Sumner v Beyond Properties - [2003] NSWSC 2

No judgment structure available for this case.

Reported Decision:
59 IPR 268

Supreme Court

CITATION: Sumner v Beyond Properties [2003] NSWSC 2

HEARING DATE(S): 2, 3, 5, 25, 30 July, 1, 19, 20, 30 August, 3 September 2002

JUDGMENT DATE:
15 January 2003

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Statement of claim dismissed; declaration made on cross-claim that copyright vested in first defendant by virtue of instrument of assignment

CATCHWORDS: TRADE PRACTICES - misleading and deceptive conduct by representations - alleged representations found not to have been made - INTELLECTUAL PROPERTY - assignment of copyright - alleged breach of copyright in concept for television series - developed material significantly different from original material

LEGISLATION CITED: Fair Trading Act 1987 (NSW) s 42
Trade Practices Act 1974 (Cth) s 52

PARTIES :
Peter Sumner (P1, X-D1)
Lynda Stoner (P2, X-D2)
Beyond Properties Pty Ltd (D1, X-C)
Mikael Borglund (D2)
Stephen Amezdroz (D3)

FILE NUMBER(S): SC 3712/99

COUNSEL: Mr C Evatt QC with Mr M K Rollinson (P)
Mr A Spencer (D)

SOLICITORS: Antonys Lawyers (P)
Holding Redlich (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 15 JANUARY 2003

3712/99 PETER SUMNER & ANOR V BEYOND PROPERTIES PTY LTD & ORS

JUDGMENT (Revised for typographical errors 29 January 2003)

1 HIS HONOUR: The first plaintiff, Mr Sumner, is a writer, director and actor. He has written and directed several film documentaries that have been screened by television networks. As an actor he has appeared in film, theatre and television productions, playing the role of "Les Bailey" in the television series "Heartbreak High" in 1996-7. The second plaintiff, Ms Stoner, is an actor in film, theatre and television, who is widely known in Australia as an activist for animal welfare. She has been Patron of the Humane Society of Australia. She has also had experience as a script writer. At the relevant times Mr Sumner and Ms Stoner were husband and wife. They shared a very strong interest in animal welfare and the history of mankind's relationship with animals.

2 The first defendant ("Beyond") is part of a group of companies ("the Beyond Group"), which develops and produces films and television programs. Beyond acquires rights to projects offered to the Beyond Group, typically by taking options, and Beyond Productions Pty Ltd develops the ideas and produces the programs, which are then distributed by Beyond Distribution Pty Ltd. The Beyond Group receives many concepts for potential programs from a variety of sources, including concepts generated in-house and concepts submitted to them by individuals on an unsolicited basis. Beyond takes options only on a few of the concepts it receives, and fewer projects still will attract finance and reach the production stage. Beyond's policy is never to commence production before a binding commercial arrangement is in place for financing the project.

3 The second defendant, Mr Borglund, was at the relevant times the managing director of Beyond, and the third defendant, Mr Amezdroz, was at the relevant times an executive producer employed by Beyond Productions.

4 The proceeding was commenced in the District Court in May 1998, and was later transferred to this Court. The plaintiffs' current pleading is an "Amended Composite Statement of Claim", filed in court on 2 July 2002. They seek declaratory relief and damages, including aggravated and punitive damages and interest, for breach of contract, misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW), negligence, and infringement of copyright. Amongst the damages claimed are Mr Sumner's loss when he declined an offer to renew his contract to appear in Heartbreak High during 1997, allegedly in reliance on a representation made on behalf of the defendants that the project the plaintiffs had brought to Beyond would definitely go ahead and commence in March 1997. Ms Stoner initially claimed that she too had declined offers of work in reliance on that representation, but in their letter of 13 February 2002 the plaintiffs' solicitors withdrew that claim.

5 The defendants deny liability and by their Amended Notice of Cross Claim, seek a declaration that any copyright of the kind alleged by the plaintiffs vested absolutely in the first defendant on 25 September 1996.

6 In my view the resolution of this case depends on the determination of questions of fact, especially with respect to various conversations in meetings and on the telephone. I shall set out the pertinent facts and note competing contentions where they arise, and make findings with respect to disputed facts along the way. I shall then consider the plaintiffs' claims and submissions of the parties, in light of those findings.

Observations as to credit

7 At crucial points the plaintiffs have given accounts of what was said at meetings and on the telephone which are contradicted by the evidence of the third defendant, Mr Amezdroz, and other witnesses called on behalf of the defendants. To decide this case, the Court must choose between their competing versions of events.

8 I found Mr Sumner to be a forthright and generally honest witness. He had quite a frustrating tendency (notwithstanding frequent reminders) to treat cross-examination as an occasion for debate rather than a process of giving evidence by answering precisely the questions posed by the cross-examiner. However, having observed him in the witness box over several days, I concluded that this was a product of his emotional commitment to his case rather than any attempt to be devious.

9 Even so, in my view Mr Sumner's evidence was not entirely reliable, because his recollection of events was demonstrated to be inaccurate on some occasions. For example, he rejected the proposition that a development budget was attached to the development and production agreement, and then changed his evidence to say that he did not remember it being attached, after the original document was produced by his solicitors to the Court. He gave evidence that he had not seen a letter dated (incorrectly) 10 December 1997 from Gannon Television to his agent, although it emerged that the letter remained attached to a contract which bore his original signature. In his affidavit made on 27 June 2002 he deposed that he and Ms Stoner decided to approach Beyond first, with their concept for Animal Acts. When he was presented in cross-examination with an entry from his diary, to the effect that he submitted something called "Animal Acts" to the ABC in March 1996 (months before he submitted the outline of Animal Acts to Beyond), he said that he did not remember doing it, and then that the content of what he had submitted to the ABC "would have been a very thin idea".

10 Ms Stoner was also, in my view, a forthright and generally honest witness. But in important ways her evidence was dependent upon the evidence of Mr Sumner, and therefore, in my opinion, its general reliability is no greater than the general reliability of his evidence. Her first affidavit was prepared and sworn after she had read Mr Sumner's affidavit. She admitted in cross-examination that she had discussed her evidence with him before swearing the affidavit. I find her claim, that the use of exactly the same words in their respective accounts of conversations, was a mere coincidence of recollection, to be highly implausible. They each made the same mistake about the title of the program "Sex Life". In cross-examination Ms Stoner acknowledged that she had relied on Mr Sumner's notes as to the dates and times of various meetings, and that she had taken only a small speaking part in various meetings. She acknowledged that she remembered "the gist of conversations", suggesting that her recollection of the words spoken was imprecise. She was unable to remember whether there were two meetings, held on 22 and 28 August 1996, or only one at about that time.

11 In these circumstances, my approach has been to be cautious about accepting the plaintiffs' evidence as to the precise content of conversations, to the extent that it has not been corroborated by documentary evidence and is contrary to clear and consistent evidence by the defendants' witnesses. There is no issue about the credit of the other witness for the plaintiffs, Mr Trembath.

12 Oral evidence was given on behalf of the defendants by Mr Amezdroz, Mr Abbott, Mr Gregory, Ms Bezjak and Mr Williams. Nothing about their evidence has caused me to reach any adverse opinion about their credit. In each case, the oral evidence was given in a frank and forthright fashion, and it was consistent with the defendants' affidavit and documentary evidence. In final submissions, counsel for the plaintiffs asked me to find that the defendants' witnesses (presumably Mr Amezdroz in particular) were "so enthusiastic that they led the plaintiffs up the garden path". Mr Amezdroz admitted in cross-examination that he was enthusiastic about the plaintiffs' project, and recognised that they would be disappointed when Beyond withdrew from it, but he denied that he misled them. In my opinion these feelings of his have not affected the quality of his evidence.

The "Animal Acts" concept

13 At some time prior to 11 July 1996, Mr Sumner developed a concept for a six part documentary series for television originally entitled "Lynda Stoner's Animal Acts". The concept was developed after many discussions with Ms Stoner. According to her evidence, she was co-author, but in my opinion the evidence does not support this claim. It was Mr Sumner who wrote the outline of the concept, and submitted it to Beyond, and was the principal spokesperson for it at meetings.

14 Mr Sumner's outline was a document of 18 typewritten pages. The first ten pages were devoted to Part One of the program, "From the Mists of Time". Those pages described the film sequences and interviews for Part One, and set out some texts that would be read by Ms Stoner as presenter. For example, according to the document, the first program would begin with Ms Stoner walking towards the entrance of the Altamira Caves on the northern coast of Spain, where she would begin her commentary by saying:

"Even before an innocent Eve succumbed to the charms of the snake in the apple tree of Eden, humankind has had a complex and contradictory relationship with its fellow creatures."

15 The first program would end with film of aborigines hunting for food and then performing a sacred animal song cycle and dance. Ms Stoner would say:

"The Aboriginal people, through the millennia, have developed a meaning and harmony for the landscape they live in - each relying on the other to maintain the balance between the real and the unknown. Sadly, through decades of use and exploitation that balance has been destroyed. Animals are no longer an enigma but a product. Next week we step forward into the great civilisations of Egypt, Ancient Greece, South America and China as humankind deepens and mythologises its contract with animals."

16 The descriptions of Parts Two to Six ("The Ancient Civilisations", "And God Said", "Dread and Circuses", "Animals of the Imagination", and "The Twentieth Century") were very much shorter. They comprised headings only, and less than a page was devoted to each program. For example, all that was said about the last program was as follows:

"PROFESSOR PETER SINGER INTERVIEW

ANIMALS AND THE AUSTRALIAN PIONEERING DAYS

TASMANIAN TIGER

LABORATORY ANIMALS

INTENSIVE FARMING PRACTICES

ETHICS OF GENETIC ENGINEERING

MEAT ALTERNATIVES

RODEOS

COMPANION ANIMALS

THE FUTURE?????"

