FEDERAL COURT OF AUSTRALIA JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236 File numbers: NSD 266 of 2017 NSD 327 of 2017 Judge: THAWLEY J Date of judgment: 5 March 2020 Catchwords: DEFAMATION – hybrid publication – Facebook Post providing a link to a newspaper article – whether imputations conveyed – one defamatory imputation conveyed DEFAMATION – defences – justification – defence made out – where respondent pleaded four contextual imputations – whether the alleged contextual imputations were conveyed – two contextual imputations conveyed which were substantially true – whether the contextual imputations operate as a complete or partial defence – fair comment and honest opinion – defence not made out – publication of public documents – defence not made out CONSUMER LAW – claim under Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law (ACL) for misleading or deceptive conduct –representations made to a journalist – representations in a Facebook Post which provided a link to a newspaper article – whether conduct was "in trade or commerce" – whether the representations were in fact conveyed by the relevant conduct – whether representation a statement of fact or opinion – whether the representations conveyed were misleading or deceptive or likely to mislead or deceive CONSUMER LAW – claim under the ACL for misleading or deceptive conduct – whether website content conveyed representations about authorship of a novel – whether the conduct was in "trade or commerce" – whether the representations were in fact conveyed by the relevant conduct – claim for declaratory relief – whether any benefit to making of the declaration – whether financial loss or damage sustained from the conduct – declaratory relief refused COPYRIGHT – whether infringement of copyright – whether the work was an adaption – claim for injunctive relief – copyright claim dismissed COPYRIGHT – whether use of photographs on website was an infringement of copyright – whether copyright was assigned as alleged – whether licence granted – where photographs removed a reasonable time after demand TORTS – detinue – whether property wrongfully detained – whether sufficient demand made – whether respondent made clear and unqualified refusal to comply with the demand – whether the refusal to comply was unreasonable – whether goods were detained for a reasonable time Legislation: Competition and Consumer Act 2010 (Cth) s 6(3), Sch 2 cl 18 Copyright Act 1968 (Cth) ss 10, 13, 31, 36, 115, 196 Defamation Act 2005 (NSW) ss 4, 25, 26, 28 Fair Trading Act 1987 (NSW) s 4, Div 2 ss 27, 28, 29, 30, 31, 32, Div 3 ss 33, 34 Cases cited: .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 ACCC v Coles Supermarkets (Australia) Pty Ltd (2014) 317 ALR 73 ACCC v Kimberly-Clark Australia Pty Ltd [2019] FCA 992 ACCC v Telstra Corp Ltd (2007) 244 ALR 470 ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 Adidas AG v Pacific Brands Footwear Pty Ltd (No 4) (2013) 308 ALR 143 Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Anyanwu and Another v South Bank Student Union and Another (No 2), The Times Law Reports, December 5, 2003, 678 Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 Banks v Ferrari [2000] NSWSC 874 Besser v Kermode (2011) NSWLR 157 Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Civil Service Co-operative Society of Victoria Ltd v Blyth (1914) 17 CLR 601 Clayton v Le Roy [1911] 2 K B 1031 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1988) 20 FCR 46 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWSC 657 Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173 David v Abdishou [2012] NSWCA 109 David Syme & Co v Canavan (1918) 25 CLR 234 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Derry v Peek (1889) 14 App Cas 337 DGM Commodities Corp v Sea Metropolitan SA (The "Andra") [2012] 2 Lloyd's Rep 587 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552 E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 EE McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 553 E W Savory Ltd v World of Golf Ltd [1914] 2 Ch 566 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244 Given v Pryor (1979) 24 ALR 442 Goodman v Boycott (1862) 2 B & S 1 Google Inc v ACCC (2013) 429 CLR 435 Greenfield Products Pty Ltd v Rover Scott Bonnar Ltd (1990) 95 ALR 275 Grundt v Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 Houghland v RR Low (Luxury Coaches) Ltd [1962] 1 QB 694 Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1988) 18 NSWLR 420 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 Lewis v Daily Telegraph Ltd [1964] AC 234 Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 Madden v Seafolly Pty Ltd (2014) 313 ALR 1 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Nelson & Anor v Nelson [1923] St R Qd 37 Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 1404 O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1 Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 oOh! Media Roadside Pty Ltd (formerly Power Panels Pty Ltd) v Diamond Wheels Pty Ltd (2011) 32 VR 255 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Plimer v Roberts (1997) 80 FCR 303 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 Shape Shopfitters Pty ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 Sims v Jooste (No 2) [2016] WASCA 83 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Slaveski v State of Victoria [2010] VSC 441 Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 2) (2011) 282 ALR 43 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 Timewell v Virgoe (1868) 5 WW&A'B L 147 The Elizabeth (1819) 2 Dods 403 Thompson v Palmer (1933) 49 CLR 507 Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267 Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 Voxson Pty Ltd v Telstra Corporation Limited (No 10) [2018] FCA 376 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 Walker v Sell (2016) 245 FCR 308 Heydon, J D, Heydon on Contract (Thomson Reuters, 2019) Date of hearing: 5 to 14 March 2019, 3 May 2019 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: Catchwords Number of paragraphs: 731 Counsel for the Applicants: Mr HPT Bevan with Ms CK Amato Solicitor for the Applicants: Bird & Bird Counsel for the Respondent in NSD 266 of 2017: Mr MR Hall SC with Ms EE Whitby Solicitor for the Respondent in NSD 266 of 2017: Banki Haddock Fiora Counsel for the Respondent in NSD 327 of 2017 Mr R Potter Solicitor for the Respondent in NSD 327 of 2017 Blueprint Law Pty Limited ORDERS NSD 266 of 2017 BETWEEN: JWR PRODUCTIONS AUSTRALIA PTY LTD First Applicant JONATHAN ROCKEFELLER Second Applicant AND: THOMAS DUNCAN-WATT Respondent JUDGE: THAWLEY J DATE OF ORDER: 5 MARCH 2020 THE COURT ORDERS THAT: 1. The proceedings be dismissed. 2. Unless any party applies within 7 days for a different order with respect to costs, the applicants pay the respondent's costs. 3. If any party applies for a different order as to costs in accordance with order 2: (a) the party applying for such an order file with the application for costs: (i) a submission of not more than 3 pages identifying the order sought and why it is contended such an order should be made and stating whether the party wishes to be heard in respect of the application; (ii) any evidence proposed to be relied upon; (b) the party against whom such an order is sought file within 3 days of receipt of the application: (i) a responding submission of not more than 3 pages, which includes a statement as to whether the party wishes to be heard; and (ii) any evidence relied upon. 4. Unless otherwise ordered, any application for costs be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 327 of 2017 BETWEEN: JWR PRODUCTIONS AUSTRALIA PTY LTD First Applicant JONATHAN ROCKEFELLER Second Applicant AND: NEIL GOODING Respondent JUDGE: THAWLEY J DATE OF ORDER: 5 March 2020 THE COURT ORDERS THAT: 1. The proceedings be dismissed. 2. Unless any party applies within 7 days for a different order with respect to costs, the applicants pay the respondent's costs. 3. If any party applies for a different order as to costs in accordance with order 2: (a) the party applying for such an order file with the application for costs: (i) a submission of not more than 3 pages identifying the order sought and why it is contended such an order should be made and stating whether the party wishes to be heard in respect of the application; (ii) any evidence proposed to be relied upon; (b) the party against whom such an order is sought file within 3 days of receipt of the application: (i) a responding submission of not more than 3 pages, which includes a statement as to whether the party wishes to be heard; and (ii) any evidence relied upon. 4. Unless otherwise ordered, any application for costs be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THAWLEY J: A OVERVIEW [1] B FACTUAL BACKGROUND [23] B.1 The Golden Girls television series [23] B.2 Dramatis personae [26] B.2.1 Jonathan Rockefeller [26] B.2.2 Thomas Duncan-Watt [32] B.2.3 Neil Gooding [34] B.2.4 Matthew Henderson [38] B.3 Credibility and reliability [40] B.4 The development of Thank You For Being a Friend: 2012 to July 2013 [43] B.5 Early discussions with Mr Gooding and Mr Henderson; Mr Rockefeller's misrepresentation to Mr Duncan-Watt: January 2013 to July 2013 [56] B.6 The 9 July 2013 Writers Assignment Agreement [74] B.7 The 17 July 2013 Licence Agreement [78] B.8 Payment for puppets: July 2013 to November 2013 [88] B.9 Conversation between Mr Duncan-Watt and Mr Gooding on 18 October 2013 [95] B.10 Mr Rockefeller agreed to execute a new Licence Agreement, with Mr Duncan-Watt as a licensor [105] B.11 The 25 November 2013 Licence Agreement [117] B.12 Thank You For Being A Friend is revised and finalised: November and December 2013 [142] B.13 Thank You For Being A Friend is performed from January 2014 [145] B.14 Mr Rockefeller moved to New York in June 2014 [146] B.15 Mr Duncan-Watt commences work on Mr Rockefeller's novel: June to September 2014 [148] B.16 Neil Gooding Productions and Mr Henderson execute a "Booking Services Agreement" and have a discussion with Mr Rockefeller: September and December 2014 [153] B.17 Mr Rockefeller, Mr Duncan-Watt and the photo shoot: November and December 2014 [157] B.18 Lilianfels and the Author Collaboration Agreement: December 2014 [170] B.19 Mr Rockefeller considers a new Golden Girls puppet parody: January 2015 [176] B.20 Mr Rockefeller raises possible breaches of the Licence Agreement with Mr Duncan-Watt: February and March 2015 [178] B.21 Mr Rockefeller obtains legal advice, including as to whether the Licence Agreement can be terminated: March 2015 [183] B.22 Mr Rockefeller continues to pursue the new Golden Girls puppet parody with Mr Duncan-Watt: March to May 2015 [194] B.23 The "Scriptwriter Agreement" between JWR Productions LLC and Mr Duncan-Watt: 11 May 2015 [201] B.24 Dinner at Rosa Mexicano in New York: June 2015 [205] B.25 Work continues on 5 ½ and The Goldenish Girls: July to September 2015 [215] B.26 Mr Rockefeller learns about the agreement with East Bank Entertainment: 12 September 2015 [223] B.27 Mr Duncan-Watt writes substantial pars of No. 5½ from October 2015 [235] B.28 Telephone conference of 14 October 2015 and subsequent events [236] B.29 A Canadian producer expresses interest in Thank You For Being A Friend: January 2016 [240] B.30 Events from February to