FEDERAL COURT OF AUSTRALIA Ferntree Homes Pty Ltd v Bohan [2002] FCA 16 COPYRIGHT – infringement of copyright in plans for project home – reproduction - whether causal link between allegedly infringing plans and the copyright plans of project home builder Copyright Act 1968 (Cth) S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 followed Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415 cited FERNTREE HOMES PTY LIMITED (ACN 051 610 069) v PATRICK JOSEPH BOHAN & ORS N 454 OF 2000 LINDGREN J 18 JANUARY 2002 SYDNEY GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 454 OF 2000 BETWEEN: FERNTREE HOMES PTY LIMITED (ACN 051 610 069) APPLICANT AND: PATRICK JOSEPH BOHAN & ISOBEL BOHAN FIRST RESPONDENTS MICHAEL DEAN SECOND RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 18 JANUARY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 454 OF 2000 BETWEEN: FERNTREE HOMES PTY LIMITED (ACN 051 610 069) APPLICANT AND: PATRICK JOSEPH BOHAN & ISOBEL BOHAN FIRST RESPONDENTS MICHAEL DEAN SECOND RESPONDENT JUDGE: LINDGREN J DATE: 18 JANUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 The applicant ("Ferntree") sues for infringement by the respondents of its copyright in building plans for a project home known as the "Golden Fern MK2". Ferntree alleges that the respondents reproduced those plans in a material form. The case concerns the construction of a home on land then owned by the first respondents ("Mr and Mrs Bohan", or, the "Bohans") in accordance with architectural plans produced by the second respondent ("Mr Dean"), an architectural draughtsman. The land has apparently by now been transferred to Mr and Mrs Bohan's daughter and her husband. 2 Ferntree seeks a declaration of infringement of copyright, damages pursuant to subs 115(2) of the Copyright Act 1968 (Cth) ("the Act") and additional damages pursuant to subs 115(4) of the Act. In relation to Mr Dean, Ferntree seeks, in the alternative to damages, an accounting for profits. In addition, Ferntree seeks orders for delivery up and costs. 3 The respondents concede that the Golden Fern MK2 plans ("Ferntree's plans") are an original artistic work for the purposes of the Act, that there is copyright under the Act in them, and that Ferntree was at all relevant times the owner of that copyright. The copyright included the exclusive right to reproduce Ferntree's plans in a material form. The notion of reproduction includes a reproduction of "a substantial part" of Ferntree's plans: par 14(1)(b) of the Act. Being an artistic work, Ferntree's plans are deemed to have been reproduced if a version of them is reproduced in a three-dimensional form: subs 21(3) of the Act. Ferntree alleges that each of the respondents, without the licence of Ferntree, reproduced or authorised the reproduction of Ferntree's plans or a substantial part of them in a material form, namely, both the home which was constructed on the Bohans' land and the antecedent architectural plans drawn by Mr Dean for that home. 4 In S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466, Gibbs CJ said (at 472) in a well-known passage: "The notion of reproduction, for the purposes of copyright law, involves two elements – resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [[1963] Ch 587 at 614], 'a sufficient degree of objective similarity between the two works' and 'some causal connection between the plaintiffs' and the defendants' work." And see the discussion of the concept of reproduction in the specific context of building plans for a project home in Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415 at [70]. 5 In the present case the questions arise: whether Mr Dean's plans and the home constructed for the Bohans in accordance with them sufficiently resemble the plans for Ferntree's Golden Fern MK2 or a substantial part of those plans, and, if so, whether there is the required causal link between Ferntree's plans on the one hand and Mr Dean's plans and the home erected for the Bohans on the other hand. introduction to the evidence 6 In August 1995 John Kasbarian, the Managing Director of Ferntree, in association with Carmello Corrente of Corrente & Associates, an architectural draughtsman retained by Ferntree, designed a project home called the "Golden Fern". Following this, Ferntree constructed a display version of the Golden Fern at Mt Annan. The Golden Fern at Mt Annan was advertised in Trends magazine in 1996. 7 Ferntree was invited to display a home in a "display village" at Windsor Road, Kellyville, which, according to Mr Kasbarian, was variously called "New Homeworld" and "Homeworld Three", and which, he said, was "the largest display village in the southern hemisphere". (I will call that display village simply "Homeworld".) To that end Mr Kasbarian and Mr Corrente made some amendments to the plans for the Golden Fern to produce the Golden Fern MK2. In 1997 the first Golden Fern MK2 was constructed and since that time has been on display at Homeworld. 8 Mr and Mrs Bohan live at No 53 New Street, Auburn. Mr Bohan is a retired 72-year old man who had worked in the building industry for more than 35 years. The Bohans owned the house next door, No 55 New Street, Auburn. Number 55 was erected on the front of Lot 7 DP 30950. There was a capacity to subdivide Lot 7 so as to create a battleaxe allotment at the rear which would accommodate a second residence. 