Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council

[2016] NSWCATAD 206

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206
Hearing dates:	29 March 2016
Date of orders:	07 September 2016
Decision date:	07 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the respondent is set aside. (2) In substitution of that decision the respondent is to provide the applicant with a copy of the floor plans for Lot 17 Wesley Avenue Port Macquarie NSW after 28 days from the date of this decision.
Catchwords:	GIPA Act- Copyright - Government information – Striking or unusual features – Whether a substantial part of a work had been reproduced – Significant public interest in favour of disclosure in such circumstances - Expose a person to harm or risk – Limit on exposure in context where information already revealed - Limit on exposure in context where information already exposed – Lack of significant weight to considerations against disclosure in such circumstances
Legislation Cited:	Copyright Act 1968 (Cth) Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Government Information (Information Commissioner) Act 2009
Cases Cited:	Mannix v Department of Education and Communities [2014] NSWCATAD 35 Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd [2011] FCA 246 Henley Arch Pty Ltd v Tamawood Pty Ltd [2003] FCA 204 LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215
Texts Cited:	Knowledge update – Copyright and compliance with the GIPA Act March 2012 Information and Privacy Commission
Category:	Principal judgment
Parties:	Pycon Homes & Constructions Pty Limited (Applicant) Port Macquarie Hastings Council (Respondent)
Representation:	Solicitors: Gilbert’s Legal Pty Ltd - North Coast Compensation Lawyers (Applicant ) Port Macquarie Hastings Council Governance Manager (Respondent)
File Number(s):	1510624

Reasons for decision

Background

1. On 8 October 2015 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents. These documents were held by the respondent agency.

2. That application was made to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) whereby the applicant was seeking copies of the floor plans for Lot 17 Wesley Avenue, Port Macquarie. The floor plans were the totality of the subject information and they were held by the respondent Council as a result of a Development Application being lodged with the respondent.

3. The basis of the application for administrative review by the Tribunal was that the respondent had declined to release the floor plans to the respondent as a result of their consideration of the application under the GIPA Act. For the reasons set out below, and based predominantly on a consideration of the actual material, I have decided, having regard to the material relied on by the parties, the evidence given at the hearing and the relevant legislative provisions, that the decision of the respondent is not the correct and preferable decision. Accordingly, I have decided to set aside the decision the subject of review and in substitution thereof made a decision that the applicant be given the floor plans which were subject to their GIPA application.

4. The applicant brought the application to the Tribunal as a reviewable decision under section 80 (d) of the GIPA Act in that the agency had made a decision to refuse to provide access to information in response to an access application.

5. The application initially was accompanied by two similar applications involving the same parties. All three matters were initially decided against the applicant by the respondent agency and all three were then subject to an external review by the Information Commissioner. Following that review an administrative review was sought before the Tribunal. The two applications which accompanied this matter ultimately resolved at the commencement of the hearing before the Tribunal, and orders were made dismissing those matters.

Jurisdiction

6. There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction. In addition there is no dispute that the application was filed within time.

7. The application for review sets out the following grounds for the refusal of the access application by the respondent:

1. The inappropriate disclosure of internal floor plans could result in compromising the owner’s security;

2. The inappropriate release of copyright information by PMHC could both diminish the competitive commercial value of that copyright information by PMHC and prejudice legitimate business, commercial, professional or financial interests.

8. The applicant submitted that the material had already been made public as part of the development application (D.A.) process.

9. The applicant asserted under section 55 of the GIPA Act that their motives for making the application under section 55 (1) (b) were (we) are a building company that requires this information to assert (our) legal rights as the Copyright Owner in intellectual property proceedings.

The Legislative Provisions

10. The objects of the GIPA Act are as follows:

3 Object of Act

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

11. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided:

5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.

6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

12. In respect of the current application Section 80 (d ) of the GIPA Act provides:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

…….

…….

…….

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

13. The information sought was held by the respondent agency as part of its planning and DA records. That information is considered by the Government Information (Public Access) Regulation 2009 (the Regulation), as open access material. Schedule 1 of the Regulation lists the relevant material.

Schedule 1 Additional open access information—local authorities

(Clause 3)

1 Information about local authority

(1) Information contained in the current version and the most recent previous version of the following records is prescribed as open access information:

(a) …

(b) …

(c) …

(d) …

(e) …

(f) ...

(g) …

(h) …

(i) …

(j) …

(2) Information contained in the following records (whenever created) is prescribed as open access information:

(a) …

(b) …

(c) …

(d) …

(3) Information contained in the current version of the following records is prescribed as open access information:

(a) …

(b) …

(c) …

(d) …

(e) …

(f) ...

