FEDERAL COURT OF AUSTRALIA The Council of the City of Sydney v Goldspar Australia Pty Limited [2004] FCA 1046 THE COUNCIL OF THE CITY OF SYDNEY v GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) and DOUGLAS RAWSON-HARRIS N 728 OF 2002 GYLES J 3 AUGUST 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 728 OF 2002 BETWEEN: THE COUNCIL OF THE CITY OF SYDNEY APPLICANT AND: GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) FIRST RESPONDENT DOUGLAS RAWSON-HARRIS SECOND RESPONDENT JUDGE: GYLES J DATE OF ORDER: 3 AUGUST 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application by the first respondent to reopen and amend the orders is dismissed. 2. The first respondent is to pay the applicant's costs of that application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 728 OF 2002 BETWEEN: THE COUNCIL OF THE CITY OF SYDNEY APPLICANT AND: GOLDSPAR AUSTRALIA PTY LIMITED (ACN 002 705 991) FIRST RESPONDENT DOUGLAS RAWSON-HARRIS SECOND RESPONDENT JUDGE: GYLES J DATE: 3 AUGUST 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter I delivered a judgment on 7 May 2004 in which the final paragraph reads as follows: 'The proceeding will stand over to enable the parties to consider these reasons and to bring in draft short minutes of order to give effect to them jointly or severally. The short minutes of order should include orders and directions concerning the remaining issues in the case and should deal with costs. The parties should also bring to my attention any pleaded issue which has not been dealt with.' 2 A process followed of exchange of views between the parties as to the orders which would follow from the judgment and on 18 June last I made orders by consent. Those orders have not been entered. The first respondent seeks to have me re-open and amend the orders in one respect. It is submitted that from paragraph 5, which makes a series of declarations, subpara 5(i) should be omitted along with the corresponding order. That is notwithstanding the fact that the terms of paragraph 5 were the result of a consent between the parties. The consent given by the respondent was the result of mistake on the part of those representing the first respondent in their assessment of the situation. 3 I decline to do that for two reasons. The first is that I am not satisfied that the particular point, which is now sought to be argued as the critical factor, was squarely put before me during the course of argument. The point is that the first respondent contends that it is permitted to supply the same types of poles as those appearing in the multi-function brochure by reason of the operation of s 77 of the Copyright Act 1968 (the Act), but that issue was not disposed of by me in my reasons for judgment. 4 It is correct that s 77 and its effect was argued. It is also correct that I did not decide any s 77 point. However the s 77 point was pleaded in answer to the claim of breach of copyright. That is understandable because it is a copyright defence. It was not pleaded expressly or impliedly in answer to any contract count and was not pleaded expressly or impliedly in relation to any of the representation counts. 5 The manner in which a case of this kind is dealt with has complexities and the representation issues, and in particular the one we are looking at here, are intertwined with the other issues. The problem is exacerbated in the present case because of the arguable nature of the interplay between contract, copyright and restraint of trade. I will not set out in these reasons the detail of that interplay. 6 Whilst I can see that an argument involving the application of s 77 might have been presented if the consequences of all of the representations alleged had been fully argued, counsel has been unable to show me where that took place in either the written or oral submissions. It may be that if the matter had been fully analysed some such connection might have been perceived but in a complex matter of this kind, doing the best I can, I must be very substantially guided by the way counsel present the arguments. 7 I appreciate very much the difficulty counsel has in dealing with every permutation and combination of a case such as the present. That, however, does not make the task of the judge any easier. It is hard enough now to deal with complex cases in a timely fashion, given the other pressures on the list, without the judge having to go through every possible permutation and combination. 8 My second reason is that if the issue had been raised I cannot imagine that I would have altered what I said in the last sentence of paragraph 151. Counsel for the respondent has taken me back in particular to paragraphs 130 and 131 of the judgment which deal with the contract claims. However, it needs to be borne in mind that this was the third substantive judgment by me in this saga of litigation. The first was a judgment on 28 August 2002 (Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1064). The second was delivered on 11 October 2002 when I answered a separate question in a certain way (Council of the City of Sydney v Goldspar Australia Pty Limited (No 2) [2002] FCA 1268). Those judgments dealt with the construction of the contract between the applicant and the first respondent and expressed a view as to that topic. 9 In the later substantive hearing the applicant sought to argue that no leave was required to re-open those questions and, if necessary, sought leave to do so. I did not accede to that endeavour which had been opposed on the part of the respondents. I need not here spell out the questions of construction and the effect of them which form part of the background to this application. In particular I do not wish by any paraphrase I now give to alter in any sense what I have said in those earlier judgments. Suffice to say that I construed the contract as conferring rights of copyright in the Council in relation to a certain set of drawings. It is poles constructed in accordance with that set of drawings that are the subject of the declaration in question and consequent orders. 10 In my view, bearing in mind my construction of the contract, it would be an absurd result if those contractual rights which were conferred could be rendered nugatory and set at nought by the application of s 77 of the Act. That is the effect for which the respondent contends. Without wishing to give a dissertation on the topic I have in mind the maxims that the grantor cannot derogate from a grant and that a party cannot approbate and reprobate. The underlying principle which those aphorisms encapsulate is a thread running through the fabric of the law. It is not necessary for present purposes that I deal with that as if it were an issue on final judgment. For those reasons I decline to intervene. The application to reopen is dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 12 August 2004 Counsel for the Applicant: RJ Ellicott QC; DB Studdy Solicitor for the Applicant: PricewaterhouseCoopers Legal Counsel for the First and Second Respondents: JV Nicholas SC Solicitor for the First and Second Respondents: Michael Osborne and Associates Date of Hearing: 3 August 2004 Date of Judgment: 3 August 2004