Sankey v Bollig
[2023] FedCFamC2G 227
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sankey v Bollig [2023] FedCFamC2G 227
File number(s): PEG 198 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 24 March 2023 Catchwords: INTELLECTUAL PROPERTY – Copyright – drawings of Port Rockingham Marina development – development and authorship of alleged copyright works – subsistence of copyright – effect of destruction of certain documents – whether reproduction of works and infringement of copyright – whether innocent infringement – whether licence for use of alleged copyright works – whether infringement of moral rights – remedies – damages – declaration – injunction – public apology
CONSUMER LAW – Whether misleading conduct – whether damages to be awarded where damages awarded under Copyright Act 1968 (Cth)
EVIDENCE – Affidavits – not sworn before a witness – use of affidavit where witness not able to attend court – effect of COVID-19 Practice Direction
REMEDIES – Election between damages and account of profits – account of profits – damages – additional damages – injunction – declaration – public apology
Legislation: Australian Consumer Law ss 18, 232, 236
Copyright Act 1710 (UK)
Copyright Act 1968 (Cth) ss 10, 32, 36, 115, 116, 126A, 126B, 127, 193, 194, 195AZA
Evidence Act 1995 (Cth) s 140
Federal Circuit and Family Court of Australia Act 2021 (Cth) Ch 4 Pt 6 Div 4, ss 141, 192, 199, 211
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 15.13, 15.17, Sch 2 Pt 1
WIPO Copyright Treaty (Geneva, 1996)
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Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551
Beck v Montana Constructions Pty Ltd [1964- 5] NSWR 229; (1963) 80 WN (NSW) 1578; (1963) 5 FLR 298
Blackman v Gant [2010] VSC 229; (2010) 29 VR 29; (2010) 86 IPR 331
Blair v Osborne & Tomkins [1971] 2 QB 78; [1971] 1 All ER 468; [1971] 2 WLR 503
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Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479; (1996) 135 ALR 638; (1996) 34 IPR 84
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Henley Arch Pty Ltd v Del Monaco [2019] FCCA 3848
Henley Arch Pty Ltd v Lucky Homes Pty Ltd [2016] FCA 1217; (2016) 120 IPR 317; [2016] AIPC 92-518
Hollinrake v Truswell [1894] 3 Ch 420
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Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; (1992) 111 ALR 577; (1992) 25 IPR 65
Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; (20020 120 FLR 243; (2002) 71 ALD 567; [2002] EOC 93-238
Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629; [2002] EOC 93-247
Kanapathy v in de Braekt [2012] FMCA 1213
Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 2) [2008] FCA 1493; (2008) 79 IPR 81
Ladbroke (Football) Ltd v William Hill (Football) [1964] 1 All ER 465; [1964] 1 WLR 273
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Milankov Designs & Project Management Pty Ltd v di Latte [2018] WASC 14; (2018) 129 IPR 565
Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240; (1994) 130 ALR 659; (1994) 30 IPR 209
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Napaluma v Baker (1982) 29 SASR 192
Nominet UK v Diverse Internet Pty Ltd (No 2) [2005] FCA 1773; (2005) 68 IPR 131
Olympic Amusements Pty Ltd v Milwell Pty Ltd (1998) 81 FCR 403; (1998) 162 ALR 199; (1998) 40 IPR 180
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Perez and Ors v Fernandez [2012] FMCA 2; (2012) 260 FLR 1
Pokemon Company International, Inc v Redbubble Ltd [2017] FCA 1541; (2017) 351 ALR 676
Prior v Lansdowne Press Pty Ltd [1977] VR 65; (1977) 12 ALR 685; (1977) 29 FLR 59
Qantas Airways Ltd v GAMA [2008] FCAFC 69; (2008) 167 FCR 537; (2008) 247 ALR 273
Ray v Classic FM Plc [1998] FSR 622
Robert J Zupanovich Pty Ltd v B & N Beale Nominees Pty Ltd (1995) 59 FCR 49; (1995) 138 ALR 107; (1995) 32 IPR 339; [1995] AIPC 39,481
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Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49; (1917) 23 ALR 154
Sayre v Moore (1785) 102 ER 139n
Seafolly Pty Ltd v Fewstone Pty Ltd [2014] FCA 321; (2014) 313 ALR 41; (2014) 106 IPR 85; [2014] AIPC 92-470
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Weston v Woodroffe (1985) 36 NTR 34
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Number of paragraphs: 284 Date of last submission/s: 30 and 31 August, 1, 2 and 3 September 2021 Date of hearing: 30 and 31 August, 1, 2 and 3 September 2021 Place: Perth Counsel for the Applicant: Mr R Price Solicitor for the Applicant: Provan Legal Counsel for the First Respondent: Dr Cox Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: Dr Cox Solicitor for the Second Respondent: DLA Piper Australia ORDERS
PEG 198 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WAYNE MAURICE SANKEY
Applicant
AND: EDWIN MICHAEL BOLLIG
First Respondent
BOLLIG DESIGN GROUP PTY LTD (ACN 009 220 802)
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
24 March 2023
THE COURT ORDERS THAT:
1.By 4.00pm on 31 March 2023 the applicant file and serve a Notice of Election as to damages or an account of profits.
2.If the applicant elects for an account of profits the proceedings be adjourned to a directions hearing at 3.00pm on 21 April 2023.
3.If the applicant elects for damages, the parties are directed to confer and bring in orders to give effect to these Reasons for Judgment by 4.00pm on 14 April 2023; but if they are unable to agree on such orders then each party is to file and serve Proposed Minutes of Orders by 4.00pm on 17 April 2023, and the proceedings be adjourned to a directions hearing at 3.00pm on 21 April 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The Proceedings
In these proceedings, the applicant, Wayne Maurice Sankey (“Mr Sankey”) alleges that the respondents, Edwin Michael Bollig (“Mr Bollig”) and Bollig Design Group Pty Ltd (“Bollig Design”) (collectively “Respondents”), infringed copyright and moral rights under the Copyright Act 1968 (Cth) (“Copyright Act”) and engaged in misleading and deceptive conduct under the Australian Consumer Law (“ACL”) in relation to architectural drawings prepared for a marina development to be constructed on the seabed of Cockburn Sound adjacent to Wanliss Street in Rockingham, Western Australia, generally described as the Port Rockingham Marina Development (“Project”).
The Materials
The materials before the Court, and to which the Court has had regard, include the following:
(a)the affidavits (including any annexures and exhibits) of Mr Sankey affirmed:
(i)24 December 2019 (“Sankey 1”);
(ii)3 June 2020 (“Sankey 2”);
(iii)7 September 2020 (“Sankey 3”); and
(iv)13 May 2021 (“Sankey 4”);
(b)the affidavit (including any annexures and exhibits) of Bradley John Saunders affirmed 5 June 2020 (“Saunders 1”);
(c)the affidavit (including any annexures and exhibits) of Herman Reginald de Mello affirmed 5 June 2020 (“de Mello 1”);
(d)the affidavits (including any annexures and exhibits) of Mr Bollig affirmed:
(i)28 April 2020 (“Bollig 1”); and
(ii)21 October 2020 (“Bollig 2”);
(e)the affidavits (including any annexures and exhibits) of Michael John Davis (which were marked as Exhibits 28 and 29) sworn:
(i)24 April 2020 (“Davis 1”); and
(ii)14 October 2020 (“Davis 2”);
(f)the affidavit of Clifford Einar Olson sworn 29 October 2020 (“Olson 1”);
(g)the expert’s report of Mr Peter Quigley (“Mr Quigley”) dated 6 April 2020 (“Quigley 1”) and the supplementary expert’s report of Mr Quigley dated 28 April 2020 (“Quigley 2”) (which were marked as Exhibits 30 and 31 respectively);
(h)the affidavit of Peter Andrew Duffield affirmed 17 June 2020 (“Duffield 1”);
(i)annexure LJC-1 of the affidavit of Louise Jane Coleman affirmed 27 August 2021;
(j)a schedule of amounts claimed and the basis dated 3 May 2021;
(k)a statement of agreed and disputed facts and issues dated 3 May 2021;
(l)the exhibits tendered in the proceedings;
(m)the oral evidence of witnesses and oral submissions of the parties contained in the transcript of the 5 days of proceedings on 30 and 31 August and 1, 2 and 3 September 2021 (“Transcript”);
(n)the written submissions filed by the parties;
(o)aide-memoires handed up by Counsel in the course of the proceedings; and
(p)the Principal Documents Bundle (“PDB”), Supplementary Principal Documents Bundle (“Supplementary PDB”), and the Further Supplementary Principal Documents Bundle (“Further Supplementary PDB”).
The Parties
The parties to the proceedings are:
(a)the applicant, Mr Sankey, who is an Australian citizen: Sankey 1 at [2], qualified to work as an architect in Western Australia: Sankey 1 at [3]. Since 1999 Mr Sankey has operated an architecture business under the name WS Architects: Sankey 1 at [3];
(b)the first respondent, Mr Bollig who is qualified to work as an architect in Western Australia: Bollig 1 at [5]. Since about 1995 Mr Bollig has been the Managing Director of Bollig Design: Bollig 1 at [9]; and
(c)the second respondent, Bollig Design, which is an architectural practice that provides commercial architectural services in relation to office buildings, industrial buildings, sport and recreation facilities, health facilities, retail spaces, hotels and resorts and hospitality venues: Bollig 1 at [10] and [13]). Prior to COVID-19 business disruptions, Bollig Design employed approximately 15 staff, including architects, draftspersons and support staff: Bollig 1 at [13].
The Project
The company promoting the Project changed from time to time, but at all relevant times the various companies were associated with a developer named Paul Ogilvie (“Mr Ogilvie”).
The Project was first proposed at some time in or about the 1990s. The Project appears to have had three active periods as follows:
(a)prior to 2006 (“First Period”);
(b)between 2006 and 2015 (“Second Period”); and
(c)from about 2017 onwards (“Third Period”),
Mr Sankey’s work on the Project largely occurred during the Second Period: Sankey 1 at [7] and [55].
All of the activity involving Mr Bollig and Bollig Design occurred during the Third Period: Bollig 1 at [21] and [82].
Other persons involved in the Project
Some of the other persons involved in the Project included:
(a)Mr Frazer Whittington (“Mr Whittington”), who was a qualified architect, and who at all material times was employed by WS Architects: Sankey 1 at [22]. Mr Whittington assisted Mr Sankey in relation to the Project: Sankey 1 at [22]; Duffield 1 at [5];
(b)Mr Ogilvie, the developer who was associated with the Project at all relevant times through various companies acting to promote the Project, but for present purposes primarily through Aureus Commercial Pty Ltd (“Aureus”);
(c)Coasts and Ports (“C&P”), a firm of marine engineers, also subsequently known as M P Rogers (but referred to throughout these Reasons for Judgment as C&P);
(d)Mr Saunders who worked for C&P on the Project, and who in around 2006 to 2008, was a Principal Coastal Engineer at C&P: Saunders 1 at [3], and who is now a Coastal, Maritime, Metocean, Senior Principal Engineer, and Coastal and Maritime Engineering Lead at BMT Commercial Australia (trading as BMT): Saunders 1 at [2]; and
(e)Mr Michael John Davis (“Mr Davis”) an Associate with a firm of town planners and urban designers, TPG + Place Match, who subsequently (in April 2018) changed their name to Element (but will be referred to as “TPG” throughout the remainder of these Reason for Judgment), and who provide town planning and urban design services particularly in relation to development applications;
(f)Ms Andelja Stamenkovic (“Ms Stamenkovic”), a graduate (unregistered) architect in the employment of Bollig Design, who assisted Mr Bollig in relation to the Project.