March 2016 [244] B.31 Mr Rockefeller terminates the Author Collaboration Agreement: 14 May 2016 [258] B.32 Mr Rockefeller requests return of material, and further deterioration of relationship: May to June 2016 [262] B.33 Mr Rockefeller terminates the Scriptwriter Agreement: 27 June 2016 [267] B.34 The events of July 2016 [289] B.35 Mr Gooding learns about That Golden Girls Show!: August 2016 [292] B.36 That Golden Girl Show! opens: 19 September 2016 [300] B.37 The respective contributions of Mr Rockefeller and Mr Duncan-Watt to The Goldenish Girls plot and script and the similarities between the two [310] B.37.1 The plot [316] B.37.2 The script [330] B.38 Similarities between Thank You For Being A Friend and That Golden Girls Show! [337] B.39 The New York proceedings [360] B.40 The New York Times Article [361] B.41 Mr Gooding's Facebook post [363] C DEFAMATION [364] C.1 Introduction [364] C.2 Publication [369] C.3 Identification [373] C.4 Was the publication defamatory? [375] C.4.1 Relevant principles [375] C.4.1.1 The ordinary reasonable reader [377] C.4.1.2 Whether the imputation is conveyed [380] C.4.1.3 Whether the imputation is defamatory [387] C.4.2 Were the imputations conveyed? [388] C.4.2.1 The pleaded imputations [388] C.4.2.2 Preliminary observations [389] C.4.2.3 Imputations (a) to (c) [404] C.4.2.4 Imputation (d) [416] C.4.2.5 Imputation (e) [428] C.4.2.6 Imputation (f) [435] C.4.2.7 Imputation (g) [440] C.4.3 Were the imputations defamatory? [445] C.5 Defences [447] C.5.1 Introduction [447] C.5.2 Justification [448] C.5.3 Contextual truth [459] C.5.3.1 Contextual imputation (a) [461] C.5.3.2 Contextual imputation (b) [463] C.5.3.3 Contextual imputations (c) and (d) [468] C.5.3.4 Complete or partial defence? [469] C.5.4 Fair comment and honest opinion [471] C.5.5 Publication of public documents [482] C.6 Conclusion in relation to defamation [493] D ACL CLAIMS AGAINST BOTH MR DUNCAN-WATT AND MR GOODING [494] D.1 Jurisdictional issues [495] D.2 Relevant principles [499] D.3 The claims against Mr Gooding [508] D.3.1 The conduct [508] D.3.2 Was the conduct in trade or commerce? [511] D.3.3 Was the first representation conveyed? [512] D.3.4 Was the first NG representation misleading or deceptive? [523] D.3.5 Was the second NG representation conveyed? [524] D.3.6 Was the second NG representation misleading or deceptive? [528] D.3.6.1 The applicants' contentions [528] D.3.6.2 Mr Gooding's contentions [529] D.3.6.3 Consideration [533] D.3.7 Conclusion with respect to ACL claims against Mr Gooding [555] D.4 Mr Duncan-Watt [558] D.4.1 The conduct [558] D.4.2 Was the conduct in trade or commerce? [563] D.4.3 Was the first TDW representation conveyed? [572] D4.4 Was the first TDW representation misleading or deceptive? [577] D.4.5 Was the second TDW representation conveyed by Mr Duncan-Watt's conduct? [578] D.4.6 Was the second TDW representation misleading or deceptive? [588] D.4.7 Conclusion with respect to ACL claims against Mr Duncan-Watt [604] E SATISFACTION AND NO. 5½ [607] E.1 Introduction [607] E.2 The ACL Claims [622] E.2.1 The pleaded representations [622] E.2.2 Trade or commerce [623] E.2.3 Were the representations conveyed? [626] E.2.3.1 The parties' submissions [626] E.2.3.2 Consideration [631] E.2.4 Was the conveyed representation misleading or deceptive [640] E.2.5 Relief [641] E.3 The Copyright Claims [647] F COPYRIGHT CLAIM – PHOTOGRAPHS [659] F.1 Overview [659] F.2 No agreement to charge Mr Duncan-Watt for the photographs or their use [665] F.3 Any assignment of copyright was on 21 December 2016, not in 2014 or 2015 [679] F.4 Period over which photographs were published [683] F.5 Conclusions [689] G DETINUE CLAIM – THE SCRIPTS [695] G.1 The subject matter of the claim [695] G.2 Relevant legal principles [699] G.3 A pleading point [702] G.4 Consideration: the "Returned Material" [705] G.5 Consideration: the "Other Material" [725] G.6 Conclusion [730] H. CONCLUSION [731] A OVERVIEW 1 Thank You For Being A Friend is a puppet parody of the famous television series, The Golden Girls. It was jointly created by Mr Jonathan Rockefeller and Mr Thomas Duncan-Watt and successfully debuted as a small production in Sydney on 13 February 2013. 2 With a view to improving the profile of the production and taking the show around Australia and internationally, Mr Rockefeller and Mr Duncan-Watt decided to licence the show to Neil Gooding Productions Pty Ltd (Mr Gooding) and Matthew Management (Mr Henderson) as producers. A licence was first granted in July 2013. The script was revised, a proper set was created, and the producers commenced performances in Australia in January 2014. 3 Mr Rockefeller and Mr Duncan-Watt worked on other projects together. These included a novel, No. 5½, on which they collaborated from about June 2014. 4 In 2015, after Mr Rockefeller had moved to the United States of America (US), Mr Rockefeller asked Mr Duncan-Watt to write a new script with a view to the two of them producing a puppet parody of The Golden Girls, called The Goldenish Girls: A Puppet Parody. The aim was to produce this show internationally, debuting in New York. 5 Mr Duncan-Watt was concerned this would not be possible whilst Thank You For Being A Friend was the subject of an exclusive licence to Neil Gooding Productions and Matthew Management. Mr Gooding and Mr Henderson were in the process of bringing that show to the US. Mr Rockefeller reassured Mr Duncan-Watt that his lawyers had matters in hand and that the licence to Neil Gooding Productions and Matthew Management in respect of Thank You For Being A Friend would be terminated. 