Kane Motion Picture Pty. Ltd. and Screen Australia (Taxation and business) - [2025] ARTA 1771

Kane Motion Picture Pty. Ltd. and Screen Australia (Taxation and business) [2025] ARTA 1771 (4 September 2025)
Applicant/s:  Kane Motion Picture Pty Ltd
Respondent:  Screen Australia
Tribunal Number:                2024/2899

Tribunal:General Member Darian-Smith
Place:Sydney
Date: 4 September 2025

Decision:The Tribunal affirms the decision under review.

.......................[SGD].................................................
General Member Darian-Smith
Catchwords
INCOME TAX ASSESSMENT – Tax Offset – Producer Tax Offset – Australian Feature Film – Post-production phase – Whether the Applicant carried out, or made the arrangements for the carrying out of, all activities necessary for the making of the film – Decision affirmed
Legislation
Corporations Act 2001 (Cth) s. 761B
Income Tax Assessment Act 1997 (Cth) ss. 376-55, 376-65, 376-125, 376-180, 376-255, 995-1
Cases
Brunoro v Nebelung [2017] ACTCA 26
Fragmentary Pty Ltd and Screen Australia [2024] AATA 3316
Godecke v Kirwan (1973)129 CLR 629
Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674
Placer Development Ltd v Commonwealth (1969) 121 CLR 353
Quirky Mama Productions Pty Ltd v Screen Australia [2023] AATA 3089
Schwartz v Hadid [2013] NSWCA 89
Statement of Reasons

This Application for Review[1] concerns the decision made on 7 May 2024 by the Respondent (Screen Australia) by which it refused an application dated 1 December 2023 to issue a final certificate for the “producer offset” (Producer Offset Application)[2] to the Applicant, Kane Motion Picture Pty Ltd (KMP) under section 376-65 of the Income Tax Assessment Act 1997 (Cth) (ITAA 97) in relation to the movie “Kane” (Film) (Reviewable Decision).[3]
[1] T1, Tender Bundle (TB) pages 11 - 19.
[2] T3 (attaching T4 – T62), TB pages 34 – 739.
[3] Screen Australia’s correspondence dated 7 May 2024 is T196, TB pages 1859 - 1860.
A Statement of Reasons for the Reviewable Decision dated 12 August 2024 was provided by Screen Australia under subsection 20(1) of the Administrative Appeals Tribunal Act1975 (Cth) (Reasons).[4]
[4] T2, TB pages 62 - 75.
KMP seeks a de novo review, under subsection 376-255(c) of the ITAA 97, of the Reviewable Decision.
The producer offset is a refundable tax offset available to eligible film production companies, under section 376-55 ITAA 97 (such as KMP) for Australian expenditure in making Australian films. Without a certificate, KMP is not entitled to claim the producer offset (subsection 376-55(1)(b) ITAA 97).
Fundamental to the Reviewable Decision, was the determination by Screen Australia that KMP had not satisfied Screen Australia that it had met a mandatory requirement under subsection 376-65(1)(a) ITAA 97 for issuing a certificate to a company for a film in relation to the producer offset, which was that “the company either carried out, or made arrangements for the carrying out of, all the activities that were necessary for the making of the film...”
KMP has filed and relies upon the following documents:
(a) Applicant’s evidence/ submission dated 9 October 2024 (Applicant’s First Submission)[5];
(b) Applicant’s evidence/ submission dated 13 January 2025 (Applicant’s Second Submission)[6];
(c) Applicant’s evidence/ submission dated 9 April 2025 (Applicant’s Third Submission)[7];
(d) Applicant’s evidence/ submission dated 24 April 2025 (Applicant’s Fourth Submission)[8] and;
(e) Applicant’s Reply Submissions to Respondent’s Submission dated 27 May 2025 (Applicant’s Reply Submissions).
[5] TB pages 11 - 23.
[6] TB pages 24 - 26.
[7] TB pages 37 - 40.
[8] TB pages 41 - 42.
Screen Australia has filed and relies upon the following documents:
(a) Respondent’s Statement of Facts, Issues and Contentions dated 12 September 2024 (Respondent’s SFIC)[9] and;
(b) Respondent’s Submissions dated 8 May 2025 (Respondent’s Submissions).
[9] TB pages 3 - 10.
KMP called evidence from Mr Shaun Barry (Mr Barry) and Mr Blair Moore (Mr Moore), both of whom are directors of KMP. Mr Barry’s written evidence is interspersed throughout the Applicant’s First, Second, Third and Fourth Submissions (see paragraph [6(a) – (d)] above. Mr Barry filed a witness statement dated 19 April 2025.[10] Both Mr Barry and Mr Moore were cross examined by Mr Peadon, Counsel for Screen Australia.
[10] ST24, TB pages 1953 - 1955.
LEGISLATIVE FRAMEWORK
The entitlement to a refundable tax offset is to be found in section 376-55 ITAA 97:
“376-55 Film production company entitled to refundable tax offset for Australian expenditure in making an Australian film (producer offset)
(1) A company is entitled to a *tax offset under this section (the producer offset) for an income year in respect of a *film if:
(a) the film was *completed in the income year; and
(b) the film authority[11] has issued a certificate to the company under section 376-65 (certificate for the producer offset) for the film; and…”
[11] Subsection 376-55(3) ITAA 97 provides that “Film authority means Screen Australia.”
The requirement for Screen Australia to issue a certificate is set out in section 376-65 ITAA 97:
“376-65 Film authority must issue certificate for an Australian film for the producer offset
(1) The film authority must issue a certificate to a company for a film in relation to the producer offset if the film authority is satisfied that:
(a) the company either carried out, or made arrangements for the carrying out of, all the activities that were necessary for the *making of the film; and
(b) the conditions in subsections (2) to (6) are met.[12]
Note: The operation of paragraph (a) is affected by paragraph 376-180(1)(d) (which deals with the situation where one company takes over the making of a film from another company) …”
[12] Subsections (2) to (6) are not in contention in the Application for Review.
The general test as to production expenditure and the provisions which deal with the making[13] of a film are in section 376-125 ITAA 97:
[13] Section 995-1 ITAA 97 provides:” “make” in relation to a *film, has the meaning given by section 376-125”.
“376-125 Production expenditure—general test
(1) A company’s production expenditure on a *film is expenditure that the company incurs to the extent to which it:
(a) is incurred in, or in relation to, the *making of the film; or
(b) is reasonably attributable to:
(i) the use of equipment or other facilities for; or
(ii) activities undertaken in;
the making of the film.
(2) The making of a *film means the doing of the things necessary for the production of the first copy of the film.
(3) The making of a *film includes:
(a) pre-production activities in relation to the film; and
(b) post-production activities in relation to the film; and
(c) any other activities undertaken to bring the film up to the state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public.
(4) The making of a *film does not include:
(a) developing the proposal for the *making of the film; or
(b) arranging or obtaining finance for the film; or
(c) distributing the film (other than the activities listed in paragraphs (a) to (e) of item 7 of the table in subsection 376-170(2)); or
(d) promoting the film….”
Section 376-180 ITAA 97 deals with the circumstance in which a company takes over the making of a film from another company, providing:
“376-180 Expenditure incurred by prior production companies
(1) For the purposes of this Division, if a company (the incoming company) takes over the *making of a *film from another company (the outgoing company):
(a) expenditure incurred in relation to the film by the outgoing company is taken to have been incurred in relation to the film by the incoming company; and
(b) for the purposes of determining the extent to which that expenditure is qualifying Australian production expenditure of the incoming company, the incoming company is taken: …and
(c) expenditure that the incoming company incurs in order to be able to take over the making of the film is to be disregarded for the purposes of this Division; and
(d) any activities carried, and arrangements made, by the outgoing company in relation to the film are taken, for the purposes of paragraphs 376-20(5)(c), 376-45(5)(b) and 376-65(1)(a), to have been carried out or made by the incoming company in relation to the film…”
THE POST- PRODUCTION PHASE OF MAKING THE FILM
There is agreement between the parties that for the purposes of this review, it is the post-production phases of the making of the Film, commencing from about 9 February 2022, which are relevant.