Observations on the Evidence and Witnesses
Mr Sankey, Mr Bollig, and Mr Quigley
Each of these three major witnesses gave their evidence in a forthright and robust manner and were generally believable. It was plain that Mr Sankey was significantly invested in the case and his grasp of the detail of the various matters was, accordingly, generally impressive. His being invested in the case did not, however, appear to affect the veracity of his answers to questions, and he, and Mr Bollig and Mr Quigley also, gave the impression of being open and frank in their answers. There are no credibility issues with respect to any of these three major witnesses.
Mr Saunders
Mr Saunders gave his evidence in a clear, straightforward manner, and there is no reason to doubt that he did his best to provide answers and give details of events from more than a decade ago to the best of his recollection. He was believable and the Court sees no reason to doubt his evidence.
Davis Affidavits
The affidavits of Mr Davis were tendered, and in the circumstances, marked as exhibits - Davis 1 (Exhibit 28) and Davis 2 (Exhibit 29), Transcript p 248. It was accepted by both parties that Mr Davis was so medically indisposed as to be unable to give evidence orally and be cross-examined. Further, neither of Mr Davis’ affidavits were witnessed. Both parties were invited to make further submissions about Mr Davis’ evidence. In final submissions neither party made any further submissions concerning the admissibility or weight to be given to Mr Davis’ affidavits.
Section 199 (4), (5) and (6) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provide as follows:
(4) If:
(a) a person makes an affidavit; and
(b)a party to a proceeding in the Federal Circuit and Family Court of Australia (Division 2) adduces, or proposes to adduce, evidence by the affidavit;
a party to the proceeding may request the person to appear as a witness to be cross-examined with respect to the matters in the affidavit.
(5) Subsection (4) has effect subject to the Rules of Court.
(6) If:
(a)a request under subsection (4) is given to a person who has made an affidavit; and
(b)the person does not appear as a witness to be cross-examined with respect to the matters in the affidavit;
the Federal Circuit and Family Court of Australia (Division 2) is to give the matters in the affidavit such weight as the Court thinks fit in the circumstances.
Counsel did not demur when the Court indicated that it assumed that a request had been made under s 199(6) of the FCFCOA Act: Transcript, p 244, and nor was there any evidence led or submission made to the contrary. The Court can therefore, on the face of it, give Davis 1 and Davis 2 “such weight as the Court thinks fit in the circumstances”: FCFCOA Act, s 199(6).
The Court notes that r 15.17 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) provides that:
The Court may:
(a)dispense with the attendance for cross-examination of a person making an affidavit; or
(b)direct that an affidavit be used without the person making the affidavit being cross-examined on the affidavit.
At hearing the Court determined that Davis 1 and Davis 2 could be “used” without Mr Davis being required to attend for cross-examination: GFL Rules, r 15.17, and those affidavits were tendered and marked as Exhibits 28 and 29 respectively: Transcript, p 248.
The signature of Mr Davis on Davis 1 and Davis 2 was not witnessed on either affidavit. Rule 15.13(2)(b) and (c) of the GFL Rules provides that an affidavit:
(a)“must” be signed by the person making the affidavit (here Mr Davis) in the presence of the person before whom it is made; and
(b)be signed by the person before whom it is made.
It was submitted for Mr Sankey that Davis 1 and Davis 2 were draft affidavits to which a signature was put, and that their evidentiary status was no more than that of an unsworn statement which ought not to be referred to as an affidavit.
The difficulty with Mr Sankey’s submission is two-fold. First, is that Davis 1 and Davis 2 are in the usual form for affidavits, and are signed, and the only omission is that Mr Davis’ signature is not witnessed. The submission that their evidentiary status is no more than that of an unsworn statement cannot therefore succeed. Second is that at the time Davis 1 and Davis 2 were signed by Mr Davis on 24 April and 14 October 2020 respectively, there was in effect a Practice Direction: Joint Practice Direction 2: JPD 2 of 2020 – Special Measures in response to COVID-19. Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents and Affidavits, and Fees (“COVID-19 Practice Direction”), cl 12 of which provides as follows:
Signatures on Documents and Affidavits
…
12.The Courts will accept for filing affidavits (other than where part of a divorce application) and financial statements that have been signed without a qualified witness also signing the document, subject to, if the judicial officer requires it, the deponent of the document being made available by telephone or videoconference or in person, at a subsequent court event, to swear or affirm that the contents of the document are true and correct to the best of their knowledge, information and belief.
…
For Mr Sankey it was argued that:
(a)the effect of the COVID-19 Practice Direction was limited to allowing the filing of an unsigned affidavit, and that, in any event it did not have the effect of altering the rules relating to the admissibility of, and weight to be given to, affidavits: Transcript, p 246, and
(b)the COVID-19 Practice Direction could not apply in Western Australia because there was sufficient time to have it re-sworn before the hearing: Transcript, p 245.
Clause 12 of the COVID-19 Practice Direction clearly envisages an unwitnessed affidavit being accepted for filing. It then provides for the possibility of the unwitnessed affidavit then being used in proceedings in Court, save that “if the judicial officer requires it” the deponent of the unsigned affidavit may be required to “swear or affirm that the contents of the [affidavit] are true and correct”. The COVID-19 Practice Direction therefore provides for an unwitnessed affidavit to be used in proceedings:
(a)as filed, that is, unwitnessed; or
(b)if the presiding judicial officer requires it, subject to its contents being sworn or affirmed by its deponent to be true or correct.
Mr Sankey’s argument that the COVID-19 Practice Direction was limited to allowing the filing of an unsigned affidavit cannot therefore be sustained.
Division 4 of Pt 6 of Ch 4 of the FCFCOA Act deals with case management in this Court, and includes s 192 which provides as follows:
(1) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of such a proceeding, before the Court.
(2) Without limiting subsection (1), a direction may:
(a) require things to be done; or
(b)set time limits for the doing of anything, or the completion of any part of the proceeding; or
(c) limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence; or
(d) provide for submissions to be made in writing; or
(e) limit the length of submissions (whether written or oral); or
(f) waive or vary any provision of the Rules of Court in their application to the proceeding; or
(g) revoke or vary an earlier direction.
(3)If a party fails to comply with a direction given by the Federal Circuit and Family Court of Australia (Division 2) or a Judge under subsection (1), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate.
(4)In particular, the Federal Circuit and Family Court of Australia (Division 2) or Judge may do any of the following:
(a) dismiss the proceeding in whole or in part;
(b) strike out, amend or limit any part of a party’s claim or defence;
(c) disallow or reject any evidence;
(d) award costs against a party;
(e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
(5)Subsections (3) and (4) do not affect any power that the Federal Circuit and Family Court of Australia (Division 2) or a Judge has apart from those subsections to deal with a party’s failure to comply with a direction.
The COVID-19 Practice Direction is a direction of the Court for the purposes of s 192 of the FCFCOA Act and its terms are to be complied with: FCFCOA Act, 192(3). Alternatively, and having regard to the terms of the COVID-19 Practice Direction, it would in the Court’s view be in the interests of justice to dispense with compliance with r 15.13(2)(b) and (c) of the GFL Rules. As such, and given the terms of cl 12 of the COVID-19 Practice Direction, it cannot be said that unsigned affidavits such as Davis 1 and Davis 2, are in these circumstances, inadmissible.
The weight, if any, to be given to any evidence in Davis 1 and Davis 2 remains, however, a matter for the Court: FCFCOA Act, s 199(6).
THE SUBSISTENCE OF COPYRIGHT AND OWNERSHIP IN THE WORKS
The Works
The architectural drawings which are claimed by Mr Sankey to be works of which he is the author, and in which it is alleged copyright subsists, are as follows:
(a)Site Plan A-100, Job 0510 dated 8 December 2010 (“Drawing A-100 – Site Plan”);
(b)Land Plan A-102, Job 0510 dated 10 December 2010 (“Drawing A-102 – Land Plan”);
(c)Plan Marina Buildings A-103, Job 0510 dated 7 December 2010 (“Drawing A-103 – Marina Buildings Plan”); and
(d)Aerial A-400, Job 0510 dated 7 December 2010 (“Drawing A-400 – Aerial”),
(collectively, “Works”).
The Drawing A-100-Site Plan is a drawing of the entire site at both sea and land so includes all of the major components of the Project on the site, namely:
(a)the breakwater;
(b)the boat pens;
(c)the kinked jetty;
(d)the buildings abutting the curved jetty;
(e)the curved jetty; and
(f)the car park,
all set out relative to two major roads (Rockingham Beach Road and Wanliss Street) the foreshore and beach line, and the sea.
The Drawing A-102 – Land Plan shows primarily:
(a)the detail of car parks on the foreshore side of Rockingham Beach Road, adjacent to the intersection of Rockingham Beach Road and Wanliss Street, and an adjoining buffer zone between the second car park and the existing playground;
(b)an access road to the curved jetty;
(c)the curved jetty, access road and covered walkway leading to the buildings abutting the curved jetty; and
(d)detail of the buildings abutting the curved jetty.
The Drawing A-103 – Marina Buildings Plan shows the detail of six buildings (there numbered Buildings 1, 2, 3, 4, 5 and 7) abutting the curved jetty, with:
(a)Buildings 1 (an ovoid shaped building), 3 and 5 on the seaward side of the curved jetty;
(b)Buildings 2 and 4 in the lee of the curved jetty, with a further kinked jetty running behind and initially adjoining Building 4, and also shows the curved turnaround area at the beginning of the breakkwater and some detail of the two foreshore car parks.
The Drawing A-400 – Aerial is an aerial photograph of the entire sire and surrounding areas (thus including the sea, foreshore, major and minor roads and commercial and residential premises) with the detail from the Drawing A-100 – Site Plan superimposed on the photograph.
It is important to note at the outset that in these proceedings copyright is only claimed to subsist in the Works as at the 2010 dates cited in [25] above in respect of each of the drawings comprising the Works. It is nevertheless necessary, in order to determine the subsistence, or otherwise, of copyright in the Works, to trace their development over time prior to 2010.