6 Mr Rockefeller sought advice, including as to whether he could prevent Mr Gooding and Mr Henderson from bringing Thank You For Being A Friend to the US or whether he could terminate the relevant licence agreement for breach. He did not receive positive answers to either of these questions. 7 Mr Duncan-Watt wrote the script for The Goldenish Girls with some input from Mr Rockefeller. The major part of the writing was done over the period May 2015 to 9 September 2015. Thereafter, Mr Duncan-Watt resumed work on the novel No. 5½. 8 New script in hand, Mr Rockefeller became increasingly uncooperative with Mr Gooding and Mr Henderson, making it difficult to progress a timely US tour of Thank You For Being A Friend. 9 The relationship between Mr Rockefeller and Mr Duncan-Watt soured. In May 2016, Mr Rockefeller wrote to Mr Duncan-Watt stating he was terminating the agreement under which Mr Duncan-Watt was writing No. 5½ (the Author Collaboration Agreement). 10 Then, on 27 June 2016, Mr Rockefeller wrote stating he was terminating the agreement under which Mr Duncan-Watt had written The Goldenish Girls (the Scriptwriter Agreement) for which they were to be jointly credited. 11 Not three months later, on 19 September 2016, Mr Rockefeller opened a show on Off-Off-Broadway billed as Jonathan Rockefeller's That Golden Girls Show!. It was a puppet parody of The Golden Girls television show. It was based on the production format and ideas of Thank You For Being A Friend. It used the identical plot of The Goldenish Girls. Mr Rockefeller had prepared the script for That Golden Girls Show! from the script Mr Duncan-Watt had written for The Goldenish Girls. 12 Before That Golden Girl Show! opened, Mr Rockefeller advertised and billed the show as solely his creation. In promoting That Golden Girls Show! he used material which related to Thank You For Being A Friend, including the line "'The Golden Girls with Puppets: SOLD' – Time Out Magazine". Time Out had not reviewed That Golden Girls Show!. Mr Rockefeller described That Golden Girls Show! in a radio interview as a "second version" of Thank You For Being A Friend. He supplied reviews of Thank You For Being A Friend to US reviewers for the purpose of promoting That Golden Girls Show!. 13 At the time he was promoting That Golden Girls Show! in this way, he told Mr Gooding and Mr Henderson that his show was "100% different", that he had "assiduously differentiated" his show from Thank You For Being A Friend and that he had "gone to great lengths" to communicate that his "brand new show" had no connection and bore no relation whatsoever to Thank You For Being A Friend. 14 None of this rang true to Mr Gooding when he watched the opening performance of That Golden Girls Show! on 19 September 2016. 15 On 19 October 2016, Mr Duncan-Watt, Mr Gooding and Mr Henderson commenced proceedings in the Supreme Court of New York. They alleged that Mr Rockefeller falsely claimed to be the sole creator of That Golden Girls Show! when, in truth, Mr Rockefeller had taken the script for The Goldenish Girls written by Mr Duncan-Watt and applied it to the production format and set design of Thank You For Being A Friend. 16 The New York proceedings came to the attention of The New York Times. On 23 October 2016, The New York Times published an article entitled "Lawsuit Filed Over 'Golden Girls' Parody". The article summarised the allegations which had been made against Mr Rockefeller in the proceedings. The article also quoted Mr Duncan-Watt and Mr Gooding and reported comments from others, including Mr Rockefeller's legal representatives. A journalist had contacted those people for comment before the article was published. 17 The next day, Mr Gooding published a Facebook post which included a link to the article. 18 In February 2017, Mr Rockefeller and his company, JWR Productions Pty Ltd, commenced two proceedings in this Court, one against Mr Gooding and one against Mr Duncan-Watt. Those proceedings, which are the subject of this judgment, were heard together. 19 The allegations made by Mr Rockefeller against Mr Gooding were, in summary, that Mr Gooding: (1) had defamed him. This was said to arise from Mr Gooding's Facebook post, which provided a link to The New York Times article – see: Section C of these reasons; (2) had engaged in conduct, in trade or commerce, which was misleading or deceptive. This was said to arise from Mr Gooding's conversation with a journalist from The New York Times and Mr Gooding's publication of the Facebook post – see: Section D.3. 20 The allegations made by Mr Rockefeller against Mr Duncan-Watt were, in summary, that Mr Duncan-Watt: (1) engaged in conduct, in trade or commerce, which was misleading or deceptive in conveying certain representations to a journalist from The New York Times – see: Section D.4; (2) engaged in conduct, in trade or commerce, which was misleading or deceptive and threatened breach of copyright, by continuing to include on his website certain material relating to the novel No. 5½ after Mr Rockefeller had terminated the Author Collaboration Agreement – see: Section E below; (3) breached Mr Rockefeller's copyright in two photographs which appeared for a time on Mr Duncan-Watt's website – see: Section F below; and (4) unreasonably failed to return items of Mr Rockefeller's personal property after Mr Rockefeller had demanded their return – see: Section G below. 21 For the reasons given below, each claim brought by Mr Rockefeller and JWR Productions Pty Ltd must be dismissed. 