A high-level production timeline was recorded in the KMP “Production Key Dates” for the Film which were included in KMP’s application to Screen Australia for a producer offset certificate.[14] The timeline as it relates to the post-production phases, is as follows:
For “post-production: edit”: 7 February 2022 to 28 July 2022
For “post-production: sound”: 3 October 2022 to 2 November 2022
For “post-production: CGI”: 28 July 2022 to 26 August 2022
For “post-production: music”: 13 July 2022 to 3 August 2022
For “post-production: mix”: 5 September 2022 to 31 October 2022
Completion of the film: 12 December 2022.”[15]
[14] T69, TB pages 794 - 823.
[15] T69, TB pages 808 - 809; Respondent’s Submissions, [14].
Those production timeline dates, including the date for the completion of the Film, are not controversial.
The post-production phase of the Film involved a few relevant commercial agreements. The key contracts were:
(a) The agreement, dated 9 February 2022, entered between KMP and Bronte Pictures Pty Ltd (Bronte Pictures) entitled “Rights Deal Memo “Kane”” (Rights Deal Agreement).[16]
(b) The agreement, dated 9 February 2022, entered between KMP and Bronte Pictures entitled “Services Agreement “Kane”” (Services Agreement).[17]
(c) An assignment agreement, date unknown, between Bronte Pictures and Bronte Kane Holdings Pty Ltd (BKH) (Bronte Assignment Agreement),[18] under which Bronte Pictures assigned relevant rights in the Film to BKH.
(d) An agreement, date unknown, between TPL Sapphire Pty Ltd (trading as The Post Lounge) and BKH and/or Bronte Kane SPV Pty Ltd (BKS) to provide certain facilities and post-production services in relation to the Film (Post Lounge Agreement)[19] and;
(e) An assignment agreement, dated 29 May 2023, entered between Bronte Pictures, BZKH and KMP, under which Bronte Pictures and BKH assigned all of their rights, title and interest in the Film to KMP (Second Assignment Agreement).[20]
[16] T84, TB pages 986 - 992.
[17] T85, TB pages 993 - 1005.
[18] ST13, TB pages 1920 - 1924.
[19] T132, TB pages 1336 - 1348.
[20] T22, TB pages 392 - 398.
The Rights Deal Agreement included terms:
(a) “Rights - All rights (including copyright) in and to the Work[21] including the right to make a feature film entitled KANE (“Film”) and all related and ancillary rights in respect of such Film(“Rights”)”.
[21] Defined as including “all notes, drafts, revisions, alterations, research material and associated material, including without limitation all trailers and footage produced and directed by [KMP].”
Upon payment of the Rights Fee by [Bronte Pictures], [KMP] assigns to [Bronte Pictures] all of the Rights.”
(b) “Operation of the Film - In further consideration of the Rights, [Bronte Pictures] agrees to arrange for the post production of the Film, and to complete all post production services required in respect of the Film”.
The parties acknowledge and agree that:
a) the management and post-production of the Film shall be controlled by [Bronte Pictures];
b) an International Sales agent and Australian/New Zealand distributor will be secured in respect of the Film;
c) an Australian post production facility will be employed to complete post production services in respect of the Film.”
(c) “Services - [KMP] shall provide the following services in respect of the Film:
a) to direct the post production of the Film;
b) to provide editing services in respect of the film; and
c) to provide various post production services;
pursuant to a separate written agreement to be negotiated in good faith by the parties but including industry standard fees payable to [KMP].”
(d) “Share of [Bronte Pictures] Net Profits from the Film - [KMP] shall also be entitled to receive eighty per cent (80%) of [Bronte Pictures’] Net Profits from the Film….” and;
(e) “Effect of Breach - In the event of any breach of this Deal Memo by [Bronte Pictures], [KMP’s] remedies shall be limited to the recovery of monetary damages in an action at law, and in no event shall [KMP] be entitled by reason of the breach to rescind this Deal Memo or any of the rights granted nor shall [KMP] be entitled to restrain, enjoin or otherwise impair the production, distribution, exploitation, advertising, promotional publicity of the Film or any of the rights in or in connection with the Film.” and
(e) “Agreement - The parties acknowledge and agree that this Deal Memo covers the full and complete understanding agreed between the parties with respect to the Work and supersedes all other agreements between the parties whether written or oral with respect to the Work. This Deal Memo may not be modified or amended except by written instrument executed by the parties.”
The Services Agreement included terms:
(a) “Services [KMP] shall provide the following services [in] respect of the [Film] for the Period of Engagement”:
a. to provide post-production directing and editing services; and
b. any other service related to the [Film] which is reasonably required by [Bronte Pictures].
(b) “Period of Engagement [KMP] agrees to provide the Services from a date to be mutually agreed by the parties, until completion and delivery of the [Film].”
(c) “Service Provider Salary - In consideration of the Services, [Bronte Pictures] shall pay to [KMP] the total sum of Thirty-Five Thousand Australian Dollars ($35,000.00) … upon commencement of the Services.”
(d) “Credit - [KMP] shall be entitled to receive a credit reading substantially as follows: “Written and Directed by Blair Moore”…. and
(e) “Copyright - In consideration of [Bronte Pictures] agreeing to pay the Fee, [KMP] assign[s] to [Bronte Pictures] absolutely with full title guarantee, by way of an exclusive assignment, all rights, title and interest, including present and future copyright, in the results and proceeds of the Services…which for all purposes shall be deemed a work-made-for-hire, for [Bronte Pictures] to hold and exploit absolutely in any and all media by all means in perpetuity throughout the world…”
The Post Lounge Agreement included terms to the effect that:
(a) The Post Lounge would supply equipment, facilities and services at the direction of BKH/BKS relating to the Film in accordance with the specification in the Quote and Delivery Materials (exhibits “A” and “C” to the agreement) in accordance with the Production Schedule (exhibit “B” to the agreement). (clauses 1,1, 1.3, 1.4, 3.1.1 and 5.1).
(b) BKH/BKS would pay The Post Lounge $1,150,000.00 for the provision of the equipment, facilities and services referred to in (a) above (clause 5.2) and;
(c) The rights, including copyright, in the services provided by the Post Lounge would vest, upon provision of the services, in BKH/BKS (clause 11).
The Second Assignment Agreement included Recitals “A.” to “D” which relevantly read as follows:
“A. Pursuant to the Rights Deal Memo between Bronte Pictures and [KMP] dated 9 February 2022 (“Rights Deal Memo”), [KMP] assigned all rights (including copyright) in and to the original work titled “KANE” (“Work”) …. including the right to make a feature film entitled “KANE” (“Film”) and all related and ancillary rights in respect of such Film (“Deal Memo Rights”).
B. Bronte Pictures and [BKH] entered into a Deed of Assignment and Assumption dated with effect from 28 January 2023 (“Deed of Assignment and Assumption”) by which Bronte Pictures assigned to [BKH] all of its rights in and to the “Development Materials” (meaning any and all development materials… created or acquired by Bronte Pictures… in connection with the Film… and the Film without limitation, any rights acquired pursuant to the Rights Deal Memo in accordance with the terms of the Deed of Assignment and Assumption.
C. Bronte Pictures and [KMP] entered into a Services Agreement (“Services Agreement”) by which [KMP] agreed to provide post-production directing and editing services on the Film and any other services related to the Film reasonably required by Bronte Pictures.
D. [Bronte Pictures and BKH] agrees to assign to [KMP] any and all of its entire right, title and interest in and to the Film (including, without limitation, to rights acquired under the Rights Deal Memo, the Deed of Assignment and Assumption, the Services Agreement and to the Deal Memo Rights and Development Materials) pursuant to the terms of this Deed.”
Screen Australia submits that the effect of the contracts referred to paragraph [16] above is that:
(a) “on 9 February 2022, Bronte Pictures was assigned all relevant rights and took over the making of the film from [KMP].”