Evidence
Sankey
In relation to Mr Sankey’s involvement in developing what became the Works, Mr Sankey gave evidence that:
(a)he first became involved in the Project, which was to design and build a marina and its associated infrastructure at Rockingham, in 2006 at the invitation of Mr Ogilvie: Sankey 1 at [7];
(b)on or around 28 February 2006 he was engaged by Mr Ogilvie to work on the Project as the architect for a water based commercial jetty development. He provided Mr Ogilvie with an Architect and Client Agreement (“First Agreement”) and Mr Ogilvie agreed to its terms and provided him with a signed copy: Sankey 1 at [16]-[17];
(c)he undertook a number of site investigations, from which a number of issues arose, including:
(i)shallow water depths within the existing lease area for a short way out to sea and then a very deep drop off;
(ii)north of the existing lease area was a 3 to 6 metre deep sand shelf; and
(iii)cost and environmental concerns: Sankey 1 at [8], Annexure WMS-41;
(d)upon reflection of his early childhood days spent holidaying in Rockingham, he had seen large migrating schools of fry (young fishes fresh from the spawn) move along the shallow coastal waters, and he developed the idea to ensure that any breakwater avoided the shore: Sankey 1 at [9];
(e)he began sketching designs that illustrated a breakwater off the shore and following the sand shelf line and linked the curved breakwater with the carpark at Wanliss Street with a curved jetty. He consulted with a coastal engineer regarding wave heights, wave action control options, the costs of constructing the rock breakwater and obtained estimated rates for the stone: Sankey 1 at [10];
(f)he created rectangular building platforms to hang off the curved jetty on both the inside (the lee side) and outside (the sea side) for economic reasons as well as simplicity. Rather than following the jetty’s curve, these designs took the effect of rectilinear building platforms in order to create it in a manageable and economic manner. The platforms were located tangentially to the jetty curve in a configuration that permitted the curved jetty to flow freely past the buildings and to shield the patrons from persistent winds. He additionally considered the possibility of restricting boat users from the shallow waters and shoreline by locating a main feeder jetty to the east, parallel to the shore, with berthing jetties running to the west, and ultimately, restricting boat users from coming closer than 110 metres to the shoreline so as to ensure safe swimming for the community: Sankey 1 at [11];
(g)he continued to develop the concept by preparing schematic drawings, considering previous works completed on the seabed lease, examining environmental considerations, viewing satellite images and addressing numerous site issues and client requests: Sankey 1 at [18]-[20];
(h)in April or May 2006, he was sketching rough concepts freehand on butter paper which consisted of a continuous curve with rectilinear building platforms to the north and south tangential to the curve and a rectilinear building platform running north along the main feeder jetty (“2006 Concept Drawing”). He was assisted on the Project by Mr Whittington: Sankey 1 at [21]-[22];
(i)the 2006 Concept Drawing was drafted using AutoCAD (a commercial computer-aided design and drafting software application) and versions of the drawing were provided by him to Mr Ogilvie;
(i)on or about 30 June 2006;
(ii)on 4 July 2006 by email;
(iii)on 11 July 2006; and
(iv)29 July 2006;
(j)on or around 24 April 2006 he had contacted C&P to determine what involvement they could have in the Project. He was put in contact with Mr Saunders and they both proceeded to draft a brief which was finalised in May 2006. On or around 4 July 2006, Mr Whittington emailed Mike Rogers (“Mr Rogers”) and Mr Saunders of C&P with a copy of the 2006 Concept Drawing: Sankey 1 at [26]-[27], Annexure WMS-47;
(k)the brief to C&P from him was not a single briefing document: rather, he provided the relevant information and requirements during the course of meetings with Mr Saunders and in email correspondence: Sankey 4 at [12];
(l)C&P were engaged:
(i)to provide wave and wind patterns, Department of Transport (“DOT”) coastal profiles that indicated water depths, setback data from sand shelf drop off, and prepare a report based upon the 2006 Concept Drawing: Sankey 1 at [27];
(ii)as a part of the consultant team to give specific engineering input on coastal processes and water quality and climatic data: Sankey 1 at [28];
(iii)to provide feedback on the cross section of the rock breakwater, anticipated sand deposition and accumulation and platform height based upon wave action data available at that time: Sankey 1 at [28]; and
(iv)to work on water quality testing, modelling and analysis: Sankey 1 at [30].
(m)the Project progressed from 2006 to 2009 and he:
(i)made 55 recorded issues of drawings: Sankey 1 at [34a]
(ii)conducted presentations of the concept to various authorities and the local community: Sankey 1 at [34b]
(iii)arranged meetings and presented drawings for the purpose of obtaining a new seabed lease agreement: Sankey 1 at [34c]; and
(iv)provided copies of the drawings to various interested persons including but not limited to Mr Ogilvie and C&P: Sankey 1 at [35];
In relation to the submission of the Project for a development application (“DA”) approval in 2010 Mr Sankey gave evidence that:
(a)by the end of October 2010 the Project had reached the stage where the client requested DA approval: Sankey 1 at [45];
(b)from November 2010 to January 2011, he commenced drawings for the purpose of submitting them for DA approval. These drawings included the Works and others. These drawings involved considerable changes and as such, the finalised version showed the new revised Project, the overall set out and shape and the configuration and dimensions of geometry: Sankey 1 at [47]-[50], Exhibit WMS-E;
(c)on 9 December 2010 he produced multiple hard copy sets of all 11 drawings contained in Sankey 2, Exhibit WMS-H and Sankey 1, Annexure WMS-34. On 9 December 2010, he hand delivered two sets of the hard copy drawings to Mr Ogilvie’s office in Rockingham and then delivered the two sets to the representatives of the City of Rockingham (“City”) at his meeting with them: Sankey 4 at [18];
(d)on 9 December 2010 he sent three emails to Mr de Mello at DOT with copies of five of the drawings referred to above: Sankey 4 at [18], Annexure WMS-55;
(e)on 10 December 2010 he received an email from Mr Ogilvie’s secretary requesting that Mr Sankey send a thumb drive or email with all the drawings Mr Sankey had delivered to the City of Rockingham on 9 December 2010: Sankey 4 at [18], Annexure WMS-56. Mr Sankey replied on or around 10 December 2010, attaching PDF versions of the 11 documents that Mr Sankey had delivered to the City, however he has been unable to find a copy of that particular email: Sankey 4 at [18];
(f)on or around 20 January 2011 he hand delivered a USB to Mr Ogilvie’s office in Rockingham. The USB contained a copy of the full set of the 11 drawings provided on 9 December 2010 in both PDF and CAD format as well as some additional drawings: Sankey 4 at [18], Annexure WMS-57, Exhibit WMS-Q;
(g)he provided Mr Ogilvie with 7 drawings that he had created and provided them to Mr Ogilvie in hard copy format on 9 December 2010, in PDF format on 10 December 2010 and in CAD format on 20 January 2011: Sankey 1 at [50], Annexure WMS-E; Sankey 4 at [18];
(h)the drawings for the DA application contained eleven drawings as contained in Annexure WMS-H: Sankey 2 at [11], Sankey 4 at [18]. Regardless of whether Mr Ogilvie submitted the DA Application drawings, comprising of eleven drawings, each of the eleven drawings, that are subject of Annexure WMS-H, are a copy of the same drawings that he provided to Mr Ogilvie in hard copy format on 9 December 2010, in PDF format on 10 December 2010 and in CAD format on 20 January 2011: Sankey 4 at [18];
(i)the drawings for DA approval were subsequently published: Sankey 1 at [53];
(j)in March 2011 Mr Sankey ceased work on the Project: Sankey 1 at [54]; and
(k)the DA lodged in 2010 (“2010 DA”) expired on 18 February 2015 due to lack of action by the developer: Sankey 1 at [55].
In relation to C&P’s involvement in the Second Period Mr Sankey gave evidence that:
(a)the 2006 Concept Drawing was developed and updated throughout the next two years: Sankey 1 at [37];
(b)C&P did not produce any drawing for the Project until SK 689-01-01A (Exhibit 1, E7) was produced in January 2008 (“C&P January 2008 Plan”). This was an X Ref (an AutoCAD function used to copy the digital content and all its drawing properties to then use that content to create a new CAD drawing with the same digital content) of the 2006 Concept Drawing and placed on the title block “WS Architects Concept Plan June 2007”: Sankey 1 at [38], Sankey 4 at [14] and [30];
(c)he remembers moving the C&P January 2008 Plan drawing, provided by C&P, from the folder “2-190808” to the folder “1-240108” in August 2008 when he was working on his drawings. This was to make it easier to work with the other drawings in that folder. He did not later correct this and move it back to the “2-190808” folder: Sankey 4 at [14]-[15];
(d)on 19 August 2008 C&P provided him with an undated drawing which displayed a revised setback for the breakwater from the sand shelf: Sankey 1 at [39], Annexure WMS-9; Exhibit 1, E8 (“C&P August 2008 Plan”);
(e)on or around 31 August 2008, he updated the existing breakwater to match the revised engineered drawings by copying the revised setback for the breakwater from the C&P August 2008 Plan: Sankey 1 at [41], Annexure WMS-11; Exhibit 1, E11 (“August 2008 Revised Breakwater Plan”);
(f)C&P provided him with further drawings: Sankey 1 at [40], Annexure WMS-10; and
(g)further changes were made to the breakwater length: Sankey 1 at [42], Exhibit WMS-D; Exhibit 1, E12 (“September 2010 Site Plan”).
Cross-examined Mr Sankey gave evidence that:
(a)he produced Drawing A-400 – Aerial which depicts the Project: Transcript p 89;
(b)he did “a lot” of the drawing, in relation to the Project, by himself, with some presentation work being done by Mr Whittington, but Mr Whittington’s contributions were minimal and included some of the hatching and presentation work on the areas relating to the foreshore greenery: Transcript pp 91-92, and the building platforms: Transcript pp 106, 143 and 145;
(c)he very rarely goes to a quantity surveyor for costs estimates unless it is a specific job and the client has approved it. In other circumstances, he will produce estimates himself based on Rawlinsons Guides or guides from builders or various other publications: Transcript p 99;
(d)in relation to Exhibit 6 (Drawing A-100 – Site Plan, with Landgate portions marked in green), the portions marked in green were not drawn by him. The green portions were information provided by Landgate, which he then inserted into the drawing as drawing “information”: Transcript p 100-101;
(e)the Landgate information marked in green was provided to him by Giudices and Whelans, both of whom are surveyors: Transcript p 101;
(f)he had cut and pasted the data that the surveyors provided into his CAD drawings or the CAD file: Transcript p 101;
(g)in relation to Exhibit 7 (Drawing A-100 – Site Plan with added yellow hydrographic lines), the document displayed a hydrographic survey of the seabed area for the marina in the Project, and was provided to him by C&P. He cut and pasted this drawing into his CAD drawing: Transcript pp 103-104;
(h)Mr Ogilvie wanted the drawings of the Project to be based on and similar to the drawing drawn by Spowers Architects (“Spowers”): Transcript pp 102 and 105;
(i)the drawing designed by him and the drawing designed by Spowers were “completely different” in “every way”: Transcript p 105;
(j)the differences between his drawing and Spowers drawing could be seen in the fact that Spowers’ Drawing:
(i)was not on the sand platform;
(ii)was located directly out from Wanliss Street;
(iii)was around a tenth or more smaller than his;
(iv)had no curves in it;
(v)did not include a breakwater;
(vi)did not have a marina (boat pen) component;
(vii)did not have a curved bridge linking it to the shoreline; and
(viii)did not have the car parking component: Transcript p 105;
(k)the Spowers Drawing had a series of buildings on piles out from Wanliss Street and had docking areas for boats: Transcript p 105;
(l)Mr Whittington’s name was not associated with the drawing of the marina in the Project: Transcript p 106;
(m)C&P were recommended to Mr Ogilvie to be involved in the Project to provide data and assistance on getting approval for the Project: Transcript p 107;
(n)the information that C&P were to obtain required an extensive report. C&P were involved for six months or thereabouts producing a report on water quality and freshwater nutrient inflows. C&P were also requested to obtain pricing for stability testing of the sand platform that he designed on the marina: Transcript p 107-108;
(o)he originated the design of the Project “from scratch”. Emerging from his early sketchings, the curved breakwater on the contour line along the edge of the drop-off of the sand platform was developed by him. The putting of boats on the sand platform to create a marina and the associating curve out from Wanliss Street to meet that curved break water was also developed by him: Transcript p 108;
(p)the Project design and the St Kilda Pier in Victoria is similar in the fact that it is a breakwater located offshore: Transcript p 108;
(q)the shape of the breakwater was contained in a concept plan which referred to the indicative rocks above the water. It is standard practice to not show anything below the water: Transcript p 108;
(r)Giudice and Whelans provided him with information from Landgate. He cut and pasted the information from the drawing provided by Giudice into his drawing: Transcript pp 113-114;
(s)he originally designed the boat pen layout and provided it to C&P in CAD form on 1 September 2008 for inclusion in their drawings: Transcript pp 120-121;
(t)he did not input the survey information till months after he had received the Whelans survey. This is how the document came to be in the January 2008 folder: Transcript pp 121-122;
(u)he provided the initial design for what became Drawing A-100 – Site Plan to C&P who then made some modifications based on technical information provided to them, and he then made further modifications to the breakwater by widening the breakwater and providing angle parking: Transcript p 124;
(v)in relation to CAD file 1, when the layer descriptions were turned on a section called ‘Interface by Landscape Arch’ displayed and he included this on the CAD file “because some of the work in there is by the landscape architect”: Transcript p 137;
(w)Mr Jordan (the landscape architect) provided input in respect to the design and provided aspects of the design: Transcript p 138;
(x)drawings were sent to Mr Jordan who would have copied Mr Sankey’s design into his drawing, made some changes and then sent them back to Mr Sankey: Transcript p 138; and
(y)hatching is a “little bit like colouring in”, and its purpose is simply to denote a surface or a block or a differentiation, and is a presentation technique that would highlight the building to indicate there was a building there: Transcript p 145.