22 Before turning to the specific claims and the reasons each must be dismissed, it is necessary to set out the factual background. This is done next, in Section B. In setting out the background it has been necessary to reach various conclusions as to the legal effect of what the parties did. This is because of the relevance of these matters to the claims which are dealt with later, particularly the defence of truth which Mr Gooding successfully propounded in the defamation case brought against him. B FACTUAL BACKGROUND B.1 The Golden Girls television series 23 The Golden Girls was a critically acclaimed American television sitcom of the 1980s and 1990s televised in around 30 countries. Repeats of the show continue to be televised today. The series featured four central female characters living out their 'golden' years as house-mates in Miami, Florida. It is desirable in order to understand the issues and resolve questions about the similarity or otherwise between Thank You For Being A Friend and That Golden Girls Show! to know a little about the four central characters. They were: (1) Blanche Devereaux: a Southern belle with a renowned sexual confidence; (2) Dorothy Zbornak: a substitute school teacher originally from Brooklyn, New York who was the intellectual of the group; (3) Rose Nylund: a Scandinavian American from St Olaf, Minnesota who was naïve to the point of stupidity and told long stories about her home town; (4) Sophia Petrillo: Dorothy's mother who regularly reminisced about her early life in Sicily, Italy. 24 A regular fifth character was Stanley (Stan) Zbornak, Dorothy's ex-husband, to whom Dorothy had given the best years of her life. 25 The Golden Girls portrayed the family, friendship and romantic issues faced by Dorothy, Rose, Blanche and Sophia as well as the various daily stresses of the characters. The women each have recurring plot lines throughout the series, including dating escapades, money-making ventures and the highs and lows of ageing. These recurring themes were often brought together and dissected over cheesecake in the kitchen. The show is well known for its acerbic humour, racy dialogue, sexual innuendo, and for its theme song – Thank You For Being A Friend – written by Andrew Gold in 1978 and re-recorded in 1985 by Cynthia Fee for the television series. B.2 Dramatis personae B.2.1 Jonathan Rockefeller 26 Mr Jonathan Graham Worsley Rockefeller is a scriptwriter, director and producer of theatrical works. During the earlier stages of the events described below Mr Rockefeller was known as Mr Worsley. This was before he married Mr Jones, whose full name is Mr Eugene Wilson Rockefeller Jones. 27 From about February 2015, Mr Worsley commenced regularly using the surname "Rockefeller", rather than "Worsley" on his written communications. For convenience and to avoid confusion he is referred to as Mr Rockefeller throughout these reasons. 28 From 2003 to 2006, Mr Rockefeller worked for Baz Luhrmann in various of his productions including doing research, design, writing, directing, editing, producing, marketing and advertising. He worked on La Bohème on Broadway, the Chanel No 5 commercial which starred Nicole Kidman, and the films Alexander the Great and Australia. 29 Mr Rockefeller was employed as an Executive Producer at the advertising agency Naked Communications from 2008 to 2011. The team of which he was a member was nominated for a "Cannes Lion" award and won a "Clio Award" during this time. 30 Mr Rockefeller has worked as a screenwriter, including writing the screenplays Satisfaction and Coming of Age. Mr Rockefeller's production of The Very Hungry Caterpillar Show is both well-known and critically acclaimed. 31 Mr Rockefeller was at relevant times a director of and the sole shareholder in JWR Productions Australia Pty Ltd (JWR Productions). JWR Productions was formerly known as Joey Creative Management Pty Ltd. Mr Rockefeller also had an interest in JWR Productions LLC, a company registered in the United States. B.2.2 Thomas Duncan-Watt 32 Mr Thomas Duncan-Watt is a professional writer. He has worked as such since 2006 and, more specifically, as a screenwriter since around 2012. He has been a member of the Australian Writers Guild since 2011. 33 Mr Duncan-Watt has written and co-written on well-known comedy series including Good News Week (Australia) and NewsJack (United Kingdom). He has written and co-written animations such as The Deep, Pirate Express, Winston Steinburger & Sir Dudley Ding Dong, Beat Bugs and Dennis the Menace & Gnasher. B.2.3 Neil Gooding 34 Mr Neil Gooding has worked since 1997 in various capacities on many well-known and critically acclaimed theatre and arena productions. 35 He has received various award nominations for his work as a director. Shows that he has directed have won major awards. He has also received awards and nominations for his work as a producer. 36 In 2014, Mr Gooding received a Chief Glug Award for excellence behind the scenes in Australian musical theatre. His 2014 production of Sweet Charity was nominated for several Helpmann Awards, Sydney Theatre Awards and Green Room Awards and won in many of its categories. 37 Mr Gooding is the sole director of Neil Gooding Productions Pty Ltd. B.2.4 Matthew Henderson 38 Mr Matthew Henderson has been involved in the business of stage managing, producing and directing live theatre shows since 2002. He has worked within the Australian entertainment industry on many Australian and international theatre productions variously as a producer, co-producer, director, stage manager or assistant. The shows he has worked on include: The Boy From Oz, Fame, Shout!, We Will Rock You, The Lion King, Miss Saigon, High School Musical, Madame Butterfly, Jerry Springer The Opera, Mary Poppins and Aladdin. 