2 Plans and policies

Information contained in the current version and the most recent previous version of the following records is prescribed as open access information:

(a) …

(b) …

(c) environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the local authority’s area.

3 Information about development applications

(1) Information contained in the following records (whenever created) is prescribed as open access information:

(a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following:

(i) home warranty insurance documents,

(ii) construction certificates,

(iii) occupation certificates,

(iv) structural certification documents,

(v) town planner reports,

(vi) submissions received on development applications,

(vii) heritage consultant reports,

(viii) tree inspection consultant reports,

(ix) acoustics consultant reports,

(x) land contamination consultant reports,

(b) records of decisions on development applications (including decisions made on appeal),

(c) a record that describes the general nature of the documents that the local authority decides are excluded from the operation of this clause by subclause (2).

(Emphasis added)

14. The GIPA Regulation then goes on to in effect exempt documents from within the planning process that contain the intellectual property of their authors from the open access provisions. Schedule 1 Clause 3 subclause 2 states the following:

(2) This clause does not apply to so much of the information referred to in subclause (1) (a) as consists of:

(a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or

(b) commercial information, if the information would be likely to prejudice the commercial position of the person who supplied it or to reveal a trade secret.

15. This provision effectively shifts ‘detailed’ construction plans from the characterisation of ‘open access information’ under the GIPA Act to the general characterisation of ‘government information’. As such section 6 (concerning mandatory proactive release) does not apply to such information and the agency is to consider it like all other formal access applications under the GIPA Act.

16. As the data or information could be characterised as material for which a claim of copyright had been made, the respondent relied upon those provisions of the Regulation under Schedule 1 which exempted the information from the 'open access' characterisation. The respondent then went on to consider the material in accordance with the provision of the GIPA Act having regard to the characterisation of the material as 'government information' rather than 'open access' (government information) as referred to in Part 3 of the GIPA Act.

17. In summary, when dealing with the application (after discounting the open access provisions), the respondent has relied on three specific aspects of the GIPA Act to refuse to provide access to the information sought by the applicant. (See paragraphs 18-19 below). Some of these considerations were clearly arrived at after consulting with relevant third parties. However at the hearing the respondent predominantly submitted that in its decision of 17 September 2015, they had withheld the information because of copyright concerns. Two of those three grounds formally relied upon, address or cover such a copyright argument.

18. In respect of the grounds claimed by the respondent in their specific decision, the formal decision relies on providing significant weight to specific public interest considerations against disclosure. The result being to, in effect, reverse the onus in respect of information for which there is a general presumption in favour of disclosure under the GIPA Act. In this regard the respondent relied upon three provisions from the Table to section 14 highlighted below being Clause 3 (f) and Clauses 4 (c ) and (d).

19. The relevant part of the Table provides:

Table

1 ..…..

2 …….

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual’s personal information,

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness,

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

(f) expose a person to a risk of harm or of serious harassment or serious intimidation,

(g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market,

(b) reveal commercial-in-confidence provisions of a government contract,

(c) diminish the competitive commercial value of any information to any person,

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

(e) prejudice the conduct, effectiveness or integrity of any research by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

5 …….

(Emphasis added)

20. Whilst in its decision the respondent relied upon all three criteria as set out above at paragraphs 18 and 19 the decision mainly rests with criteria. In that regard, when considering the balance that must be struck under the GIPA Act (in respect of public interest considerations against disclosure), the respondent appears to have ultimately settled on the copyright considerations attaching to section 14 Clauses 4 (c) and (d) of the Table. (As per paragraph 16 above) In this regard the respondent had regard to the Knowledge Update (March 2012) issued by the Information Commissioner.

21. The Knowledge Update of March 2012 referred to above, is published on the Information and Privacy Commission website. It contains the following relevant information:

The Copyright Act 1968 (Cth)

The Copyright Act 1968 (Cth) (Copyright Act) gives copyright owners the exclusive right to do certain acts. In relation to architects’ plans, these include reproduction, communication to the public (e.g. by emailing or uploading to a website) and publishing the plans (section 31). With certain limited exceptions, copyright is infringed where someone other than the copyright owner does any act, or authorises any act to be done, that is the exclusive right of the copyright owner, without the owner’s permission (see sections 36 and 13(1)).

Copyright is not infringed where the copyright owner has given consent to the particular actions, either expressly or by means of an implied licence.