9 Mr and Mrs Bohan have a daughter Jenny Maree Putra who is married to Agung Putra. In 1998 Mr Bohan told Ms Putra that he and his wife wanted to subdivide Lot 7 and to give the battleaxe block to Ms Putra and her husband so that they could build a house on it for themselves and their children, and also so that, in due course, Mr and Mrs Bohan might come to live with Mr and Ms Putra. 10 In 1998 Ms Putra received an employment "redundancy package". In about August or September of that year, she visited Henley Homes and paid $500 "deposit" on one of their project homes to be built on the battleaxe block and took away one of their brochures. She and her husband were to depart for Indonesia virtually immediately and did not have time to take advice from Mr Bohan. After receiving her father's advice, she telephoned Henley Homes from Indonesia cancelling the order. 11 By November 1998, Ms Putra was speaking to Joe Rodi, an architect, of Pro Arch Designs Pty Ltd, about the construction of a home for the Putras on the battleaxe block. In late November 1998 she instructed Mr Rodi to prepare drawings for their home and told him what her and her husband's requirements were. 12 The Putras were not satisfied with what Mr Rodi produced. In late February or early March 1999 Ms Putra told her father of this and he suggested they retain Mr Dean. Mr Dean was a friend of the Putras, and through them, of the Bohans as well. 13 In March 1999 Ms Putra asked Mr Dean to help. He agreed to do so. He carried out a site inspection. He and the Putras went next door into the Bohans' house where they had an important conversation around the dining room table. Ms Putra gave Mr Dean a copy of the plan drawn by Mr Rodi, a survey plan, and, importantly, her own rough handwritten sketch of a floor plan showing features she wanted. A copy of Ms Putra's rough sketch is annexed to these reasons for judgment and marked "A". As well, of course, she instructed Mr Dean orally as to her and Mr Putra's requirements. 14 Mr Dean went away and worked on producing a "sketch plan". Once this was completed, he met with Ms Putra to show it to her. She approved of it and instructed him to prepare drawings to satisfy the requirements of the Auburn City Council. Mr Dean did so and handed over the required number of copies of the plans and drawings to Ms Putra for her to lodge with the Council. The Putras paid Mr Dean $500 for his trouble. 15 Ms Putra informed her father that she had received the plans from Mr Dean. Mr Bohan applied for a licence to build the house as an "owner/builder". Ms Putra lodged the application for building approval with the Council which granted approval, apparently in early October 1999. 16 In connection with the construction of the Putras' house, it was necessary for certain trusses to be fabricated. On 5 October 1999 Ms Putra sent a facsimile transmission, as from her father, to Westview Frames & Trusses Pty Ltd ("Westview"), enclosing copies of all four elevations and other drawings of the proposed house and requesting Westview to quote a price for the fabrication work. (The fax was sent as from Mr Bohan so that he could deal with any technical questions raised by Westview.) The Managing Director of Westview was Michael Alexander. When he received the facsimile, he assumed that the drawings related to the Golden Fern MK2 of Ferntree, with which he was familiar. In particular, he recognised a high raked ceiling which was a characteristic of that project home. 17 Mr Alexander needed to have a floor plan as well. So confident was he that what he had received related to a Golden Fern MK2 that he telephoned Mr Kasbarian and asked him to send a copy of the floor plan. Mr Kasbarian told him that Ferntree was not constructing the house in question. Mr Alexander then telephoned Mr Bohan and asked him to send a copy of the floor plan. Mr Bohan relayed the request to his daughter who, again as from her father, faxed a copy of it to Mr Alexander. 18 Mr Kasbarian instructed solicitors who, on 22 December 1999, wrote a letter of demand to the Bohans. Infringement of copyright was denied and construction went ahead. Apparently the battleaxe block became numbered Lot 71 and the residue of Lot 7, Lot 70, while the Putras' house erection on Lot 71 came to bear street number 55B. 19 Ferntree launched this proceeding on 8 May 2000. Construction of the Putras' home was completed in September 2000. 20 Ms Putra and Mr Dean (and, for that matter, Mr Bohan) deny that they ever saw the Golden Fern MK2 plans prior to the commencement of this proceeding. 21 Counsel for Ferntree relies heavily on similarities between the Golden Fern MK2 plans and Mr Dean's plans, and on similarities between the Putras' house and a Golden Fern MK2 display home, to satisfy the resemblance limb of the notion of reproduction. In relation to the other limb of the notion of reproduction, the causal link between the Golden Fern MK2 plans and Mr Dean's plans and the Putra residence, Ferntree relies on those same similarities and on an inference which it submits I should draw, that at relevant times both Ms Putra and Mr Dean were aware of the design of the Golden Fern MK2. reasoning General 22 Annexed to these reasons for judgment and marked with the following letters are the following documents: "B" – A copy of the Golden Fern MK2 plans; "C" – A copy of Mr Dean's plans; "D" – A schedule of similarities and differences referred to in the expert opinion evidence of Dr Paul-Alan Johnson, Chartered Architect, called on behalf of Ferntree, and that of Ms Janet Grey, Architect, called on behalf of the respondents. The schedule which is annexure "D" was prepared pursuant to a direction of the Court that the similarities and differences dealt with in the evidence be listed, and that there be noted in respect of each of them a reference to the relevant expert testimony of Dr Johnson or Ms Grey. I have considered this schedule but have not found it necessary to refer to all of the listed similarities and differences in these reasons for judgment. 