Twikler v The Keding Group Pty Ltd
[2008] FMCA 1713
•29 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TWIKLER v THE KEDING GROUP PTY LTD | [2008] FMCA 1713 |
| COPYRIGHT – Infringement – house floor plan – alleged infringing floor plan a copy of the original – no copying of plan – application dismissed. |
| Copyright Act 1968 ss.31, 35 |
| Applicant: | JOHN HERMAN TWIKLER |
| Respondent: | THE KEDING GROUP PTY LTD T/A ALL WEATHER HOMES COOLOOLA JPJ (NT) Pty Ltd |
| File Number: | BRG 434 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 24 October 2008 |
| Date of Last Submission: | 24 October 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 29 October 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Bowden |
| Solicitors for the Respondent: | John Joyce Solicitors |
ORDERS
That the application filed on 7 July, 2008 be dismissed.
That the applicant pay one half of the respondents’ costs of the proceedings.
By consent, the costs payable by the applicant be fixed in the sum of $4,000.00, such sum to be paid within three (3) months of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 434 of 2008
| JOHN HERMAN TWIKLER |
Applicant
And
| THE KEDING GROUP PTY LTD T/A ALL WEATHER HOMES COOLOOLA AND ORS |
Respondent
REASONS FOR JUDGMENT
Ex tempore
In 2006 John Twikler, the applicant in this case, designed a house that he wished to construct on a parcel of land situated at Southside, Gympie. He had some experience in house design and he says – and I accept – that he designed the house so as to suit that particular block of land. In July, 2007 he contracted with the respondent, The Keding Group Pty Ltd trading as All Weather Homes Cooloola, for it to construct the house designed by him on the Southside land.
Construction commenced in August, 2007 and was substantially completed by mid-December, 2007. There were some minor disputes between the parties about defects and incomplete work, but they seem to have been resolved by March, 2008. The particulars of those disputes are not relevant to the proceedings before me.
The respondent, The Keding Group Pty Ltd trading as All Weather Homes Cooloola carries on business as a builder of residential homes. In the course of its business it employs Mr Paul Meekin as a sales and a design consultant. Mr Meekin describes himself as a "freelance salesperson for The Keding Group trading as All Weather Homes Cooloola". Mr Meekin is the sole director of the respondent in these proceedings, JPJ (NT) Pty Ltd. There is a third respondent – described as Keding Enterprises Pty Ltd as Trustee – but there is very little evidence about the part that respondent has had to play in these proceedings.
On 15 January, 2008 Mr Twikler saw an advertisement in a newspaper called the Cooloola Advertiser. It advertised that All Weather Homes Cooloola had for sale "a brand new spacious four-bedroom house" for $376,000.
The advertisement bore the name of the respondent, All Weather Homes Cooloola and invited contact with Mr Paul Meekin. The advertisement included a floor plan of the house that was for sale.
Mr Twikler saw the advertisement and investigated. He subsequently discovered that all three respondents, it seems, owned some land upon which there was constructed a house that appeared to have been built in accordance with the floor plan set out in the advertisement in the Cooloola Advertiser. The house was built on land situated at Centenary Close, Glen Eden Estate in Gympie. There seems to be no real contention in the case that the house constructed on the Glen Eden Estate land is not constructed in accordance with the floor plan set out in the Cooloola Advertiser.
In these proceedings Mr Twikler alleges that:
a)he owned the copyright and continues to own the copyright in the plans used to construct his house on the Southside land because he is the author of them;
b)the plans used by the respondents to construct the house at Glen Eden Estate are a copy of his plans;
c)the respondent, JPJ (NT) Pty Ltd has copied his plan for the purposes of producing the plan used to construct the house at Centenary Close;
d)in doing so JPJ (NT) Pty Ltd has infringed his copyright in his plan; and
e)by constructing the house at Glen Eden Estate in accordance with the plans, each of the respondents together have infringed his copyright in the plan.
The respondents deny infringing Mr Twikler’s copyright. They claim he does not hold the copyright in the floor plan of the Southside house and speculate that he might have copied a plan owned by All Weather Homes Cooloola for a house known as the “Orchid II”.