There is also a statutory licence permitting Commonwealth and State (including Territory) agencies to deal with copyright material on certain conditions. Section 183 of the Copyright Act provides that copyright is not infringed by the Commonwealth or a State, or a person authorised in writing by the Commonwealth or a State, doing any acts that would otherwise breach copyright if the acts are done for the services of the Commonwealth or State. Commonwealth or State governments are required to pay a licence fee for use of the material to the copyright owner or a collecting agency, but do not have to ask permission.

In addition, the Copyright Act provides for certain defences whereby, in the right circumstances, certain actions will not infringe copyright. In particular, sections 40 and 103C allow fair dealing for the purpose of research or study, while sections 41 and 103A allow fair dealing for the purpose of criticism or review.

Questions asked by the IPC

As “artistic works”, architectural plans and drawings are protected by copyright, which is generally owned by the firm, or the architect or draftsperson. As we noted above, the requirement for local councils to provide copies of plans attached to DAs is not new, having pre-dated the GIPA Act. However, as the issue of how councils can meet this requirement without infringing copyright had never been satisfactorily resolved, local councils asked the IPC to provide some clarity with regard to their obligations under the GIPA Act to publish, copy and distribute material to which copyright is attached.

22. This information is published (as it would appear) in accordance with the Information Commissioner’s functions under the Government Information (Information Commissioner) Act 2009. Whilst Part 3 of that Act refers to the functions of the Information Commissioner, and section 14 refers to general functions imposed under that Act or any other Act, section 17 of the GIPA Act provides for specific functions relevant to the publication of material designed to assist citizens and agencies use of the GIPA Act.

22. Section 17 provides:

17 Role of Information Commissioner

The Information Commissioner has the following functions in connection with the operation of this Act:

(a) to promote public awareness and understanding of this Act and to promote the object of this Act,

(b) to provide information, advice, assistance and training to agencies and the public on any matters relevant to this Act,

(c) to assist agencies in connection with the exercise of their functions under this Act, including by providing services to assist with the lodgment, handling and processing of access applications,

(d) to issue guidelines and other publications for the assistance of agencies in connection with their functions under this Act,

(e) to issue guidelines and other publications for the assistance of the public in connection with their rights under this Act (including rights of review),

(f) to review decisions of agencies pursuant to Part 5,

(g) to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, this Act,

(h) to make reports and provide recommendations to the Minister about proposals for legislative and administrative changes to further the object of this Act.

24. In my view the Knowledge Update falls within the powers and provisions of section 17 (a) – (e) inclusive of the GIPA Act, and as such the legislature clearly intended for the Information Commissioner to provide guidance and operational authority and advice to agencies, and agencies are to have regard to those matters when dealing with information requests under the GIPA Act.

25. Prior to lodging the application for administrative review with the Tribunal, the applicant sought an external review by the Information Commissioner. That review concluded that the respondent agency did not satisfy its obligations under section 97 (1) of the GIPA Act because it had not justified or substantiated the basis for its decision that there was an overriding public interest against disclosure of the information in the manner requested by the applicant. The Information Commissioner recommended that the agency make a new decision on the matter.

26. A fresh decision was made by the respondent agency (in accordance with the Information Commissioner’s recommendations) on 17 September 2015 and the relevant findings of that decision are set out at paragraphs 16,17 and 18 (above).

The Hearing

27. The matter was heard at Port Macquarie. Representative of both parties appeared at the hearing. No oral evidence was given at the hearing however a number of written items were tendered and detailed submissions made.

28. The applicant’s representative set out the background to the matter. Their client was a home builder dealing predominantly with residential construction. It was submitted that a client (Mr ‘T’) approached the applicant in late 2013 with a view to preparing plans and a quotation for a residential construction on a specific Lot in Port Macquarie. A set of plans and a detailed construction estimate / quote were prepared in October 2013 and forwarded to Mr ‘T’ on 1 November 2013. A copy of the set of plans and detailed estimate for the client Mr ‘T’ was tendered in evidence at the hearing as Exhibit ‘A-1’.

29. After the plans and detailed estimate were provided to the client the applicant did not receive a request for work or a contract to go ahead with construction work from that client (Mr ‘T’). It was unclear to the Tribunal whether the client formally indicated that he no longer wished to proceed with the matter.

30. In any event a development application for Lot 17 subsequently came to the applicant’s attention. This arose as part of the Development Application (D.A.) process, whereby the respondent having received an application and associated documents, posted them on their website and held then available for inspection at Council premises during the relevant approval / consultation / submission period.

31. The applicant examined those documents and material constituting the open access material of the D.A. and physically examined the plans for the Lot. The applicant formed the view that the plans were for an identical or almost identical construction for a residence, to the plans that they had prepared in October 2013. In respect of a consideration under section 55 of the GIPA Act, the Tribunal notes the applicant’s submission that it seeks a copy of the plans in order to assert its legal rights in respect of intellectual property concerning other use of the plans for the Lot.