39 At the times relevant to the issues in this case, Mr Henderson traded under the business name "Matthew Management". B.3 Credibility and reliability 40 The factual findings set out below are based primarily on the contemporaneous documentary evidence and inferences drawn from that evidence and the known or probable facts. 41 In relation to certain contested events, particularly conversations, there were no or few contemporaneous documents which shed light on which account was to be preferred. The parties gave different accounts of a number of conversations. I found Mr Duncan-Watt's account of those conversations to be significantly more reliable than Mr Rockefeller's. Mr Duncan-Watt's accounts were more probable than the accounts given by Mr Rockefeller when assessed against the surrounding events and were more consistent with contemporaneous documentary evidence where such documents were available. His evidence was given in a more objective and less argumentative way. As will become apparent, Mr Rockefeller's evidence was unreliable in several respects. 42 As Mr Rockefeller's counsel submitted, it is necessary to put Mr Rockefeller's often defensive and argumentative evidence into context. It is clear that he was at times emotionally affected. It is also clear that he was hurt by the publication of The New York Times article. I accept those matters and have sought to bring them to account in assessing the reliability of Mr Rockefeller's evidence. In the end, however, I generally found Mr Rockefeller's evidence to be unreliable, and Mr Duncan-Watt's evidence to be reliable. That conclusion is not based on demeanour. B.4 The development of Thank You For Being a Friend: 2012 to July 2013 43 Mr Duncan-Watt and Mr Rockefeller met in 2006 or 2007. They became close friends. At some point before September 2012, Mr Duncan-Watt and Mr Rockefeller had discussed creating a dramatic parody, including a puppet parody. 44 At a meeting in about September 2012, Mr Duncan-Watt suggested to Mr Rockefeller that they might create a puppet parody of The Golden Girls. 45 Mr Duncan-Watt and Mr Rockefeller commenced developing the concept for Thank You For Being A Friend. The name was derived from the theme song of The Golden Girls television series. The parody Thank You For Being A Friend featured Dorothy, Rose, Blanche and Sophia portrayed by puppets, and introduced a new character, Jeremiah, a gay son of Blanche. The puppets were to be operated by actors or performers whose operation of the puppets would be on stage and therefore seen, and whose facial expressions and voices were integral to the show. 46 Mr Duncan-Watt and Mr Rockefeller had various discussions which resulted in an understanding that they would jointly own copyright in Thank You For Being A Friend, each would contribute 50% of the funds required to create and produce the show, and they would share equally in any profits. 47 Mr Rockefeller began sourcing the puppets to be used in the show in September 2012. The puppets were received in January 2013. 48 Mr Duncan-Watt and Mr Rockefeller agreed to submit Thank You For Being A Friend to the Sydney Mardi Gras Festival in October 2012. 49 Mr Rockefeller prepared a handwritten budget and a contract which the parties signed on 28 October 2012. The contract stated: This is a contract to specify that Thomas Duncan-Watt and Jonathan Worsley will each individually mount 50% of the costs of "Thank You for Being a Friend" and in return receive 50% of the profits split evenly after all costs, expenses and taxes are paid. Any additional costs and expenses incurred will be split evenly or the party who mounts the additional funds will receive an additional percentage pro-rata of the funds above and beyond the 50%. Any future licensing or royalties allocated with "Thank You for Being a Friend" will be paid in a 50/50 split to the intellectual property owners, Thomas Duncan-Watt and Jonathan Worsley. 50 The script development of Thank You For Being A Friend was a collaborative exercise. Mr Duncan-Watt did the majority of the writing. Mr Rockefeller reviewed the draft script and assisted in re-writes. It was Mr Rockefeller's evidence that he talked regularly with Mr Duncan-Watt in relation to the script, that they met approximately once per week to work on script development and otherwise discussed the project on the telephone. Mr Duncan-Watt gave evidence that he and Mr Rockefeller spent a lot of time talking in person and communicating about the script by email. The script was a joint creation; Mr Duncan-Watt performed the majority of the writing. 51 Thank You For Being A Friend had its debut between 13 and 20 February 2013 at the Comedy Store in Sydney. 52 Mr Rockefeller (JWR) gave an account of a conversation with Mr Duncan-Watt (TDW), around 20 February 2013, as follows: JWR: Tom, you have not paid your fair share of the budget. The original agreement was 50:50. You are not paying anything I send to you. We need to go off what we agreed to in our original agreement. Whatever you put in, you get back as a percentage. TDW: Yeah, but that's not really fair now because the show has made a profit, so you should get back what you put in and then it should be 50:50 from there on. 53 Mr Duncan-Watt's account of the conversation was as follows: JWR: The show has made a profit. I paid for more than half of the costs of the show. I should have more like 80% of the profit and the ownership of the show. TDW: Why did you do that? We agreed we would both put in half. You never asked me to give you any more money and we agreed we would own the show jointly. Besides, we already knew that ticket sales had covered the rest of our expenses before the show even opened. That's why I assume you didn't ask me for more money. If you just paid some of our invoices off with your own money without telling me – knowing the money is coming anyway - it doesn't mean you get to own more of the show. Why are you being so stupid? Are you trying to rip me off? JWR: OK, yes we do own the show jointly, but I should recoup my costs out of the profits. TDW: Of course you should. 