17 Mr Sumner gave evidence that the description of the first hour program was "fully scripted" and contained some themes and ideas which would be developed in the other five parts. However, he conceded in cross-examination that substantial additional work would need to be done on part 1 to convert it from its present form into a "shooting script". It is obvious from perusal of the document that a great deal of work would be needed to convert the brief headings for parts two to five into complete scripts. The plaintiffs had carried out extensive research into the themes reflected in the outline, but their research had not been "written up" in the document.

18 The remainder of the outline document consisted of a list of filming locations, and brief biographies of Ms Stoner (with a large photograph) and Mr Sumner.

Discussions in July 1996

19 The plaintiffs met with Mr Amezdroz in July 1996 (according to Mr Sumner the date was 11 July, but Mr Amezdroz gives the date as 21 July), to discuss with him a proposal that the Beyond Group would produce "Animal Acts". At that time the plaintiffs were considering other possible producers but decided to approach Beyond. As I have said, in his affidavit Mr Sumner said that Beyond was approached "first", but it seems that a concept of some kind had been presented to the ABC in March 1996.

20 The idea put forward by Mr Sumner was that he and Ms Stoner would research, write, direct and present the six part series, with support staff provided by Beyond, and the Beyond Group would take on the business side of raising the budget, producing, finding sales and distribution. Mr Amezdroz gave evidence that, when Mr Sumner stipulated that he and Ms Stoner should have roles in writing, directing and presenting the series, he told them that those were matters on which the broadcaster or the network would have the final say. I accept that evidence.

21 The plaintiffs left Mr Sumner's outline document with Mr Amezdroz, who received their proposal with some enthusiasm and promised to read the document with interest and get back to them. According to Ms Stoner's evidence, she expressed the concern that some of the issues in the later part of the series, such as vivisection and modern brutality towards animals, might deter some people from pre-sales, and Mr Amezdroz replied that it was essential that the truth be told and that he had no qualms about exploring these issues. I accept that evidence, although I note there is other evidence that both sides understood from the outset that modifications to the concept may be needed in order to procure finance.

22 Another meeting took place on 18 July 1996 (according to Mr Sumner) or late in July (according to Mr Amezdroz), at the instigation of Mr Amezdroz. Mr Amezdroz told the plaintiffs: "I think the project is great and I want the series". Mr Sumner gave evidence that Mr Amezdroz said the project should be "crème de la creme"; Mr Amezdroz denied using that expression but admitted to saying his intention was that the project be "blue-chip". Nothing turns on this. The witnesses agreed, however, that Mr Amezdroz gave an enthusiastic response to the proposal. He suggested that it be filmed on 16mm film rather than videotape. He offered Mr Sumner a laptop computer to use and said he would create workspace for him at Beyond's offices.

23 Mr Sumner said that, after they discussed filming locations and the names of possible camera crew, Mr Amezdroz said to him:

"What we must get on with immediately is making an offer document so that I can promote the series at overseas television sales conferences. … The idea is that Beyond will produce a series based on your material, as developed by you and Beyond. It will employ the services of Peter as a writer and director and Lynda as a writer and narrator for the series. You can continue your research and writing while we get on with the business side. I will arrange for a production and development agreement to be drawn up within the next few weeks."

24 Mr Amezdroz denied having said any of this other than the first and last sentences. I prefer the evidence of Mr Amezdroz on this point. The disputed sentences were contrary to the arrangements presented in the development and production agreement that was later prepared. Given the comparative lack of development of the Animal Acts outline, the series could not be based on that material without substantial additional development work. Mr Amezdroz said in cross-examination that his purpose at this stage was to hear what the plaintiffs wanted rather than to make any commitment. It seems to me unlikely that he would have used the language of commitment that the plaintiffs attributed to him.

Discussions in August 1996

25 On 22 or 26 August 1996 the plaintiffs had a meeting with Mr Amezdroz and Beyond's in-house lawyer, Mr Gregory. Early in the meeting Mr Amezdroz showed the plaintiffs Beyond's current "production slate" including some video footage of a program called "Sex Life", which had been commercially successful. Mr Amezdroz said he envisaged a budget in the range of $3 million, while stating that the project would not "get off the ground" until it was sold.

26 They discussed fees. According to the evidence of both plaintiffs, they asked for fees of $100,000 each for writing/directing and presenting, and Mr Amezdroz said that those figures were acceptable.

27 Mr Amezdroz gave evidence that at no stage during the meeting did he or anyone else on behalf of Beyond promise that Beyond would develop and produce a series based on Mr Sumner's outline, and he denied that anyone on behalf of Beyond promised to pay Mr Sumner and Mr Stoner $125,000 each (increased from the original figure of $100,000, according to the plaintiffs' evidence). He said that he pointed out to the plaintiffs that those issues would be in the hands of the broadcaster, who would have the final say, and that while he would take the wishes of Mr Sumner and Mr Stoner into account, any arrangement would be subject to network approval. His evidence is that he said the fees generated would be in line with industry standards, and that the fees requested by the plaintiffs appeared to be in accordance with those standards. Both sides agree that Mr Sumner said that, if Ms Stoner was not acceptable as a presenter, he would still prefer the project to go ahead.

28 According to Mr Gregory's evidence, he responded to the request for quantification of fees by saying that Beyond could not guarantee payment of $100,000 per year, and that the contract would normally stipulate that if the plaintiffs were to have a role in production of the project, they would be remunerated at industry standards. Mr Gregory said that he explained to the plaintiffs that their roles in the project could not be guaranteed, as this would ultimately be a decision for the broadcaster, although he said it would be in the best interests of the project to accommodate a role for both of them.

29 I prefer the evidence of Mr Amezdroz and Mr Gregory to the evidence of the plaintiff on this point. In my opinion it is unlikely that Mr Amezdroz would have represented to the plaintiffs, without qualification, that they would be paid $100,000 each; and on the other hand, plausible that in recollecting the conversation for the purpose of giving evidence, the plaintiffs may have converted Mr Amezdroz's statement, that fees would be in line with industry standards and their requests appeared to be in accordance with those standards, into a firm commitment that they would be employed in their respective capacities for those fees. The representation contended for by the plaintiffs would be inconsistent with the development and production agreement as subsequently drafted. If there had been a firm agreement at an earlier stage for the payment of specific amounts of $100,000, one would have expected the plaintiffs to raise the issue before they executed the agreement. Indeed, in his letter of advice (noted below) Mr Trembath specifically noted that the figure of $100,000 did not appear in the draft. In my view, what was said about fees was subject to the contingencies that funding would be found so that the series could be produced, and that the proposed involvement of each of the plaintiffs would be approved by the broadcaster.

30 The plaintiffs' own evidence supports this conclusion. Ms Stoner gave evidence indicating that she understood, in August 1996, that production of the series was by no means certain. She understood that Beyond needed to find someone to finance the production and that it intended to seek pre-sales. Mr Sumner gave evidence that he understood, "from day one", that the production depended upon finance being arranged, and that Beyond would require pre-sales in order to raise the budget, although he said he was not aware until a later time that Beyond intended to arrange finance purely from pre-sales. Both plaintiffs conceded that at no time did they believe that Beyond actually achieved a pre-sale.

31 Mr Sumner gave evidence that Mr Amezdroz agreed at the meeting that Beyond and the plaintiffs would develop the material into a series. Mr Amezdroz and Mr Gregory denied that this was said. Mr Gregory pointed out that under the development and production agreement subsequently executed by the parties, copyright was assigned to Beyond, which had the opportunity to develop the materials at its discretion.

32 I prefer the evidence of Mr Amezdroz and Mr Gregory on this point. As I have said, the production was subject to contingencies, as acknowledged by the plaintiffs' own evidence. It is implausible that Mr Amezdroz would have made any categorical representation or commitment that the project would proceed, quite apart from what was subsequently said in the development and production agreement.

33 Mr Sumner also gave evidence that Mr Amezdroz agreed that the plaintiffs would continue to research and develop the project. Mr Amezdroz and Mr Gregory denied that this was said, although Mr Amezdroz conceded the possibility that Mr Sumner volunteered to research the project without pay. As he said in cross-examination, the plaintiffs were committed to animal liberation issues and would have continued their research whatever he might have said. In fact Mr Sumner did continue to research the project, and prepared substantial research material for scripts for episodes four to six. In my view nothing was said that would have encouraged the plaintiffs to expect that they would be remunerated for their further research, if the project did not proceed.

34 They discussed the amount to be paid for an "option fee". It was proposed that initial payments of $250 each be made for assignment of copyright. The plaintiffs claim that this payment was "for copyright in this material for 12 months", so that the material could be developed by the plaintiffs and Beyond, working together. The defendants say that the option fee was consideration for an unqualified assignment of copyright. Mr Gregory said that Mr Sumner objected to the low amount of the option fee, and that he told the plaintiffs that Beyond preferred not to pay large option fees, but instead to commit funds to development of the program and associated marketing materials. In my opinion it is unlikely that Mr Amezdroz or Mr Gregory would have said anything about such a technical issue as assignment of copyright that would have been inconsistent with the provisions of the development and production agreement subsequently executed.

35 Mr Amezdroz sent an e-mail to Mr Borglund on 26 August 1996, reporting on his meeting with the plaintiffs. He said they had agreed to a number of terms, which the e-mail set out. One of those terms was that "Peter and Linda are to work on the show". There was no mention of any agreement for the payment of $100,000 to each of them.

36 The plaintiffs said they had a meeting with Mr Amezdroz on 28 August 1996, at which, according to their evidence, he said:

"We are right behind the series. We feel it has enormous potential if we can make it of the highest quality. We feel sure that such networks as the BBC, National Geographic and Discovery Channel will be very interested. Consequently we are setting the budget at $3 million."

37 Mr Amezdroz's evidence was that he could not recall a meeting on 28 August but he admitted to discussing a $3 million budget at the previous meeting.