32. Having heard opening submissions from the applicant, and noting that the respondent was ultimately submitting to the order of the Tribunal, I considered the ‘copyright’ provision.

33. In respect of the Clause 3 (f) ground from the Table to section 14, (exposing a person to risk of harm etc.), I note that the respondent tendered evidence being a letter from the builder submitting the D.A. that evidence dealt with both the copyright claim and the clause 3 (a) aspect. The letter was entered as Exhibit ‘R-4’ in the proceedings.

34. In respect of the ‘non copyright aspect’ in response to the respondent’s consultation the third party builder submitted the following:

We strongly object to the release of plans to the above dwelling on the following grounds and trust that our objection sufficiently contributes to the “weight of the considerations against disclosure”;

1) it is a major privacy issue, and as security issue for the Owner, and we are not at liberty to break the trust placed upon us by the Owner. (Why should some “unknown” person have access to the floor plan of his home? Would you like it [sic] some unknown person had access to the plans of your home?).

35. In respect of the 'copyright aspect' in response to the respondent's consultation the third party builder submitted the following:

We strongly object to the release of plans to the above dwelling on the following grounds and trust that our objection sufficiently contributes to the "weight of the considerations against disclosure";

2) The plans are our own, specifically designed in consultation with the owner, and as such are Copyrighted. These plans cost many thousands of dollars and it is not fitting they should be handed out to any party other than those directly involved.

36. I indicated to the parties that either of the grounds could cause the information to be withheld, but that the collective grounds needed to be overridden by the Tribunal for the information to be released.

37. I note that it was open to the third party objector to appear in these proceedings and ventilate any arguments in support of their position (as set out in the letter at paragraph 35 (above), or otherwise. Section 104 of the GIPA Act relevantly provides such a mechanism.

104 Right of appearance before NCAT

(1) ……

(2) ..….

(3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.

38. No such right has been exercised by the third parties (both Mr ‘T’ – as the owner referred to in Exhibit R 4, or the builder who authored Exhibit R-4). The respondent submitted that those entities were aware of Councils final decision and that the applicant could exercise the right of external review before the Tribunal if they so desired.

39. By way of illustration the applicant submitted that in respect of the related applications, the material had eventually been released or partially released by negotiating with the third parties. In one claim the building owner was content for the plans to be released, whilst in another the architect was content but the owner initially objected. That objection was made on specific public interest grounds in that the owner was a registered firearm user, and the necessary Firearm Safe / Cabinet, was located on the building and identified as a fixture on the floor plans. After further consultation taking note of the objections, the material was released.

40. It was submitted that the current case rested on the potential infringement of copyright and in that regard the relevant legislation was the Copyright Act 1968 (Cth).

Respondent’s Submissions

41. The respondent submitted that they were always acting on behalf of themselves, and not the third party builder. In addition the respondent submitted that they were always acting in good faith, and applying the legislation in accordance with both the advice of the Information Commissioner and the legislation.

Applicant’s Submissions

42. The applicant (in addition to the submission addressed above), made detailed oral submissions on the copyright issue. It was submitted that in accordance with the relevant case law a number of criteria need to be considered.

43. The Tribunal was referred to the case of Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd [2011] FCA 246 which it was submitted dealt with an issue on point and on similar facts to the copyright argument in the current case.

44. It was submitted that in such matters the court or tribunal needed to make their own inquiries or comparison of the data / plans in order to ascertain who the true holder of the copyright was. One of the criteria to consider was whether in the comparison there were any usual or striking features reproduced from the first document into the document in question. At paragraphs 281 to 291 the Court observed the following:

Court’s visual impression of similarity

281.   The determination of whether there is a sufficient degree of similarity between the copyright works and the allegedly infringing works is ultimately a matter for the court, although expert evidence may assist its assessment.

282.   In addition to the Seattle and Memphis houses, I viewed the following Dennis houses in order to form a visual impression of the degree of resemblance between the Barrett and Dennis works.

GRANGE 322

283.   At the time of inspecting a Grange 322 at Berwick, I observed and noted, inter alia, the following:◦On progressing from the front entrance, there was a bedroom on left side, then a large lounge or dining area, then the open plan area. There was a kitchen area to the left and to the right was an informal dining area.

◦There were differences from the Seattle, including a different orientation, the apparent coverage of more of the site, increased size, the shape of the kitchen bench, the angled shared wall of the alfresco and the lounge, the projection built on to the alfresco beyond the roofline, a different number and position of windows (including in the walls of the alfresco), and different size, shape and position of the kitchen bench. Nevertheless, essentially, the alfresco quadrant appeared to be a very similar floor plan with the same mutual relationship of each of the key spaces to one another.