In re-examination Mr Sankey gave evidence that:
(a)apart from the hatching, Building 1, Building 2, Building 3, Building 4 and Building 5 (in the CAD1 drawing), were designed by him: Transcript p 148.
Saunders
Mr Saunders gave evidence that:
(a)in the course of his involvement in the Project, from around June 2006 to around early 2007, he had regular contact with Mr Sankey. Mr Sankey was the architect working on the Project as part of the consultant’s team for the Project advising on coastal and marine aspects of the Project: Saunders 1 at [5];
(b)on recommendation by Mr Sankey on behalf of his client, C&P were engaged in the Project in around May 2006 to provide coastal engineering and infrastructure planning design advice for the development of a small craft marina located within the Project. Mr Saunders was appointed by C&P to carry out this work: Saunders 1 at [6].
(c)on or around 4 July 2006 Mr Whittington, who was Mr Sankey’s assistant, provided him with a copy of a concept drawing (the 2006 Concept Drawing) for the Project: Saunders 1 at [7], Annexure BJS-1;
(d)he had no input into the design of the layout of the proposed marina before the 2006 Concept Drawing was sent to him. To the best of his knowledge, no one at C&P had any input into the design for the layout of the proposed marina: Saunders 1 at [8];
(e)the sole involvement of C&P was to provide comment on and input to coastal and marine aspects of the concept for project planning and environmental submission. This resulted in a marine consultant’s report for planning and environmental reviews. The review included discussion on the limitations of development of the breakwater in proximity to the edge of the subtidal platform between Wanliss Street and CBH which drops into the deeps. The discussion in the review advised on the extent of the developable water as the development of the breakwater needed to consider geotechnical stability: Saunders 1 at [8];
(f)to the best of his knowledge, no one at C&P had any input into the design of the layout of the marina during the early stages of C&P’s engagement in 2006 to 2007: Saunders 1 at [9];
(g)on or around 14 July 2006 C&P produced a written report on the Project. He was responsible for preparing the report on behalf of C&P: Saunders 1 at [10], Annexure BJS-2. From this report, it can be seen that C&P provided drawings relating to the structure and materials of the proposed jetty: Saunders 1 at [10];
(h)C&P did not provide input in relation to the concept design of the layout of the marina as set out in the 2006 Concept Drawing: Saunders 1 at [10];
(i)on or around 17 November 2006 he sent an email to Mr Sankey regarding the Project: Saunders 1 at [11], Annexure BJS-3; and
(j)he left C&P at the end of 2008 and had no further involvement with the Project: Saunders 1 at [12].
In cross-examination Mr Saunders gave evidence that:
(a)in relation to the time that he was working at C&P the date of “December 2007”in his LinkedIn profile (Exhibit 23) may be inaccurate, and it was “was probably 2008”: Transcript p 157; and
(b)it was possible that Mr Sankey, or others, were working with other people in C&P on the Project, and not solely Mr Saunders: Transcript p 157.
de Mello
An affidavit affirmed by Herman Reginald de Mello (“Mr de Mello”) on 5 June 2020 was read into evidence. Mr de Mello was at a relevant time the Harbour Manager at the Fishing Boat Harbour and Challenger Harbour in Fremantle, and in that role responsible for DOT seabed facilities at various facilities including the Project in Rockingham. It does not appear that anything of significance ultimately turns on Mr de Mello’s evidence.
Respondents’ evidence
The Respondents’ evidence concerning the development of the Works was necessarily limited by reason of the fact that they had no involvement in the Project until 2018.
As is evident from the Respondents’ submission on the design of the works their case that Mr Sankey does not own copyright in the works is based essentially entirely on Mr Sankey’s evidence.
Mr Sankey’s submissions
Although Mr Sankey claimed to have drawn as many as 55 drawings related to the Project, Mr Sankey’s submissions traced major drawings (including those of C&P) in the development of the Works as follows:
(a)what was the first draft of a concept plan for the site of the Project was drafted by Mr Sankey in June 2006: Exhibit 1, E5 – the 2006 Concept Plan, which sets out the essential structure for the Project site, including a maximum of six finger jetties;
(b)a further draft of a concept plan for the site of the Project was drafted by Mr Sankey in May 2007: Exhibit 1, E6 (“2007 Concept Plan”), which again sets out the essential structure for the Project site, including ten finger jetties;
(c)C&P then produced a version the of concept plan, marked as “WS Architects Concept Plan June 2007”, but which is in fact the C&P January 2008 Plan: Exhibit 1, E7, and which includes a numbering of the number of boat pens on each finger jetty by C&P;
(d)C&P then put forward the C&P August 2008 Plan: Exhibit 1, E8, which involved a widening and repositioning of the breakwater and the introduction of hydrographic contour lines;
(e)in August 2008 Mr Sankey prepared the August 2008 Revised Breakwater Plan: Exhibit 1, E11, which shows a curved breakwater connected to the shore by a curved jetty, with six buildings butting off the curved jetty, four (Buildings 1, 2, 3 and 4) on the sea side of the curved jetty (including the ovoid shaped Building 4), two (Buildings 5 and 6) on the lee side of the curved jetty, and a further building (Building 7) adjacent to the beginning of the breakwater on the protected side, a vehicle turnaround area on the curved jetty between Buildings 1 and 2, and ten finger jetties at right angles to a long jetty running off the curved jetty more or less parallel to the beach inside the breakwater;
(f)Exhibit 3, J1-J6 relates to a series of drawings by Mr Sankey, sent to C&P on 1 September 2008, which show the removal of the first small finger jetty (leaving nine finger jetties) and the inclusion of a boat turning circle in its place adjacent to Building 7 (and behind Building 6) (“J Bundle”);
(g)on 10 September 2008 C&P produced a document called “C&P Preliminary Pen Layout”: Exhibit 1, E9, for the pens on the nine finger jetties and on the inside of the breakwater, which appears to ascribe various sizes (from 10 metres to 20 metres) for each pen (“C&P Preliminary Pen Layout”);
(h)on 31 October 2008 C&P produced a document called “Concept Breakwater Layout”: Exhibit 1, D2, which incorporates two bumps on the ocean side of the breakwater and a turning circle (for vehicles) at the end of the breakwater (“C&P Concept Breakwater Layout”);
(i)also on 31 October 2008 C&P also produced a document called “Concept Pen Layout”: Exhibit 1, E10, for the pens on the nine finger jetties and on the lee side of the breakwater, which again ascribes various sizes (from 10 metres to 20 metres) for each pen, but reduces the number of pens from 475 to 467 (“C&P Concept Pen Layout”), but which also incorporates the two bumps on the sea side of the breakwater and the turning circle (for vehicles) at the end of the breakwater from the C&P Concept Breakwater Layout;
(j)in September 2010 Mr Sankey produced a further site plan: Exhibit 1, E12 (“September 2010 Site Plan”), in which he widens the breakwater by five metres and includes vehicle parking on one side of the breakwater;
(k)in October 2010 Mr Sankey produces yet another site plan: Exhibit 1, E13 (“October 2010 Site Plan”), in which he introduces:
(i)a vehicle turning circle at the beginning of the breakwater:
(ii)a short kinked feeder jetty from the curved jetty to the long jetty (from which emanates the finger jetties), which:
(A)provides a degree of separation between the breakwater and the pens; and
(B)also separates the buildings from the breakwater by extending the curved jetty between the buildings and the breakwater; and
(l)in December 2010:
(i)Drawing A-100 – Site Plan;
(ii)Drawing A-102 – Land Plan;
(iii)Drawing A-103 – Plan Marina Buildings; and
(iv)Drawing A-400 – Aerial View,
are produced by Mr Sankey and delivered to Mr Ogilvie at Aureus.