Although there is in the application and the affidavits references to “plan” and “plans”, what is at the heart of this matter is the floor plan for the home constructed at Southside and the floor plan for the home constructed at Glen Eden Estate.
The principles that are involved in this case are relatively well-known. Mr Twikler sets out in his principal affidavit – that filed on 7 July, 2007 – extracts from the Copyright Act 1968 which really bear on the issue of this case. He sets out, for example, s.31 of the Act which deals with the nature of copyright in original works. He sets out the definition of a work, the definition of artistic work, and then importantly, s.35 of the Act which defines the circumstances in which ownership of copyright and original works will vest in certain people or organisations. He then refers to those sections of the Act that deal with infringement.
A plan such as that produced by Mr Twikler in this case is an original artistic work for the purposes of the Copyright Act 1968. There can be really no doubt that it is the type of work in which copyright will vest. On all of the evidence, Mr Twikler is the author of the floor plan propounded by him as the one used to construct the property at Southside. I am satisfied that he owns the copyright in that plan. I reject the respondents’ speculation that Mr Twikler somehow copied the “Orchid II” plan.
In determining whether there has been an infringement of the copyright in Mr Twikler’s plan involves, broadly speaking, two aspects. The first is to determine whether the purported infringing work, in this case the building on the land in Gympie and the floor plan for it, are copies of the original plan. That is an objective exercise. The Court looks at the plans or the particular building and compares them with the copyrighted plan. Whilst expert evidence about the points of similarity and the points of difference is admissible, ultimately the exercise to be undertaken is an objective exercise which the Court itself must undertake. Are the plans or the works substantially similar so as to permit one to say that one is a copy of the other?
The second step is a more subjective step. It requires the Court to consider whether the purported infringing plan was produced as a result of copying the original in which copyright is claimed.
In terms of the first step, I am satisfied that the plan used to produce the respondents’ building at Glen Eden Estate is a copy of Mr Twikler's plan. Objectively speaking, they look the same. There are differences between them and the differences are the subject of some expert evidence. There is Mr Bolton's evidence and there is Mr Meekin's evidence on the differences. There is the very useful schedule that Mr Meekin has produced, exhibit J to his affidavit, that sets out in large measure the differences between the plans, but it is an objective exercise comparing one to the other, and when I do that, I am impressed with the similarity between the two plans. The similarities are much starker than the differences.
They are two plans for a residence with a garage at one end and a bank of bedrooms along what might be described as the back of the building. There is a distinctive arrangement of three living areas, a kitchen, a living room, and a dining room. There is a pergola area and an entry area which look somewhat the same. There are some minor differences in detail. There is a slightly different arrangement in the respondents’ plan in terms of the set-out of the wet areas - the laundry and the bathroom - but by and large one is struck by the similarity between the plans.
Although it is not entirely necessary to decide the point, I am also of the view that Mr Twikler's plan, objectively speaking, is a copy of the Orchid 2 plan. There are some more significant differences between the two plans, the number of bedrooms for example, and the layout of the wet areas and the like, but one cannot help but be struck by the similarity between those two plans. Objectively speaking, one could easily conclude – and I do – that Mr Twikler's plan is a copy of the Orchid 2. The three plans are very similar.
The real issue in this case is whether the respondents produced the offending plan by copying Mr Twikler's design. The conclusion I have come to on that issue is that they did not.
Mr Twikler's case is entirely understandable. He says that he presented his floor plan to the respondents and given the timing of the construction of his house and then the Glen Eden Estate house, the respondents must have copied his plan when producing their own. Despite being given every opportunity by Mr Twikler to explain how they produced their plan the respondents failed to do so and that added support to Mr Twikler’s conclusion that they had copied his plan. Mr Twikler argues that because there is no other explanation for the production of such a remarkably similar plan I should infer copying by the respondents. His case, as most of these cases often do, relies upon the Court drawing an inference of copying.