◦Adjacent to the kitchen was another informal lounge area opposite most of the sala. Between the kitchen and the lounge area was a small door leading to the subsidiary bedrooms.

◦The alfresco area had a window only on one side – the angled side had no window. The alfresco was not contained within the single straight roofline as in Seattle but projected out further. The sides were not built in – there were columns.

◦A separate lounge, larger than in the Seattle, had an angled shared wall with sala and windows.

◦Despite a different orientation, the essential configuration of the functional spaces vis-à-vis each other in the alfresco quadrant was overwhelmingly similar to that of the Seattle (which I had previously inspected); the approximate size and the entire feeling, impression and planning; the entrance to the alfresco seemed the same; and the informal dining and additional lounge were similar, save for the angle on one side of the alfresco shared with the additional lounge area.

◦The alfresco quadrant appeared essentially similar to those in the Seattle and Memphis and the obvious differences seemed minor or insignificant. They did not detract from the impression that essentially, it was the same area.

FLINDERS 270

284.   At the time of inspecting a Flinders 270 house at Melton West, I observed and noted, inter alia, the following:◦There was an entrance with a lounge to the left and a garage to the right – then a bedroom to left. On entering the informal living area, on either side of alfresco, there were dining and lounge areas.

◦The alfresco had a shared window wall with the dining area and another window to outside.

◦The open plan area appeared longer, perhaps larger and more rectangular than in the Seattle.

◦There was a rectangular kitchen with the bench placed horizontally at one end, opposite an informal dining space.

◦The door to the bedroom wing was in about the same place but appeared wider.

◦The open plan quadrant seemed essentially an elongated version of the Seattle’s internal floor plan, with some different details.

◦The alfresco appeared bigger. It had wide sliding glass doors and a window on one side only. It was all under one roofline.

◦In my view, the Flinders 270 was very similar to the Seattle in the essential floor plan of the alfresco quadrant as well as the mutual relationship of functional spaces, one to the other.

◦It appeared to be a larger alfresco quadrant, but with the same essential characteristics and floor plan as the Seattle. The similarities were strong and obvious.

FLINDERS 290

285.   At the time of inspecting a Flinders 290 house at Melton, I observed and noted, inter alia, the following:◦On entering, to the left was an empty room and then, also on the left, a bedroom. The garage was to the right.

◦It was obviously very like the Flinders 270.

◦The informal open plan area was more obviously rectangular than the Seattle, but the configuration of spaces was essentially the same.

◦The kitchen had a horizontal bench and faced an informal dining space.

◦There was another lounge area adjacent to the entrance to the alfresco area.

◦The alfresco appeared quite large and within a single roofline – and only one side of alfresco comprised a window.

◦Overall, the impression was as for the Flinders 270 above.

THORNTON 310

286.   At the time of inspecting a Thornton 310 house at Derimut, I observed and noted, inter alia, the following:◦The front of the house had a garage and bedroom between a monumental columned porch.

◦Progressing down the hallway, there was first a bedroom and then an informal lounge to left – with a window opposite the lounge.

◦In the informal open plan area, on entry, there was a kitchen area to right with an island bench. Approximately opposite was an informal dining area, which shared a window wall with the alfresco and contained two other windowed walls.

◦The entrance to the bedroom wing opposite the door of alfresco seemed wider than in some other houses viewed.

◦There was a small informal sitting space to the other side of the kitchen.

◦An angled side wall of alfresco, with open doorway, led to the lounge. The lounge had a window to the outer wall.

◦The angled wall shared with the alfresco had no window.

◦The alfresco was large. It had an angled wall one side with no window. It was under one roofline, but had an attached covered pergola.

◦Overall, the informal open plan area had a very similar layout and impression to the Seattle.

GRANGE 291

287.   At the time of inspecting a Grange 291 house at Ballarat North, I observed and noted, inter alia, the following:◦At the front was a garage to one side projecting out and to the other side the main bedroom complex, which seemed somewhat smaller than in the Barrett houses. On progressing past a lounge room to the right, one entered the open plan area at the rear. The kitchen area was situated to the right with an angled bench. To the left, opposite the kitchen area, was an informal dining area with “window walls” to three sides, one of which was shared with the sala. The sala was a large square area with a tiled floor and a little fence. It had a window on one side only and glass doors. Around the sala were grouped the dining area described above, a lounge area and a separate lounge room or home theatre, which shared an angled wall with the sala and had windows in the other three walls.