38 If there was a separate meeting on 28 August, it is unlikely that anything was said by way of firm representation or commitment, going beyond the matters that had been discussed at the previous meeting. No doubt Mr Amezdroz was enthusiastic at the previous meeting and (if there was one) at the meeting of 28 August, but in my view his communication of enthusiasm did not amount to any warranty or firm representation. Specifically, I reject the contention that he warranted that any of the networks mentioned in the plaintiffs evidence had agreed to commit to the project.

Discussions in September 1996

39 On about 28 August 1996 Mr Amezdroz contacted Anita Bezjak, an associate producer of Beyond who did development work on projects for executive producers, including Mr Amezdroz. He outlined the project and asked her to attend a meeting with the plaintiffs. He subsequently provided her with a copy of the Animal Acts outline and asked her to prepare a proposal document based on the concept embodied in the outline. He gave evidence of his opinion that Mr Sumner's proposal took a hard line, focusing on animal cruelty/exploitation issues. He said he was aware that the plaintiffs were active animal liberationists and their views came through in their proposal. He wished to soften this approach because the hard line would affect the marketability of the project. He therefore instructed Ms Bezjak to moderate the tone of the proposal to make it acceptable to an international broadcaster.

40 The plaintiffs met with Mr Amezdroz and Ms Bezjak at the Beyond offices on 2 September 1996. At that meeting Ms Bezjak asked Mr Sumner to provide books that could be used for graphics or research, and he agreed to do so. The plaintiffs' affidavit evidence is that at this meeting, it was agreed that the working title would be changed to "Animal Revolution", but Mr Sumner conceded in cross-examination that the change of name may have occurred later in September and not at a meeting. Ms Bezjak gave evidence that the name "Animal Revolution" was not considered until later. Mr Amezdroz said that the title emerged from his discussions with Ms Bezjak, and was decided in about the middle of September. I accept the defendants' evidence on that point.

41 Shortly after the meeting Mr Sumner delivered some visual and research material to Ms Bezjak for use in the document she was preparing. He met with her on 5 September 1996 and identified certain books that he had used for the project. Ms Bezjak looked through the books.

42 Ms Bezjak gave evidence that at this meeting, Mr Amezdroz said: "If this project is to secure adequate funding it would need to have an international broadcaster attached." The plaintiffs deny that Mr Amezdroz said this, although the statement is generally consistent with their evidence that the project would not go ahead in the absence of funding, and I accept it. Mr Sumner's evidence is that Mr Amezdroz said:

43 Subsequently Ms Bezjak worked on the preparation of a marketing document. Mr Amezdroz asked her to have it ready for his departure to an annual international television market in France called MIP-COM. She finalised the document prior to the departure of Mr Amezdroz for France on 29 September 1996, and he took several copies of it with him.

44 Having received a draft development and production agreement, on 11 September 1996 Mr Sumner took advice from a solicitor, Owen Trembath, with whom he conferred.

45 Mr Sumner had a meeting with Mr Gregory on 13 September 1996, to discuss the draft. Ms Stoner did not attend. Mr Sumner told Mr Gregory that there should be some changes. According to Mr Gregory's evidence, the changes were that Beyond should express its continued commitment to the plaintiffs for further episodes in the series, and that the royalty should be 15% rather than 10% of net revenue, or a one-off residual fee per sale. Mr Gregory promised to check these alterations with Mr Borglund, but said he thought there would be no problem. Mr Sumner denied that the plaintiffs ever asked for 20 to 25% of net revenue or a one-off residual fee per sale. He said that the plaintiffs asked for 15%, the figure contained in the agreement in its final form. I prefer the evidence of Mr Gregory, which is consistent with his contemporaneous note and his subsequent internal e-mail.

46 Mr Sumner said that he told Mr Gregory that the fee for his work as writer and director, and for Ms Stoner's work as writer and presenter, should each be $125,000 rather than $100,000 as previously discussed. Mr Gregory denied that this was said. His position is that fees would be negotiated at industry standards if either of the plaintiffs were engaged in these roles.

47 I find Mr Sumner's evidence that he asked for an increase in the fees, after taking advice from various people including Mr Trembath, to be plausible, but I accept Mr Gregory's evidence that there was no commitment to retainer of the plaintiffs or the payment of any particular fees. Paragraph 6 (b) of the Amended Composite Statement of Claim asserts that Beyond represented that it would pay the plaintiffs $250,000 on or before 28 April 1998. That date does not figure in any of the evidence at the hearing. In final submissions counsel for the plaintiffs conceded that the significance of the date was "lost in time".

Mr Trembath's letter of advice

48 A letter of advice from Mr Trembath to the plaintiffs dated 13 September 1996 is in evidence, but it was not transmitted to Mr Sumner until after his meeting with Mr Gregory. I shall deal with the contents of the letter now, and describe the clauses to which Mr Trembath refers under the next heading.

49 The letter commented on Clause A4, by saying that the consideration offered was low and should be non-recoupable and adding:

"Please note that as a result of this payment, Beyond becomes the owner of your original materials (including the copyright) and separately, as Beyond is the creator of the produced work, it will own the copyright in the production itself. I will discuss more on the ramifications of this shortly."

50 Mr Trembath commented on clause B5(ii) as follows:

"the most appropriate situation here would be that if the program did not proceed, then ownership of the Original Materials would revert to you entirely without need to repay any of the option fees. The only reason to acquire the ownership of the Developed Materials which were created by Beyond is if you reasonably expected that you could obtain television sales or make other use of the material which Beyond had been unable to do so itself [sic]. It may be that this entire point is not worth arguing about at all - if it does not come to fruition, you may lose interest in the project entirely. If you remained interested in the concept, you may come up with an alternative expression of a similar thing but more appropriate for the circumstances then prevailing, in which case you do not even require the ownership of the Original Materials back, nor would you be required to obtain the Developed Materials."

51 In his comments on clause B1, Mr Trembath said, "note that there is no guarantee of production as this will depend on local and international network interest". He agreed in cross-examination that under the agreement, there was no certainty of payment of any fee other than the $500 paid as consideration for the assignment of copyright.

52 Mr Trembath commented on clauses B7.1 and B7.2, which deal with the remuneration to be paid to Ms Stoner and Mr Sumner for their work as presenter and researcher/writer respectively. The clauses say that they are to be remunerated at rates agreed in good faith commensurate with the Australian television industry norms, "subject always to broadcaster approval". Mr Trembath was concerned about the uncertainty of the expression "Australian television industry norms" but he did not direct any comment to these clauses being expressed to be subject to broadcaster approval.

53 It is not clear whether the points made by Mr Trembath in his letter regarding clauses A4, B1, B5(ii), B7.1 and B7.2 were communicated by Mr Trembath to Mr Sumner orally before Mr Sumner's meeting with Mr Gregory. It appears however, that Mr Sumner did not raise any such points with Mr Gregory. In his letter of advice, Mr Trembath said:

"Peter discussed with me the view that it is probably reasonable to accept the contractual documentation pretty well as is (although I suggest you push where possible for increasing fees as described above) and not be overly concerned with the finer details in view of the 'big picture' knowledge that the net profits are unlikely."

54 That appears to have been Mr Sumner's strategy at the meeting with Mr Gregory. He also said in cross-examination that he presumed there would be a further contract later, which would accurately record such things as the fees that had been agreed. But he acknowledged that the development and production agreement was intended to be a binding contract.

The development and production agreement

55 The agreement is in the form of a letter from Beyond to the plaintiffs, signed by Mr Borglund as managing director. At the end of the document are the signatures of the two plaintiffs, the words "agreed and accepted by" appearing above each signature. The letter is headed "Re: 'Animal Acts'". It is expressed to supersede all previous correspondence and discussions, and to summarise what Beyond "proposes by way of an agreement regarding the development and possible eventual production of a documentary series for television provisionally entitled 'Animal Acts' (the 'Series')."

56 The letter is divided into three parts. Part A deals with development of the Series, Part B deals with production and Part C deals with distribution.

57 Clause A1 declares that the original concept of the Series, designated the "Original Materials", has been created and is owned by Mr Sumner. The agreement attaches, as Appendix A, a copy of Mr Sumner's outline document. Clause A2 states:

"Beyond wishes to develop further Materials for the Series (the 'Developed Materials') containing new elements and the Original Materials as determined by Beyond its sole discretion."

58 The clause provides that the development may utilise the creative services of the plaintiffs, who will be paid fees at "television industry norms" as specified according to the development budget annexed as Appendix B. The development budget provides for total expenditure of $13,317, which includes two weeks' work by Mr Sumner at $1500 per week, and two weeks’ work by Ms Bezjak as development producer at $1250 per week.

59 Clause A4 states:

"Beyond shall pay to LS and PS the sum of five hundred dollars ($500) in consideration for LS and PS entry into this Agreement and for PS assigning to Beyond all his right title and interest (including copyright) in and to the Original Materials. This payment will be an advance against the Concept Fee noted below (Part B Point 2) and will be recovered by Beyond from the production budget (‘the Production Budget’) of the Series."

60 Clause B1 states:

61 Clause B2 provides that the plaintiffs will be entitled to a concept fee of $5,000 per episode of the Series produced by Beyond. Clause B5 deals with extension and termination of the arrangements. It provides, in part:

62 Clause B7.1 gives Ms Stoner a right of first refusal to be engaged as presenter of the Series, "subject always to broadcaster approval". Clause B7.2 provides that Ms Stoner will be offered a position of researcher and/or writer, and clause B8 says that Mr Sumner will be offered a position as a writer and/or director. In each case the remuneration is to be "agreed by the parties in good faith but commensurate with Australian television industry norms".

63 Clause C1 gives Beyond, through Beyond Distribution, the right in its absolute discretion to distribute the Series throughout the world "for the life of copyright in the Series". Any distribution of the Series will be on substantially the same terms and conditions as are set out in Appendix C, which comprises a draft distribution agreement. Clause C3 provides that the plaintiffs will be entitled to receive 15% of the share of net revenue paid to Beyond.