23 In a case of alleged infringement of plans of a project home, it may be proper to infer the necessary causal link between the copyright plans and those of the alleged infringer from the similarities between the two, coupled with the access which the drawer of the alleged infringer's plans had to the copyright plans. It is not necessary that the person who drew the later plans should have copied the copyright plans deliberately or intentionally: the causal link may be present even though that person was unaware of the impact which the copyright plans was having upon him or her. But there must have been access to the copyright plans either directly, or indirectly such as through a reproduction of them in three-dimensional form. 24 All witnesses on both sides of the case attempted to give true accounts of their recollections. I reject attacks on the credit of Ms Putra and Mr Dean. I find that so far as they were aware, they were not reproducing the plans of the Golden Fern MK2. But it will be clear from what I have just said that this finding does not resolve the issue of reproduction in their favour. It remains possible that they were reproducing Ferntree's plans although they were unaware that they were doing so. Ms Putra's instructions to Mr Dean in March 1999 25 In her affidavit, Ms Putra said that when she instructed Mr Dean in March 1999 over the dining room table in her parents' home, not only did she hand over her rough hand drawn sketch, but as well she gave him oral instructions, as follows: "... I said words to the following effect: 'As we are building on a battleaxe block we want to use the original driveway from the existing front house. We would extend onto the existing driveway and put the garage for our new home at the end of this. For safety and security reasons I don't want an internal door from the garage straight into the house and I don't want people coming from the garage straight into my lounge room, so can you put a door to go from the garage onto a covered verandah in case of wet weather. I want the rumpus room for the children to be at the front of the home, for safety reasons – I want them to have their own private area but I want to be able to keep an eye on them. I don't want a specific area for a dining room because we want to incorporate the family room for this purpose next to the kitchen. Next to the lounge/living room I want a room kept separate to be used as a games/bar or formal dining area if in the future it was required. As you know Agung [my husband] wants to build a bird aviary and we need a protected area. I've been thinking where to put this aviary because we don't have enough space at the rear of the home, the north side is to be used for a pergola and barbeque area and the east side is the front yard.' I recall Michael then saying 'Well it looks like the aviary can go on the south side'. I said 'Yeah that looks right'. I then said 'I also want a cathedral ceiling over our lounge room which should be at the front of the house because I want three out of the four bedrooms to be at the back of the house. I really like the effect that the stain glass windows have in cathedrals and the light they allow in the house. The stain glass windows should go at the front of the house – the east side.' At another point in the conversation I said to Michael Dean 'I also want there to be a main toilet which is separate to the bathroom'." 26 In the witness box, Ms Putra was invited by counsel for Ferntree to recount, without referring to her affidavit, the instructions she gave to Mr Dean in the March 1999 conversation with him. She said she told Mr Dean that she required the following: · a cathedral ceiling with a "leadlight" to "catch the morning sunlight to ... lighten up the whole room"; · the main bedroom and two children's bedrooms to be at the rear (west) of the home; · the family or rumpus room (on both Ms Putra's sketch plan and Mr Dean's plan it was called "rumpus") to be near the lounge or living room so that Ms Putra could keep an eye on the children; · a room which she wished to be identified as a "dining" room, but which was wanted "more specifically for a games or a bar area" (on her sketch plan it was shown as "Games/Bar & or dining" and on Mr Dean's plan as "dining"); and · a bird aviary, required by her husband, which was to be placed on the south side of the house. This oral testimony accorded fairly well with the account Ms Putra gave of the conversation in her affidavit. Particular issues The cathedral or raked ceiling and elevated fixed window 27 In relation to the "cathedral" or "raked" ceiling and the related elevated fixed window at the front of the house, that is, the east elevation, Ms Putra testified that she had found those two features attractive in churches she had attended while growing up. She annexed to her affidavit photographs of the ceiling and leadlight window at St John's Church, Auburn, which she said was one of those churches. Another source of her desire to have a ceiling of that kind was the home of her friends, Sharon Vartuli and Dominic Vartuli at 39 New Street, Auburn. She also referred to the home of relatives on the Central Coast of New South Wales which had a raked ceiling, although she said that one did not "actually have the timber closing it off". 