the work extended over a period–was a qualified person for a substantial part of that period.

   (2)     Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

   (a)     copyright subsists in the work; or

   (b)     if copyright in the work subsisted immediately before its first publication–copyright continues to subsist in the work;

   if, but only if:

   (c) the first publication of the work took place in Australia;

   (d)     the author of the work was a qualified person at the time when the work was first published; or

   (e)     the author died before that time but was a qualified person immediately before his or her death.

   (3)     …

   (4)     In this section, qualified person means an Australian citizen or a person resident in Australia.

8. As:

   a)the Applicant is a person resident in Australia; and

   b)the first publication of the photographs took place in Australia, copyright subsists in the Applicant’s photographs of his children published in the Sunday Times, provided he was a qualified person “when the work was made”.[54]

   [54] Copyright Act, s.32(1)(a)

9. Section 22 of the Copyright Act establishes the criteria for when a work is made and in particular s.22(1) reads as follows:

   (1)     A reference in this Act to the time when, or the period during which, a literary, dramatic, musical or artistic work was made shall be read as a reference to the time when, or the period during which, as the case may be, the work was first reduced to writing or to some other material form.

10. The words “material form” are defined in s.10(1) of the Copyright Act as:

    material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).

11. In the case of photographs taken on a camera using a film canister, as it appears that these photographs have been, the question of when they are reduced to “material form” is difficult to determine.  It could be when the image is taken and stored or developed and might now depend on the nature of the photograph taken (whether on traditional film or digital).  However for the purposes of these proceedings this issue is not disputed and the Applicant was a qualified person at the time the work was made, whether that was when the photographs were taken at the birthday party or when they were subsequently developed.

12. The Applicant claims that the Respondent has infringed the copyright of the Applicant by publishing the photographs of his children.

13. Section 36 of the Copyright Act provides as follows:

    “Division 2–Infringement of copyright in works

    36  Infringement by doing acts comprised in the copyright

    (1)     Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

    (1A)  In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:

    (a)     the extent (if any) of the person’s power to prevent the doing of the act concerned;

    (b)     the nature of any relationship existing between the person and the person who did the act concerned;

    (c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

    (2)     The next three succeeding sections do not affect the generality of this section.”

14. The Respondent does not deny that if the Applicant is the owner of the copyright in the Published Photographs that the Respondent breached that copyright by publication of the Photographs in the 9 and 16 April 2006 Articles. The Respondent says however that it did so inadvertently. The Respondent also denies that the Applicant claimed copyright in the Photographs prior to publication of either of the Articles. The Respondent says that because of this the Applicant is not entitled to damages or additional damages by reason of s.115 (3) of the Copyright Act. The Respondent further argues that damages under s.115(2) are compensatory in nature and the primary approach is that damages are measured by the depreciation caused by the copyright infringement to the value of the copyright as a chose in action.[55]

    [55] Respondent’s Contentions of Fact and Law, paras 5.3 and 5.5.

15. Damages in copyright are ordinarily assessed by the loss in value of the copyright caused by the infringement,[56] however, the means and measure of damages depend on the circumstances of particular cases and other measures may be adopted where appropriate.[57]

    [56] Sutherland Publishing Co Limited v Caxton Publishing Co Limited (1936) 1 Ch 323 at 326 per Lord Right MR; Prior v Landsowne Press (1977) VR 65.

    [57] See for example Columbia Pictures Industries Inc and Another v Luckins (1996) 34 IPR 504.

16. The gist of the issue here however is that the Respondent says that s.115(3) of the Copyright Act precludes damages in this case. Section 115(3) is as follows:

    “(3)Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.”

17. The question here is whether at the time of the infringement, the Respondent was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of copyright.

18. The evidence indicates that the Respondent was not aware of the Applicant’s copyright.  The Respondent, through its employee, Ms Calvert-Borshoff, simply assumed that because the Photographs carried no copyright or publication restriction warning where they appeared in a News Limited archive, that the Photographs could be published.  Ms Calvert-Borshoff made no enquiry of the keeper of the archive, or of anyone within New Idea or the Seven Network, as to the copyright status of the Photographs.  Had she done so, it is likely that, as was the case with Mr Ibbs when he made enquiries after these proceedings were commenced, that she would have been told, at least by New Idea, that they normally buy pictures on a once use basis only, and if that was correct then the pictures should have had a warning with respect to copyright or reproduction.[58]  Ms Hellard made no enquiries of her own, simply relying upon the fact that the Photographs were not marked copyright restricted.  Further, it is the case that by reason of the conversation between the Applicant and Ms Hellard on 12 or 13 April 2006, the Respondent was, or ought to have been, aware that republication of the Photographs might infringe the Applicant’s copyright.  The factor that the Applicant indicated that permission had not been granted to publish the photographs in the 9 April 2006 Article constitutes sufficient grounds to find that the Respondent was aware or had reasonable grounds for suspecting that republication of the Photographs on 16 April 2006 would be an infringement of copyright.