The facts, however, are against the drawing of such an inference. The evidence is that Mr Meekin and Mr Keding had for some time in 2006 harboured a desire to build a home which they could on sell for a profit. Mr Meekin says that he commenced drawing plans for a house for the particular block of land owned by the respondents at Glen Eden Estate in August, 2006. He modified those plans in October, 2006 both by reference to some plans that he was preparing for another client of The Keding Group and by his own ideas. Ultimately he ended up with the plan that was the house that was constructed at Glen Eden Estate. He says that the floor plan for that house was an evolving process.
There is no reason to doubt what he says. Mr Twikler says that I should be circumspect about his evidence; that the plans upon which Mr Meekin relies in his affidavit, particularly those plans set out at annexure B, could have been produced at any time, and that what the respondents have indulged in is some subterfuge to mask or cover their copying.
There are a number of cases concerning house plans or project house plans where the Courts have sounded the warning that one of the hallmarks of deliberate copying is a divergence between the original work and the copy. Those differences are pointed to by alleged infringers to demonstrate that they have not copied the original work in a particular case. As discussed in the cases, one needs to be careful about evidence of dissimilarity because the very nature of an infringement of copyright is deception, a copying of an original work ordinarily intentionally which is designed not to be discovered. And so in this case, Mr Twikler says that I should not accept the evidence of Mr Meekin about the circumstances in which he came to prepare the plans for the house that was built at Glen Eden Estate.
But even applying some circumspection to Mr Meekin's evidence I am not satisfied that I ought to reject it. There is nothing in the material that suggests that I should reject his evidence. There are no internal inconsistencies in his evidence of any concern. His evidence is not inconsistent with any of the other evidence in the case, and as Mr Bowden pointed out, it sits together with some of the other evidence in the case, particularly that of Mr Jorgenson and the evidence of Mr Weatherhog. It is also consistent with the evidence of Mr Keding.
For those reasons therefore I decline to draw the inference that the plan was produced by copying. That being so the application insofar as liability is concerned must fail.
Given that this hearing was to determine only the question of liability and that question has been answered in the negative insofar as the applicant is concerned it seems to me that I ought to dismiss the application, but I will hear submissions on the point.
The order will be that the application will be dismissed.
Costs ordinarily follow the event. This is an action for infringement of copyright. It is in that sense litigation that is no different to any other commercial litigation. Ordinarily costs follow the event.
The Court always has a discretion with respect to costs, but as I recollect the authorities, in a case like this there needs to be some circumstances to which a party can point that takes the case away from the ordinary rule.
In this case the applicant, who has ultimately been unsuccessful, points to three matters. The first is the nature of the application. It is an application for infringement of copyright, and as I said in the course of my reasons for judgment, the very nature of the acts said to constitute the infringement themselves carry with them the notion of deception or dishonesty in a certain sense, and so it is often difficult to prove such cases. Mr Twikler relied upon the court drawing an inference in his favour.
The second circumstance he relies on is that there have been opportunities in the past for the respondents to demonstrate that they did not copy the floor plan produced by the applicant. Proof of a negative is always difficult and until today one can understand the applicant's attitude. There was really nothing in the affidavits of any objective substance which worked against the inference. There was certainly subjective evidence, evidence sworn to by Mr Keding and Mr Meekin that they had done certain things at certain times, but it was not until today that Mr Meekin attempted - or the respondents attempted to produce what might be loosely described as some form of objective evidence; that is records produced by a computer which clearly demonstrated the dates upon which certain documents had been produced, and when that arose during the course of the trial Mr Twikler indicated that had those documents been produced to him some time ago he may well have reconsidered his position to these proceedings.
Taking all of those matters into account, it seems to me that an order for costs is called for. There ought to be an order that the applicant pays the respondent's costs, but it seems to me that those costs ought to be limited to half the costs ordinarily recovered to take account of the matters raised by Mr Twikler, which are in all of the circumstances of this case reasonable.
The objective evidence concerning the date of creation of various plans was delivered late in the proceedings. Earlier, more timely delivery might have affected the outcome of the proceedings in the sense that they may have come to an end well before today and at much less cost to both the applicant and the respondents.
ORDER DELIVERED
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 22 December 2008
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