28 I found Ms Putra to be a satisfactory witness who tried to testify straight forwardly and in conformity with her best recollection. I found her evidence in the present respect convincing, and, in the absence of persuasive evidence to the contrary, would accept that she derived the idea of a cathedral or raked ceiling and a "church-like" elevated fixed window "which could actually catch the morning sunlight to ... lighten up the whole room", from the sources she mentioned. Bird aviary 29 There was substantial cross-examination of Ms Putra and Mr Dean in relation to the bird aviary. There appeared on her hand-drawn sketch a feature called "open space for bird avery [sic]" which was shown as enclosed on the northern and eastern sides by the "lounge room" and on the western side by the "Games/Bar & or dining" room. In cross-examination Ms Putra said that in the conversation over the dining room table in her parents' home in March 1999, she told Mr Dean that she would like the aviary to be located where it could be seen and enjoyed, such as off the living room, to which Mr Dean replied that he would "work it through" when working on the plan. 30 By one means or another a bird aviary would, of course, necessarily be fully enclosed in order to contain the birds. But in the plan ultimately drawn by Mr Dean, instead of a bird aviary there appeared a "fernery" covered by a "pergola". On the plans for the Golden Fern MK2 there appeared in the same location a courtyard covered by a pergola. Taxed in cross-examination with this apparent departure from his instructions, Mr Dean said he thought it advantageous not to designate the feature an "aviary" because to do so would necessitate his showing the method of its construction, and, if the Putras decided against proceeding with an aviary, they could leave the area open and have no difficulty with the Council. 31 Mr Dean said that, between taking Ms Putra's instructions in March 1999 and his presentation of his sketch plan to her, he told Ms Putra that he proposed to call the feature a fernery so as to leave it open to her and her husband to do what they wished with it. Neither Mr Dean nor Ms Putra had referred to this alleged conversation in his or her affidavit. 32 As constructed, the fernery is enclosed by fixed glass windows on the western (dining room) side and on the northern (living room) side as well as by a brick wall on the eastern (double garage) side. It is open on the southern side. Although the plan provides for a timber pergola over the fernery, none was constructed when the house was built. 33 Ms Putra was challenged in relation to the listing in her affidavit of differences between her instructions to Mr Dean on the one hand and the plan which he drew on the other. In her affidavit, she had listed them as follows: · the "Games/Bar & or dining room" was shown as a "dining room"; · the bar was located off the family room; · there was provision for glass panels over the front door; and · the Putras did not like one window position at the rear of the house (in oral testimony, Ms Putra corrected this to the "north side of the back of the house"). 34 Ms Putra did not list the difference between the bird aviary or open space for bird aviary on the one hand and what was shown on Mr Dean's plan as a pergola-covered fernery on the other. However, in her affidavit she did refer to the "fernery area alcove for the bird aviary". Clearly, she accepted what Mr Dean had done as a satisfactory performance of his instructions in the present respect. I think it probable that Mr Dean did, as he said, mention to Ms Putra his intention to provide for a fernery with a pergola over the top, and that she acquiesced in his suggestion. 35 Ms Putra was cross-examined about the fact that she did not list in her affidavit as a discrepancy the omission from Mr Dean's plan of an aviary and the presence of a pergola-covered fernery instead. The suggestion was that instructions were never given for a bird aviary. The matter of the subsequent discussion between Mr Dean and Ms Putra to which Mr Dean had referred in his own cross-examination was not taken up with Ms Putra. 36 I found Mr Dean, like Ms Putra, to be a satisfactory witness who attempted to recall what had happened and to give his recollection to the best of his ability in a frank and honest manner. 