◦Where the tiling on the sala floor ended, there was added decking over which a large perspex gabled roof had been added. Even without the added structure, the sala jutted out beyond the house roofline.

◦Despite the differences, I considered that the rear informal alfresco quadrant was very similar indeed to the Seattle and the Memphis in the arrangement of the component areas inter se, and created a very similar impression and ambience.

Conclusion on whether sufficient objective similarity

288.   My comparisons of the plans of the copyright works and those of the alleged infringing works indicated that the alfresco quadrant displayed, in each case, great fundamental similarities, despite some differences of dimension, proportion, feature and detail.

289.   My own visual impression of the strong essential similarities between the alfresco quadrants of Dennis houses I visited and those of the Barrett houses accorded with the impression derived from a comparison of the plans, and with the comparisons and assessment of Dr Cooke, rather than those of Mr Miller, the unsatisfactory features of whose evidence I have already noted. Mr Miller nevertheless acknowledged the broad similarities between the Memphis and the Grange 291, and conceded that the relevant arrangement of rooms in the Esperance, Thornton 310 and Flinders houses was basically the same as that of the Memphis. I considered that there were striking fundamental similarities between the alfresco quadrant areas in the Barrett and Dennis plans and houses.

290.   There were also many other differences in the front third of the parties’ houses and other areas outside the alfresco quadrant but, as Dennis alfresco quadrants had sufficient objective similarity to constitute a reproduction of a substantial part of the Barrett works, the differences do not avoid infringement. Further, it is unnecessary to determine whether the alfresco quadrant was a substantial part of the Dennis works.

291.   For the reasons expressed above, I conclude that the alfresco quadrant constitutes a substantial part of the Barrett works to which the corresponding alfresco quadrant areas in each of the Dennis works bears a strong visual resemblance and objective similarity.

45. The current case concerns an inquiry as to whether the two sets of plans are sufficiently similar so as to form a view that the earlier set, based on the evidence concerning their creation and dissemination to the client, constitute the original artistic work in which the copyright is vested.

46. It was submitted that all the Tribunal was required to ascertain was whether (1) the person (Mr ‘T’ and the builder) had access to the plans, (2) the plans had been reproduced in some form, and (3) whether there were any unusual or striking features that were reproduced in the later set of plans. In essence the Tribunal was required to undertake a similar process to that conducted in the case of Barrett [at 44]. Once a finding had been reached based on a factual analysis of the material, the copyright issue could be determined and if necessary the other ‘privacy’ grounds.

47. In respect of making findings on the copyright issue, the Tribunal was also taken to the case of Henley Arch Pty Ltd v Tamawood Pty Ltd [2003] FCA 204. In that case (which also involved building construction) the Court made findings as to whether copyright had been infringed. The applicant’s submission on the available evidence was that an infringement (in the manner referred to in Henley) had occurred. When referring to the case of LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215, the Court noted from 46 - 47:

46 In LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 at 225, Davies J held that while, in that case, the respondent did not ask its draftsmen to copy the applicant's plans but instead

"gave them instructions for change, both by way of sketches and orally but principally orally, which when implemented would bring [the respondent's] plans into line with [the applicant's] ... there was deliberate copying by [the respondent] of the [applicant's] plans, though the copying was achieved by the giving of instructions for change rather than the direct tracing of one plan from another."

Davies J concluded there was a causal connection between the respondent's plans and those of the applicant.

47 I hold that the Gould plans and house constitutes an infringement of the copyright of Henley Arch in the Chirnside plans and house. In my judgment Ms Gould infringed copyright in the Chirnside plans by procuring the production of plans for her house and the building of her house in accordance with those plans. While I have very real suspicions as to the knowledge by Mr Middleditch of the Chirnside plans and the significance of those plans to the requests made by Ms Gould, I am unable to be satisfied that that infringement by Tamawood was a deliberate or knowing one. Nor am I satisfied that Mr Mizikovsky, when he approved the changes to the Adrian drawn by Mr Jason Middleton, knew or suspected that they came about so as to bring Ms Gould's house "into line" with the Chirnside design.

48. Elsewhere in Henley , the Court observed at 54- 56:

54. I have been assisted in reaching that conclusion by the evidence of Mr Wilde, an architect and principal of Goodsir Baker Wilde, an architectural practice in Brisbane who reported:

"Whilst the common features of the subject designs are not in themselves unique, it is the combination of the same features that leads me to form the view that there is an overall striking resemblance of the plans and elevation."