54 Mr Duncan-Watt and Mr Rockefeller ultimately agreed that Mr Rockefeller would get back what he put in but that the profit would be split equally. 55 Between about February and July 2013, Mr Duncan-Watt worked on improvements to the script, making numerous alterations. He consulted Mr Rockefeller from time to time. B.5 Early discussions with Mr Gooding and Mr Henderson; Mr Rockefeller's misrepresentation to Mr Duncan-Watt: January 2013 to July 2013 56 Mr Rockefeller informed Mr Henderson in late January 2013 that he and Mr Duncan-Watt had produced Thank You For Being A Friend. Mr Rockefeller sent a copy of the script to Mr Henderson by email on 18 April 2013. Mr Henderson and Mr Rockefeller had a further conversation about Mr Henderson's participation in producing the show in late April 2013, and Mr Henderson contacted Mr Gooding about his potential involvement in May 2013. 57 By at least 21 May 2013, Mr Rockefeller was in discussions with Mr Gooding and Mr Henderson about the possibility of licensing to them the performing rights to Thank You For Being A Friend. 58 At some point between April and June 2013, Mr Rockefeller informed Mr Duncan-Watt that Mr Gooding and Mr Henderson were interested in acquiring the rights to produce the show. At that time, Mr Duncan-Watt knew Mr Gooding to be an Australian theatrical producer and Mr Henderson to be an experienced Australian stage manager who wanted to do more producing. He was keen for them to produce the show. 59 Mr Duncan-Watt stated that Mr Rockefeller informed him, around June 2013, that Mr Gooding was insisting on the licensing rights for the show coming through a single company. Mr Duncan-Watt's account of one of the conversations was that Mr Rockefeller said: Neil [Gooding] won't deal with both of us – he insists on the rights coming through a single company. If we want to do the deal, you and I will have to assign all of our rights in the show to JWR Productions, and then I'll license the rights to Neil through that company. 60 Mr Gooding denied ever raising as an issue with Mr Rockefeller a desire to deal with only one company. It was uncontentious that Mr Gooding never said he would only deal with one company. 61 Although he was resistant to the idea of assigning his rights to JWR Productions, Mr Duncan-Watt wanted the show to go to experienced producers and was prepared to assign his rights to JWR Productions if that was required to achieve such a result. 62 In his evidence, Mr Rockefeller emphatically denied having a conversation in which he stated to Mr Duncan-Watt that Mr Gooding had insisted on any licence agreement being made with a single company. Mr Rockefeller agreed that he discussed with Mr Duncan-Watt assigning copyright to Thank You For Being A Friend to his company, JWR Productions (then Joey Creative Management Pty Ltd), but insisted this was in line with industry practice to protect individuals from personal liability and because Mr Duncan-Watt was not paying his fair share of expenses. Mr Rockefeller stated that he therefore threatened to pull out unless Mr Duncan-Watt assigned his copyright to Mr Rockefeller's company. 63 For the reasons which follow, I do not accept Mr Rockefeller's denial that he stated to Mr Duncan-Watt that Mr Gooding had insisted on any licence agreement for Thank You For Being A Friend being made with a single company. 64 At the relevant time, Mr Duncan-Watt had been consulting Mr Bruce Pulsford, a lawyer at the Australian Writers' Guild. Mr Duncan-Watt wrote an email to Mr Pulsford on 1 July 2013, referring to a meeting he and Mr Pulsford had on 28 June 2013. The email included: … Neil Gooding - is the right fit, but Jonathan (my co-creator) is still adamant that they only want to deal with one production company [Joey Creative Management Pty Ltd] … 65 Mr Duncan-Watt's email to Mr Pulsford of 1 July 2013 also indicated that the proposed amendments to the "Writers Assignment Agreement" should contain an extra clause which Mr Pulsford had recommended, to the effect that, if a licence agreement with Mr Gooding and Mr Henderson was not achieved within 3 months, the rights given by Mr Duncan-Watt to Joey Creative Management Pty Ltd would revert to Mr Duncan-Watt. This recommendation became cl 10 of the "Writers Assignment Agreement", executed a little over a week later. Clause 10 was in the following terms: 10. This contract will automatically terminate if, within the date which is 3 months from the date of this contract, a legally binding agreement in writing is not in existence between the Production Company (as licensor) and Matthew Management and Neil Gooding Productions Pty Limited (as licensee) the minimum terms of which have been already consented by the writer. 66 It was submitted for Mr Rockefeller that a simple explanation for Mr Duncan-Watt's words in his email of 1 July 2013 to Mr Pulsford was that Mr Duncan-Watt was mistaken or confused about what Mr Rockefeller had said. That is most unlikely for a number of reasons. 67 First, Mr Duncan-Watt's email makes it clear that his understanding of what Mr Rockefeller had said came from more than one conversation: the email states that Mr Rockefeller was "still adamant". Mr Duncan-Watt was cross-examined on his email and did not waiver from the proposition that Mr Rockefeller had insisted that Mr Gooding would only deal with one licensor. I accept Mr Duncan-Watt's evidence. 