37 I accept that Ms Putra, and Mr Putra by his acquiescence, in the conversation over the dining room table in her parents' home gave instructions for the inclusion of a bird aviary, and that subsequently Mr Dean, in an attempt to give the Putras maximum flexibility, set aside an area designated "fernery" with a pergola over it instead. I accept Mr Dean's explanation that, rightly or wrongly, he thought it desirable not to be required to include particulars of the construction of the bird aviary. I do not accept, as was put to Mr Dean and denied by him, that he chose to designate the feature a "fernery" because of the influence on his mind of the name of Ferntree's Golden Fern MK2. Similarly, I am not persuaded that he included the pergola because he was being unconsciously influenced by having seen a plan, photograph or display version of the Golden Fern or the Golden Fern MK2. A courtyard or fernery with a pergola over the top of it is hardly a novelty. Glass brick window in bathroom adjacent to triangular spa bath 38 Another feature which attracted attention on the hearing was the glass brick window in the bathroom. A glass brick window in the wall of the bathroom adjacent to a triangular spa bath was a feature of the Golden Fern MK2. On her own sketch, Ms Putra indicated simply that she wished to have glass bricks in the wall of the bathroom. Mr Dean's plan indicated that the relevant window was to be of obscured glass, but as constructed, glass bricks were used. In cross-examination Ms Putra said that she thought "obscured glass" encompassed glass bricks, frosted windows and other forms of obscured glass. 39 Ms Putra mentioned that, as constructed, glass bricks were included not only in the wall of the bathroom adjacent to the spa bath, but also in the ensuite adjacent to the main bedroom, where, again, on the plan the legend was for obscured glass. 40 Undoubtedly, the presence of a triangular spa bath with an adjacent glass brick window make the two bathrooms appear similar. But triangular spa baths are readily available, as, apparently, are glass bricks, and it is not suggested that glass brick windows or walls in bathrooms are uncommon. The conjunction of the two does not lead me to infer that there was a reproduction of the Golden Fern MK2 bathroom in the present respect. Once it is decided that a bathroom is to have a window, some form of obscured glass available on the market must be selected. 41 Ms Putra said she had seen glass bricks in other homes and so knew of their availability and that it was this which led her to write "glass bricks" on the rough sketch she handed to Mr Dean in March 1999. I accept her testimony. The gables and roof alignments of the front facade 42 There is a characteristic symmetry in the gables and roof alignments of the front facades of both the Golden Fern MK2 and the Putras' house. There are three gables. The sloping external roof line of the double garage and of the front room on the opposite side of the front of the house (the rumpus room in the case of the Putras' house) is in line with the sloping roof line of the main and central roof. This feature, together with, in both cases, the elevated fixed window in the main and cathedral gable, represent an undoubted resemblance between the two buildings. Moreover, the entry porch and front door are similarly located. But there are differences. For example, the top of the window of the Golden Fern MK2 is in the shape of the apex of a triangle whereas in the case of the Putras' house it is an arch. Moreover, joining the roofs of the double garage and rumpus room of the Putras' house is a roof across the central front of that house, whereas there is a pergola in that position in the Golden Fern MK2. 43 The high central roof results in part from the raked ceiling which I am satisfied was not derived from the Golden Fern MK2 or its predecessor, the Golden Fern. I am not satisfied that the gables and roof alignments of the front facade of the Putras' house owe their origin to either of them. Access to Ferntree's plans 44 Ms Putra was cross-examined in relation to her awareness of project home designs and, in particular, those of Ferntree. She said she did not concentrate her efforts on looking at "design magazines" or "trade magazines" in order to see what was available because she already had a basic idea of what she wanted and merely needed someone such as an architect or draughtsman to put it together for her. She recalled that she had bought a book which may have been called the "Home Builders Book" or "Master Home Builders", and accepted may have been the book "Excellence in Housing" published by the Master Builders Association of New South Wales, from a newsagent, but said that that was the only home design magazine she had bought. However, when asked whether she had visited display villages over the years and looked at other houses that were available, she volunteered that she went to Homeworld on one occasion as well as to the Henley Homes village mentioned earlier in these reasons for judgment. She agreed that in the display homes at Homeworld, there were brochures and other promotional material available to members of the public and she agreed that she had had access to them on the occasion of her visit. She was firm, however, in her testimony that she did not take away with her any promotional material. She said that she and her husband and children visited Homeworld merely as ancillary to lunching out nearby. 45 I accept Ms Putra's evidence that she visited Homeworld display village once in the circumstances mentioned, and did not take away any brochure or pamphlet with her and bought only the one home design magazine from a newsagent. 46 Mr Bohan was cross-examined as to his knowledge of project home designs. He had worked in the building industry since 1955 when he was employed in connection with building houses for workers employed in the Snowy Mountains Hydro Electric Scheme. However, he insisted that he had never taken notice of brochures for project homes, although he had seen project homes advertised in newspapers over the years. The testimony of Mr Bohan did not assist Ferntree. 