Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd

[2008] HCATrans 277

[2008] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2008

B e t w e e n -

METRICON HOMES PTY LTD

First Applicant

ROSS PALAZZESI

Second Applicant

ADRIAN GRAHAM POPPLE

Third Applicant

and

BARRETT PROPERTY GROUP PTY LTD

First Respondent

SRS PROPERTY  HOLDINGS PTY LTD

Second Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 1 AUGUST 2008, AT 12.01 PM

Copyright in the High Court of Australia

MR D.K. CATTERNS, QC:   May it please the Court, I appear with my learned friend, MR W.A. ROTHNIE, for the applicant.  (instructed by Davies Collison Cave)

MR C.D. GOLVAN, SC:   If the Court pleases, I appear with my learned friend, MR S. RICKETSON, for the respondent.  (instructed by Middletons)

GLEESON CJ:   Yes, Mr Catterns.  There is some disagreement or dispute about some evidentiary material that is before us, but we have read it and we will ‑ ‑ ‑

MR CATTERNS:   Is your Honour referring to the bundle we handed up?

GLEESON CJ:   No, I am talking about the affidavits about ‑ ‑ ‑

MR CATTERNS:   Yes, your Honour.  Thank you, we were not going to take time with that, unless the Court wishes to.  Thank you, your Honour.  Your Honours, we submit this case does raise a question of importance in copyright law which goes to the heart of copyright infringement and in this particular area, which is the copyright in project home plans or perhaps architectural plans generally, it is a question of great practical significance.

GLEESON CJ:   If the case went to this Court, what would this Court actually do?  What would be the issue it would address?

MR CATTERNS:   Your Honour, we submit that the Court would make it clear that having found copying - we do not challenge the finding of copying - that what needs to be done is to identify the part of the work actually copied.  We submit that was not done by either his Honour Justice Gilmour or by the Full Court and then by comparison, determine whether that is a substantial part of the work in suit which is what the Copyright Act prescribes and that is not the approach taken by either the trial judge or the Full Court.

To remind your Honours, section 31(b)(i) provides that the copyright in an artistic work which includes a drawing for a building or plan for a building is the right “to reproduce the work in a material form”.  By section 14 those rights extend to reproduction of “a substantial part”, of course, so you cannot evade copyright infringement by small changes.

Your Honour, the proper approach is to decide whether the defendant has in fact had access – conscious or subconscious, direct or indirect – to the copyright work in suit.  Having done that, if no, then that is the end of the case and our learned friends put in our agreed bundle a recent judgment of Justice Weinberg where that was the end of the case.  But if there is copying, your Honours, what must then be done is for the court to identify precisely the path that is taken.  If we are in a case of one literary work, whether it have literary pretensions or practical purposes, against another, you mark up the alleged parts copied from the work in suit in the alleged copy coloured in with highlighters and compare them.  Then a judgment call is made ‑ ‑ ‑

CRENNAN J:   Did not his Honour take the view and was not there expert evidence in relation to similarities, all directed to the “substantial part” point?

MR CATTERNS:   Your Honour, as I read the expert evidence, it went to the question of copying.  The expert, Dr Cooke, said he thought there was copying because of the similarities and we lost that part of the case in spades and do not seek to challenge it.

CRENNAN J:   Then the Full Court recognised that you would have to go further than that and look at whether there was a substantial part copied.

MR CATTERNS:   Yes, your Honour, but, your Honours, that is what their Honours, with respect, sedulously failed to do.  All their Honours will say is “You copied the alfresco quadrant” and your Honour that is merely to beg the question.  What their Honours failed to do and what his Honour Justice Gilmour failed to do is look precisely at what was in fact copied.  Your Honours, I was going to show your Honours, if I may, briefly – and, your Honours, the different approach that was taken was to decide within the Seattle work whether the so‑called alfresco quadrant was a substantial part of the work.  So that has nothing to do with us. That is just within the work in suit.