64 The final paragraph of the letter contemplates that a "full form agreement" incorporating the terms of the letter and including other industry standard provisions, would be prepared, which would upon execution supersede the letter. It appears that no full form agreement was ever submitted to the plaintiffs.

The Beyond Treatment

65 On 12 December 1996 the plaintiffs met with Mr Amezdroz and Ms Bezjak. Ms Bezjak gave them a document which the plaintiffs have referred to as a "sell document". I prefer to identify the document in a more neutral way, as the defendants did, by referring to it as "the Beyond Treatment".

66 The Beyond Treatment was entitled "Animal Revolution". It was a much more polished document than Mr Sumner's outline document, although containing some typographical errors. It had a 1 1/2 page description per part of each part of the six part series, as well as an introduction of about the same length, and each segment was divided by a full-page picture depicting animals or art about animals. The Beyond Treatment appears to have been based on Mr Sumner's outline, but it exhibits significant development. First, as I have said, there was a more substantial description of the second to sixth parts. Secondly, the text of the Part 1 was substantially re-written, evidently with marketing in mind. Thirdly, the sequence of the six parts was altered and the titles were changed, to become "hunters and hunted", "working gods", "blood sports and circuses", "heavenly creatures", "Pavlov's dog", and "balancing act". The development of Parts 5 and 6 is of significance, because it was clear from Animal Revolution, more than from the original outline of Animal Acts, that some controversial issues, such as the use of animals for experimental purposes and the treatment of battery hens, were to be explored.

67 Animal Revolution contained a production schedule, providing for pre-production to commence in February 1997 and for delivery to take place in April 1998, and there was a preliminary budget for a total sum of $2,772,524, including items for "story, script and development" of $78,400, "Producer(s) fees" of $248,400, "director(s) fees" of $98,000 and "principal artistes" of $30,000. Mr Amezdroz was designated as executive producer and Mr Sumner was designated as "director/writer".

68 Ms Bezjak gave evidence that the Animal Acts outline prepared by Mr Sumner was not in a form adequate to provide to broadcasters as part of the marketing phase of the project. She explained that her role was to prepare a proposal that would attract the interest of broadcasters. She said: "I rewrote and assisted in reformatting Animal Acts to make it more interesting, from Beyond's point of view, to a network/broadcaster." Mr Sumner disputed Ms Bezjak's statement that she rewrote Animal Acts. However, it is plain from inspection that the Beyond Treatment represents a substantial development and modification of the original outline. I accept Mr Sumner's evidence that the original outline was based upon substantial research, and the Beyond Treatment was not the product of any significant additional research. Ms Bezjak did not claim otherwise. But it is nevertheless a much fuller exposition of the series.

Developments from September to December 1996

69 On about 28 September 1996 Mr Sumner collected the revised draft agreement, which was dated 25 September 1996, from Beyond's offices. Mr Sumner said he did not check the amendments to the agreement "because Mr Gregory did not say that the amendments would not be accepted". Both plaintiffs signed the agreement and returned it to Beyond on 30 September 1996. On 14 October 1996 they received two cheques from Beyond, each for $250, one in favour of Mr Sumner and the other in favour of Ms Stoner, together with the stamped agreement.

70 I can find nothing in the circumstances surrounding the execution of the agreement, or leading up to it, that would suggest that the agreement was entered into in consideration of some collateral representation or promise. Indeed, the terms of the agreement would be inconsistent with any such finding, because (as I have said) it is expressed to supersede all previous discussions.

71 On 28 October 1996 Mr Sumner received a telephone call from Mr Amezdroz, in which (according to Mr Sumner) Mr Amezdroz said "I have total confidence that the project will go ahead, the discussions and initial response have been excellent." In my view it is probable that Mr Amezdroz spoke enthusiastically about the prospects for the project, but did not make any unqualified representation or warranty that it would go ahead.

72 The plaintiffs met with Mr Amezdroz and Ms Bezjak on 12 December 1996. During this meeting Mr Amezdroz gave an update about the level of interest in the market for the potential project, as a result of his discussions at MIP-COM. He said there had been some positive feedback, and he was awaiting responses from several broadcasters. He had had discussions with representatives of several companies, including WGBH, Telcast (Beyond's agent in Germany), Louisad, the Discovery Channel and National Geographic Television, the latter expressing substantial interest. He proposed to have discussions with Readers Digest and Time Life. During November Mr Amezdroz had followed up the contacts made at MIP-COM, and on 29 November 1996 he sent to National Geographic Television a production budget and schedule, an estimated delivery date and curricula vitae of the principal film team. Mr Amezdroz denied Mr Sumner's claim that he expressed total confidence that the project would go ahead. In my view it is probable that Mr Amezdroz spoke enthusiastically about the prospects of the project, without making any unqualified representation or warranty.

73 Mr Sumner had entered into an agreement with Gannon Television Pty Ltd for his participation in Heartbreak High on a weekly basis from 25 March to 19 May 1996, with options for extensions for twelve weeks from 3 June to 25 August 1996 and 13 weeks from 9 September to 8 December 1996. Gannon Television exercised those two options. By December 1996 Mr Sumner was earning $1750 per week, plus possible residuals for overseas sales and re-broadcast fees. By that time Gannon Television was pressing Mr Sumner to extend his contract for the production of Heartbreak High, although fees for the renewed contract had not been negotiated.

74 According to the plaintiffs, the following conversation occurred between Mr Sumner and Mr Amezdroz during the meeting on 12 December 1996:

Heartbreak High

75 Ms Stoner gave evidence that at this meeting, she demanded to know whether the project would go ahead, and Mr Amezdroz responded:

"Yes. It is definitely going ahead and next March will be the starting date for the project."

76 Mr Amezdroz gave a different account of this meeting. When Mr Sumner asked him when filming could begin, he said "if they [National Geographic] picked it up in early January we could start as soon as March". Mr Sumner said, according to Mr Amezdroz, that as most of the filming would be in the Northern Hemisphere, it would be necessary to commence shooting before May in order to avoid holiday crowds at European museums. Mr Amezdroz said that during the conversation Mr Sumner told him that he anticipated receiving an offer to be part of the second series of Heartbreak High, and Mr Amezdroz said "that's good, Peter". Mr Amezdroz denied having said that the project was definitely going ahead and would commence in March, or that Mr Sumner should tell the producers of Heartbreak High that he would be out of the series from the beginning of March. However, he said he recalled saying to Ms Stoner at the end of the meeting that he believed the project would ultimately go ahead and if so, they should all aim for March 1997.

77 Ms Bezjak's evidence is that Mr Sumner mentioned in general conversation that Gannon had received approval for another series of Heartbreak High on the ABC, which she noted as an item of news regarding developments in the local industry. She said that at no time during the meeting did Mr Sumner refer to his contract for Heartbreak High being up for renewal, and Mr Amezdroz did not tell Mr Sumner to inform the producer of Heartbreak High that he would not be available.

78 Ms Bezjak denied that Mr Amezdroz told Mr Sumner that the project was definitely going ahead, commencing in March. According to her, Mr Amezdroz said that he was hoping to hear back from the broadcasters that he identified during the meeting, and that he would chase them for an answer.

79 According to the Amended Composite Statement of Claim, paragraph 10, Mr Amezdroz made oral representations to the plaintiffs in December 1996 that the Series was definitely going ahead in February-March 1997 and Mr Sumner should advise the producers of the series Heartbreak High that he would be out of the series from the beginning of March 1997.

80 In cross-examination Mr Sumner gave evidence that the representations referred to in paragraph 10 were made by Mr Amezdroz at the meeting of 12 December 1996. He said that there were earlier discussions with respect to the need for filming in European museums to occur before the summer tourist season, which would have included discussion about projected shooting dates. When pressed to specify the occasion of such discussions, he identified the meeting of 28 August 1996. He conceded that there were no discussions in December 1996 apart from the meeting of 12 December.

81 In my opinion it is unlikely that the discussion on 28 August 1996 dealt with shooting dates, or the commencement of pre-production, with any specificity (although general discussion may have occurred about the desirability of filming in European museums outside the summer season). At that stage there was no contract, no agreement between the plaintiffs and Beyond with respect to any money matters, and the Beyond Treatment had not been prepared. In their affidavits the plaintiffs did not recount any such conversation on 28 August 1996, even though they were both well aware that one of their central claims is that they were induced by representations about the commencement date to act to their detriment. My conclusion is that no oral representations were made by Mr Amezdroz on 28 August 1996 with respect to the commencement date or shooting dates.

82 Consequently this part of the plaintiffs' case rests upon the claim that Mr Amezdroz made the representations, alleged in paragraph 10 (a) of the pleading, at the meeting on 12 December 1996. In my opinion it is unlikely that any such representations were made at that meeting. By that time the plaintiffs had entered into the development and production agreement, under which Beyond was given an option to use the creative services of the plaintiff for further development of the Original Materials, and had the absolute discretion to produce the Series based on the Original and Developed Materials. It had no obligation to proceed. Moreover, as they conceded in cross-examination, both parties were aware in September 1996 that the production would take place only if finance was arranged, and that Beyond proposed to arrange finance through pre-sales. They were aware, in December 1996, that pre-sales had not yet been arranged.

83 Mr Amezdroz was enthusiastic about the proposal and communicated his enthusiasm to the plaintiffs at the meeting of 12 December. It is possible that they mistook his enthusiasm for assurance. In the circumstances, however, I find their account of their conversation with Mr Amezdroz on 12 December to be implausible, whereas the evidence of Mr Amezdroz and Ms Bezjak on this point is plausible. My conclusion is that Mr Amezdroz's account of the meeting of 12 December 1996 should be accepted in preference to the plaintiffs' evidence.