(b) “from 9 February 2022, Bronte Pictures and its subsidiaries made arrangements for the carrying out of post-production work on the Film, including by The Post Lounge, and agreed to make payment for that work.”
(c) “from 9 February 2022, [KMP] remained involved in the making of the Film, but only in the capacity of a contracted (and paid) service provider to Bronte Pictures,” and
(d) “some months after the Film was completed, the copyright in the completed Film was assigned to [KMP].”[22]
[22] Respondent’s Submissions, [25].
There is limited contemporaneous documentary evidence produced by KMP which concerns the carrying out of post-production work by it on the Film. Screen Australia refer to two items of correspondence created by KMP, and described below, which are consistent with its contention that Bronte Pictures (or subsidiaries of Bronte Pictures) essentially took over and assumed responsibility for the post-production phase of the making of the Film.
The first document is a Letter of Representation from KMP, undated, which reads as follows:
“Letter of Representation
Kane Motion Picture Pty. Ltd. did not have any contracts with Post Production companies.
Post Production was completed by Bronte Pictures in which there was no transparency with and Kane Motion Picture Pty. Ltd. was not allowed to communicate with these companies.”[23]
[23] T53, TB page 701.
The second document is headed “Production Explanation”, undated but said to date to 14 January 2024,[24] and contains an account by Shaun Barry relating to post-production of the Film, in the following terms:
“As I have explained to a number of people at Screen Australia and throughout the Industry, the film was taken over by Blake Northfield at Bronte Pictures with promises of him completing all the post-production including distribution and sale of the film.
Due to this, and unbeknownst to us at the time, Blake was not transparent about anything he was doing with our film. This included the schedule, budget and plan. This was due to his excuse that it was now his film and he didn’t need to tell us anything.
Although we eventually got our rights back to the film, Blake still remains unhelpful and non-transparent about his business dealings.
Therefore, I do not have access to anything regarding the post-production of our own film and I am unwilling to communicate with him regarding any matter moving forward.”[25]
[24] Respondent’s Submissions, [27].
[25] T87, TB pages 1006 - 1007.
The Letter of Representation and the “Production Explanation” referred to in paragraphs [23] and [24] above are said by Screen Australia to have been created voluntarily and are consistent with the apparent effect of the commercial agreements referred to in paragraph [16] above, that is that Bronte Pictures took over responsibility for the making of the Film from KMP in the post-production phase.[26]
[26] Respondent’s Submissions, [28].
Screen Australia also refers to a Letter of Completion dated 12 December 2022 from the General Manager of The Post Lounge to Blake Northfield at BKH, which reads:
“I am pleased to confirm that the mastering on ‘KANE”, post produced for BRONTE KANE HOLDINGS PTY LTD at TPL SAPPHIRE PTY LTD trading as THE POST LOUNGE (ABN 15 648 139 628), has been completed on 12 December 2022.
If you require any further assistance, please feel free to contact me.”[27]
[27] T20, TB page 390.

Screen Australia submits that there is no reason for the Tribunal to doubt that post-production work (including the mastering on the Film) was carried out by The Post Lounge in the period up to the completion of the Film, which included “things necessary for the production of the first copy of the film” within the meaning of subsections 376-125 (2)-(3) of the ITAA 97.[28]
[28] Respondent’s Submissions, [29] – [30].
CROSS EXAMINATION OF MR BARRY AND MR MOORE
When he was completing the Producer Offset Application, the Rights Deal Agreement, the Services Agreement and the Second Assignment Agreement were said by Mr Barry to be chain of title documents for the Film.[29] Mr Barry was questioned in cross examination about the representations made by him on behalf of KMP to Screen Australia in the Producer Offset Application about the chain of title documents for the Film.
[29] TB page 101.
The first chain of title exchange in cross examination was in relation to the Rights Deal Agreement. Mr Peadon took Mr Barry to the reference to chain of title in the Producer Offset Application and continued:
MR PEADON: “Now, you provided – or you purported to provide a copy of the Deal Rights Memo to Screen Australia as part of the chain of title documents, yes?
MR BARRY: Yes.
MR PEADON: Because you considered it was relevant to the chain of title, yes?
MR BARRY: Yes.
MR PEADON: Yes. You were representing to Screen Australia that what they needed to do to work out the chain of title was to look at the deal rights memo, yes?
MR BARRY: Yes, I wanted their assistance. I didn’t want to hide anything from them. I could have just not included the rights deal memo, services agreement or the deed of assignment, but I wanted to be honest and upfront, and I wanted to have a discussion with Screen Australia.
MR PEADON: Again, you provided or purported to provide a copy of the deal rights memo to Screen Australia representing that that was relevant – the terms of that agreement were relevant to the chain of title?
MR BARRY: Yes. Yes….
MR PEADON: But your evidence now is actually the terms of that agreement didn’t reflect the true agreement as we understand it, yes?
MR BARRY: Correct. Correct.
MR PEADON: Do you agree with me that – on your evidence, you seem to be suggesting that you misled Screen Australia as to what the actual agreements were relevant to the chain of title?
MR BARRY: No. How did I mislead them?
MR PEADON: Well, I suggest to you, Mr Barry, that the reason you provided the rights deal memo to Screen Australia is because at that time you considered that the deal rights memo was a valid and effective agreement that affected the chain of title. What do you say to that?
MR BARRY: I’ll say it was a concern that I wanted assistance with.”[30]
[30] Transcript P – 63, lines 34 – 44; T – 64 lines 1 – 18.
The second chain of title exchange in cross examination was in relation to the Services Agreement:
MR PEADON: “… And so you were representing to Screen Australia by providing a copy of the services agreement that the services agreement was a valid contract in which Screen Australia should have regard in assessing the application; that’s right, isn’t it?
MR BARRY: At the time, I may have made a mistake and added that.
MR PEADON: Well, I don’t know what ‘may have’ means, Mr Barry. I’ll ask the question - -?
MR BARRY: Well, I may – I may - -
MR PEADON: Mr Barry, you can answer my question please. The question is you attached the services agreement to the application, and by doing so, you represented to Screen Australia that it was a valid and effective agreement. Do you agree?
MR BARRY: No.”[31]
[31] Transcript P – 65, lines 5 – 16.
The final chain of title exchange in cross examination concerned the Second Assignment Agreement:
MR PEADON: “You might recall that when you were – can I call it your opening, you were making some statements earlier today before the cross examination started, that in answer to a question that was put to you by the member, your answer was you said the deal rights memo, the services agreement and the deed of assignment at least, all of those documents are void. That’s part of your case, yes?
MR BARRY: Yes.
MR PEADON; Yes. Now if you back to that chain of title section on page TB 101, you’ll see you’ve included the deed of assignment as one of the chain of title documents, yes?
MR BARRY: Yes.
MR PEADON: Did you inform Screen Australia in this application form that you considered that document not to be valid and effective?
MR BARRY: I did not.
MR PEADON: But you certify in a statutory declaration that the information contained in this document was true and correct, yes?
MR BARRY: Yes.
MR PEADON: And so you’re certifying that the contents of the attachment, being the deed of assignment, are true and correct, yes?
MR BARRY: Yes.
MR PEADON: And now you’ve changed your mind, and you want to suggest that it’s not true and correct?
MR BARRY: Yes.
MR PEADON: When did you change your mind, Mr Barry?
MR BARRY: I don’t know.
MR PEADON: Was it before or after you put in the application for the producer offset?
MR BARRY: I don’t know.”[32]
[32] Transcript P – 67, lines 3 – 29.
The Second Assignment Agreement was returned to later in Mr Barry’s cross examination. Having established that the Second Assignment Agreement was executed by Mr Barry as director and secretary of KMP, Mr Peadon questioned Mr Barry about Recitals A – D in the document:
MR PEADON: “This document is signed in the context where you’ve been having a disagreement with Mr Northfield, isn’t it?
MR BARRY: Yes.