47 The only significant evidence that anyone involved in the building of the Putras' home may have seen any material relating to the Golden Fern MK2 home related to the issue of a magazine called Australian New Home Trends. In a particular issue of that magazine which, I accept, was published some time in 1996 (the number and date of the issue had apparently once appeared on a corner of the front cover, but the corner was missing from the copy admitted into evidence) there appeared at page 112 a one-page advertisement of the original Golden Fern project home. The page contained photographs of the Golden Fern display home at Mt Annan. There are two photographs (but no plans or diagrams) on the page: one of the external front facade and one of part of the interior. In the former the positions of the double garage and what is the rumpus room on Mr Dean's plan are reversed. The photograph of part of the interior is not of the glass brick windows in the bathroom or of the raked ceiling or elevated window (although the elevated window appears in the larger photograph of the exterior of the front facade). The interior photograph does show an external fernery or garden area covered by what appears to be a pergola adjacent to and visible from a lounge room. In his cross-examination Mr Dean said: "We get like Trend [sic – Trends] and stuff like that, yes. Trend, it's a magazine, it just shows the latest trends that are going on." I am not persuaded that there is a causal link between page 112 of the particular issue in 1996 of Australian New Home Trends which was in evidence and Mr Dean's drawing of the plans for the Putras' house between March and June 1999. The most that can be said is that if Mr Dean saw this particular issue of Australian New Home Trends and if he had read page 112, the photographs may have confirmed commonplace design ideas in his mind. Expert evidence 48 The general nature of the expert evidence was that Dr Johnson emphasised the similarities between the Golden Fern MK2 plans and Mr Dean's plans and those between the Golden Fern MK2 display home and the Putras' home, and downplayed the differences between them, while Ms Grey emphasised the differences and downplayed the similarities. Whether a substantial part of the plan of the Golden Fern MK2 was reproduced in Mr Dean's plans for the Putras' home and in that home itself raises not a quantitative question but a qualitative one. Counsel for Ferntree submits that the important features of the Golden Fern MK2, such as the raked ceiling and elevated fixed window, the front façade, and, in particular, the three gables and the roof alignments visible from the front, the pergola covered fernery, and the glass brick window adjacent to the triangular spa bath in the bathroom, are all important features in the Golden Fern MK2. Counsel points out that all these features appear in the Putras' home, while all except the glass brick window in the bathroom appear in Mr Dean's plans for it. I accept, however, the evidence of Ms Putra and Mr Dean as to the origin of the ideas for these features. 49 As stated above, I do not think it necessary to discuss the many other items of similarity and difference which appear in annexure "D" to these reasons for judgment. I have discussed the most significant ones. Such similarities as exist do not persuade me that there was a causal link with Ferntree's plans. conclusion 50 All in all, I do not think that the Putras' home at 55B New Street, Auburn, or the plans prepared by Mr Dean for the construction of that home, reproduce Ferntree's plans for its Golden Fern MK2. 51 For the above reasons the application will be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 18 January 2002 Counsel for the Applicant: Mr D B Studdy and Mr C Wood Solicitors for the Applicant: Vaughan Barnes Counsel for the Respondents: Mr P P O'Loughlin Solicitors for the Respondents: Hancock Alldis Date of Hearing: 29, 30 October 2001 Date Last Submission Received: 15 November 2001 Date of Judgment: 18 January 2002 ANNEXURE "A" ANNEXURE "B" ANNEXURE "C" ANNEXURE "D" Schedule of Similarities and Differences Similarities Item Applicant Respondent Outline of plan and form of roof have same general configuration and massing: See Johnson 15/6/01 par 3.1. In this response, Grey 1 means her report of 5 June 2001, Grey 2 means her report of 18 October 2001. - there are two gabled roofed volumes at the front protruding beyond a major gable-roofed form that straddles the full width of the house; Grey 2 paras 3 & 4. - at the front the garage protrudes further than the opposite wing; - there is a recess behind the garage with an inclined pergola over it; - there is a rear wing that protrudes sideways from a rearward extension from the major gabled-roof form thereby creating an L-shaped roof; and - the rear wing creates in effect a U-shaped courtyard between it and the front portion of the house. The placement of garage, porch, foyer, fernery, dining, living and rumpus rooms are relationally and proportionally distinctively similar. See Johnson 15/6/01 par 3.1. Grey 1, par 1 on p.3. Grey 2, paras 3 & 4 and the comment on the elevations in par 5 and the comment on fenestration in par 2 page 3 of Grey 1. The layout of the front portion is distinctively similar: See Johnson 15/6/01 par 3.3.1. See