84 Even if firm representations had been made by Mr Amezdroz on 12 December 1996 along the lines alleged by the plaintiffs, the evidence does not establish reliance by them on any such representations, as pleaded in paragraph 13 of the Amended Composite Statement of Claim. In cross-examination, Mr Sumner said that before the meeting of 12 December 1996 he spoke to Sandy McKenzie, a member of the production staff at Heartbreak High, and told her of the unfolding plans with Beyond, and that there would be a distinct possibility that he would withdraw from Heartbreak High as soon as a date was fixed for the commencement of pre-production of Animal Revolution. On 10 December 1996 (the letter is incorrectly dated 10 December 1997), Gannon Television wrote to Mr Sumner's agent enclosing two copies of Mr Sumner's contract for Heartbreak High for the period from 17 February to 16 March 1997. The contract was dated 9 December 1996 and had already been signed on behalf of Gannon. It was signed by Mr Sumner shortly afterwards, in compliance with the instructions in the covering letter of 10 December.

85 I have found that the letter of 10 December 1997 was incorrectly dated, and the correct date was 10 December 1996. I have reached this conclusion because it appears from Mr Sumner's cross-examination that his agent complied with the request in the letter that a tax declaration be provided prior to Mr Sumner engaging in the work which commenced in February 1997; and also having regard to the handwritten notes on the letter, which appear to have been made by the agent, referring to dates early in 1997. It would be odd for the parties to a contract for the performance of work in February and March to enter into it in the following December.

86 I infer from this evidence that Mr Sumner, or his agent on his behalf, told Gannon Television before 9 December 1996 that he would renew his contract for Heartbreak High only for the short period to mid-March, during which time they could write him out of the program. Mr Sumner suggested in answers in cross-examination that the new contract was consistent with an intention to continue after March 1997, but I reject that evidence. It is significant, in my view, that the new contract did not contain any options for extension, and that Mr Sumner had, according to his own evidence, informed Ms McKenzie of the prospect that he would withdraw from Heartbreak High. In those circumstances it is more likely than not that the new contract was prepared to give effect to an intention, already formed by Mr Sumner, that he should be written out of the Heartbreak High series by March 1997 so that he could devote his time to Animal Revolution. That finding implies that his conduct in so doing cannot have been undertaken in reliance upon representations made by Mr Amezdroz at a later time, namely on 12 December 1996.

87 There are two other reasons for concluding that Mr Sumner's conduct in withdrawing from Heartbreak High was not in reliance upon the representations allegedly made by Mr Amezdroz on 12 December 1996. First, according to the plaintiffs' evidence, Mr Amezdroz told Mr Sumner to inform the producers of Heartbreak High that he would be out of the series from the beginning of March 1997. In fact the contract with Gannon Television ran until 16 March 1997. Mr Sumner did not claim that he went back to Mr Amezdroz to say that he would be unavailable until mid-March, even though Mr Amezdroz had wanted him to be available from the beginning of March. Mr Sumner's explanation of the discrepancy between the beginning of March and mid-March, in cross-examination, was unconvincing. Secondly, on 8 December 1996 Mr Sumner wrote to Mr Trembath saying that he was "looking forward to commencing in March 1997". This suggests that he had developed the expectation that the project would commence in March 1997 before the meeting of 12 December 1996.

Conclusions with respect to alleged representations up to December 1996

88 Paragraph 6 of the Amended Composite Statement of Claim says:

Particulars

89 Paragraph 10 of the Amended Composite Statement of Claim says:

Particulars

(a) The Series was definitely going ahead in February-March 1997 and the first plaintiff should advise the producers of the series "Heartbreak High" that the first plaintiff would be out of the series from the beginning of March 1997."

90 My findings of fact so far lead to the conclusion that the plaintiffs have failed to establish that the representations pleaded in paragraphs 6 and 10 of the Amended Composite Statement of Claim were ever made.

91 In paragraph 9 of the Amended Composite Statement of Claim the plaintiffs plead that in December 1996 the first plaintiff advised the first defendant verbally through the third defendant that he was being pressured to re-sign to appear in the series "Heartbreak High" and needed to know the dates for production of the Series. My findings of fact mean that the pleaded fact has not been proved.

92 The plaintiffs also plead, in paragraphs 7 and 13, that they relied on those representations, among others. My findings lead to the conclusion that as regards the representations alleged in paragraphs 6 and 10, no such reliance has been established.

Developments to 25 September 1997

93 Mr Amezdroz sent a follow-up facsimile to National Geographic on 16 January 1997, and he received a non-committal reply on 5 February 1997.

94 From December 1996 until March 1997 Mr Sumner heard nothing from Mr Amezdroz, who (according to their evidence) did not return several telephone calls and messages left by Mr Sumner in January and February.

95 Mr Amezdroz telephoned Mr Sumner on 4 March 1997. Ms Stoner gave evidence that she recollected that the telephone conversation was outside a coffee shop. Mr Sumner's account of the conversation is as follows. He complained: "I've lost my contract with Heartbreak High because you promised me we would be working on this project by March." He asked Mr Amezdroz whether mid-March was still the starting date. Mr Amezdroz apologised for not returning Mr Sumner's calls. He said:

96 Mr Amezdroz's account is quite different. He said he had not received any telephone messages from Mr Sumner, explaining that he had been without an office for some time while Beyond moved its premises. It is unnecessary for me to reach any conclusion on that minor point, although I note there is some corroboration of the fact that Mr Amezdroz changed his telephone number of that time. He said that when Mr Sumner asked him about the commencement date, he explained that he was still waiting for a response from National Geographic. I prefer that evidence to Mr Sumner's evidence concerning National Geographic, because the correspondence shows that the National Geographic did not decline until 23 April 1997.

97 Mr Amezdroz gave evidence that Mr Sumner told him he had just rejected an offer to take part in Heartbreak High for 11 or 12 months, so that he could research the project, and that he expressed alarm when Mr Sumner said this, reiterating that nothing would happen until the project was picked up by broadcaster. He denied that Mr Sumner claimed to have been advised by Mr Amezdroz to turn down the offer to appear in Heartbreak High.

98 Mr Amezdroz's account of the telephone conversation is plausible and consistent with my findings with respect to the meeting of 12 December 1996. Mr Sumner's evidence was clearly wrong with respect to National Geographic. I prefer the evidence of Mr Amezdroz with respect to this conversation.

99 On 30 March 1997 Mr Sumner wrote to Mr Amezdroz (with copies to Mr Borglund and Mr Gregory) saying that he was "disgusted by [his] total lack of communication or consultation". The letter demanded, within two weeks, a written outline of what had been done to get the project together, and its future prospects, and threatened that in the absence of such an outline Mr Sumner would take the necessary steps to withdraw the project from Beyond's hands. The letter made no complaint to the effect that Mr Sumner had been induced by representations made by Mr Amezdroz not to renew his contract to appear in Heartbreak High. That tends to support the conclusion, expressed earlier, that Mr Sumner did not leave Heartbreak High in reliance on any representations made by Mr Amezdroz as to the commencement date for pre-production, for if he had done so, one would have expected him to complain about that matter, vociferously, in his letter. His attempt, in cross-examination, to explain the omission by saying that he expected that his letter would lead to a meeting at which the complaint would be made, was unpersuasive.

100 On 3 April 1997 Mr Sumner had a conversation with Mr Amezdroz in which, according to Mr Sumner, Mr Amezdroz said:

"The pre-sales we thought we had have dropped out. The sticking point with some of the prospective networks is the last two episodes which contain material the networks feel some advertisers might baulk at."

101 He referred to intensive farming practices and material to do with rodeos and laboratory experiments. Mr Sumner said that possibly some of the material could be softened but a lot of the material was essential to the truth and the series would be considerably weakened without it. Mr Amezdroz said he would continue with his marketing efforts. Mr Amezdroz denied this version of the conversation. He said he had simply informed Mr Sumner that he was waiting for National Geographic to respond, and that Readers Digest was also considering the project. I have no specific reason for preferring one account to the other, and it is unnecessary for me to make any finding.

102 National Geographic Television wrote to Beyond on 23 April 1997, rejecting the offer to participate in the project. The letter said:

"While the subject matter of your series is both interesting and appropriate for us, the overriding themes of the project are somewhat intangible. As a result the story lines are not as strong as what we were looking for. This sort of historical/anthropological series is difficult for us to do in the face of our current audience and its expectations."

103 Mr Amezdroz sent a copy of the letter to Mr Sumner, saying in his covering letter that he was about to travel overseas to meet with several broadcasters, and Animal Revolution would be among the projects he would be "pitching".

104 In June 1997 Mr Amezdroz attended "Sunnyside of the Doc", a documentary film market in Marseilles, France, where he discussed the project with several international broadcasters, and he arranged to attend Jackson Hole in the United States in September 1997, for a natural history film festival called "Wild Screen".

105 On 6 August 1997 Mr Sumner had a meeting with Mr Amezdroz, without Ms Stoner. The purpose was to discuss a marketing strategy for the festival at Jackson Hole. Mr Amezdroz reiterated that the contents of Parts 5 and 6 were a sticking point, and suggested that the series be confined to four parts, removing the emphasis from the "more confronting material". He suggested the involvement of someone else who could be "a commercial hook", proposing "Dr Harry". Dr Harry is a presenter of television programs concerning the veterinary care of animals, which do not contain any of the dark themes about the exploitation of animals that were of interest to the plaintiffs. Mr Sumner said he would contact Paul and Linda McCartney, who may be interested in the series.

106 According to the evidence of Mr Sumner, Mr Amezdroz gave an account of the people with whom he had been dealing. He mentioned Kathy Quattrone of PBS in the United States, a large US production enterprise called the Mandalay Group (Barry Clark and Peter Guber being the persons identified), and also a producer called Jason Williams, who was "carrying around an idea scribbled on a piece of paper called Dominion", containing much the same themes as Animal Revolution. Mr Amezdroz disagreed with this evidence. His evidence was that he had not dealt with PBS at that time, and although he knew Mr Williams and the Mandalay Group, they had nothing to do with the project at that time. He denied having mentioned their names to Mr Sumner at the August meeting. Mr Amezdroz's account of the meeting is supported by his meeting notes and is consistent with the tender bundle of correspondence, and I accept his evidence.