Then, having decided that that alfresco quadrant was a substantial part of the work in suit, his Honour Justice Gilmour, and we say also the Full Court, then said “and you copied” and I add the words “from the alfresco quadrant.  That is it”.  What their Honours failed to do is to identify precisely what the copying was and we would like to show your Honours in the bundle provided to the Court yesterday ‑ ‑ ‑

CRENNAN J:   Is that not a bit like the ‘Colonel Bogey’ case where you have 28 bars of music and it is found that a few bars, four or six, was copying of a substantial part.

MR CATTERNS:   Your Honour, it certainly can be.

CRENNAN J:   Is not the alfresco quadrant just like the few bars in that case?

MR CATTERNS:   But your Honour, we did not copy anything like the whole alfresco quadrant.  That is where their Honours ‑ ‑ ‑

CRENNAN J:   But all the back part was copied, was it not?

MR CATTERNS:   Yes, your Honour, but that is not right.  Your Honour it is because their Honours have already identified the alfresco quadrant as itself a substantial part, that is why his Honour Justice Gilmour never descended to that question because he has already decided that the alfresco quadrant was a substantial part.  But your Honour’s example is a good one.  That is what should be done.  You write out the 28 bars of ‘Colonel Bogey’ then you write out the 6 bars that were picked up on that television clip or whatever it was and compare them, with or without expert evidence, and hold whether the precisely identified part taken is a substantial part of the work in suit.

May I ask your Honours to look at the bundle briefly.  Your Honours, behind tab 1 is our learned friend’s work in suit - the Seattle - and the alfresco quadrant is the top left‑hand corner which contains the meals, the kitchen, the family, the rumpus and your Honours can see the rectangular alfresco which is like a porch or a veranda under the single roof out there so, your Honours, the rest of house was not – ultimately – said to have been copied.  What his Honour Justice Gilmour first proceeded to do, we say incorrectly, was determine that that top left quadrant was itself a substantial part of the work in suit, whereas the question is whether the six bars that we took, to adopt ‘Colonel Bogey’ was a substantial part of this.

Your Honours, then the next work is our penultimate work, Prototype 20A, which is behind tab 2 and your Honours, his Honour did not hold that this copied the Seattle, indeed, he held it copied another work not in suit.  Your Honours can see we have an alfresco in the top left‑hand corner.  We have a family and a kitchen and a rumpus, but the difference between the family and rumpus is merely that the words are written there and there is also a dining table sketched there.  Importantly, your Honours, just outside the kitchen there is a little walk‑in pantry and a little space for a fridge.

Now, your Honours, then by a process of copying, as his Honour held, we moved to Prototype 20B and again, your Honours, there is no need to look at the rest of the building, but your Honours can see that we have retained the L‑shape, family has become dining and vice versa, and rumpus has become family, but importantly, your Honours, a rectangular rumpus room has been added at the very top and what was our five‑sided alfresco with a bevelled edge has become the rectangular alfresco.

Your Honours can see we have still go the kitchen with the two little outlets for a pantry and a fridge.  One tiny difference but one indicative of copying, his Honour held, was that our kitchen bench turns the corner slightly.  So above the word “KIT”, your Honour can see there is a little return on the bench, but not all the way to the wall.  We still have our benches, as it were, down the right‑hand side.

Now, your Honours, by way of argument at the appeal we prepared the next document behind tab 4.  This is what you see, your Honours, if you overlay 20B upon 20A.  What you see is that the rest of our L‑shape is there subject to the changes marked in red.  The family room is now called “rumpus” and the dining room is now called “family”.  There is our kitchen with that little return off to the right.  The kitchen bench is the same.  The little ways out for the pantry and the fridge are the same and so on, but what we have done is we have brought the alfresco in under the roof, made it a simple rectangle and added a rumpus room up the back.  We also extended the bedrooms, but then they are not part of the alfresco quadrant.