MR PEADON: Yes, and so the whole point of this document is to try, in part, to resolve some of the issues by having Kane Motion Picture take back an assignment of all of the rights in the film. That’s correct, isn’t it?
MR BARRY: Not take back, no. Reassert - -
MR PEADON: Well, have assigned to it all the rights of the film. That’s the point, isn’t it?
MR BARRY: Just reassert that we had the rights, yes.
MR PEADON: Okay. Paragraph [A], you say that we – and I assume by that you mean Kane Motion Picture – have the rights, but paragraph [A] doesn’t say that, does it? Paragraph [A] proceeds on the basis that the Bronte entities have the rights. Doesn’t it?
MR BARRY: (Indistinct) rights. I’m not a contract lawyer. I don’t know.
MR PEADON: Did you read this at the time of signing?
MR BARRY: I did, yes.
MR PEADON: So you understood that what it’s saying is that there’s a deal rights memo, the producer, who is defined as Kane Motion Picture, assigned all rights in relation to the work titled ‘Kane, including the right to make a feature film entitled ‘Kane’, and all related ancillary rights. So it assigned those rights away. You knew that didn’t you? That’s what paragraph [A] says?
MR BARRY: Well, the fact that the rights deal memo was void means that this doesn’t matter.
MR PEADON: So you signed a document that you now say doesn’t matter?
MR BARRY: Correct.
MR PEADON: Did you tell Mr Northfield that?
MR BARRY: No.
MR PEADON: Can you explain to the Tribunal why you, as a director of a company, with obligations as a director of a company, would sign a document that you now seem to suggest doesn’t have any effect or is misleading in its content? Can you explain that to the Tribunal please?
MR BARRY: Yes, I’d love to. I appreciate it. The reason we did this was Blake had in his mind that he had the rights. He was not giving us any transparency to the documents. We had the constant argument over the control, and that is what the whole issue is about…. The only way we could convince him that we could move forward and then we would have open transparency to all of his documents so that we could see was that we had to sign this document. So the reason we signed this document enabled me to then go and investigate and have transparency over all of his documents, which then allowed me to see all of his wrongdoings. In doing so, that is when I finally had the legal grounds to have access to all of his files. And I could then see what fraud he was committing, which I then was able to give legally to the police, both federal and state police departments. That is why I signed it.
MR PEADON: Are you in the habit of signing documents that contain statements with which you strongly disagree, such as that in paragraphs [A], [B], [C] and [D]?
MR BARRY: To me it’s irrelevant. The fact was that he didn’t have the rights. In order for us to gain access to his wrongdoings, the only way I could do that was to sign this document. So if anything, you could say under duress I had to sign this document to find out what was happening with my film.
MR PEADON: I asked a different question. I asked are you in the habit of signing documents with which you strongly disagree with the contents?
MR BARRY: It seems to be that way, doesn’t it.
MR PEADON: And then, of course, you attach this to the producer application, yes?
MR BARRY: Yes.”[33]
[33] Transcript P – 79, lines23 – 46; P – 80, lines 1 – 35.
Mr Barry was later asked questions in cross examination about what happened in the post-production phase after the Services Agreement had been entered into by KMP and the Bronte companies had entered into the Post Lounge Agreement:
MR PEADON:… “Do you recall that during – so you’ve made statements to Screen Australia that during post-production when you asked Mr Northfield for certain things to be done or certain information that his response was ‘no’ because it was his film and you had no right to tell him what to do. Do you recall making statements to that effect?
MR BARRY: Yes.
MR PEADON: So you understood that during post-production that Mr Northfield was of the view that Bronte Pictures was in charge, yes?
MR BARRY: No….
MR PEADON: Bronte Pictures did as it liked in the course of post-production including engaging a post-production house without asking for your consent or permission, yes?
MR BARRY: Well, they were the post-production house. They were the post-production. So it doesn’t matter who - -
MR PEADON: You had no control over what they were doing in the post-production house. That’s correct, isn’t it?
MR BARRY: That’s correct.
MR PEADON: Yes. And you had no visibility as to what they were doing as part of post-production. That’s correct, isn’t it?
MR BARRY: Well, not no visibility because Blair Moore was there every day doing post-production with him.
MR PEADON: And you weren’t directing the post-production house as to what to do in completing the film, were you?
MR BARRY: I wasn’t directing the post-production house. I wasn’t directing The Post Lounge what to do but I was maintaining control over post-production by being reported to by both Blair Moore and from Blake Northfield. My control was over Blake Northfield over the post house.
MR PEADON: But Blake Northfield didn’t think that you controlled him. He was telling you he would do as he liked and that you couldn’t tell him what to do. That’s correct, isn’t it?
MR BARRY: That’s correct and that’s why we started arguments. As soon as he started saying that that was when everything hit the fan and I realised what he was doing and everything changed.
MR PEADON: Well, what he was doing was acting in accordance with the written agreement, wasn’t he?
MR BARRY: Yes.”[34]
[34] Transcript P – 75, lines 40 – 46: P – 76, lines 1 – 19.
Finally, Mr Barry was asked a series of questions about the information provided by him to Screen Australia in the Producer Offset Application:
MR PEADON: “And I suggest to you that you have been very loose in the way that you have presented the information to Screen Australia in the context of swearing a statutory declaration?
MR BARRY: You have the right to that opinion that this is – again, I had to fill out the application form. I was open and transparent with all the documents I have in order to start conversations with Screen Australia.
MR PEADON: You said you had to fill out the application form. Who forced you to do that?
MR BARRY: Screen Australia.
MR PEADON: Screen Australia didn’t force you to fill out an application form, you filled out an application form because you wanted the producer offset, Mr Barry. That’s correct, isn’t it?
MR BARRY: I wanted to discuss the producer offset, yes.
MR PEADON: You don’t fill out a form because you want to discuss a form, you filled out a form because you wanted the producer offset, Mr Barry?
MR BARRY: That’s correct, yes.
MR PEADON: No. And so you were prepared to tell Screen Australia, whatever was convenient to you, to try and convince them to grant the company the producer offset. What do you say to that?
MR BARRY: No.
MR PEADON: And you were prepared to tell them and represent the things that you were prepared to suggest and the things that you say weren’t true and the things that you say are not true are true. In other words, you simply did not have the time or effort to ensure the accuracy of the information that you provided when you made the application. What do you say to that?
MR BARRY:I say that I did not have the correct guidance in filling out the application, and I filled it out to the best of my knowledge in a hope to discuss the producer offset application with Screen Australia.
MR PEADON: It’s your responsibility to fill out the form including in relation to the [chain] of title. You understood what that asked you. You provided four agreements. What is it that you found so difficult about filling out the forms, Mr Barry?
MR BARRY: That I was unable to discuss it with any member of Screen Australia. That I was unable to discuss is this – should I include these documents in the chain of title. I did not have the ability to discuss that with anyone at Screen Australia.
MR PEADON: Did you say that when you requested additional information, did you say, ‘I need to discuss with you all the documents in the chain of title. I think that the recitals [in the assignment] deed are incorrect. Did you say that to them?
MR BARRY: No.”[35]
[35] Transcript P – 81, lines 6 – 46.
Mr Moore was asked questions in his cross examination about the three agreements executed by KMP, the Rights Deal Agreement, the Services Agreement and the Second Assignment Agreement.
In the context of the signing of the Rights Deal Agreement, there was the following exchange about the discussions between Mr Moore and Blake Northfield (Mr Northfield):
MR PEADON: “Putting yourself back in your shoes, so was it your understanding based on your discussion with Blake around the time – effectively what he said to you is: ‘There’s this document. It assigns the rights to Bronte, but don’t worry about it. I’m going to sign them back once the film is complete’. Is that what you recall?
MR MOORE: Pretty much something like that. Something similar to that or all that you know, you know, he’d tear up the agreement that it’s ours - our film basically. He just needed that document to help with sales and everything else he was doing.
MR PEADON: But in the context of that discussion, he was talking about assigning back the film at some point, yes?