107 Mr Sumner wrote to Mr Amezdroz on 19 August 1997, saying that after reviewing the material, he had concluded there was little point in re-hashing what he believed to be a perfectly viable series. He said Mr Amezdroz should feel free to chop off parts 5 and 6 if he wished, but there was no logic to introducing famous names and re-shuffling the contents. He said:

"As for Dr Harry - another fourth rate pet show? Or perhaps we could have our son eaten by a dingo and Lynda could do the follow up to Animal Xtremes?"

108 Ms Stoner had a telephone conversation with Mr Amezdroz some time in August 1997, in which (according to her evidence) Mr Amezdroz told her that he had met with Jason Williams, who had produced a single sheet of paper headed "Dominion", containing some "scribbled handwritten notes" about the theme of human relationships with animals throughout the ages. She said Mr Amezdroz told her he gave Mr Williams some material setting out the plaintiffs' concept, and Mr Williams said that was exactly what he had in mind. Ms Stoner said she felt this was a very positive conversation, which left her with great hope. I accept this evidence, except in one respect. I do not accept that Mr Amezdroz described the Dominion outline as "scribbled handwritten notes". That is inconsistent with the evidence of Mr Williams as well as Mr Amezdroz, and the evidence includes a typed single page outline (set out below) which was evidently the one referred to in the conversation.

109 Mr Amezdroz and Mr Williams gave evidence of their contact and the Dominion idea. Mr Amezdroz said he met with Mr Williams in August 1997, while the latter was visiting Australia. The Beyond Group had collaborated with Mr Williams on a production entitled "Submarines - Sharks of Steel" and Mr Williams was visiting Australia to market other ideas. Mr Williams is a documentary producer who has developed valuable relationships with US broadcasters. A relationship between the Beyond Group and a producer such as Mr Williams is mutually beneficial because they can combine their resources in order to pursue larger and more expensive projects in the world market.

110 Mr Williams showed Mr Amezdroz a project folio containing brief descriptions of ideas. On the back page of the folio there was a synopsis of a project entitled "Dominion". It was short but it was not scribbled or hand-written. The synopsis was on the letterhead of JMW Productions and at the foot of the page were the words "(c) 1997, JMW Productions LC". The synopsis was as follows:

"DOMINION - A 4 X 60 SERIES

'Let us make human beings in our image, after our likeness, to have dominion over the fish in the sea, the birds of the air, the cattle, all wild animals on land, and everything that creeps on the earth.'

Dominion is the story of mankind's relationship with the animal world.

Animals are our friends and our foes; our prey and our predators; our labour and our beast of burden; our victims and our gods. The herding of species has defined entire civilisations; Bedouins, Laplanders, cowboys. The annihilation of the species, the American bison, was used by one people to decimate another. Animals have been the dispensers of plagues, the repositories of wealth, the characters in our midst and the main course at dinner.

From the earliest flickerings of human awareness, through the emergence of hunting and farming societies, up until the present day - we will tell the story of our most complex and enduring association.

They have provided us with sustenance, clothing, transportation, pleasure, companionship, wisdom and nightmares. We have embraced them for their beauty, distanced ourselves from their sensuality and violence, and boasted of our power to place them under our command. Yet never has the full story of this most fundamental partnership been told.

Dominion

111 Mr Williams said he created the concept for Dominion in about 1989, while he was in the employment of Turner Broadcasting, and when he moved from that company to Time Warner Inc in 1990 he negotiated retainer of ownership of the Dominion project. While employed at Time Warner, he continued work on the Dominion project with a view to developing it as a television production. When he left Time Warner in 1995, he entered into a severance agreement under which Time Life Inc agreed to assign the Dominion project to Mr Williams or any independent production company of which he was a director or principal. He founded JWM Productions in April 1996, and ownership of the copyright over the Dominion project was then assigned to that company.

112 Mr Amezdroz gave Mr Williams a copy of the Beyond Treatment, saying it was a similar concept. Mr Williams said he had seen a similar concept being marketed by at least three other parties. They then discussed joining forces to market Animal Revolution through Mr Williams' relationship with broadcasters in the United States.

113 Mr Amezdroz gave evidence that when he telephoned Ms Stoner subsequently, he told her that he had discussed with Mr Williams that they should join forces to market Animal Revolution, and in that way make use of Mr Williams' connections with broadcasters in the United States. The plaintiffs denied that anything was said about joining forces. My finding is that Mr Amezdroz's evidence on this point should be accepted. It seems to me implausible that he would have mentioned his conversation with Mr Williams and his discovery of the similarity of the Dominion and Animal Revolution concepts, without saying something to Ms Stoner about what he proposed to do in consequence of that discovery.

114 On 27 August 1997 Mr Sumner wrote to Paul and Linda McCartney, apparently on the basis of some existing acquaintance through a mutual interest in animal welfare. He explained that the networks were demanding that the last two parts of the series be dropped, asserting that this would "destroy the whole purpose and integrity of the series" and claiming that he and Ms Stoner had therefore refused to do so. Consequently, he said, the series was temporarily "dead in the water", and he asked whether they would be prepared to be involved in any way, in order to get the program off the ground. A communication company responded on behalf of Paul and Linda McCartney by letter of 17 September 1997, saying that they were heavily committed to other projects for some time and therefore had to decline the invitation to participate in the series.

115 On 25 September 1997 the plaintiffs re-executed the development and production agreement, in effect extending it by a further 12 months. In an internal e-mail Mr Amezdroz said that the option should be renewed "given the recent interest in the project". By that time the relationship between Mr Sumner and Mr Amezdroz appears to have become cordial, for in a letter of 28 September 1997 to Mr Amezdroz, confirming his agreement to extend the contract for a further 12 months, Mr Sumner concluded "Hope you are well and thriving".

116 In cross-examination, Mr Sumner said that he was not aware of any developments between 27 August, when he wrote to Paul and Linda McCartney, and 25 September when the agreement was re-executed, that would have led him to revise his view that the project was "temporarily dead in the water", other than the sheer fact that Beyond proposed a new agreement. I find, therefore, that there was no representation by the defendants to the plaintiffs on or about 25 September 1997 with respect to the project, other than the contents of the new agreement.

Conclusions with respect to alleged representations in the period 25 September 1996 to 25 September 1997

117 Paragraph 8 of the Amended Composite Statement of Claim says:

Particulars

118 The findings of fact that I have made that although statements were made along the lines of those particularised in sub-paragraphs (a), (b) and (c), they were subject to the contingencies that funding would be found so that the production could go ahead, and that the broadcaster would approve the participation of the plaintiffs in the series. The statements were not unqualified representations as to present or future matters.

119 As to sub-paragraph (d), I have found that there was no representation that the series was definitely going ahead, and although the discussions contemplated that the plaintiffs would continue their research and other work on the project, their doing so was not tied to any binding commitment on the defendants' part.

120 As to sub-paragraph (e), while the defendants from time to time mentioned various broadcasters and networks who were interested in the Series, there was no representation that pre-sales would take place.

121 My findings imply that, to the extent that limited, contingent representations relating to the matters pleaded in paragraph 8 were made, it would not have been reasonable for the plaintiffs to act in reliance upon those representations to their detriment, in the fashion pleaded in paragraph 13.

122 Paragraph 11 of the Amended Composite Statement of Claim says:

"On or about 25 September 1997 the first defendant further represented to the plaintiffs that the Series was going ahead and requested the plaintiffs to re-sign the Agreement as at 25 September 1997."

123 My findings of fact mean that the first part of this representation was never made, and consequently it was not reasonable for the plaintiffs to act in reliance upon the representation to their detriment, in the fashion pleaded in paragraph 13.

Subsequent events, from late September 1997

124 In late September 1997 Mr Amezdroz visited the natural history film festival at Jackson Hole. While there, he met with Mr Williams and together they "pitched" Animal Revolution/Dominion to a number of broadcasters including PBS, Mandalay Media Arts, WNET, Time Life and Readers Digest. He contacted Mr Sumner when he returned, and told him that the project had been presented to a number of broadcasters at Jackson Hole. According to the evidence of Mr Amezdroz, he said that Mandalay had a project of their own which was very similar to Animal Revolution. Mr Sumner denied that this was said. I have not identified any evidence bearing on this disagreement, and I am left to choose between the competing accounts with no external assistance. Given my comments on the general credibility of the evidence of the two witnesses, I prefer, very much on balance, the evidence of Mr Amezdroz.

125 Mr Amezdroz had further contact with Mr Williams in October 1997. On 1 October 1997 Mr Williams sent an e-mail to him to advise that he had arranged a meeting with Mr Guber for 3 October. On 15 October 1997 Mr Williams sent another e-mail to Mr Amezdroz after he had spoken to Ms Chris Weber from National Geographic, reporting that she really liked their "favourite idea". Mr Williams also sent an e-mail reporting on a conversation with Ms Phyllis Geller from WETA, saying she had reservations about the content, but recognised that it was a series in process.

126 In late October Peter Abbott, one of the Joint Heads of Production at Beyond Productions, became involved in the marketing of Animal Revolution. While he was visiting the United States, Mr Abbott was contacted by Mr Williams, who wish to discuss Animal Revolution, because he had realised that Beyond, Mandalay and JWM Productions all had similar projects and were trying to raise money from the same people, and he suggested they would be better off to join forces. Mr Amezdroz briefed Mr Abbott on the project, telling him that the idea was brought to Beyond by the plaintiffs, and that Ms Bezjak had prepared the proposal, and there had been discussions with Mr Williams about co-production by Beyond and JWM Productions. Mr Williams arranged a meeting between himself and Mr Abbott, and Mr Guber, the chief executive at Mandalay, and others representing those three companies. The meeting took place on 24 October 1997.