    [58] Mr Ibbs’ Affidavit, paras 6 and 7.

19. In Golden Editions Pty Ltd and Another v Polygram Pty Ltd[59] it was said:

    “In stating what consequences followed from awareness of the particular facts it may be thought unnecessary or even confusing to refer to the creation of some positive duty to ask questions.  A finding of the necessary level of awareness of them will itself enable the conclusion that, to the contrary of what the section requires, there were reasonable grounds for suspicion.  However, a deliberate choice not to enquire, in such circumstances, may enable a further finding, since it may suggest a mind in which real suspicion resided.”[60]

    [59] (1996) 34 IPR 84 (“Golden Editions”)

    [60] Golden Editions at 93 per Kiefel J.

20. The judgment in Golden Editions, and particularly the upholding of the decision appealed against, in which Beazley J had found that a party reckless as to whether it is or is not infringing copyright may only be another way of concluding that that party has reasonable grounds to suspect infringement,[61] has application in this case.

    [61] See the passage extracted from the judgment appealed against set out in Golden Editions at 93 per Kiefel J.

21. In this case, the Court is prepared to accept that the publication of the Photographs on 9 April 2006 was made without awareness and with reasonable grounds for not suspecting that publication of the Photographs would have constituted an infringement of copyright.  In that regard, it does appear that assumptions were made from the lack of copyright or reproduction warning on the Photographs in the News Limited Archive, and that based on the normal practice at the Respondent the Photographs were subsequently published.  The fact that the assumption was wrongly made and that there was no enquiry because of the normal practice, does not, without more, raise reasonable grounds for suspecting that the Respondent knew, in the circumstances of this case, publication of the Photographs in the 9 April 2006 Article would infringe copyright.

22. The position is different however with respect to the 16 April 2006 Article.  In view of the findings of fact made above, the Court has come to the view that the Respondent was either aware, or ought to have been aware, and therefore had reasonable grounds for suspecting, that publication of the Photographs would constitute an infringement of the Applicant’s copyright.  Given the conversation between Ms Hellard and the Applicant on 12 or 13 April 2006 her subsequent failure to make enquiry simply heightens the suspicion that there were reasonable grounds for suspecting an infringement of copyright.[62]

    [62] Golden Editions at 93 per Kiefel J.

1. The Court therefore finds that the Applicant’s copyright was breached by the republication of the Photographs in the 16 April 2006 Article, and that s.115(3) of the Copyright Act does not operate so as to preclude an award of damages with respect to that infringement.

2. What then is the measure of damages?  The Court accepts that the Sunday Times would have paid $250 per photograph per publication for the Photographs.[63]  That is in the Court’s view an appropriate measure of damages for breach of the Applicant’s copyright.  There were five photographs published in the 16 April 2006 Article and the Applicant’s damages are therefore $1250.00.  The Court does not consider it possible to assess damage for breach of copyright by reason of the emotional value that the Photographs have to the Applicant.

   [63] Transcript, p.28.

3. The Applicant also claims additional damages under s.115(4) of the Copyright Act. Section 115(4) is a provision which has been held to be one which gives a court the widest discretionary power to compensate for loss and damage occasioned by infringement of copyright whether exemplary or aggravated or punitive in nature.[64] Even if damages are nominal under s.115(2), additional damages, including damages for hurt to feelings, may be awarded.[65]

   [64] Concrete Systems Pty Ltd v Devon Symonds Holdings Limited (1978) 20 SASR 79 at 85 per Leggoe J.

   [65] Milpurrurru v Indofurn Pty Ltd (1994) 30 IPR 209 at 244 per von Doussa J; Polygram v Golden Editions Pty Ltd (1997) 38 IPR 451 at 461 per Lockhart J.