Mr Sankey’s submissions in relation to the subsistence of the copyright in the Works are as follows:
(a)the Works are original artistic works for the purposes of s 32 of the Copyright Act;
(b)it is well recognised that architects’ plans generally constitute “artistic works” within the meaning of s 10(1) of the Copyright Act;
(c)originality for the purposes of s 32 of the Copyright Act requires that the work in question originated with the author and that it was not merely copied from another work. It means that the production of the work required some independent intellectual effort, but novelty or inventiveness is not required: IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458; (2009) 83 ALJR 585; (2009) 254 ALR 386; (2009) 80 IPR 451; [2009] AIPC 92-335 (“IceTV”) at [33] per French CJ, Crennan and Kiefel JJ;
(d)where an author has created a series of drawings, this does not prevent copyright subsisting in the later versions. Improving and reviewing a work does not deprive the author of copyright: Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd [1988] AIPC 90-488; 5 BCL 64 (“Ownit Homes”); Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; (1992) 111 ALR 577; (1992) 25 IPR 65, FCR at 378, 379-380 per Gummow J; Digga Australia Pty Ltd v Norm Engineering Pty Ltd [2008] FCAFC 33; (2008) 166 FCR; (2008) 245 ALR 407 at [52] per Lindgren J;
(e)Mr Sankey devoted significant intellectual effort in preparing the Works: they are original and Mr Sankey is the author of them;
(f)the Respondents’ assertion that Mr Sankey was not the sole author of the Works and denial that “the entirety of each” drawing was an original work, on the alleged basis that each drawing includes material “that was not drawn or otherwise brought into existence by” him is, quite aside from issues of fact, a defence which is bad in point of law. Copyright may subsist in a work that comprises both original and non-original elements. Hence, a work which takes a part of another person’s work may be the subject of copyright provided that sufficient skill and effort has been expended on the work, and if by reason of the additions or changes it is a new or original work rather than a mere copy. The principle applies even if the new work infringes the copyright in a previous work: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; (1993) 114 ALR 355; (1993) 27 IPR 133 (“Accounting Systems”), FCR at 499 per Lockhart and Gummow JJ; A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 65 FCR 478; (1996) 143 ALR 543; (1996) 34 IPR 306 (“A-One”), FCR at 490 per Drummond J; Pokemon Company International, Inc v Redbubble Ltd [2017] FCA 1541; (2017) 351 ALR 676 at [34] per Pagone J;
(g)a compilation of materials, being materials not created by the compiler, can be an original work, originality being determined by considering the work as a whole, and not by dissecting it and considering whether each section could be the subject of copyright of the compiler if the section stood alone: A-One FCR at 501 per Drummond J; Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63; (1999) 85 FCR 436; (1999) 161 ALR 302; (1999) 43 IPR 32; [1999] AIPC 91-460 (“Milwell Appeal”) at [19]-[20] and [24] per Lee, von Doussa and Heerey JJ; Ownit Homes; Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197; (2008) 172 FCR 580; (2008) 80 IPR 566; [2009] AIPC 92-322 (“Elwood Clothing”) at [36]-[38], [62], [66] and [75]-[77] per Lindgren, Goldberg and Bennett JJ;
(h)Mr Sankey was the sole author of the Works. The suggestion that the inclusion of some component of third-party effort in the Works means that he was not the sole author is erroneous. In any event, the works are so visually and significantly altered from the earlier C&P drawings, that by reason of the alterations, copyright subsists in the Works;
(i)Mr Sankey did not lose copyright in his drawings merely because of the input into his drawings by C&P in relation to technical engineering aspects of the Project;
(j)the fact that all four drawings comprising the Works emanated out of a CAD file does not mean that copyright does not subsist in the Works;
(k)to claim someone else was a joint author cannot, in law, constitute a defence to copyright infringement. Joint authors own copyright as tenants-in-common. Any single joint author can sue in respect of an infringement and obtain an injunction without joining the others as applicants: Olympic Amusements Pty Ltd v Milwell Pty Ltd (1998) 81 FCR 403; (1998) 162 ALR 199; (1998) 40 IPR 180, FCR at 415 per Wilcox J (appealed in Milwell Appeal but not on this point). At the very least, one co-owner can recover damages in respect of the injury suffered by him, that is, in respect of so much of the copyright as belongs to him: Prior v Lansdowne Press Pty Ltd [1977] VR 65; (1977) 12 ALR 685; (1977) 29 FLR 59, FLR at 68-69 per Gowans J (in that case, there was a publishing agreement dividing the royalties between authors in particular proportions which was applied to derive shares of the copyright); and
(l)being original artistic works created by an author who is an Australian resident, copyright subsists in the Works: Copyright Act, ss 32 and 35(2).
Respondents’ submissions
The Respondents’ submissions in relation to the design of the Works are as follows:
(a)Mr Sankey says that some of the stage-posts along the design path of the Works, from 2006 to 2010, were as follows:
(i)investigations and site inspections, and preparation of preliminary sketches by him: Sankey 1 at [7]-[8], [10]-[13], [17] and Annexure WMS-2;
(ii)preparation of the 2006 Concept Plan, provided by Mr Sankey to Mr Ogilvie in June 2006: Sankey 1 at [19]-[21], [25] and Exhibit WMS-A; Exhibit 1, E5;
(iii)preparation of the 2007 Concept Plan: Sankey 1 at [37] and Exhibit WMS-B; Exhibit 1, E6;
(iv)amendments resulting in the August 2008 Revised Breakwater Plan (but drawing date left unchanged as January 2008): Sankey 1 at [41] and Annexure WMS-11; Exhibit 1, E11;
(v)further amendments resulting in the September and October 2010 Site Plans: Sankey 1 at [42] and Exhibit WMS-D; Exhibit 1, E12 and E13; and
(vi)creation of the final drawings for the purposes of a DA by December 2010: Sankey 1 at [47]-[50], Sankey 2 at [11]. Four of these drawings are the Works. Other Sankey drawings were also part of the final suite of drawings: Sankey 1, Exhibit WMS-E and Sankey 2, Exhibit WMS-H;
(b)on 9 December 2010 Mr Sankey provided to Mr Ogilvie copies of the four drawings comprising the Works that were created from the Revised AutoCAD Model knowing that they were to be included in a DA (the 2010 DA) that was to be filed by Aureus: Davis 1 at [15], [22] and [38] and Annexure [MJD-14]; Sankey 1, Annexures WMS-12, WMS-36 and WMS-37): Sankey 1 at [51]-[52];
(c)Mr Sankey says he ceased working on the Project in about March 2011: Sankey 1 at [54];
(d)during the First Period prior to 2006 Spowers developed a concept for a modest pier style development for the Project that consisted of two or three small retail buildings on a jetty structure with berthing for several boats, located on a small seabed lease directly out from the Wanliss Street carpark in Rockingham: Sankey 1 at [7];
(e)during the First Period Spowers prepared concept drawings to illustrate their concept: Sankey 1 at [7] and Annexure WMS-3;
(f)the Second Period commenced in or about 2006 with a meeting between Mr Sankey and Mr Ogilvie: Sankey 1 at [7]. Following the meeting, Mr Sankey was formally engaged to work on the Project under the First Agreement: Sankey 1 at [17] and Annexure WMS-4;
(g)at the above meeting, Mr Ogilvie gave Mr Sankey access to at least one of the concept plans that Spowers prepared to illustrate the pre-2006 Project concept and Mr Sankey and Mr Ogilvie discussed WS Architects commencing sketches for a new scheme based upon the existing scheme by Spowers: Sankey 1 at [7] and [15] and Annexure WMS-3;
(h)the Second Period work built upon the Spowers concept prepared in the First Period. The concept prepared in the Second Period was larger in scale than the Spowers concept, however, it was still a single storey retail area and an associated marina complex;
(i)while Mr Sankey was involved in developing the Project concept during the Second Period, he did not do this alone. Mr Sankey was assisted in the preparation of the concept by Mr Whittington and a large number of consultants, including C&P: Sankey 1 at [22] and [35];
(j)while Mr Sankey had been working on the concept for the Project prior to 2008, Mr Sankey, and possibly Mr Whittington, created the 2007 Concept Plan: Sankey 1 at [37] and Exhibit WMS-B;
(k)Mr Sankey shared the 2007 Concept Plan with C&P for comment: Sankey 1 at [38];
(l)on 24 January 2008 C&P prepared the C&P January 2008 Plan C (drawing numbered SK689-01-01, Revision A): Sankey 1 at [38] and Annexure WMS-C. This drawing is referred to in the title block as “WS Architects Concept Plan June 2007”. The content of this drawing appears to be substantially identical to the 2007 Concept Plan: Sankey 1 at [37] and Exhibit WMS-B. The title block notes that it is a WS Architects document but it does not identify the author, but claims to have been checked by “WMS” before issue;
(m)later in 2008 C&P made substantial amendments to the C&P January 2008 Plan, including:
(i)in the C&P August 2008 Plan overlaying the changes that it proposed to the 2007 Concept Plan, including widening and revising the position of the rock breakwater and including survey data and including the layout of land-based elements: Sankey 1 at [39], Annexure WMS-9;
(ii)in the C&P Preliminary Pen Layout redesigned the marina pen layout to provide an engineered solution to jetty and pen configurations: Sankey 1 at [40(a)], Exhibit WMS-10; Exhibit 1, E9; and
(iii)in the C&P Concept Pen Layout revised its earlier drawing by altering the layout of the breakwater and the layout and design of the buildings to be constructed abutting the wharf. This is the first drawing to show rounded “bubble” turning areas on the breakwater, a fuelling jetty and super yacht berth, and the ovoid shaped building closest to the curved jetty from the shore. This plan also shows reconfiguration of some of the buildings that were to be constructed abutting the curved jetty: Sankey 1 at [40(b)], Annexure WMS-10; Exhibit 1, E10;
(n)in or about August 2008, C&P sent Mr Sankey several concept plans, each one sought to solve different technical issues that C&P had identified with the 2007 Concept Plan: Sankey 1 at [39] and [40]. Mr Sankey admits that he cut portions of a C&P concept plan and pasted them into the AutoCAD model he had been using to develop his 2007 Concept Plan: Sankey 1 at [41]. In doing so, Mr Sankey substituted C&P drawings in place of his own 2007 Concept Plan and he created the Revised AutoCAD Model. Given that the Revised AutoCAD Model also incorporates the ovoid building near the entrance to the curved jetty and the alterations to the buildings, hydrographic survey information, and topographic survey information on the surrounding land uses, it can be inferred that Mr Sankey “cut and pasted” more than just the breakwater: Sankey 1 at [41];
(o)Mr Sankey claims that later in 2010 he changed the “breakwater length and width” due to the addition of angled parking and the installation of a footpath along the breakwater. He also claims to have reduced the length of the breakwater to the south for environmental reasons. The drawings that are said to evidence this change: Sankey 1 at [42], Exhibit WMS-D, the September 2010 Site Plan, include the rounded “bubble” turning areas on the breakwater, the fuelling jetty and super yacht berth in precisely the same location as they appear in the C&P Concept Pen Layout. Those same drawings do not include information on the buildings to be constructed on the curved jetty: Sankey 1 at [42], Exhibit WMS-D;
(p)Mr Sankey claims to have made changes to the Revised AutoCAD Model between late 2008 and the filing of the 2010 DA. While Mr Sankey purports to detail these changes: Sankey 1 at [49], no supporting documentation is provided. The Respondents do not know why supporting documentation has not been provided, but they are concerned that prior to the commencement of these proceedings, Mr Sankey made demands on C&P, and others: Sankey 1 at [61]–[63], Annexure WMS-16, that they destroy relevant documentation, and C&P at least has confirmed in writing that it destroyed documents in the face of the demand: Sankey 1 at [64], Annexure WMS-17; Bollig 1 at [142], Annexure EMB-33. In such circumstances, the Court might be entitled to consider that the destroyed documents would not have supported Mr Sankey’s claims that he modified the Revised AutoCAD Model in any significant way;
(q)in preparation for the filing of the 2010 DA by Aureus on 9 December 2010, Mr Sankey prepared and forwarded to Mr Ogilvie the drawings from the Revised AutoCAD Model now claimed to be the Works. Each document is dated December 2010 and it is said to have been checked by “WMS”: Sankey 1 at [51] and [52];
(r)in light of the matters that are referred to above, including the cutting and pasting and the document destruction, the Respondents submit that the available evidence is so incomplete that it is impossible to conclude with any certainty that Mr Sankey was even an author of the Revised AutoCAD Model or any of the Works;
(s)the Second Period of the Project ended on or about 18 February 2015 when the approval granted for the 2010 DA lapsed due to lack of action by the developer: Sankey 1 at [55]; and
(t)while working on the Project, Mr Sankey claims to have made 55 recorded issues of Project related drawings: Sankey 1 at [34(a)]). Even if this is true, it is irrelevant because labour and expense do not determine authorship of works. Even if it did, invoices that Mr Sankey issued during the Second Period indicate that Mr Whittington was heavily involved in the preparation of drawings: Supplementary PDB, Exhibit 2, H6, H7, H8, H10, H15, H17 and H18. Whether Mr Whittington was involved in drafting any of the 55 drawings that Mr Sankey refers to is not clear on the evidence. Further, these issued 55 drawings have little relevance for this case after the creation of the Revised AutoCAD Model.