127 In an e-mail to Mr Abbott dated 11 November 1997 Mr Amezdroz noted that he had not heard from Mr Williams regarding Animal Revolution for the past two or three weeks, and noted that as Mr Sumner was involved in the project, as a courtesy he should be appraised of its status. Mr Abbott replied on the same day, asking how Mr Sumner was involved, given that Ms Bezjak had written the proposal. Mr Amezdroz responded, referring to the development and production agreement and saying:

"In short Peter brought the idea to us. However he will need to be associated with the production. We need to address this matter before [Mr Borglund] makes any commitment to any parties."

128 Mr Abbott responded, asking exactly what Mr Sumner had brought to the project. He said that the Beyond Treatment was "pretty generic" and that it could go in any one of several ways that it had left open. He later considered the original outline for Animal Acts and compared it with the Beyond Treatment, and formed the view that the projects had a similar one line synopsis but were different in detail, structure and execution. Animal Acts had been written as a vehicle for Ms Stoner, who was the designated presenter, and in Mr Abbott's view it had a strong animal activist slant. He formed the opinion that once these two elements were removed from the Animal Acts outline, what remained were issues well within the public domain. These views were challenged by the plaintiffs, but on the basis of my perusal of the documents, I agree with Mr Abbott's assessment.

129 In an e-mail to Mr Borglund dated 17 November 1997, Mr Williams reported on a further meeting he had had with Mr Guber, who was enthusiastic for the project but thought that the "big idea" had yet to be captured. Mr Williams suggested that two documents be created, one defining the project in terms of a "network pitch" and the other aimed at the US public broadcasting service, PBS. Mr Williams summarised the somewhat confused position as follows:

"The project in its various incarnations: Animal Revolution (yours), Dominion (ours) and The Serpent's Kiss (Barry's [evidently referring to Barry Clark of Mandalay]) and, by extension, his [referring to Mr Guber of Mandalay]."

130 In November 1997 Mr Sumner and Mr Amezdroz had several short conversations, in which Mr Amezdroz updated Mr Sumner on the state of negotiations. In that month Mr Amezdroz ceased to have any further day-to-day involvement in the Animal Revolution project, and Mr Abbott assumed an active role in relation to the marketing of the project. Subsequently Mr Amezdroz telephoned Ms Stoner to say that he would no longer be involved in the Animal Revolution project, and to reassure her that Beyond was not losing interest in it.

131 In December 1997 and early January 1998, Mr Abbott and Mr Borglund had discussions with Mr Williams and then Mr Guber of Mandalay regarding a three-way co-production of Animal Revolution by Mandalay, JMW Productions and Beyond. On 20 December 1997 Mr Williams sent an e-mail to Mr Borglund referring to interest shown by WETA (a free-to-air broadcaster in United States) in "the property". It is not clear whether WETA was given a copy of the Beyond Treatment, or merely some summary presentation of the underlying ideas. Mr Williams said that WETA's editorial idea was "a history of people and animals that delivers plenty of natural history, plenty of ancient history, plenty of mythology and a whole bunch of pets". He said "they don't want science and they don't want current affairs and they don't want doom and gloom". He noted that the program was now to be a four-part series and to have a title other than Dominion, Animal Revolution or The Serpent's Kiss. He referred to a short editorial document that he was preparing to reflect discussions between JWM, Beyond and Mandalay, suggesting that it be revised to reflect the stated interests of WETA. On 31 December 1997 Mr Williams sent Mr Abbott a draft of this document, proposing the title "Tangled Destinies" for the series. The document reflected WETA's approach, as outlined above, and in that fashion it was substantially different from both Animal Acts and Animal Revolution.

132 On 5 January 1998 the plaintiffs met with Mr Amezdroz and Mr Abbott. Mr Amezdroz introduced Mr Abbott as the person who would be taking over from him as producer. Mr Abbott said he would shortly leave for the United States to "re-pitch the idea" at another conference, and he said he felt positive about the outcome. According to the evidence of Mr Abbott and Mr Amezdroz, Mr Abbott informed the plaintiffs at the meeting that Mr Williams and Mandalay had similar projects to Animal Revolution, and there were discussions in progress with them with a view to joining forces in order to get the project off the ground.

133 Mr Sumner denied that this was said, or that anything was said about a "co-production". In his version of the conversation, denied by Mr Abbott, Mr Abbott asked him and Ms Stoner how strong their commitment was to the project, and said that he wanted to hear for himself that their commitment was as strong as ever. Mr Sumner said that Mr Abbott told him that one of the parties (that is, broadcasters or networks) needed to make a final decision and then they would have the "green light" to proceed. He claimed that Mr Abbott assured him that he (Mr Abbott) would do a great job selling the project.

134 My finding on this disputed evidence is, on balance, to prefer the defendants’ evidence to the plaintiffs’, on the general ground of credibility of witnesses, and also the inherent plausibility of the respective accounts.

135 By an e-mail dated 7 January 1998 to Mr Abbott, Mr Williams reported that after a two-hour meeting with Mr Clark of Mandalay, a title for the project had been agreed, namely "The Primal Contract". The e-mail set out a revised outline of The Primal Contract. Mr Williams invited Mr Abbott to comment, with the view to presenting the finished document to Mr Guber on the following Monday and then sending it out to WETA.

136 The outline was a short "one-page" document, reflecting a series in four episodes which were entitled "The Hunters and the Hunted - 25,000-2000 BC", "Heavenly Creatures and Working Gods – 2000 BC-250 AD", "Blood Sports - 250-1750 AD", and "From Dominion to Communion - 1750-2000 AD". It will be noted that the episode titles for the first three parts are similar to the episode titles for Animal Revolution, which in turn are related to the episode titles for Animal Acts. However, episode 4 reflects a concept quite different from episodes 5 and 6 of Animal Revolution, which is in turn different in concept from parts 5 and 6 of Animal Acts. The titles in the new outline suggest an optimistic and uncritical presentation of the development of man's relationship with animals, consistent with WETA's approach but quite different from the themes of Animal Acts and even Animal Revolution.

137 The outline concluded that The Primal Contract would be brought to the screen by directors such as a number of named individuals, including Mr Sumner. Mr Sumner gave evidence, which I accept, that he was not consulted about the possibility that he would produce the series alongside other directors.

138 The North American Television Producers' Expo ("NATPE"), a forum for the marketing of potential television projects attended by 8000 to 10,000 delegates, was held in New Orleans in mid-January 1998. Mr Abbott and Mr Borglund met with Mr Guber and representatives of WETA to discuss the brief outline of The Primal Contract, which had been supplied to WETA before they met.

139 It appears from an e-mail dated 29 January 1998 from Mr Abbott to Ms Massie of Beyond, copied to Mr Gregory and Mr Amezdroz, that what was proposed was a project to be produced by JWM Productions in the United States, with Beyond as a "distributor and bank". The exact meaning of this is unclear, and in any case what subsequently emerged was a co-production arrangement involving Mandalay as well. Mr Abbott said that the proposal would not use "anything from the original breakdown of episodes but there is no doubt a very similar one line synopsis". He said that it was "overly ambitious to expect what Peter Sumner expected" but that this was "unlikely to be his opinion". He said "we need to manage and deal with this well and fairly".

140 Mr Abbott gave evidence that he told Mr Williams not to use the Beyond Treatment in developing The Primal Contract. He said that his concern to quarantine the Beyond Treatment was based on "emotional reasons rather than fear of the Beyond Group's legal liability to [the plaintiffs]". His evidence was that the Animal Revolution project did not contain any important information or research that would be of use to the Beyond Group in The Primal Contract project.

141 The plaintiffs met with Mr Abbott on 17 February 1998. The meeting was arranged by Mr Abbott, whose intention was to convey Beyond's decision to the plaintiffs. He hoped to do so in a diplomatic fashion, and he expected that they would be very disappointed. Both plaintiffs gave evidence that the meeting took place at Beyond's offices at Artarmon, in what they thought was a tea room where they sat around a laminex topped table. Previous meetings had been held in the company's boardroom or meeting rooms. Mr Abbott's evidence was that the meeting occurred in Room 2 at Beyond's Artarmon offices. In my opinion the meeting was held in Room 2, as Mr Abbott said, although it may have had something of the appearance of the tea room. In any case, nothing turns on this point.

142 After some general conversation (during which, according to the plaintiffs' evidence, Mr Abbott appeared agitated and nervous), Mr Abbott told the plaintiffs about Beyond's decision.

143 According to Mr Abbott's evidence, denied by the plaintiffs, he said:

Animal Revolution

Animal Acts

Animal Revolution

144 According to the plaintiffs' evidence, denied by Mr Abbott, Mr Abbott said:

"You can have your project back. Your loss to an overseas company is now a matter of fact you will have to face. Ideas are sometimes in the wind."

145 He said Jason Williams Productions of Washington DC would produce The Primal Contract, as a four-hour series, and that pre-sales had been arranged with PBS in the United States. Beyond Distribution would take the world distribution rights.

146 As I understand the evidence, these accounts differ more in tone and the level of diplomacy used, than in substance. The statement "you can have your project back" amounts to saying that, notwithstanding clause B5(ii) of the development and production agreement, Beyond would return the Original Materials without charge. The fact, not contested, that Mr Abbott placed the Developed Materials (Animal Revolution) on the table as well as the Original Materials implies that the statement extended to both documents. It is unnecessary for me to decide exactly what tone was adopted by Mr Abbott in communicating these ideas. Both sides agree that the plaintiffs responded to Mr Abbott in an angry fashion, and threatened to sue.