MR MOORE: Something like that, yes.”[36]
[36] Transcript P – 95, lines 33 – 42.
In relation to the Services Agreement, Mr Moore’s evidence included:
MR PEADON: “And would you have read this closely or carefully when you signed it?
MR MOORE: Yes, probably. I would say so.
MR PEADON: All right. So, you understood that Kane Motion Pictures was providing services to Bronte Pictures, yes?
MR MOORE: Yes.
MR PEADON: And those services included directing services, and I think your evidence is that you were the person who was going to give direction. That’s fair, isn’t it?
MR MOORE: Yes.
MR PEADON: Now, I think you gave some evidence a little while ago in response to the questions that Mr Barry was asking you, that there was payment made that you understood was in respect of those directing services?
MR MOORE: Yes.
MR PEADON: Did that come from Bronte? Yes. Yes, I think so….
MR PEADON: One of the Bronte companies?
MR MOORE: Yes….
MR PEADON: And that’s because you were providing services to the Bronte companies, yes?
MR MOORE: Yes.
MR PEADON: And that’s because the Bronte companies were making the film, yes?
MR MOORE: Not making the film; assisting with post.”[37]
[37] Transcript P – 96, lines 26 – 45; P – 97, lines 1 – 8.
Mr Moore was asked about the signing of the Rights Deal Agreement and the Services Agreement:
MR PEADON: “And you signed these agreements as a director? The one’s I’ve taken you to so far, yes?
MR MOORE: Yes….
MR PEADON: And as far as you were concerned, they were valid and effective agreements, yes?
MR MOORE: At the time probably, yes.”[38]
[38] Transcript P – 98, lines 7 – 13.
Mr Moore was then asked questions about the Second Assignment Agreement:
MR PEADON: “There’s a document called the deed of assignment which was executed in May of 2023. Do you recall that?...
MR MOORE… Is it the first one or second one? There was two.
MR PEADON: So, there’s the deal rights memo, the services agreement. They’re back in 2022?
MR MOORE: Right….
MR PEADON: Then all the post-production during 2022. The film’s completed in December 2002. That’s correct, isn’t it?
MR MOORE: Yes.
MR PEADON: Then in May 2023, there was a---?
MR MOORE: Yes, the re-assignment….
MR PEADON: So, you understood it was a re-assignment of the film back to…Kane Motion Picture, yes?
MR MOORE: Yes.
MR PEADON: Yes. And that’s because as per the discussion you’d had earlier on when you signed the original deal rights memo, you’d always understood the film would eventually be assigned back. That’s right, isn’t it?
MR MOORE: Possibly, yes. You know, I mean as far as I… understood that… it was a gentleman’s agreement that we still had the rights regardless of that paperwork.”[39]
[39] Transcript P – 98, lines 18 – 45.
Mr Moore’s evidence about the Post Lounge Agreement, and the involvement of the Post Lounge, included the following exchange:
MR PEADON:” … you understood that there was an agreement with Bronte, one of the Bronte companies and post house for the post-production. You knew that didn’t you?
MR MOORE: With Post Lounge, yes….
MR PEADON: So, it was one of the Bronte companies that engaged The Post Lounge to perform post-production services, yes?
MR MOORE: Yes.
MR PEADON: And you understood it was one of the Bronte companies that was responsible for paying the fees by Post Lounge, yes?
MR MOORE: For paying Post Lounge?
MR PEADON: Yes.
MR MOORE: I would have assumed so, yes.
MR PEADON: Yes. It wasn’t Kane Motion Picture, was it? They weren’t going to pay to Post Lounge?
MR MOORE: No.”[40]
[40] Transcript P – 97, lines 20 – 37.
KMP’S SUBMISSIONS
Mr Barry submitted in his closing that the “attack” by Mr Peadon in cross examination on his integrity in the context of the signing of the statutory declaration and concerning the circumstances of the various commercial agreements during and after the post-production phase of the Film did not matter as the Rights Deal Agreement was void and of no effect.
Mr Barry relies upon the Applicant’s Reply Submissions at paragraphs [10] – [19], in which he argues that Screen Australia cannot rely upon the existence of the Rights Deal Agreement as evidence that KMP surrendered control of the post-production phase of the Film to Bronte Pictures, because there was a failure of consideration arising from the non-payment in a timely fashion of the Rights Fee by Bronte Pictures.[41] The decisions of the High Court in Placer Development v Commonwealth,[42] Godecke v Kirwan[43] and Goldsborough Mort & Co v Quinn[44] were cited in support of the proposition that the failure by Bronte Pictures to make timely payment of the Rights Fee meant that the Rights Deal Agreement failed for lack of consideration and the legal rights to the Film never passed from KMP to Bronte Pictures.[45]
[41] Applicant’s Reply Submissions, [11] – [14].
[42] (1969) 121 CLR 353.
[43] (1973) 129 CLR 629.
[44] (1910) 10 CLR 674.
[45] Applicant’s Reply Submissions, [15].
KMP contends that it satisfies the statutory test under subsection 376-65(1)(a) of the ITAA97 in that KMP “made arrangements for the carrying out of” the post-production activities that were necessary for the making of the Film. It says that it’s “role in commissioning and overseeing the post-production process satisfies this requirement even if some activities were delegated to service providers.”[46]
[46] Applicant’s Reply Submissions, [25].

The Tribunal’s decision in Fragmentary Pty Ltd and Screen Australia[47] (Fragmentary) is said by KMP to support a broad and practical view of “making a film” including circumstances where KMP engaged Bronte Pictures with the intention that Bronte Pictures (and related Bronte entities) would execute the post-production phase under KMP’s direction.[48]
[47] [2024] AATA 3316.
[48] Applicant’s Reply Submissions, [26] – [27].
KMP’s position is that it remained in practical control of the post-production throughout.[49] It says that Screen Australia cannot rely upon the Post Lounge Agreement to establish the post-production arrangements between Bronte Pictures and the Post Lounge.[50] Further, as the Services Agreement was based on the Rights Deal Agreement, it too was never executed as a valid contract by reason of the invalidity of the Rights Deal Agreement.[51]
[49] Applicant’s Reply Submissions, [29].
[50] Applicant’s Reply Submissions, [31].
[51] Applicant’s Reply Submissions, [35].
KMP contends that any funds paid for services by Bronte Pictures under the Services Agreement were paid to the personal account of Mr Moore in his Writer/Director capacity and that neither Mr Barry nor KMP received any funds from Bronte Pictures. That is said to undermine Screen Australia’s argument that KMP was a mere service provider to Bronte Pictures in the post-production phase.[52]
[52] Applicant’s Reply Submissions, [34].
KMP submits that the test under subsection 376-65(1)(a) is “ultimately one of responsibility and control.”[53] It acknowledges that it did not pay invoices issued by The Post Lounge but says that the Tribunal should look beyond payments made to a consideration of overall responsibility for the post-production phase. The oversight by Mr Moore,[54] the structure of the film credits and Mr Barry’s own input to post-production are all said to be indicators that “production control was never fully relinquished” by KMP.[55]
[53] Applicant’s Reply Submissions, [55], [57].
[54] Referred to in Mr Moore’s witness statement: ST24, TB pages 1954 – 1955.
[55] Applicant’s Reply Submissions, [54].
In respect of the Post Lounge Agreement, Mr Barry submitted in closing that KMP had gone to Bronte Pictures to arrange a “one-stop shop” for post-production. He contended that the Post Lounge Agreement does not establish that Bronte Pictures arranged for any company to do the post-production. AS KMP had engaged Bronte Pictures for post-production, and KMP exercised continuing editorial control over Bronte Pictures during the post-production, any further subcontracting done by Bronte Pictures should be treated as being irrelevant.
In respect of KMP’s allegations as to the alleged unlawful conduct of Mr Northfield and/or the Bronte entities, Mr Barry appeared to accept that the Tribunal was not able to make findings about those matters. Rather, the Tribunal only needed to be satisfied that KMP had never relinquished control, and had itself made the arrangements for all of the necessary post-production activities for the making of the Film.