The Respondents’ submissions in relation to the subsistence of the copyright in the Works are as follows:
(a)s 32(1) of the Copyright Act provides that copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and that is created by a person who was a qualified person for the purposes of the Copyright Act at the time of creation. Mr Sankey contends that the Works are original artistic works for the purposes of s 32 of the Copyright Act, because, he submits it is well recognised that architect’s plans generally constitute artistic works within the meaning of s 10(1) of the Copyright Act;
(b)it is accepted that the Works are artistic works for the purposes of copyright subsistence, but not for the reason set out in the Mr Sankey’s Submissions. Section 10(1) of the Copyright Act, prescribes the meaning of the term “artistic work” to include drawings, whether or not they have artistic quality. The Respondents say that the Works are “drawings” for the purposes of the Copyright Act and therefore are artistic works as prescribed by s 10(1) of the Copyright Act;
(c)s 32(1) of the Copyright Act requires that a work must be an original, unpublished artistic work and the author of the work must have been a qualified person for the purposes of the Copyright Act at the time that the work was created in order for copyright to subsist. It is agreed that the meaning of originality within the context of s 32 of the Copyright Act requires that the work must have been created by the author and not merely copied from another work. The Respondents do not accept that the Works are original works within the meaning of the Copyright Act;
(d)Mr Sankey has applied an erroneous analysis of what is needed by s 32 of the Copyright Act for copyright to subsist, and has mistakenly assumed that copyright subsists in the Works in circumstances where the evidence falls far short of that conclusion. In reaching this conclusion, Mr Sankey has failed to take into account Mr Sankey’s own evidence which shows that Mr Whittington (an architect) assisted with and contributed to the development of the 2007 Concept Plan, and the creation of the Revised AutoCAD Model: Sankey 1 at [22];
(e)Mr Sankey’s analysis appears to have assumed that Mr Sankey authored the Works. Mr Sankey appears to have reached this position by an erroneous focus on the skill and labour that Mr Sankey says he put into the design process. IceTV is the leading authority on the matter and sets out the correct approach to determining authorship. Applying the test for authorship that is set out in IceTV, it is not sufficient for the purported author to have simply incurred significant expense or to have expended significant labour in the creation of the Works. What is needed is for the purported author to demonstrate that they exercised independent intellectual effort: Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49; (1917) 23 ALR 154, CLR at 52 per Isaacs J; IceTV at [33] per French CJ, Crennan and Kiefel JJ; Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44; (2010) 264 ALR 617; (2010) 85 IPR 571; [2010] AIPC 92-372, FCA at [20] per Gordon J (“Phone Directories”), or a “creative spark” in the creation of the work: Phone Directories at [20] per Gordon J;
(f)Phone Directories (heard after judgement was given in IceTV) provides useful insight into the practical application of IceTV. In Phone Directories the Federal Court rejected earlier notions that skill, labour or expense alone can give rise to copyright protection: Phone Directories at [341] per Gordon J. The Federal Court found that there must be something more for a work to satisfy the requisite degree of originality and that something else is the exercise of “independent intellectual effort”. The Federal Court noted that it is the author of a work who must have exercised the requisite “independent intellectual effort” and as such, no consideration of originality can be complete without first the work in question being identified, and, second, the identity of the author of that work being established. Only once those two matters have been resolved is it possible to determine whether the purported author exercised the requisite independent intellectual effort for the work to be regarded as a work in which copyright subsists;
(g)it is Mr Sankey’s failure to identify a work in which copyright subsists and his failure to objectively consider the question of authorship that has led him to erroneously conclude that the Works satisfy the requirements of s 32 of the Copyright Act, and that he is the author of the Works;
(h)Mr Sankey appears to have based his claim of authorship on the idea that underlies the concept of a marina and retail complex, as opposed to the expression of the idea as it appears in the Works, the Revised AutoCAD Model and the C&P documents. Approaching authorship in this way theoretically might cause problems for Mr Sankey, given that on his own evidence the 2006 and 2007 Concept Plans were based on the concept developed by Spowers: Sankey 1 at [7], however, this issue is unimportant in any event as Mr Sankey’s approach to authorship is incorrect;
(i)by focussing on ideas and equating the volume of work that Mr Sankey claims to have done to somehow demonstrate a measure of copyright subsistence, Mr Sankey has fallen into a grave error. The distinction between a work in which copyright can subsist and one where it cannot, has been the focus of many judicial decisions: Hollinrake v Truswell [1894] 3 Ch 420 (“Hollinrake”) at 427 per Lindley LJ; Computer Edge Pty Ltd v Apple Computer, Inc [1986] HCA 19; (1986) 161 CLR 171; (1986) 60 ALJR 313; (1986) 65 ALR 33; (1986) 6 IPR 1, CLR 179-180 per Gibbs CJ; and Sayre v Moore (1785) 102 ER 139n per Mansfield LJ that dates from shortly after the enactment of the Statute of Anne, 8 Ann. c.19 (also known as the Copyright Act 1710 (UK)). The law is very well settled and includes a degree of international uniformity: see art 2 of the WIPO Copyright Treaty (Geneva, 1996). Over 100 years ago, the Chancery Court in Hollinrake at 427 per Lindley LJ described the law on this issue as follows, in terms which are as relevant then as now:
Copyright … does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed.
(j)even if Mr Sankey did conceive the idea for the Project, which is not admitted nor is it consistent with parts of Mr Sankey’s own evidence: Sankey 1 at [7], Annexure WMS-3 (concerning the earlier work of Spowers), ideas are not protected by copyright. It is only the physical manifestation of ideas, that is, the expression of them, that warrant protection;
(k)Mr Sankey did work while he was engaged on the Project, and may even have created, and almost certainly worked on, the 2007 Concept Plan: Sankey 1 at [37], Exhibit WMS-B, but if the Works were created from the Revised AutoCAD Model, and that the Revised AutoCAD Model in turn was created from unidentified C&P drawings, then the evidence on the creation of the 2007 Concept Plan became irrelevant;
(l)while the precise C&P drawing that Mr Sankey cut and pasted from is unknown, similar C&P drawings created as overlays over what appears to be the 2007 Concept Plan show that C&P prepared a concept that was a substantial departure from the expression depicted in the 2007 Concept Plan. Accordingly, when Mr Sankey cut and pasted from the C&P drawings, he substituted the expression in the C&P drawings into the Revised AutoCAD Model in place of the expression from the 2007 Concept Plan. This made the Revised AutoCAD Model no more than a copy of at least some, and possibly all, of the C&P drawings;
(m)in the absence of Mr Sankey failing to establish that the Works meet the threshold requirements of s 32 of the Copyright Act and also failing to establish his claim of authorship of the Works, Mr Sankey has not satisfied the requirements for the subsistence of copyright, and also cannot establish his claim to ownership of the claimed copyright pursuant to s 35(2) of the Copyright Act or any other provision, of the Copyright Act. Mr Sankey’s case, at least so far as it concerns copyright (and therefore moral rights also) must fail.
Consideration – subsistence of copyright in the works
Provisions of the Copyright Act relevant to the issue of subsistence of copyright in the Works include the following:
(a)s 10(1) of the Copyright Act which defines “artistic work “as follows:
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);
but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.
(b)s 32 of the Copyright Act which provides as follows:
(1) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:
(a)was a qualified person at the time when the work was made; or
(b) if the making of the work extended over a period—was a qualified person for a substantial part of that period.
(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:
(a) copyright subsists in the work; or
(b)if copyright in the work subsisted immediately before its first publication—copyright continues to subsist in the work;
if, but only if:
(c) the first publication of the work took place in Australia;
(d) the author of the work was a qualified person at the time when the work was first published; or
(e) the author died before that time but was a qualified person immediately before his or her death.
(3) Notwithstanding the last preceding subsection but subject to the remaining provisions of this Act, copyright subsists in:
(a)an original artistic work that is a building situated in Australia; or
(b) an original artistic work that is attached to, or forms part of, such a building.
(4) In this section, qualified person means an Australian citizen or a person resident in Australia.
(c)s 35(2) of the Copyright Act which provides as follows:
(2) Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part.
The various drawings in issue and considered in these proceedings do, on their face, constitute “drawings” for the purposes of s 10(1) of the Copyright Act. The Court accepts that the test for the subsistence of copyright under s 32(1) of the Copyright Act is not just whether the alleged author of drawings expended skill and labour and incurred expense in doing so in creating the drawings, but whether they demonstrate independent intellectual effort, or, possibly, a creative spark: IceTV at [33] per French CJ, Crennan and Kiefel JJ; Phone Directories at [20] per Gordon J, but nothing in that test precludes copyright subsisting in a compilation of materials, some or all of which were not created by the creator of a drawing: A-One FCR at 501 per Drummond J; Milwell Appeal at [19]-[20] and [24] per Lee, von Doussa and Heerey JJ; Elwood Clothing at [66] per Lindgren, Goldberg and Bennett JJ;
The Court also notes that there are certain presumptions as to the subsistence and ownership of copyright, and the authorship of work, in ss 126, 126A, 126B and 127(1) and (2) of the Copyright Act, which were briefly adverted to by the parties, but in the final analysis it does not appear that anything relevant turns on them.
It is necessary to trace the development of the Works by reference, initially, to what occurred during the First, and part of the Second, Periods. This is because the Respondents assert, in essence, that any alleged expression of ideas in the Works lacks originality and is a copy, or substantially so, of earlier expressions of the idea for a marina development in the same location by Spowers and, latterly, and perhaps more relevantly, from various C&P drawings.
The Spowers drawings describe their content as the “Rockingham Pier Project”, and comprise a single level pier or jetty at right angles to the beach, with two right hand kinks over the water. Four buildings (nominally a tavern and three “specialty” buildings) project out from the jetty on the sea side. At the end of the jetty there is a space for a small number of boat berths or pens (and although not designated or numbered, plainly not more than about 25). There is no breakwater in the Spowers drawings.
Whilst it may be the case that Mr Sankey was originally briefed to prepare a project based on the existing drawings of a project by Spowers, he appears to have quickly transcended that brief. For example, the June 2006 Concept Plan:
(a)has a curved (rather than an angled) jetty;
(b)extends the jetty, seemingly by at least twice the jetty’s length, by the addition of a curved breakwater;
(c)adds a fifth building abutting the jetty, but on the lee side;
(d)adds a long straight secondary jetty within the lee of the breakwater, and between that secondary jetty and the breakwater adds six finger jetties at right angles to the secondary jetty providing for well over 100 boat pens off the finger jetties; and
(e)provides for approximately 40 boat pens within the lee of, and immediately abutting, the breakwater.
What in the Spowers drawings was a pier project with a relatively compact jetty with four buildings and a few boat berths, has, by the expression of markedly different and new ideas to those in the Spowers drawings, including a curved jetty, a breakwater (also curved), an additional building and more than a 100 additional boat pens, been turned into a much larger marina development. The June 2006 Concept Plan is significantly different to the Spowers drawings in terms of its expression of the idea of the jetty, the buildings and the overall marina development, and demonstrates considerable independent intellectual effort on the part of Mr Sankey, in addition to sufficient originality, novelty and creative spark, so as to qualify as drawings in which copyright subsists on behalf of Mr Sankey for the purposes of the Copyright Act. Accordingly, there is no basis for any suggestion that the June 2006 Concept Plan (and ultimately the Works) are essentially derived from, or copies of, the Spowers drawings and the expression of ideas therein by Spowers.