147 Mr Sumner contacted Mr Iain Finlay, persuading him to intervene with Beyond on the plaintiffs' behalf. There was some correspondence between Mr Finlay and Mr Gregory, most of which is not in evidence, but no solution emerged.

148 In their submissions the plaintiffs placed some emphasis on an e-mail from Mr Abbott to Juliet Grimm of Beyond dated 17 February 1998. Mr Abbott responded affirmatively to a question by Ms Grimm, in which she asked whether The Primal Contract and Animal Revolution were one and the same project. I do not regard this evidence as significant. In its context, Mr Abbott's statement is no more than an assertion that Ms Grimm should treat The Primal Contract as the project replacing or superseding Animal Revolution. As he said in cross-examination, his response was a "sales answer" rather than an "editorial answer".

149 Beyond worked with JWM Productions and Mandalay towards the development of The Primal Contract. JWM Productions engaged an author to prepare the script, and it was proposed that Beyond would play no part in the writing other than to provide feedback on the finished project. Eventually, however, it was decided that The Primal Contract would not proceed. According to the evidence of Mr Williams, this occurred when a "cheap and cheerful version of the concept" was released by a British natural history production company, United Wildlife.

The Trade Practices claims

150 The Trade Practices claims in the Amended Composite Statement of Claim are based upon allegations of misleading and deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth), constituted by the `representations pleaded in paragraphs 6, 8, 10 and 11. I have found that none of the pleaded representations were made. Consequently the claims to relief based upon contravention of s 52 must fail. I have also found no such representations as alleged were relied upon, and that it would not have been reasonable for the plaintiffs to rely upon such representations as were made to their detriment in the manner pleaded in paragraph 13. Consequently the claim to damages based upon contravention of s 52 must fail.

151 Paragraph 18 of the Amended Composite Statement of Claim alleges that Mr Amezdroz and Mr Borglund aided, abetted, counselled and procured Beyond's contraventions of the Trade Practices Act. The plaintiffs did not adduce any evidence specifically directed to substantiating this claim against Mr Borglund. In any case, since there was no contravention of s 52, the claim against both Mr Amezdroz and Mr Borglund for ancillary Trade Practices liability must also fail.

152 For the same reasons, the claims in paragraph 16 of the Amended Composite Statement of Claim for breach of s 42 of the Fair Trading Act 1987 (NSW) and for breach of a duty to take reasonable care in the making of the representations, must also fail.

The contract claim

153 The plaintiffs allege, in paragraph 19 of the Amended Composite Statement of Claim, that there was an agreement that, in consideration of Mr Sumner supplying the Original Materials to Beyond, it would employ the plaintiffs in connection with the Series and pay them the sum of $250,000 on or before April 1998. No particulars of the agreement were furnished. They claim breach of this agreement.

154 Such a term is not expressed in the development and production agreement. There is no basis for implying any such term on the usual tests, especially having regard to the express provisions of the agreement with respect to employment and fees. My findings of fact imply that there was no collateral agreement to that effect.

155 In summary, the claim that any such contract, express or implied, was made is not supported by the evidence, and is in fact contrary to the evidence.

The copyright claims

156 There are two copyright claims. First, paragraph 21A of the Amended Composite Statement of Claim pleads that the defendants have infringed, or have aided and abetted the infringement of, the plaintiffs' copyright in the Original Materials, by authorising, permitting or being a party to the reproduction of substantial parts of the Original Materials without the consent or licence of the plaintiffs. The allegation is, according to the particulars of that paragraph, that Mr Sumner assigned his rights to the Original Materials for a period of only 12 months, extended for a further period of 12 months, to allow Beyond to develop the Original Materials and produce the Series, but the defendants provided the Original Materials to an overseas company to develop and produce some other series based upon them. It appears that the overseas company contemplated by the pleading was JMW Productions, Mr Williams' company.

157 As I have said, my view of the evidence is that any copyright that subsisted in Animal Acts belonged to Mr Sumner prior to the development and production agreement, and not to him and Ms Stoner together. The claim would need to be adjusted to reflect that finding.

158 Even after such an adjustment, the claim would fail on the facts. There was no evidence that the Original Materials (that is, Animal Acts) were supplied to Mr Williams or anyone else overseas. Counsel for the plaintiffs did not cross-examine any of the defendants' witnesses on this point. Mr Williams gave evidence that the Beyond Treatment was the only document or information he received from Beyond in relation to Animal Revolution. Mr Abbott gave evidence that he instructed Mr Williams not to use that material in developing The Primal Contract, and there was no evidence that this instruction was not complied with, except the similarity of the episode headings. Mr Williams explained that as, in effect, a gesture of Beyond's contribution to the proposed co-production, which had no significance so far as the content of the programs was concerned.

159 Moreover, the comparison of Animal Acts, Animal Revolution and the one-page outline for The Primal Contract shows, in my view, that the documents are significantly different in content. I have described the differences earlier in these reasons for judgment.

160 For these reasons, the first copyright Claim must fail.

161 Secondly, paragraph 21B pleads in the alternative that Mr Sumner's assignment of copyright to Beyond was limited as to time and purpose. Consequently Beyond had no power or entitlement to deal with the copyright other than use it to develop further Materials for the Series containing both new elements and also the Original Materials. In breach of those limitations the defendants provided the Original Materials to JMW Productions or other companies to develop a different series which was to be produced by JMW Productions or other companies, and entered into an arrangement to produce The Primal Contract using the same concept as the Original Materials.

162 As with the first copyright claim, this claim fails because of the absence of evidence that Animal Acts was supplied to Mr Williams or used by him in the development of The Primal Contract or any other series. It also fails because, as I have said, The Primal Contract is fundamentally different in concept from Animal Acts.

163 Additionally, the contention that Mr Sumner assigned his copyright in the Original Materials for a limited period and purpose is inconsistent with the provisions of the development and production agreement. Clause A4 states that Beyond shall pay the plaintiffs $500 in consideration of, inter alia, Mr Sumner assigning to Beyond all his right title and interest (including copyright) in and to the Original Materials. Those words are words of absolute assignment, without limitations of the kind alleged by the plaintiffs. That construction is reinforced by clause B5(ii), which gives Beyond an absolute discretion, after expiry of the initial development period of 12 months, to determine that it does not want to continue development of the Series, and in that event it gives the plaintiffs the right to acquire the Developed Materials at a price to be agreed between the parties. It is the Developed Materials, which contain both new elements and also the Original Materials, that the plaintiffs are contingently entitled to acquire. They are not entitled to re-acquire copyright in the Original Materials as such, and in any event their right to re-acquire is for a price to be determined. Those provisions assume, in my view, that the plaintiffs at that stage have no copyright in the Original Materials or any other part of the Developed Materials.

164 For these reasons the second copyright claim also fails.

The claims for damages and punitive and aggravated damages

165 The claim is that the defendants have acted arrogantly, mindful only of their own interests and in contumelious disregard of the rights of the plaintiffs, and therefore they should be punished in an exemplary manner by requiring them to pay punitive damages. It follows from my findings that there is no basis for any award of damages against the defendants nor, a fortiori, punitive or aggravated damages.

166 In view of my primary findings, it is unnecessary for me to go into questions of quantum.

The cross-claim

167 The defendants have sought a declaration that any copyright in the work Lynda Stoner's Animal Acts vested absolutely in Beyond on 25 September 1996. Evidence has been given by the defendants' witnesses that the project has no future. It might therefore be suggested that the dispute to which the making of a declaration would relate is a merely academic dispute.

168 I disagree with that suggestion. The plaintiffs contended throughout the hearing that the development and production agreement assigned their copyright for a limited period of one year, and they maintained that they are now the copyright owners. That claim is incorrect, as a matter of construction of Clause A4 of the agreement, read in conjunction with clause B5(ii). The declaration sought by the defendants will resolve that dispute between the parties, and is therefore not academic. In my opinion it is appropriate that the declaration be made.

169 I note in passing that the defendants have offered to re-assign the copyright in Animal Acts to the plaintiffs, on condition that the plaintiffs acknowledge that the first defendant owns the copyright in Animal Revolution and that the reproduction of Animal Revolution and the progression to The Primal Contract does not comprise any breach of the copyright in Animal Acts.

Conclusions

170 The plaintiffs have failed to establish any of their claims against the defendants. The proceeding should therefore be dismissed. The defendants have succeeded in their cross-claim, and a declaration should be made as sought by them. I see no reason why I should not order the plaintiffs to pay the defendants' costs on the normal basis, if there is an application for that order, but I shall give the parties the opportunity to make any submissions on costs if they wish to do so, after they have considered these reasons for judgment.

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Last Modified: 01/30/2003

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Sumner v Beyond Properties [2003] NSWSC 2

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CITATION:	Sumner v Beyond Properties [2003] NSWSC 2
HEARING DATE(S):	2, 3, 5, 25, 30 July, 1, 19, 20, 30 August, 3 September 2002
JUDGMENT DATE:	15 January 2003
JURISDICTION:	Equity
JUDGMENT OF:	Austin J
DECISION:	Statement of claim dismissed; declaration made on cross-claim that copyright vested in first defendant by virtue of instrument of assignment
CATCHWORDS:	TRADE PRACTICES - misleading and deceptive conduct by representations - alleged representations found not to have been made - INTELLECTUAL PROPERTY - assignment of copyright - alleged breach of copyright in concept for television series - developed material significantly different from original material
LEGISLATION CITED:	Fair Trading Act 1987 (NSW) s 42 Trade Practices Act 1974 (Cth) s 52
PARTIES :	Peter Sumner (P1, X-D1) Lynda Stoner (P2, X-D2) Beyond Properties Pty Ltd (D1, X-C) Mikael Borglund (D2) Stephen Amezdroz (D3)
FILE NUMBER(S):	SC 3712/99
COUNSEL:	Mr C Evatt QC with Mr M K Rollinson (P) Mr A Spencer (D)
SOLICITORS:	Antonys Lawyers (P) Holding Redlich (D)