So, your Honours, the legal question, we submit, no doubt, is does the copying of what is shown in red there – that is the part taken, and that is what should have been identified – then, your Honours, the question is, is that a reproduction of a substantial part of the very first drawing behind tab 1, the Seattle?  Your Honours, there is no decision by any of their Honours on that question, which is the correct legal question.  His Honour Justice Gilmour did not do it, it seems, because his Honour asked “Is this a substantial part of the whole Seattle?” and the Full Court, as I said, with respect, positively declined to do it because of the way their Honours reasoned.

If your Honours would not mind going to the Full Court judgment, please, at page 116, their Honours address our submission similar to the one I have just made that his Honour failed to identify the part taken and their Honours ask “Did his Honour identify what was copied?” and at the end of that period – and I will stress the next section more, your Honours – their Honours hold at the end of 29:

His Honour noted the striking similarities . . . and concluded that the alfresco quadrant of Prototype 20B was deliberately copied from the Seattle design by reference to the Seattle plan and the Seattle display home.

Your Honours, that is the seat of the error.  Refusal to descend beneath the phrase “the alfresco quadrant” of our house being copied, when it is clear that the part taken needs to be identified with much more particularity.  That is the source of the error.

CRENNAN J:   Well, that is the copying point, really, is it not?  Then the similarity point is on the next page.

MR CATTERNS:   Yes, your Honour, their Honours do go on, but your Honour they do it the same way, with respect.  If I may, just at the bottom of 117 before we go to that, your Honour.  So your Honours, what their Honours say is, on reading his Honour’s reasons  – which refers to the words “modifications”, “alterations”, “changes” many times in relation to 20A to 20B, they say:

a fair reading of his Honour’s reasons for judgment discloses that his Honour concluded that the alfresco quadrant of Prototype 20B, as a quadrant, was created by copying.

That means the whole thing, your Honour.  At the end of paragraph 30 his Honour concluded that Prototype 20B was, as to its alfresco quadrant, a copy of the alfresco quadrant of the Seattle design.  Your Honours then see the entire alfresco quadrant and, fatally for us, in 32 his Honour did identify the part.  That part was the alfresco quadrant of the Prada plan and the Prada house.

CRENNAN J:   Yes, except at page 118, lines 3 to the end of that sentence, their Honours identify that:

his Honour concluded that Prototype 20B was, as to its front section, substantially a copy of the front of the Pavilion design and, as to its alfresco quadrant, a copy of the alfresco quadrant of the Seattle design.

MR CATTERNS:   Yes, your Honour, but again their Honours are just saying “the whole alfresco quadrant at the back” without descending to what was in fact copied.  We all agree we can put the front aside.  That is put aside.  That is why my mark up only shows the changes that were made from 20A to 20B with respect to that red mark up.  Your Honours, part of this idea, part of the reason their Honours have gone wrong in refusing to, or declining to, descend to the part taken, which is precisely what one must do, and what is done by the House of Lords in the Designers Guild Case that our learned friends asked to be put in the joint bundle, there the Court identifies the part taken.  It descends into exactly what bit was taken.

CRENNAN J:   But often everybody involved knows exactly what it is alleged has been taken because you seem to have no disagreement between you about the front section and back section.

MR CATTERNS:   Yes, your Honour, but we submit you cannot just say the back section was taken, because that is to fall into the error of saying “The whole quadrant is a substantial part.  Have you copied from that?  That is it.”  What you should be doing is identifying which bits have been copied.  Your Honours, what is happening here is, we submit, in effect, that the very idea of an alfresco room, an outdoor room on the side of your house under the roof, is what is being protected.