SCREEN AUSTRALIA’S SUBMISSIONS
First, as to the KMP witnesses, counsel for Screen Australia submitted that Mr Barry’s evidence under cross examination was unreliable in a few respects, including that:
(a) Mr Barry could not say whether he had formed the conclusion that the Rights Deal Agreement was void before or after the Producer Offset Application was lodged with Screen Australia.
(b) When he was confronted with errors in the information provided to Screen Australia in the Producer Offset Application, Mr Barry refused to take personal responsibility for those inaccuracies and blamed others for them. Including a third-party costs consultant and Screen Australia itself.
(c) Mr Barry’s answers about the statutory declaration in the Producer Offset Application led to a concession by him that he was prepared to make a declaration on oath as to the accuracy of chain of title documents which he later said did not reflect the actual agreement reached between KMP and Bronte Pictures and;
(d) His evidence in which he agreed with the proposition that he was prepared to execute the Rights Deal Agreement, as a director of KMP, even though he did not agree with it.
Counsel further contended that Mr Barry’s demeanour while under cross examination, being at times argumentative, unresponsive to the question being asked and refusing to make sensible concessions, provided a basis for the Tribunal to conclude that self interest (for himself and/or KMP) had adversely impacted the credibility of his evidence. This was particularly so on the question of whether the Rights Deal Agreement, Services Agreement and Second Assignment Agreement were valid and binding agreements (or understood by Mr Barry to be valid and binding) at the time they were entered into. That proposition could be further tested by contrasting Mr Barry’s evidence with that of Mr Moore, and with the evidence as to the behaviour of third parties (including the Bronte entities and The Post Lounge) which was consistent with them having acted in accordance with the executed agreements
Counsel for Screen Australia submitted that there 8 uncontroversial factual matters which the Tribunal should find as facts. Those factual findings could then form the basis for the Tribunal determining the case by reaching the conclusion that KMP did not either carry out or make arrangements for the carrying out of all the activities which were necessary for the making of the Film.
Those 8 uncontroversial factual matters were:
(1) KMP carried out or made arrangements for the carrying out of all the activities which were necessary for the making of the Film up to and including the completion of the principal photography (the shooting of the film) on or about 20 January 2022.
(2) On or about 9 February 2022, KMP and Bronte Pictures entered into the Rights Deal Agreement and the Services Agreement.
(3) Under the Rights Deal Agreement, KMP assigned all rights in the Film to Bronte Pictures for a Rights Fee of $500 and agreed to other terms including a term as to the “Effect of Breach.”
(4) Under the Services Agreement, KMP agreed to provide post-production and editing services and other services as may be reasonably required by Bronte Pictures to Bronte Pictures upon payment of a Service Provider Fee, in consideration for which payment KMP assigned all rights and copyright in the results of the services provided to Bronte Pictures.
(5) Under the Bronte Assignment Agreement, Bronte Pictures assigned relevant rights in the Film to BKH. Screen Australia relies on this fact as establishing the rights to the Film sitting with the Bronte Group of companies and as not residing with or having been assigned back to KMP at that time.
(6) Under The Post Lounge Agreement, which is assumed to have post-dated the Rights Deal Agreement, Services Agreement and Bronte Assignment Agreement, BKH or BKS contracted with The Post Lounge for the latter to provide post-production equipment, facilities and services in relation to the Film. KMP had no involvement in this arrangement.
(7) The Film was completed on 12 December 2022 and;
(8) On 29 May 2023, under the terms of the Second Assignment Agreement, Bronte Pictures and/or BKH assigned all of their rights, title and interest in the Film to KMP.
Screen Australia referred to, and the Tribunal has considered, the following evidence in relation to the 8 factual matters:
(a) Each of the written agreements to which KMP was a party, the Rights Deal Agreement, the Services Agreement and the Second Assignment Agreement, were either executed or witnessed by Mr Barry.
(b) Those written agreements were provided by Mr Barry to Screen Australia as supporting documentation for the Producer Offset Application subject to a statutory declaration in which Mr Barry stated the information provided on behalf of KMP was “true in every particular.”[56]
(c) Mr Barry did not inform Screen Australia in the Producer Offset Application, or otherwise, prior to the Reviewable Decision, that the documents were anything other than part of the chain of title documents for the Film.[57]
(d) The Second Deed of Assignment contained Recitals A – D (extracted at paragraph [20] above), which expressly acknowledge both the existence and the effect of the Rights Deal Agreement and the Services Agreement. The Second Deed of Assignment was executed by both Mr Barry and Mr Moore.
(e) The evidence given by Mr Moore under cross examination that his understanding was that the Rights Deal Agreement and the Services Agreement were valid and binding agreements at the time.[58]
(f) Mr Moore gave further evidence that Mr Northfield had told him that the rights to the Film would be re-assigned to KMP at some point and in fact occurred when the Second Assignment Agreement was executed in May 2023.[59]
[56] TB page 697: T51 page 655.
[57] TB page 101. The Rights Deal Memo, the Services Agreement and the Second Assignment Agreement are referred to in, and attached to, the Producer Offset Application as Chain of Title documents.
[58] Transcript P – 98, lines 7 – 13.
[59] Transcript P – 98, lines 30 – 45.
Screen Australia submits that the Tribunal should have regard to the evidence as to the work carried out by The Post Lounge under the Post Lounge Agreement. When the Tribunal considers that evidence, including the letter dated 12 December 2022 referred to in paragraph [26] above, the conclusion it would reach is that some (post-production) activities necessary for the making of the Film were carried out by The Post Lounge. KMP neither carried out, nor made arrangements for the carrying out of, those activities. That conclusion is said by Screen Australia to be “fatal” to KMP’s case.[60]
[60] Respondent’s Submissions, [32] – [34].
Screen Australia responds to what it has identified as KMP’s key contentions in paragraphs [35] – [50] of the Respondent’s Submissions.
As to KMP’s contention that subsection 376-65(1)(a) of the ITAA 97 can be satisfied without the need to carry out all of the post-production activities,[61] Screen Australia says:
(a) Subsection 376-65(1)(a) expressly refers to all of the activities necessary for the making of a film. The fact that the word “all” does not appear in the definition of “making” in subsection 376-125(3) of the ITAA 97 is not of significance.[62]
(b) A literal interpretation of subsection 376-65(1)(a) does not give rise to circumstances which would require the subsection to be read down[63] and;
(c) There is nothing in the legislation which requires the operation of subsection 376-65(1)(a) to be limited to those activities for which “qualifying Australian production expenditure”, QAPE, has been claimed.[64]
[61] Applicant’s Second Submission, [50] – [59].
[62] Respondent’s Submissions, [36].
[63] Respondent’s Submissions, [38].
[64] Respondent’s Submissions, [39]. The parties agree, for different reasons, that the Tribunal’s decision in Quirky Mama Productions Pty Ltd and Screen Australia [2023] AATA 3089, concerning the inclusion in a producer offset application of QAPE which had not been “incurred” at the relevant time, can be distinguished as having no direct application to the facts of this case.
As to KMP’s contention that the Rights Deal Agreement is void,[65] Screen Australia says:
(a) This contention is inconsistent with the “Production Explanation” dated 14 January 2024 referred to in paragraph [24] above.[66]
(b) Recital A of the Second Assignment Agreement expressly confirms the prior assignment of all rights in the Film to Bronte Pictures. Screen Australia notes in this regard that in any future proceedings between KMP and Bronte Pictures an estoppel might arguably arise[67] and;
(c) The weight of the evidence favours the view that, irrespective of the legal position and whether the Rights Deal Agreement is valid or not, Bronte Pictures, in fact, took control over the post-production phase of the Film’s production.[68]
[65] Applicant’s First Submission, [25] – [28]; Applicant’s Third Submission, [2(c)], [22].
[66] Respondent’s Submissions, [41].