55 In considering whether a substantial part of the plans have been taken by the respondent, the quality rather than the quantity of what has been taken from the designs is important, and the overall impact of the designs rather than specific individual or minor features is what is important. It is the overall design and combination of features which leads to the conclusion that, notwithstanding the differences which exist, the Bern plan is a reproduction of at least a substantial part of Henley's Baltimore plan.

56 Tamawood and Mr Mizikovsky infringed the copyright of the Baltimore plans and the Baltimore house by the production of the Bern plans.

49. Prior to the luncheon adjournment I requested the respondent to retrieve the submitted set of plans from their offices and bring them to the Courthouse for consideration by the Tribunal during the afternoon. In making this request (and noting the approach from the case of Barrett [at 44]) I was mindful of the fact that access to the data was not controversial, merely the form of access i.e. a copy. In that regard the plans could be considered by the Tribunal and then referred to both parties at the bar table for their own examination, evaluation and further submissions. Following the adjournment the respondent brought the hard copy plans to the hearing as requested.

Copyright legislation

50. The Tribunal was taken to the following provisions of the Copyright Act 1968 (Cth) by the applicant. Sections: 10, 21 (3) and 31 (1) (b) were submitted as relevant. Section 10 is an interpretive provision and includes references to drawings, sketching etc.

COPYRIGHT ACT 1968 - SECT 10

"artistic work " means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

………

COPYRIGHT ACT 1968 - SECT 21

Reproduction and copying of works and other subject-matter

(3) For the purposes of this Act, an artistic work shall be deemed to have been reproduced:

(a) in the case of a work in a two-dimensional form--if a version of the work is produced in a three-dimensional form; or

(b) in the case of a work in a three-dimensional form--if a version of the work is produced in a two-dimensional form;

and the version of the work so produced shall be deemed to be a reproduction of the work.

………

COPYRIGHT ACT 1968 - SECT 31

Nature of copyright in original works

(1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a) in the case of a literary, dramatic or musical work, to do all or any of the following acts:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to communicate the work to the public;

(vi) to make an adaptation of the work;

(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and

(b) in the case of an artistic work, to do all or any of the following acts:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to communicate the work to the public; and

Consideration

51. When comparing and contrasting the plans of the applicant with those held by the Respondent Council it became apparent that they were very similar. Without close inspection the plans on inspection appeared identical, and on closer inspection appeared almost identical. All of the striking or unusual features were present in both sets of plans. The general dimensions and location of the pool were very similar. Whilst the pool was shortened on the later (or contentious) plans, the scale and existing dimensions were similar. If anything the shortening appeared to represent an attempt to limit the similarity of the feature, as there was no apparent reason for the change and the effect was only to convert the inward 20% into an indoor garden of similar dimensions. However this alteration may have alternatively been based on the client preference or instructions of Mt ‘T’. However, on the contentious plans the pool and garden combined had an identical footprint to the pool feature on the original plan of the applicant.

52. The footprint and dimensions of the structure as a whole was visually identical, as were the number of rooms, their dimensions and general layout. Other aspects (such as open plan living areas) were either identical or a ‘mirror image’ of the earlier plan, offering the same feature with the opposite aspect. The effect was that of ‘flipping’ one room the other way, but essentially it was a placement variation, of identical items performing the same function. The length of a kitchen bench differed slightly but the location and scale arose in identical terms. Overall on my estimate from an inspection of the plans, these changes only applied to less than 15% of the footprint for the ground floor, and approximately 20% of the footprint of the first (top) floor.

53. On the top floor the main changes were the placement of fixtures within specific near identical rooms. For example in the minor or ensuite bathrooms, toilets (WC’s) and showers were placed on adjacent walls to their placement on the original plans. In some instances (possibly consequent on such changes), the swing of internal opening doors was reversed, wherein on the original plans a door may have opened to the left facing the room, on the contentious plans the opening was to the right when facing the room, and in other instances vice – versa.

Finding 1

54. For the reasons expressed at paragraphs 51 to 53 (above) and the approach laid down in the case of Barrett [at 44], I find that the pool placement and dimensions constitutes a substantial part of the Applicant’s works dated October 2013 to which the corresponding areas in the contentious works bears a strong visual resemblance and objective similarity.

55. In addition, I conclude that the building footprint, internal room dimensions, placement of fixtures and size of fixtures (such as benches) bear a striking similarity to those in the contentious plans of the third party.

56. In making these findings I note that the third party client (Mr ‘T’) has had access to the original plans of the applicant, and that the plans have been reproduced, and that there are striking and unusual similar features reproduced.