If your Honours would not mind looking at item 5 in our bundle, which is the Coburn plan, your Honours will see there that the kitchen is in a different place from where it is in the Seattle or in our previous prototype and the alfresco has moved.  In the case of the other two, it is up next to the rumpus room, or here it is called “the home theatre” whereas the kitchen is diagonally opposite.  The kitchen has a completely different shape, yet this is still held to reproduce a substantial part of the work in suit.  Well, I respectfully submit it cannot possibly be doing that, unless we are protecting the very idea of an alfresco under the roof.

So, your Honours, we submit that this case does raise questions of public importance.  It is an important industry and, as your Honours know, since - literally thousands of years, architects have been drawing on ideas and concepts from other architects.  Clients say “Can you build me something that possesses such and such a feature?” and there is going to be vastly too broad a monopoly in a draftsman’s or architect’s plans unless the law is made clear that you must identify with precision precisely what has been taken because that is what the copyright subsists in, and then you do the comparison as to whether or not this constitutes a substantial part.

So we respectfully submit that this is a matter of importance that this question be dealt with properly.  We submit it is clear that the Court did err in failing properly to identify the part taken.  Your Honours, our learned friend has mentioned to us that he might submit that this Court would not be able to determine the matter finally because his Honour Justice Gilmour had a view.  We would respectfully submit that would not be right.  We would accept and I submit our friends would accept that a decision on plan to plan copying would lead to the decision on three‑dimensional copying or vice versa.  In other words, the houses’ infringements would follow the decision on plans.

We made a submission that the houses might be slightly better because some features were not visible and of course, your Honours, looking at the houses cannot inform the question of plan‑to‑plan infringements.  So we respectfully submit this is not a case that would need to be remitted on the way the case has been fought.  Your Honours, we respectfully submit that it is the plans that are the crucial tool in this industry and the plan‑to‑plan copying will satisfactorily determine this case.

CRENNAN J:   You agreed at the outset, did you not, that copyright indubitably existed in the plans even though one might say they are mundane by comparison with the set of one‑off architectural plans for a house?

MR CATTERNS:   Yes, your Honour.

CRENNAN J:   So the whole trial was conducted on that basis.  No suggestion that this was really lacking in copyright because it was ideas merely that were being represented in the drawings.

MR CATTERNS:   No, your Honour.  Of course, the ultimate skill and labour of somebody drawing down a drawing of this kind is sufficient to attract copyright.  We accept that, your Honour.  So, your Honour, that is another reason for reinforcing why this is an appropriate vehicle because it will focus on this particular question of infringement by substantial part.  May it please the Court.

GLEESON CJ:   Thank you.  Yes, Mr Golvan?

MR GOLVAN:   If your Honours please.  Your Honours, we say fundamentally that the case is not an appropriate vehicle on the footing substantially that your Honours will see, I hope, through the submissions in writing and what we say orally that the facts are not available to our learned friends to test the points raised and that the grant of leave would be futile.

Can I illustrate that by firstly going to the suggested illustration relied upon in submission by our friends as to how the part taken is demonstrated.  That is at tab 4 of our learned friend’s bundle and to say that this was put before the Full Court and rejected and in particular the Full Court identified at page 117 of the court book at paragraph 28 that significantly there was:

no lay or expert witness gave evidence that the design process that resulted in -

the way that is sought to be described by these lines.  That rather by, simply, an overnight process of actual copying from the Seattle which resulted in a substantial departure, we would submit, from Prototype 20A and, your Honours, apart from the facts of what happened at the time of copying, what Prototype 20A illustrates is the availability of alternative ways of realising what we have called “the alfresco quadrant” such that, for example, 20A would not conceivably infringe the copyright in Seattle because it is quite a different expression of the concept of the set of rooms and arrangements which resulted in the development of the Seattle design, which the Full Court said was the result of a detailed design process.

Another point of important distinction for your Honours to understand on the question of fact in relation to tab 4 is it fails entirely to address an essential feature of the design which was identified by his Honour having conducted the views which his Honour found were helpful and instructive in getting an impression as to what the overall design looked like, that there is no expression in our learned friend’s drawing of the roofline feature.