[67] Respondent’s Submissions, [42], which cites Schwartz v Hadid [2013] NSWCA 89, [83] and Brunoro vNebelung [2017] ACTCA 26. [70] – [71] on the estoppel aspect.
[68] Respondent’s Submissions, [43].
As to KMP’s contention that it satisfied the requirements of subsection 376-65(1)(a) because it “arranged” or “made the arrangements for the carrying out of” all of the activities conducted by Bronte Pictures after the execution of the Rights Deal Agreement, Screen Australia says:
(a) “arrangements” is not relevantly defined for the purposes of subsection 376-65(1)(a). When it is considered in its statutory context,[69] section 376-180 of the ITAA 97 provides some guidance in that an outgoing company would not be treated as having “made the arrangements” for all activities subsequently carried out or arranged by the incoming company[70] and;
(b) KMP cannot be said to have “made the arrangements for the carrying out of” all of the post-production activities managed by Bronte Pictures when:
(i) “[KMP] had, under the Rights Deal Memo, relinquished all relevant intellectual property interests including the right to make the Film.”
(ii) “[KMP] had no contractual right to control the carrying out of post-production work (and indeed, under the Services Agreement, had assumed the role of a service provider subject to direction from Bronte Pictures).”
(iii) “[KMP] did not contract with The Post Lounge.”
(iv) “there is no evidence that [KMP] contributed (directly or indirectly) to any payment to The Post Lounge for its services.” and
(v) “by its own account, [KMP] had at best limited visibility or input into the performance of the post-production work on the Film.”[71]
[69] Section 761B of the Corporations Act 2001(Cth) has no relevant application to interpreting subsection 376-65(1)(a) of the ITAA.
[70] Respondent’s Submissions, [45].
[71] Respondent’s Submissions, [46.1] – [46.5].
The various KMP written submissions,[72] other documents in evidence,[73] and KMP’s oral submissions at the substantive hearing have many references to alleged dishonesty, wrongdoing and fraud said to have been carried out against KMP by Bronte Pictures and/or Mr Northfield. Mr Barry feels this intensely, as evidenced by the following statement made to the Tribunal:
“… we got screwed, Member. We got absolutely screwed, and all I’ve been trying to do is recoup money, and I’ve been trying to be open and honest and say, ‘Well, this is what happened to us. What is the best outcome’, ‘Just apply for the producer offset’, you know.”[74]
[72] Applicant’s First Submission, [30] – [33], [41] – [46]; Applicant’s Second Submission, [92] – [103].
[73] ST19 – ST23, TB pages 1935 – 1951.
[74] Transcript P – 68, lines 36 – 39.
Screen Australia expresses no view as to the allegations made by Mr Barry as to the wrongdoing of Mr Northfield or Bronte Pictures and doubts the relevance of the alleged misconduct to the Tribunal’s determination as to KMP’s involvement in the post-production of the Film for the purposes of subsection 376-65(1)(a) of the ITAA 97.[75]
[75] Respondent’s Submissions, [50].
In circumstances where Mr Northfield was neither a party to the proceeding, nor involved as a witness in it, Screen Australia submits that it would not be appropriate for the Tribunal to make findings in relation to the alleged misconduct. The Tribunal agrees with that submission.
CONSIDERATION
The Tribunal has considerable sympathy for Mr Barry at a personal level. The Tribunal accepts that he has devoted an extraordinary amount of his own time and emotional energy into the making of the Film. The feeling of exhaustion which he spoke of in his oral submissions to the Tribunal has been compounded by the further financial pressure imposed by having to fund the Film’s production with money borrowed from his family and friends. The Tribunal understands the attraction for KMP in having sought the assistance of Bronte Pictures and Mr Northfield with the post-production of the Film when that “trusted opportunity” came up. It is clear, and unfortunate, that the trusted opportunity with Bronte Pictures and related entities simply did not work out as Mr Barry and KMP might have hoped it would.
Mr Barry also spoke of having to do everything in relation to the Film himself, including the “legals” for the Film. It appears to be the case that KMP has obtained legal advice at some point in time, which point in time was not precisely identified in the evidence. It seems that KMP did not have legal advice prior to the entering into the Rights Deal Agreement, Services Agreement and Second Assignment Agreement. It also seems that KMP prepared and submitted the Producer Offset Application without having the benefit of legal or other professional advice.
The Tribunal has concluded that it is likely that until detailed legal or other independent professional advice was obtained by Mr Barry (presumably after he submitted the Producer Offset Application and possibly in conjunction with filing his application for review), Mr Barry and KMP had an incomplete understanding of the requirements of the legislation governing eligibility for a producer offset, including the mandatory requirements of subsection 376-65(1)(a) ITAA 97.
Mr Barry also carried out a considerable amount of work in preparing for and presenting his case before the Tribunal. Mr Peadon acknowledged that due allowance needs to be made by the Tribunal for the fact that Mr Barry is not an experienced Tribunal advocate, and that he has conducted the KMP case, and submitted himself to cross examination, in a different time zone. The Tribunal acknowledges Mr Barry’s efforts in this regard and has endeavoured to make allowance for these considerations in its determination.
Mr Barry submitted that the Tribunal, as decision-maker, ought not to approach this matter as being one “just about legislation and facts”. On the other hand, Mr Peadon made the point in his submissions that Screen Australia is told by Parliament what it can or cannot do with respect to issuing a certificate for the producer offset. Screen Australia simply cannot ignore the operation of the legislation when the legislation provides that a producer offset is only available to a person who makes a film in compliance with the legislation. Proper interpretation of the legislation is only possible when the relevant facts have been established. The Tribunal, as a fresh, albeit later, decision-maker, must determine what are the relevant facts and apply the legislation to those facts.
As to the facts, the Tribunal makes a finding as to each of 8 uncontroversial factual matters identified by Screen Australia and set out in paragraph [53] above.
The Tribunal has also considered and is satisfied as to each of the evidentiary matters associated with those 8 uncontroversial factual matters set out in paragraph [54] above.
Considering Mr Barry’s evidence, including under cross examination, more generally, the Tribunal is of the view that aspects of that evidence were unsatisfactory and unhelpful to KMP’s case. Mr Peadon was critical in his closing submissions of Mr Barry’s reliability as a witness, and I have summarised the essence of those criticisms in paragraphs [50] and [51] above.
The Tribunal is satisfied that Mr Peadon’s points of criticism which are contained in that summary are points well taken. As a general observation, there is an inherent tension when the principal witness as to fact for a party is at the same time an advocate in his or her (or the party he or she represents) own cause. Mr Barry, whilst a capable and passionate advocate in KMP’s cause, did not at times adequately manage the need for him to divorce the role of being an advocate from the impartial giving of his evidence.
To make good the conclusion of the Tribunal as to the unsatisfactory nature of key aspects of Mr Barry’s evidence, the Tribunal has extracted in these Reasons some of the critical parts of each of Mr Barry’s and Mr Moore’s respective evidence under cross examination. Drawing out some of the main points:
(a) Mr Barry’s evidence as to the chain of title documentation, and the way the chain of title documentation was represented to Screen Australia in the Producer Offset Application, was at times inconclusive or contradictory (see extracts from the transcript in paragraphs [29] – [31] above).
(b) When asked about when he changed his mind about the chain of title documents, before or after he lodged the Producer Offset Application, Mr Barry gave the unresponsive answer that he did not know (see extract from the transcript in paragraph [31] above).
(c) Mr Barry’s evidence in relation to Recitals A – D in the Second Assignment Agreement was problematic and led him to make concessions about his general conduct that were unhelpful to KMP’s case (see extract from the transcript in paragraph [32] above).
(d) Mr Barry agreed in his evidence that KMP had no effective control over the activities conducted by the Bronte entities, Mr Northfield or The Post Lounge in the post-production phase. He agreed that those third parties were generally acting in accordance with the signed agreements (see extract from the transcript in paragraph [33] above) and;
(e) The explanations given in Mr Barry’s evidence about inaccuracies in the information provided to Screen Australia in the Producer Offset Application were unsatisfactory. He repeatedly blamed the identified inaccuracies on Screen Australia’s failure to provide him with assistance in completing the Producer Offset Application, when it was KMP’s application to make, and the evidence was that Screen Australia was not obliged to provide that assistance (see extract from the transcript in paragraph [34] above).