The respondents rely on the alleged incorporation of the C&P drawings (and in particular the C&P January 2008 and August 2008 Plans, and the C&P Preliminary Pen Layout and C&P Concept Pen Layouts) in to the September and October 2010 Plans, and ultimately the Works, as a basis for asserting that no copyright exists on behalf of Mr Sankey in the Works.
The evidence of Mr Sankey and Mr Saunders plainly establishes that the 2007 Concept Plan was an expression of ideas formulated by Mr Sankey in relation to the Project. There is no evidence to indicate that any aspect of the 2007 Concept Plan was the expression of ideas by anyone other than Mr Sankey, and therefore the 2007 Concept Plan was a drawing in which copyright subsists on behalf of Mr Sankey for the purpose of the Copyright Act.
The C&P January 2008 plan does not assist the Respondents, as it does not appear to express any new ideas, and is no more than an almost exact copy of the various elements (jetties, breakwater, buildings and boat pens) of the 2007 Concept Plan.
The C&P August 2008 Plan is said to be a “Revised Concept Plan”, and insofar as it includes:
(a)a revised and widened position for the breakwater (including a road down its length); and
(b)a hydrographic contour survey lines and a land based element of the design,
it is a plan which expresses the idea of the breakwater in a form and a position different to that in the 2007 Concept Plan. The form of the breakwater is different in that it is wider with discernible inside and outside toes and an identifiable walkway or road down the centre of the breakwater. It also does not appear to include the pens on the inside of the breakwater which appear in the 2007 Concept Plan and the C&P January 2008 Plan. The position of the breakwater is also different inasmuch as it is set back and has a more seaward, or northerly, aspect in that approximately the final two-thirds of its length sits further out to sea, and increasingly so the further it extends out to sea. Not much turns on the precise position of the breakwater, the setback or repositioning being dictated by the sand shelf edge and geo-technical engineering adjustments. The changes in the form of the breakwater do, however, indicate that independent intellectual effort has gone into the design of that form, resulting in a wider breakwater, with a road or walkway along its length and no boat pens abutting the inside edge of the breakwater, and the inclusion of hydrographic contour lines and land based elements (roads and block outlines) which make it a plan different in very many respects to the 2007 Concept Plan.
Because of the exercise of independent intellectual effort and some creative spark (particularly as to the road or walkway down the length of the breakwater) the C&P August 2008 plan is a drawing in which copyright most likely subsists in favour of the unknown author at C&P, because of the changes to the breakwater, the absence of boat pens abutting the inside edge of the breakwater, the hydrographic contours and land based elements are concerned.
The C&P Preliminary Pen Layout is a copy of part of the C&P August 2008 Plan, but it removes one finger jetty (that closest to the curved jetty) and introduces a boat turning circle in its place (approximately). It also reintroduces boat pens (approximately 100) in the lee of the breakwater, those boat pens previously having been in the C&P January 2008 Plan and the 2007 Concept Plan. The C&P Preliminary Pen Layout has a note which says “CONCEPT FROM WS ARCHITECTS SEPT. 2008”. Given that note, the fact that it reintroduces a boat pen layout or boat pens from the 2007 Concept Plan (in which the Court has found Mr Sankey has copyright), and Mr Sankey’s evidence that he designed the pen layout, it is difficult to conclude that copyright subsists in favour of C&P in the C&P Preliminary Pen Layout.
The C&P Concept Pen Layout, like the C&P August 2008 Plan, incorporates elements of the design of the Project from, at least, the 2007 Concept Plan, but adds further original design elements which are obviously the product of independent intellectual effort, namely the two bumps on the sea side of the breakwater and the turning circle (for vehicles) at the end of the breakwater (those two design elements also appearing in C&P Concept Breakwater Layout produced by C&P on the same day – 31 October 2008). The reduced number of boat pens from 475 to 467 appears to be no more than a technical sizing issue in relation to the boat pens. The two additional design elements are however sufficient for it to be said that the C&P Concept Pen Layout is, like the C&P August 2008 Plan, best characterised as a drawing in which copyright subsists in favour of the unknown author at C&P.
The Court has considered whether there might be joint ownership of the copyright in the C&P August 2008 Plan and the C&P Concept Pen Layout, between Mr Sankey and an unknown author at C&P, but there is insufficient evidence that the drawings produced by C&P were “produced by … collaboration”: Copyright Act, s 10(1), as opposed to being the expression of ideas arising from independent consideration of the various issues.
Section 115(2) of the Copyright Act provides that in an action for infringement of copyright the Court may grant “either damages or an account of profits”.
Mr Sankey must make an election to seek either damages or an account of profits: Facton Ltd v Rifai Fashions Pty Ltd [2012] FCAFC 9; (2012) 199 FCR 569; (2012) 95 IPR 95 (“Facton”) at [16] and [21] per Lander and Gordon JJ. When that election is made depends upon the infringement complained of and the nature of the parties’ respective cases: Facton at [16] per Lander and Gordon JJ. Mr Sankey has not made an election at this stage, the Court having determined at trial that it was not yet necessary for him to do so, in circumstances where no factual findings had been made: Robert J Zupanovich Pty Ltd v B & N Beale Nominees Pty Ltd (1995) 59 FCR 49; (1995) 138 ALR 107; (1995) 32 IPR 339; [1995] AIPC 39,481 (“Zupanovich”), FCR at 64 per Carr J.
It is convenient to first deal with account of profits, which is an equitable remedy, intended to allow the copyright owner to recover the net gain made by the infringer of the copyright: Facton at [18] per Lander and Gordon JJ; Aristocrat Technologies at [18] per Black CJ and Jacobson J. The remedy of an account of profits is a discretionary remedy: Warman International Ltd v Dwyer (1995) 182 CLR 544; (1995) 69 ALJR 362; (1995) 128 ALR 201, CLR at 559 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Zupanovich, FCR at 64 per Carr J.
In a Draft Confidential Schedule of Amounts Claimed as an Account of Profits (3 May 2021) Mr Sankey asserts (on the basis of certain information appearing therein) that the amount of $37,411 appears to be the amount of profit obtained by the Respondents from the infringement of copyright.
There are what appear to the Court to be insuperable difficulties with the assessment of an account of profits in this case, whether in the amount claimed or any other amount. First, there is simply no, or at the very least no sufficient, evidence before the Court to enable it to determine an account of profits. Second, and this ties in with the first, there is no expert accounting evidence to substantiate the sum claimed to be the amount of profit obtained by the Respondents from the infringement of copyright, or to support the methodology used to arrive at that amount.
In the circumstances the Court would not, for the above reasons, presently be inclined to exercise its discretion to order an account of profits.
As to damages, they are compensatory and intended to endeavour to put the copyright owner back in the position they would have been in but for the copyright infringement by compensating for the loss which has been suffered as a result of the infringement: Facton at [17] per Lander and Gordon JJ; Aristocrat Technologies at [17] per Black CJ and Jacobson J.
As to damages, Mr Sankey claims a sum of $255,000 plus GST as damages for loss of profit and/or the loss of opportunity to profit, on the basis that but for the infringement by the Respondents he would have been engaged to carry out the work performed by the Respondents for Aureus or Estilo. It is unnecessary to deal with the basis for the quantum claimed because the basis for the claim that Mr Sankey would have been engaged is not made out on the evidence. The evidence disclose that Mr Sankey and Mr Ogilvie (the person seemingly behind both Aureus and Estilo) had been in dispute for more than seven years over non-payment of Mr Sankey’s fees in relation to various services provided to Mr Ogilvie or his companies. The Court infers that that fact would have made it unlikely that Mr Ogilvie would have approached Mr Sankey to carry out the work which he engaged the Respondents to do. And the fact is that he did not do so. And had he done so Mr Sankey would not have accepted the work until his other outstanding fees were paid: Sankey 1 at [136]. The claim for damages in the sum of $255,000 plus GST is therefore not made out.
In the alternative, Mr Sankey claims an amount of $100,000 plus GST on the basis that it is a fair and reasonable assessment of the fee reasonably to be charged for the grant of a licence to reproduce the Works in a material for the purposes of the Project. It is trite that the assessment of loss for these purposes often involves a degree of speculation or guesswork on the part of the Court: Aristocrat Technologies at [35] per Black CJ and Jacobson J. In this matter some assistance can be derived from the evidence, as follows:
(a)Mr Bollig was prepared to reduce the fee for the services provided by Bollig Design from $140,000 to $80,000 on the basis that much of the “base” work had been done in the various drawings with which he was provided by Mr Ogilvie and Mr Davis, but it is necessary to observe that drawings in which copyright has been found to have been infringed - Drawing A-100-Site Plan and Drawing A-102-Land Plan - were only two amongst at least 16 (and possibly more) drawings provided; and
(b)Mr Sankey claims $100,000 plus GST in relation to a licence to reproduce the Works, which comprised four drawings, only two of which are drawings in which copyright has been found to have been infringed.
The assessment of damages in cases such as this are not necessarily precise, but having regard to the evidence as a whole the Court considers that damages of $55,000 plus GST are a fair and reasonable assessment of the fee reasonably to be charged for the grant of a licence to reproduce the drawings in which copyright has been found to have been infringed. On that basis an order should issue accordingly for the Respondents to be jointly liable to pay damages in that amount to Mr Sankey.
It is unnecessary therefore to consider Mr Sankey’s further alternative claim for damages at large in the sum of $100,000 plus GST.
Mr Sankey also claims additional damages of $20,000 for injury to feelings, including hurt, distress, anger and frustration experienced by him. Damages can be awarded on this basis: Milpurrurru, FCR at 277 per von Doussa J, but the Court accepts the Respondents’ submissions that it ought to tread carefully in determining whether, and to what extent, to do so, and further that there must be a basis in the evidence for an award of damages on this basis.
Mr Sankey was not seriously challenged as to evidence he gave of: Sankey 1 at [124]-[126]:
(a)anger and frustration at four years of his work being usurped by Mr Bollig;
(b)a feeling of betrayal of trust by a fellow architect; and
(c)deep distress at seeing his work attributed to another architect.
Damages for reputational loss can also be afforded under s 115(2) of the Copyright Act. Here, there is very limited evidence, apart from self-assessment by Mr Sankey, as to his reputation as an architect, or as to any reputational loss actually suffered: cf Facton at [25]-[28] per Lander and Gordon JJ, and the Court does not consider it appropriate to make an assessment of damages on this basis.
Once again, assessment of damages for injury to feelings is not necessarily easy or precise. Having considered the evidence the Court considers that damages of $7,500 are appropriate for injury to feelings. On that basis a further order should issue accordingly for the Respondents to be jointly liable to pay damages in that amount to Mr Sankey.
Additional damages under s 115(4) of the Copyright Act
Mr Sankey’s submissions
Mr Sankey’s submissions are as follows:
(a)the infringements were flagrant, both before and after Mr Sankey’s lawyers issued the Letter of Demand;
(b)the principles governing s 115(4) of the Copyright Act are summarised in Seafolly Pty Ltd v Fewstone Pty Ltd [2014] FCA 321; (2014) 313 ALR 41; (2014) 106 IPR 85; [2014] AIPC 92-470 at [624]-[625] per Dodds-Streeton J. Further, it is relevant that:
(i)the matters set out in s 115(4)(b) of the Copyright Act are not preconditions to an award of additional damages, and nor does it provide a non-exclusive guide to the relevant matters; and
(ii)an award of additional damages involves an element of penalty. Part of the function of an award of additional damages is to mark the court’s disapproval or opprobrium of the infringing conduct.