Your Honours will see, just to understand roofline briefly, that if your Honours go to Prototype 20A, that is tab 2, that the roofline – and it invites a kind of a consideration of how these things look in actuality.  The roofline is quite a complex set of visual statements, contrast with the roofline in Prototype 20B which is extensively the roofline in Seattle.  My friends, in effect, have to overlook that change because it does not sort of suit, as it were, the red line treatment.

Your Honours, insofar as it is suggested the industry is impacted by this result then we, of course, as my friend has identified, say the informed design decision at first instance speaks for how there is no problem with, as it were, a respondent coming to court in a case like with a proper design file, a legitimate design file, which establishes an independent derivation even if the design was identical, that is to say copyright provides that safeguard.

Your Honours, can I address the two central substantial part issues that we ascertain our friends are raising.  The first is the correct test to apply and how it has been applied in this case.  The test for substantiality, we say, as identified in Data Access by the High Court required regard for originality of the part taken, having regard to the work as a whole.  The question my friend has asked is, was that test applied in this case and we say clearly so.  Your Honours will see at page 125 of the book a clear application of that principle is expressed by the intermediate appellate court at paragraph 54 where their Honours concluded, having looked at the work done in the creation of the Seattle design – noting that subsistence was not an issue - their Honours said this:

Examination of the drawings and plans exhibited to the affidavits sworn respectively by Mr Studdart and Mr Pye reveals that the alfresco quadrant of the Seattle design was itself the product of considerable design evolution . . . 

However, the design that made possible that choice had evolved over a significant period of time.

So that we say that there is a clear application of the correct test in relation to identifying substantial part in addition to the other matters that his Honour at trial referred to as being instructive.

His Honour at trial said that his perception about substantial part was supported by the view that he conducted and that is at paragraph 39, which your Honours will find at page 15 of the book, where his Honour at first instance, Justice Gilmour said:

In examining the quality of the alfresco quadrant with respect to the whole of the Copyright Works, I view that part as being substantial.  This view was also supported by my personal inspection and impression of the Seattle 31 design at the Beaconsfield address -.

which is in part what triggers the submission that the High Court is not in a position to determine this matter if, indeed, it is fair to say that the overall sense of the way things look is guided, instructed by a view –and your Honours will be aware that this is not only a plan‑to‑plan case, but a plan‑to‑house and a house‑to‑house copyright case.

Your Honours can I address now what I regard as the second key substantiality question, which is the issue of sufficiency of objective similarity.  The applicants, in our view, do not raise any controversy about the application of legal principle.  We accept that there is an obligation to establish a sufficiency of objective similarity, but you do not need to have literal similarity.  We rely upon the views expressed as the to the law in the Designers Guild Case and as expressed by his Honour the Chief Justice, Justice Gibbs, in Hart v Edwards where the concept was expressed in terms of resemblance or, as it were, sufficiency of similarity to suggest that the connection of reproduction is made.

Now, your Honours know that his Honour at trial copiously analysed the works in a comparative sense.  His Honour did not stop at the point of saying “There is copying, therefore the plaintiff wins”.  From paragraphs 48 to 88 which your Honours will see starting at page 17, the topic is taken on head‑on.  So where a fundamental issue that my friends have facts, as it were, to suggest this is a copying only result, this is copying plus a rigorous analysis of objective similarity which runs over 40 paragraphs in his Honour’s judgment of trial and then a matter which is referred to by the Full Court at page 119, paragraph 35 where the Full Court, as it were, confirms that process of inquiry and analysis.

So we say that, fundamentally, the work of comparison has been done.  In other words, the court could not stop at the point of simply saying “copied” combined with the impact of the inspection.  The judgments note the concessions made in cross‑examination by the applicant’s witnesses about the extent of similarity and then guided by expert evidence.