4. Given that the Photographs were republished after the Applicant had put the Respondent on notice that it did not have his permission to do so, the Court considers that the infringement was flagrant, and that there is a need to deter similar infringements.  The conduct of the Respondent was blaise, and uncaring in respect to the possible effect of the republication of the photographs upon the Applicant, particularly where Ms Hellard had apologised for the first publication of the Photographs.  The Court notes that there is no particular benefit shown to have accrued to the Respondent by reason of the infringement.  However, it can be inferred that the Respondent perceived that it stood to benefit from the republication of the Photographs in the context of the 16 April 2006 Article.[66]  In the circumstances, the Court considers that it is appropriate to award additional damages to the Applicant.  The Applicant clearly suffered personal hurt and shock at the republication of the Photographs.[67]  Assessing the quantum of damages in a case such as this is extraordinarily difficult.  It is clear that the principle hurt and shock was suffered by the Applicant to the initial publication of the Photographs on 9 April 2006.  Nevertheless, there was further personal hurt as a consequence of the publication of the 16 April 2006 Article.  The Court is cognisant of the nature of the material which was republished, but, once again, observes that it is very difficult to put a value on injuries such as those involved in this case.  In all the circumstances, the Court proposes to award the Applicant additional damages of $7,500.00.

   [66] Transcript, p.35.

   [67] Applicant’s 18 December 2006 Affidavit, para 40.

Defamation

1. The Applicant also claims damages, and exemplary damages for defamation.

2. The Applicant claims defamation on the basis that:

   a)the 9 April 2006 Article imputed that the Applicant’s children were murdered as a result of domestic violence;

   b)the 9 April 2006 Article imputed that the Applicant himself had engaged in domestic violence, quoting police sources that “many victims of domestic violence kill themselves to stop the abuse”, and because it failed to qualify that comment by specifying that the Applicant had never, or never been alleged to have, engaged in domestic violence;

   c)because the 9 April 2006 Article refers to the murder of the Applicant’s five children as having had “a profound effect on nearly every officer that attended”; and

   d)because the articles were used against the Applicant by a former partner (his son’s mother) in family court proceedings.

3. In determining whether a defamatory meaning can be imputed it is necessary to consider the 9 and 16 April 2006 Articles in context, and as a whole, including headlines, photographs and other material of the type set out above.[68]

   [68] John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [187] per Callinan J.

4. At the outset, it must be said that the mere fact that the Applicant’s former partner (his son’s mother) has used the 9 and 16 April 2006 Articles against him in family court proceedings, and seemingly elsewhere, does not provide a basis for the Court to find that the Articles are defamatory.  A disaffected former partner is not representative of a reasonable reader of the 9 and 16 April 2006 Articles.  The test is what ordinary reasonable people would understand by the defamatory matter about which complaint is made.[69]

   [69] Farquhar v Bottom [1980] 2 NSWLR 380; Mirror Newspapers v Harris (1982) 149 CLR 293 at 301 per Mason J. (“Farquhar”).

5. It is clear that the Articles say that the Applicant’s five children were murdered as a result of domestic violence.  However, the Articles make it equally clear that the children were murdered by the Applicant’s former de facto partner, Mrs Wyrzkowski.  Reading the Articles reasonably, and without a strained, forced or unreasonable interpretation, and allowing for the necessary implications that a lay reader might make,[70] the Court does not consider that the ordinary reasonable reader would read these articles as imputing that the Applicant had any involvement in domestic violence or the murderer of his five children.  It is true that the Article refers to victims of domestic violence killing themselves, and in this case Mrs Wyrzkowski did kill herself.  However, in the context of the 9 April 2006 Article in which that comment appears, it is clear that the victims of domestic violence that are being referred to are the Applicant’s children and not his former partner.

   [70] Farquhar at 385-386 per Hunt J.

6. The Articles do not carry the imputation suggested by the Applicant, and, further, are simply not “of and concerning” the Applicant at all.

7. In the circumstances the Applicant has not proven that the Respondent defamed him, and this part of the Application will be dismissed.

Conclusion

1. The Applicant has proven that the Respondent infringed his copyright by republication of the Photographs in the Sunday Times on 16 April 2006 and damages of $1,250.00 are payable under s.115(2) of the Copyright Act. Further, additional damages in respect of this republication of $7,500.00 are payable by the Respondent to the Applicant under s.115(4) of the Copyright Act.  Otherwise, the Applicant has not proved the matters set out in the Amended Application, and those other matters will be dismissed.

2. The Court will hear the parties as to costs.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  M Hewitt

Date:  24 August 2007

[8] Applicant’s Affidavit, 18 December 2006, paras 10 and 11.

[12] Applicant’s Affidavit, 18 December 2006, para 14.

[17] Applicant’s Affidavit, 18 December 2006, para 31.

[44] Applicant’s Affidavit, 18 December 2006, para 40.

[46] Applicant’s amended application and statement of claim filed on 29 January 2007 (“Amended Application”).