Respondents' Submissions. - the dining, living and foyer entry areas have raked ceilings; See Johnson 15/6/01 par 3.3.2. - two windows look into the fernery/courtyard; See Johnson 15/6/01 par 3.3.3. - a pair of columns atop a low wall each side of the opening into the living area from the foyer/entry area; and See Johnson 15/6/01 par 3.3.4. - the entrance door to the foyer/entry area is recessed in relation to the front wall. The wall between the garage and living area is timber framed and lined with plasterboard. See Johnson 15/6/01 par 3.3.5. This is typical of brick veneer homes. There is a window extending almost to the floor of the front of the living area. See Johnson 15/6/01 par 3.5.4 – a distinctive similarity. This is different on the house as built. There is a pair of windows extending almost to the floor to the rumpus room in the Bohan drawings and in the Golden Fern drawings there is a pair of windows extending almost to the floor to bedroom 1. See Johnson 15/6/01 par 3.5.5 – a distinctive similarity. This is different on the house as built. The absence of the clerestory window in the gable wall of the rumpus room in the First Respondents' house as built compared to the Bohan drawings, like the gable wall to bedroom 1 in the Golden Fern drawings creates a distinctive similarity. See Johnson 15/6/01 par 3.5.6. The Respondents' plan shows the garage and rumpus feature. The family area is in the centre of the plan and the kitchen forms an L shape with it and looks onto an outside courtyard, except they are mirror-reversed. See Johnson 15/6/01 par 3.6.1 - part of the plan arrangement of the rear portion which is distinctively similar. Grey 2 par 9. The placement of bedrooms 1, 2 & 3 in the Bohan drawings to the west is the same as the placement of rumpus and bedrooms 3 & 4 to the rear in the Golden Fern drawings, given that the rumpus and bedroom 1 have been transposed. See Johnson 15/6/01 par 3.6.2 – part of the plan arrangement of the rear portion which is distinctively similar. Grey 2 par 10. The placement of beds 3 and 4 each side of the bathroom and WC to the south side in the Bohan drawings is very similar to the placement of bed 4 and 2 each of the bath and laundry area in the Golden Fern drawings with a corridor behind the family area wall. See Johnson 15/6/01 par 3.6.3 – part of the plan arrangement of the rear portion which is distinctively similar. Grey 2 par 10. Differences Item Applicant Respondent The disposition of the rumpus and the main bedroom. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 The difference is identified by Johnson. See Grey 2 par 16. The setback of the wall of the rumpus compared to the 450 millimetre setback in the Applicant's plan. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.4.2 & 5; Johnson 12/10/01 par 8.2; Johnson T 144 LL 4-13 The difference is identified by Johnson and impacts upon the look of the dwelling. The sunken living, dining in the Applicant's plan. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.4.3 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 This is a major design feature of the Applicant's design; see the brochure Ex. A1. Single garage door in the Respondents' plan and the two garage doors in the Applicant's plan. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.5.1 & 5; Johnson 12/10/01 par 8.2, Johnson T 154 LL 11-26 Impacts upon the look of the house. The clerestory windows over the garage and rumpus room. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson paras 3.5.2 & 5, Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Impacts on the look of the house. The roof path from the garage to the porch in the Respondents' drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.5.3 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 This was a specific design feature sought by M/s Putra; see her affidavit par 10. The double windows in the Respondents' rumpus room and the single windows in the Applicant's main bedroom. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.5.5 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Impacts on the look of the house. The difference in the drawing of the clerestory windows. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.5.5-3.5.7; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Impacts on the look of the house. This was a specific design feature sought by M/s Putra; see her affidavit par 10. The major gable wall over the living area drawn in brick on the Respondents' plan and stuccoed on the Applicant's Plan. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.5.8 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Impacts on the look of the house. Only the central part of the wall under the major gable in the Applicant's Plan is of brick. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.5.8 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Impacts on the look of the house. The Respondents' roof pitch is 25 degrees, the Applicant's is 22.5 degrees. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johns 15/6/01 paras 3.5.9 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Impacts on the look of the house. The kitchen in the Respondents' drawings has the laundry opening off it and is remote from the dining area and in the Applicant's plan, the kitchen opens directly to the dining area and the laundry being in the bedroom and opening directly to the outside. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 paras 3.7.1 & 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 This difference supports the Respondents' assertion of different development of plans. The family area is in the center of the plan and the kitchen forms an L-shape but it is mirror reversed. Johnson 15/6/01 par 3.6.1: part of the plan arrangement of the rear portion which is distinctively similar The roof of the kitchen is not raked in the Respondents' plan yet it is part of the raked ceiling in the Applicant's Plan. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; simply due to reverse L-shape puts the kitchen in a different location Reflective of independent development of plans. There is a bar in the Respondents' drawings in the family area with a servery opening onto the living area. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.7.2; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 See Putra affidavit par 12. There are two chamfered corners in the family area of the Respondents' drawings and in the Applicant's drawings, there are two chamfered corners in the family area to provide access to the rumpus room and from the hallway to bed 3. Minor/major: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.7.3, Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Feature of individual design unaffected by Applicant's Plan. In the Respondents' drawings, there is a separate WC adjacent to the bath and not in the Applicant's drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.7.4; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 This difference is obvious. The dining room in the Respondents' drawings is smaller than the dining area in the Applicant's drawings. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.7.5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The internal layout of the main bathroom in the Respondents' drawings is different from the Applicant's drawings. Minor: insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.7.6; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The layout of the kitchen in the Respondent's drawings varies in shape and composition, has less bench service and does not have a cook top compared to the Applicant's drawing. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.7.7; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The north, south and west elevations are different from the point of view of windows save for the glass bricks to the external walls of the bathroom. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.8; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The semi-circular leaded window in rumpus room treatment in the Applicant's left elevation is not duplicated in the Respondents' south elevation. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.8; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Reflects M/s Putra's specific request. See her affidavit par 10. There are dimensional differences between the two dwellings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 3.9; Johnson 12/10/01 par 8.2; Johnson T 144 LL 4-13; T 154 LL 11-26 This reflects Dean's desire to undertake his design brief unaffected by the Applicant's Plans and in accordance with the modus operandi in par 9 of his affidavit. In the Respondents' drawings, the garage has a large window on the northern face and there is no such window in the Applicant's drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson T 145 LL 20-25, T 154 LL 11-26 Not in Applicant's design. The Applicant's drawings show overhead planter boxes against the family entry wall and the kitchen area, not shown in the Respondents' plans. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson T 141 LL 14-21; T154 LL 11-26 Not in Respondents' plan or house. The raked area in the Applicant's drawings continues from the dining room over the kitchen area. In the Respondents' drawings it stopped at the dining room. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson T 141 LL 14-21; T 154 LL 11-26 Reflects independent design particularly of kitchen area. The Respondents' drawings indicate a bench in the laundry and a separate toilet. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The family room in the Applicant's drawings has a direct entry into the rumpus room which is not duplicated in the Respondents' drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The rumpus room in the Applicant's drawings has a raked ceiling and direct out access at side. These features do not appear in the Respondents' drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The Applicant's drawings show a shelved area bounded by bedroom 2 which is not duplicated on the Respondents' drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. There is no stepped out wall on the northern elevation on the Respondents' drawings as compared to the Applicant's drawings. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 154 LL 11-26 Supports Respondents' assertion of independent development of plans. The ceiling height in the Respondents' drawings is 2700 millimetres and in the Applicant's drawings, 2400 millimetres. Insignificant in the overall opinion that there are strong similarities in qualitative terms in the two sets of plans and the Golden Fern plans and the Putra house as built – see Johnson 15/6/01 par 5; Johnson 12/10/01 par 8.2; Johnson T 144 LL 4-13; T 154 LL 11-26 Supports Respondents' assertion of independent development of plans.