His Honour accepted in its entirety, the expert evidence adduced by my clients, which we say is important in these cases adopting what Lord Hoffmann described in Designers Guild as being what he called “the art of visual literacy”, that is to say that experts do have a role to play, particularly in a case involving something as particular in its application as a case involving architectural plans.

In the ultimate, your Honours, we say that there was an impressions finding on the question of objective similarity which has not been shown to be plainly wrong.  That is to say the High Court, we would submit respectfully, has no work to do, as it were, in reinterpreting the impression formed if his Honour was in fact applying the right test, which we say, clearly was done and confirmed on appeal.

We also say that the substantiality finding has now been confirmed by - your Honours know there is another judgment of Justice Heerey involving the very same “substantial part” at issue and his Honour was satisfied that the substantial part was established in the case of Barratt v Carlisle so the matter has been looked at by five judges.

Your Honours, then on the question of commonplace features and room for choice, that is to say the suggestion that a builder would have to build in this way to create the result – clearly not available on the facts, we would say - there was no evidence on this interpretation of the version of the alfresco quadrant as being the only choice available and that is referred to by the Full Court.

In fact, his Honour at trial said that there were five different examples derived from the inspection trip which was engaged in by the applicant at Perth of what were said to be alfrescoes to the side of the house and despite the copious attempts to elicit what is called “prior art” in a loosely formulated sense, your Honours, there were over 100 examples adduced of house designs which had combinations of outdoor eating features with kitchens and so on.  None of them predicted the result in question which is why the Full Court found that the work was the result of a considerable design evolution process.

There are also no facts to support the implication that the Prada was - that the infringing design was the product of, say, reference to common stock or that there had been an exhaustion of inquiry as to the expense of alternative versions of doing the work in the sense that there was evidence, say, of a quantity surveyor to say this was the only way you could conceivably do it.  Rather, the entirety of the evidence pointed to copying.  Once copying was established, then as I have submitted, the court then did the further work as required.

Can I just then address the question of Coburn.  Your Honours have seen Coburn in the bundle.  That was at tab 5.  Your Honours, if your Honours would have regard to Coburn, your Honours will see that the one thing which distinguishes it from the versions of the sample that your Honours are seeing is a transposition of the alfresco and dining so that where alfresco appears, dining appears in the Seattle and vice versa and that is the entirety of it.

Now, again as findings which the High Court would not, we would submit, wish to revisit, his Honour at trial had careful regard for overlays and of course, conducted a view – can I take your Honours briefly to page 28, paragraph 85, of the court book where his Honour considers that regard is had for – his Honour here is doing the work of an analysis of the question of objective similarity having made a determination of copying, meeting, as it were, the very point of criticism my friend has made today and his Honour says that he considers the transparencies at the bottom of paragraph.

Then at paragraph 244 at page 69, his Honour in the last two sentences acknowledges the distinction that I have just identified for the Court, that is to say:

The alfresco area, even though repositioned, is under one roof‑line and on my view of the home, maintained the same distinct and significant impression.  The changes are minor and inconsequential -

The Full Court set aside this issue for careful consideration.  As it was raised, as it were, my learned friend’s best point in challenging the question of sufficiency of similarity such that at page 129, your Honours will see that unlike any of the other designs, Coburn gets its own heading and is considered in quite some detail.  At paragraph 78, their Honours said “We have looked at the plans too, and in our view they confirm:

the obvious differences identified by Dr Cooke –

That is the expert for the respondent at present –

between the plans for the Barrett Houses, on the one hand, and the Coburn plan on the other.  However, those differences are not so great as to render obviously untenable a finding that there is sufficient objective similarity between them to render the Coburn plan and house a reproduction of a substantial part of the Copyright Works.