57. For these reasons it should follow that there is significant weight that should attach to the overriding public interest in favour of disclosure, such as to outweigh any public interest considerations against disclosure as set out in accordance with Clause 4 (c ) and (d) of the Table to section 14 of the GIPA Act.

58. In my view there is significant public interest in having the true copyright provenance or attribution of the works available for formal adjudication in the relevant Federal jurisdiction.

Individual rights grounds (Clause 3 table section 14)

59. The Tribunal notes that the third party has taken no active role in these proceedings although the Tribunal understands from the parties that they are aware of the proceedings. It may be that having considered it’s position the third parties would be a formal party in any subsequent proceedings on the copyright / intellectual property rights of this applicant.

60. On the privacy or personal considerations against disclosure concerns under Clause 3, I make the following observations.

61. These proceedings are somewhat unusual in respect of GIPA litigation, in that rather than access to data or information, they solely concern the issue of the form of access. Whilst evidence was not lead in the proceedings at hearing, it was clear from the outlines and submissions that the applicant had already been given access to the information by inspecting the plans at the respondent’s offices during the D.A. approval period. As such the specifics raised by the third parties’ concerned matters which were already known to the applicant. The applicant had read the plans, compared them, and formed a view about them. As professional builders, draft-persons and architects they were extremely knowledgeable about the details of the contents, and such matters as to layout, position of rooms and other aspects relevant to Clause 3 considerations.

62. At the hearing the plans were examined by all participants in the proceedings.

63. Because of the fact that the plans were available for visual inspection at Council officers, for a two week or more period, and noting that they were in fact inspected, in my assessment it is difficult to see how reliance on this ground can be maintained. Exposure of the type contemplated in Clause 3 (f) has already occurred, in that this information is already known to the applicant. It appears that the layout was always known (if it was in fact the applicant’s design) and the inspection of the plans merely confirmed this. Whilst the GIPA Act provides for unconditional access, and once given there is no control on the use of the information, with on-line floor plans common on the world wide web / internet, it is difficult to conclude that such a consideration continues to hold any significant weight. The situation may change if there is some public interest basis (such as the location of the Firearm Safe in the related application).

64. Exhibit ‘R-3’ refers to an e-mail between Mr ‘T’ (the client) and the respondent during the consultation process. It effectively makes the same submissions as exhibit ‘R-4’ (at paragraph 34 above). R-3 includes the following statement:

I received your letter today, I have spoken to the builder in regards to this matter and wish that the information be with held [sic] from the request. Under the privacy act we wish our plans for the dwelling remain with the builder and myself. The release of plans which were submitted for approval have been released which we find is suffice.

65. This material received during the GIPA Act consultation period in my view indicates that agreement with release, but only an objection to the further release in the form sought by the applicant.

66. Having considered these matters, I believe that little if any weight can attach (on the stated circumstances and history) to the Clause 3 considerations.

Finding 2

67. For the reasons set out above, having considered the respondent’s reliance on the specified overriding public interest considerations against disclosure, I find that little weight can be given to them. In that regard there is (on my assessment) insufficient weight for those considerations to displace the general presumption in favour of disclose which the GIPA Act provides for the relevant information, and I make a finding accordingly.

68. In making this finding I have had regard to the fact that the information is neither characterised as material within Schedule 1 of the GIPA Act (for which there is a conclusive presumption against disclosure), nor has it been sought to be characterised as such information.

69. Section 72 of the GIPA Act addresses the form of access to information. The section provides:

72 Forms of access

(1) Access to government information in response to an access application may be provided in any of the following ways:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless:

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note. Decisions about how to provide access are reviewable under Part 5.

(emphasis added)

Finding 3

70. I make a finding that for the reasons set out above, for the purpose of providing access in the form requested, to do so would not involve an infringement of copyright. As such the provisions of section 72 (2) (c) no longer apply to the provisions of section 72 (1) (b) and I find accordingly.

71. In making the finding above, I only make such a finding for the limited purpose of determining whether there is any copyright question in so far as it effects the operation of the GIPA Act. This is therefore a limited finding within that provision, as the Tribunal does not have jurisdiction to determine matters under the Copyright Act 1968 (Cth).

Conclusion

72. Having made the findings that I have, it is appropriate to make an order that the information be released by providing a copy to the applicant. I will stay the operation of the orders for 28 days, after which time the respondent must comply with the orders.

73. The correct and preferable decision is to grant the application and to set aside the decision of the respondent.

Orders

1. The decision of the respondent dated 17 September 2015 is set aside.

2. In substitution of that decision the respondent is to provide the applicant with a copy of the floor plans for Lot 17 Wesley Avenue Port Macquarie NSW after 28 days from the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 September 2016