The difficulty with Mr Barry’s evidence on these key points was accentuated by the contrast with the evidence given by the other director of KMP, Mr Moore. Of particular importance was Mr Moore’s evidence about the:
(a) Rights Deal Agreement and the Services Agreement being valid and binding at the time they were executed (see extract from the transcript in paragraph [38] above).
(b) Second Assignment Agreement and re-assignment to KMP of its rights in the Film (see extract from the transcript in paragraph [39] above) and;
(c) Post Lounge Agreement and his agreement that the relevant Bronte entity (and not KMP) was responsible for paying The Post Lounge (see extract from the transcript in paragraph [40] above).
The Tribunal notes KMP’s position is that by reason of the alleged misconduct of Mr Northfield and /or Bronte Films, each of the Rights Deal Agreement, the Services Agreement and the Second Assignment are void and of no effect. If that proposition is correct and can be proven, it follows that as a matter of law at least, the legal rights to the Film and the responsibility for the making of the Film never left KMP. It would also be open to KMP to say that all the identified problems with Mr Barry’s evidence and the disputed details arising from the debate about the Producer Offset Application do not matter in the end.
However, there are serious difficulties with KMP’s contention that all the commercial agreements executed by it are void, including that:
(a) KMP and /or Mr Barry have not instituted any legal proceedings against Mr Northfield and/or Bronte entities to make good the allegations of misconduct and to obtain appropriate declaratory and other relief against Mr Northfield and /or the Bronte entities.
(b) The Tribunal is not in a position itself, on the evidence before it, to make any findings in relation to the alleged misconduct of Mr Northfield and/or the Bronte entities. Nor is it able to make a finding as to whether any or all the commercial agreements referred to in paragraph [16] of these Reasons is or are void and of no effect.
(c) In any event, where none of the Bronte entities or Mr Northfield were parties to this proceeding, it would be entirely inappropriate for the Tribunal to do more than note that allegations of misconduct have been made by Mr Barry and KMP against various third parties who are not before the Tribunal.
(d) The weight of the evidence before the Tribunal, other than the evidence of Mr Barry, is consistent with the proposition that the true position is that each of the Rights Deal Agreement, Services Agreement and Second Assignment were valid and binding at the time of their execution and that there appears to have been a change of mind by Mr Barry at some later (unknown) time after the execution of these agreements. That evidence includes contemporaneous documents (e.g. Letter of Representation (see paragraph [23] above), Production Explanation (see paragraph [24] above) and The Post Lounge Letter of Completion (see paragraph [26] above)), the evidence of Mr Moore and the steps undertaken in relation to the making of the Film by the Bronte entities and The Post Lounge (which steps are only commercially explicable by reference to the executed agreements).
(e) There is real force in Screen Australia’s submission that regardless of the documentary position (that is, whether the commercial agreements are valid and binding, or not), the decision-maker (whether it is Screen Australia or the Tribunal) should look to who in fact carried out or arranged the post-production activities.
As to who in fact carried out or arranged the post-production activities in the making of the Film, something should first be said about the Tribunal’s decision in Fragmentary.
In Fragmentary,[76] the Tribunal considered the scope of the condition in subsection 376-65(1)(a) attaching to Screen Australia’s statutory duty to issue a final certificate under subsection 376-65(1). The Tribunal made the following general observations about the scope of “activities”:
“The Applicant does not have to personally carry out all the activities, it is sufficient if the applicant made the arrangements for the carrying out of the activities. Including, arranging and securing finance and investment, securing rights and consents and signing contracts, and licensing works and other subject matter that already exist such as raw footage, and then co-ordinating and arranging and paying the production expenditure, to enable a film to be made that can be distributed, broadcast or exhibited to the general public.”[77]
[76] [2024] AATA 3316.
[77] [2024] AATA 3316, [34].
The Tribunal went on to consider further the necessary activities for the making of a film for the purposes of the condition in subsection 376-65(1)(a) ITAA 97:
“The term ‘making’ used in section 376-65 is a defined term. Section 995-1 provides that make, in relation to a film, has the meaning given by s 376-125, which is defined as the doing of the things necessary for the production of the first copy of the film and expressly includes pre-production activities, post-production activities, and any other activities undertaken to bring the film up to the state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public: subsections 376-125(2) and (3). On any reasonable construction of the provisions, those activities must include storyboarding, scriptwriting, casting actors, developing a shooting schedule, directing performances by actors, shooting the footage to be used in the film, and editing that footage into a first cut of the film (but does not include developing the proposal for undertaking those activities; paragraph 376-125(4)(a)).
The Applicant appears to contend that you do not just look at the activities necessary for the making of the Film, but should instead look to the legal rights, namely the actor contracts and signing of rights, copyright licenses or acquisitions, and that is common practice in the industry. There is no basis in the legislation for that interpretation. It is directly contrary to the use of the word ‘activities’ in paragraph 376-65(1)(a).”[78]
[78] [2024] AATA 3316, [35] – [36].
The reasons in Fragmentary make it clear that the primary enquiry for the purposes of subsection 376-65(1)(a) ITAA 97 is a factual enquiry which looks at all of the activities necessary for the making of a film. The wording of the legislation does not permit that primary factual enquiry to be supplemented by, or supplanted by, the asserted legal rights of the parties or industry “common practice.”
The Tribunal agrees with the submissions made by Screen Australia that subsection 376-65(1)(a) cannot be satisfied without the need for KMP to carry out all the post-production activities (see paragraph [57] above).
The Tribunal also agrees with each of the submissions made by Screen Australia (which are summarised in subparagraphs [59(b)(i) – (v)] above) as to why KMP has failed to satisfy the requirements of subsection 376-65(1)(a).
Mr Moore’s evidence about the Post Lounge Agreement provided additional evidence in support of Screen Australia’s submission that the conclusion the Tribunal would reach is that some (post-production) activities necessary for the making of the Film were carried out by The Post Lounge (see paragraph [55] above). The Tribunal does reach this conclusion. The Tribunal notes in this regard the Letter of Completion dated 12 December 2022 (referred to in paragraph [26] above) and the Tribunal’s consideration in Fragmentary of the term “making” (see paragraph [78] above).
In the Letter of Completion, the General Manager of The Post Lounge refers to the completion of the “mastering” of the Film. The mastering[79] of the film is said to have been completed on 12 December 2022, which is the date the parties agree was the completion date of the Film. It is reasonable to conclude that the mastering is the last step in making the Film, it being either a post-production activity or an activity “undertaken to bring the film up to the state where it could reasonably be regarded as ready to be distributed, broadcast or exhibited to the general public” for the purpose of the definition of the making of a film set out in subparagraph 376-125(3) ITAA 97.
[79] Mastering is understood by the Tribunal to be the final process of optimising the audio quality of a completed movie to ensure that it meets industry standards, sounds good and translates well across various playback systems and distribution formats.
In any event, even if the conclusion about the mastering of the Film referred to in the Letter of Completion is not strictly correct, the Tribunal is persuaded on the evidence before it that at the time when the Film was completed on 12 December 2022, as a matter of fact, KMP did not have exclusive rights to the Film and having relinquished control of the Film to others, was no longer at that point in time responsible for the making of the Film.
CONCLUSION AND DECISION
It follows from these Reasons that in all the circumstances I am satisfied that the Reviewable Decision, to refuse to issue a final certificate for the producer offset to KMP in respect of the Film, was the correct decision.
Accordingly, the Tribunal affirms the decision under review.
Date of Hearing:  29, 30 July 2025
Date of Decision  4 September 2025
Applicant’s Representative:       Mr S Barry (self-represented)
Respondent’s Counsel:              Mr C Peadon
Respondent’s Solicitor:               Mr S Tonkin (Simpsons)