Their Honours there interpolate in terms of the significance of the point which my friend now seeks to diminish, “We were not invited to conduct a view”, so, their Honours are not prepared to, as it were, reject the impressions finding as being unsoundly based.  But just to indicate that carrying out of that further step that has been the focus of my friend’s submission this morning, at paragraph 81, their Honours say this, notwithstanding that previous paragraphs there refer to the proposition of copying as identified through Dr Cooke’s evidence:

It nonetheless remains to be considered whether what was reproduced by the Coburn plan and house was a substantial part -

In other words, your Honour is simply not stopping at the copying gate, as it were, but entering through it to consider the next important question. 

Your Honours, finally as has been indicated, the case does raise the plan to house, house to house, three‑dimensional issue and we would take issue that the notice of appeal as framed would permit a proper resolution of that question, in particular, in that the court, if it received the matter, granted leave, would not be in a, we would say, proper position to make a determination on matters which do require some impression.  In other words, the Copyright Act does say that a house is a separate copyright work and it would be erroneous or a mistake, we would submit, for the Court to treat the house as simply falling within the rubric or umbrella of the plan as if no further inquiry is required.  We say that is not correct.  For those reasons we submit that the application for leave should be rejected.  If your Honours please.

GLEESON CJ:   Thank you.  Yes, Mr Catterns.

MR CATTERNS:   May it please the Court.  Your Honours, our learned friend referred to paragraph 28 of the Full Court’s reasonings at page 117.  Your Honours, at 117 their Honours are, we submit, again looking at the question of whether there has been copying and not doing what they eventually had to do which is identify what has been copied, the part taken.  Your Honours might notice the heading above paragraph 30, “Did his Honour find modifications rather than copying?”  That is a completely false dichotomy.  Copying has been held.  The question is what was copied?  Your Honours, our drawing behind tab 4 was intended to show the roofline.  That is why there is a red line going right down the side of the house.  We drew it down the wall.

Your Honours, our learned friend referred to paragraph 54 of the Full Court’s judgment and we respectfully submit that here the Full Court is again clearly perpetuating his Honour’s reasons because their Honours are,

in effect, granting a copyright, a separate copyright in our friend’s alfresco quadrant being itself a substantial part and that is the conclusion at 56, the conclusion at the bottom of 125:

The conclusion of the primary judge that the alfresco quadrant was a substantial part . . . was based on matters of impression and degree.

His Honour is right.  Your Honours that is again the wrong question, whether intra the Seattle it is a substantial part.  Your Honours, our learned friend’s reliance and the Full Court’s reliance on the judgment of Justice Heerey in another case on what our friend called the substantiality issue shows that we have gone completely off the rails because the fact that Justice Heerey holds that intra work, the Seattle’s alfresco quadrant is the same one, is a substantial part of the same Seattle, tells us nothing about whether what we copied is a substantial part of the work in suit.  That crystallises the issue.  What are friends are ending up with is a quasi‑patent monopoly which…..although it requires copying in their alfresco quadrant.

Your Honours, again paragraph 84 in relation to the Coburn shows what I have referred to, with respect, as the Full Court’s refusal to descend below a finding that a quadrant was copied.  Once again we see the primary judge rightly concluded that the alfresco quadrant that is within the Seattle was a substantial part of the copyright works.  In our view, it is plain that his Honour concluded that the Coburn plan and house reproduced the alfresco quadrant of the copyright works.  What should have been done is to compare what we took in the Coburn against the Seattle and that is never done.

Your Honours, finally as to any question of remitter, we submit the Court will be able to decide that if necessary.  It happened in the…..case, for example.  We say now that we accept that if we lose on plans we lose on houses.  Our learned friend would be no doubt put on the spot by the High Court to explain why, if he lost on plans he could still survive on houses, but that question of remitter would take a moment or two of the Court’s time.  May it please the Court.

GLEESON CJ:   We are not persuaded that this case raises a question of legal principle suitable to a grant of special leave to appeal or that the interests of justice require such a grant.

The application is dismissed with costs.

AT 12.42 PM THE MATTER WAS CONCLUDED