Respondents’ submissions
The Respondents’ submissions are as follows:
(a)additional damages can be awarded in appropriate cases, particularly when there is evidence of a flagrant disregard of an applicant’s rights. The applicable principles for the award of additional damages have been described in Truong Giang Corporation v Quach [2015] FCA 1097; (2015) 114 IPR 498 at [129]-[140] per Wigney J, which was adopted in Geneva Laboratories Limited v Prestige Premium Deals Pty Ltd (No 5) [2017] FCA 63; (2017) 122 IPR 279 at [78] per Bromwich J;
(b)Mr Sankey alleges that the Respondents stood to gain a great deal of reputational enhancement as a result of the copying of the Works. There is nothing in the evidence to suggest that this was the case or that the Respondents would even be engaged in any follow on work, such as construction plans; and
(c)in the circumstances, the Court should exercise its discretion, and even if the Court finds wrongdoing on the part of either of the Respondents it should not award any additional damages.
Consideration - additional damages under s 115(4) of the Copyright Act
Section 115(4) of the Copyright Act provides that where an infringement of copyright is established the Court may, if it is satisfied that it is appropriate to do so, having regard to a number of matters, including the:
(a)flagrancy of the infringement;
(b)need to deter similar infringements of copyright;
(c)conduct of a respondent after the act constituting the infringement or, if relevant, after the respondent was informed of the alleged infringement of copyright; and
(d)any benefit shown to have accrued to a respondent by reason of the infringement,
make an award of additional damages. These damages are non-compensatory and of a punitive kind: Facton at [33] per Lander and Gordon JJ.
The Court does not see the infringement as a necessarily flagrant one in the sense of it being glaring, notorious or generally scandalous, and it is not apparent on the evidence (including that of Mr Quigley) that there is a need to deter similar infringements of copyright. The Respondents’ conduct both after being informed of the alleged infringement of copyright and after the act constituting the infringement (in respect of the June 2018 Revised DA) - when the Respondents did further, albeit minor work in relation to the Project and the June 2018 Revised DA drawings, is such that the Court considers it appropriate to make an award of additional damages. It is also apparent on the evidence of both Mr Bollig and Mr Quigley that some reputational benefit may have accrued to the Respondents by reason of the work in respect of which the infringement occurred, but the evidence of the extent of that benefit is not very specific.
In all the circumstances the Court considers that additional damages of $6,000 are appropriate under s 115(2) of the Copyright Act. On that basis a further order should issue accordingly for the Respondents to be jointly liable to pay damages in that amount to Mr Sankey.
Injunction
It is unnecessary to set out the parties’ submissions on the injunctive relief sought by Mr Sankey. The Court may grant injunctive relief for infringement of copyright pursuant to s 115(2) of the Copyright Act.
Having established an infringement of his copyright in the Drawing A-100-Site Plan and Drawing A-102-Land Plan Mr Sankey ought to be afforded injunctive relief to prevent future infringements unless there is good reason not to do so. There is no evidence from the Respondents that they would not infringe in future, and that an injunction is therefore unnecessary. In the circumstances an injunction should issue under s 115(2) of the Copyright Act restraining the Respondents from infringing copyright in the Drawing A-100 - Site Plan and Drawing A-102 - Land Plan, including by reproducing or communicating them.
Moral rights
Mr Sankey’s submissions
Mr Sankey’s submissions are as follows:
(a)the remedies available for breach of the right of attribution are those under s 195AZA of the Copyright Act, including damages for loss resulting from the infringements;
(b)the relevant loss may include commercial loss and distress or injury to feelings: Corby v Allen & Unwin Pty Ltd [2013] FCA 370; (2013) 297 ALR 761; (2013) 101 IPR 181 at [134] per Buchanan J; Perez and Ors v Fernandez [2012] FMCA 2; (2012) 260 FLR 1 at [91]-[92] (“Perez”) at [105]-[107] per Driver FM; Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136; (2006) 70 IPR 172; [2006] AIPC 92-216 (“Meskenas”) at [39]-[41] per Raphael FM;
(c)damages in the nature of aggravated damages are also available: Meskenas at [41] per Raphael FM; Perez at [93]-[94] per Driver FM;
(d)failure to attribute Mr Sankey (that is, to identify him as the author of the Works, in connection with the Infringing Drawings) has meant he has been deprived of the commercial opportunity to benefit from the association of his name with the Project, which is a significant project. Further, and understandably, he has suffered injury to feelings: Sankey 1 at [124]-[130]; and
(e)in addition to damages, an injunction, a declaration and an order that the Respondents make a public apology are remedies available under s 195AZA(1) of the Copyright Act. They are appropriate remedies in the present case.
Respondents’ submissions
The Respondents’ submissions are as follows:
(a)copyright and moral rights are distinct species of property but they remain closely associated; and
(b)Mr Sankey has not provided any expert opinion to confirm his allegation and has failed to provide any expert evidence to counter the opinion of Mr Quigley that there has been no infringement of any such rights. In these circumstances Mr Sankey’s claim that his rights of attribution have been breached must fail and is not entitled to any relief.
Remedies – moral rights
Under s 195AZA(1) of the Copyright Act injunctive relief, damages and declarations are all available forms of relief where an author’s moral rights have been infringed.
The Court has dealt with the issue of s declaration for the infringement of Mr Sankey’s moral rights at [238] above.
Having established an infringement of his moral right to be attributed authorship of the Drawing A-100-Site Plan and Drawing A-102-Land Plan Mr Sankey ought to be afforded injunctive relief to prevent future infringements unless there is good reason not to do so. There is no evidence from the Respondents that they would not infringe in future, and that an injunction is therefore unnecessary. In the circumstances an injunction should issue under s 195AZA(1)(a) of the Copyright Act restraining the Respondents from infringing Mr Sankey’s moral right to be attributed authorship of the Drawing A-100 - Site Plan and Drawing A-102 - Land Plan.
Having determined that damages and additional damages are payable under s 115(2) and (4) of the Copyright Act the Court does not consider it necessary to award further damages for the infringement of Mr Sankey’s moral rights: to do so would in its view effectively be a doubling up on damages.
In relation to an apology, the Court may order a “public apology” for the infringement of Mr Sankey’s moral rights: Copyright Act, s 195AZA(1)(d). There was no exploration at trial as to what the terms of a public apology might be. This litigation, and the lead up to it, has resulted in a bitter dispute between the parties, and feelings of betrayal on Mr Sankey’s part. There was nothing evident in the trial of any change as to the bitterness of the dispute. It is not apparent that any public apology would come freely from the Respondents or that it would be any more than a form of words to comply with an order that it be made (if such an order were made). Although the Court has power to order a public apology where its terms have not been explored at trial, and where it is not apparent that compliance with an order to apologise would be any more than a nod to the inevitable, the Court does not consider it appropriate to make an order for a public apology to be made by the Respondents to Mr Sankey: see, albeit in different statutory contexts, Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629; [2002] EOC 93-247 at [106] per Branson J; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; (2002) 120 FLR 243; (2002) 71 ALD 567; [2002] EOC 93-238 at [245] per Hely J; Kanapathy v in de Braekt [2012] FMCA 1213 at [52]-[57] per Lucev FM.
Misleading conduct
Mr Sankey’s submissions
Mr Sankey submitted that as a result of the misleading conduct, the valuable corporate opportunity of association with a landmark project was lost and denied to Mr Sankey. Damages are warranted, notwithstanding the common difficulty of assessing damages on a counter-factual. So too are the remedies of declaration and injunction
Respondents’ submissions
The Respondents’ submissions are as follows:
(a)the principles applicable to the assessment of damages for claims made under s 18 of the ACL are well settled.
(b)damages are confined to the amount of loss or damage and they do not include punitive damages: Wardley Australia Ltd and Another v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514; (1992) 66 AJR 839; (1992) 109 ALR 247; Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 167 ALR 575; (1999) 74 ALJR 209; (1999) 167 ALR 575; [2000] Aust Torts Reports 81-538 per Gaudron J;
(c)
Mr Sankey speculates that as a result of not having his name associated with the 2018 Development Application, he has lost valuable commercial opportunities in relation to
“a landmark project”. Mr Sankey has failed to identify a single project or benefit that he has lost as a result of Mr Bollig and Bollig Design’s work on the 2018 Development Application;
(d)an applicant must not “double dip” if damages have already been awarded under the CopyrightAct: Facton Ltd v Remmy Cardin Pty Ltd [2014] FCCA 627; (2014) 106 IPR 183 (“Remmy Cardin”). If any damages are payable to an applicant for misleading conduct, they should only be nominal.
Remedies – Misleading conduct
Under ss 232 and 236 of the ACL injunctive relief and damages are available forms of relief for misleading conduct.
The Court has dealt with the issue of a declaration for misleading conduct at [241] above.
Having established misleading conduct in the circumstances set out at [241] above, Mr Sankey ought to be afforded injunctive relief to prevent future misleading conduct unless there is good reason not to do so. There is no evidence from the Respondents that they would not infringe in future, and that an injunction is therefore unnecessary. In the circumstances an injunction should issue under s 232 of the ACL restraining the Respondents from future misleading conduct of the type found in this matter.
Because an applicant cannot be awarded damages under the ACL if damages have already been awarded under the Copyright Act: Remmy Cardin at [26] per Judge Hartnett, there will be no order for damages for misleading conduct.
Delivery up
Given the nature of the injunction which should issue under s 115(2) of the Copyright Act the Court does not consider that an order for delivery up under s 116 of the Copyright Act is necessary, as the injunction under s 115(2) of the Copyright Act will be a sufficient remedy.
Interest
It is appropriate that interest be payable on any damages (if Mr Sankey elects for damages) pursuant s 211(3)(c) of the FCFCOA Act, the interest to be calculated at the applicable rate or rates of interest referred to at rates.
If the parties are unable to agree on the applicable rate or quantum of interest payable, there will be liberty to apply in relation thereto.
COSTS
Costs should follow the event, and the Respondents must pay Mr Sankey’s costs which, if not agreed, are to be assessed by a Registrar of the Court in accordance with Sch 2 Pt 1 of the GFL Rules.
In the event that there is a dispute about costs which the Registrar is unable to resolve, there will be liberty to apply in relation thereto.
ORDERS
There will be orders that:
(a)by 4.00pm on 31 March 2023 the applicant file and serve a Notice of Election as to damages or an account of profits;
(b)if the applicant elects for an account of profits the proceedings be adjourned to a directions hearing at 3.00pm on 21 April 2023;
(c)if the applicant elects for damages, the parties are directed to confer and bring in orders to give effect to these Reasons for Judgment by 4.00pm on 14 April 2023; but if they are unable to agree on such orders then each party is to file and serve Proposed Minutes of Orders by 4.00pm on 17 April 2023, and the proceedings be adjourned to a directions hearing at 3.00pm on 21 April 2023.
I certify that the preceding two hundred and eighty-four (284) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 March 2023
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