68 Secondly, the fact that Mr Rockefeller made the misrepresentation is consistent with Mr Duncan-Watt's desire to insert cl 10 into the Writers Assignment Agreement, providing for the rights to revert to him if no agreement were reached with Mr Gooding and Mr Henderson. 69 Thirdly, the probabilities strongly favour that Mr Duncan-Watt was giving a frank account of relevant events in order to obtain the best possible advice. In July 2013, there was no dispute between Mr Rockefeller and Mr Duncan-Watt of any significance and Mr Duncan-Watt could not possibly have foreseen the events which would later eventuate. 70 When Mr Rockefeller was asked in cross-examination why Mr Duncan-Watt would possibly lie to his lawyer on 1 July 2013, Mr Rockefeller stated: "Mr Duncan-Watt does have a tendency to manipulate things to be put forward in his better scenarios". There was nothing about Mr Duncan-Watt's evidence or the manner in which it was given, nor was there anything in the contemporaneous documents, to suggest any "tendency [on the part of Mr Duncan-Watt] to manipulate things". I do not accept that Mr Duncan-Watt was otherwise than truthful in what he said to his lawyer in his email of 1 July 2013 and in giving his evidence. 71 Fourthly, the fact that Mr Rockefeller made the misrepresentation is supported by: (1) Mr Gooding's evidence of a conversation with Mr Duncan-Watt in October 2013 which confirmed that Mr Rockefeller had misrepresented Mr Gooding's position with respect to wishing to deal with only one licensor – see: [95] to [99] below; (2) Mr Duncan-Watt's email of 21 October 2013 – see: [100] to [104] below; (3) the events in October and November 2013 referred to below, culminating in the signing of a new licence agreement on 25 November 2013 which included Mr Duncan-Watt as a licensing party – see: Sections B.10 and B.11 below. 72 Having seen Mr Duncan-Watt's and Mr Rockefeller's cross-examination on this topic, but relying principally on the contemporaneous documents, I have no hesitation in concluding that Mr Rockefeller lied to Mr Duncan-Watt in April to June 2013 by stating that Mr Gooding was insisting on dealing with one production company when licencing Thank You For Being A Friend. Mr Rockefeller saw the 1 July 2013 email from Mr Duncan-Watt to Mr Pulsford before swearing his affidavit in reply but continued to deny that he had any such conversation with Mr Duncan-Watt. This fact, and Mr Rockefeller's continued denial of making the misrepresentation in his affidavit evidence and the evidence he gave in cross-examination, reflect poorly on Mr Rockefeller's credibility. 73 Contrary to Mr Rockefeller's evidence and submissions, there was nothing which could warrant the conclusion that Mr Duncan-Watt assigned copyright to Mr Rockefeller because of "industry practice" or any disparity in financial contribution as between him and Mr Rockefeller. B.6 The 9 July 2013 Writers Assignment Agreement 74 Thank You For Being a Friend's second run occurred at the Darlinghurst Theatre in Sydney from about 2 to 7 July 2013. 75 The "Writers Assignment Agreement" was entered into on 9 July 2013. Both Mr Rockefeller and Mr Duncan-Watt assigned copyright in Thank You For Being A Friend to Mr Rockefeller's company, JWR Productions (then called Joey Creative Management Pty Ltd). Under the agreement each of them was to receive 50% of the royalties from future productions of Thank You For Being A Friend and to be credited as co-authors wherever it played. 76 I am satisfied that Mr Duncan-Watt agreed to enter into this agreement and assign copyright to JWR Productions because he wanted to secure Mr Gooding and Mr Henderson to produce the show, and because he understood from the false representation made to him by Mr Rockefeller that Mr Gooding insisted on dealing with only one licensor. 77 Mr Duncan-Watt would not have assigned copyright to JWR Productions if the false representation had not been made to him by Mr Rockefeller. Mr Duncan-Watt's desire to include a clause for the rights to revert to him if no licence agreement was entered into within three months indicates a genuine concern about assigning copyright. This conclusion is also supported by the matters set out in Sections B.9 to B.11 below. B.7 The 17 July 2013 Licence Agreement 78 On 12 and 17 July 2013, a "Licence Agreement" dated 18 June 2013 was executed by: (1) the "Licensor", JWR Productions (then Joey Creative Management Pty Ltd); and (2) the "Originating Producers", Matthew Management and Neil Gooding Productions. 79 The chapeau included: … The Licencor licenses to the Originating Producers the right to produce and present the dramatico-musical work entitled THANK YOU FOR BEING A FRIEND (the "Work") by JONATHAN WORSLEY and THOMAS DUNCAN-WATT ("Authors") for theatrical productions upon the following terms and conditions: 80 Clause 2 provided: 2. Scope of Originating Producers' Licence The Licensor hereby licences to the Originating Producers the right in the Territory to the originating production of the Work on the Theatrical Stage. 81 The term "Territory" was defined in cl 1 as "The World". 82 Clause 5.4 provided (emphasis in original): 5.4 The Licensor agrees to deliver to Originating Producers the four existing puppets that have been built for the Work. The Originating Producers agree to pay the Licensor the sum of $4000 (plus GST if applicable) in consideration for these. Payment shall be made within Fourteen (14) days of a valid Tax Invoice being submitted to the Originating Producers by The Licensor. 83 Clause 6 dealt with the form of billing and credits. It provided (emphasis in original): 6. Billing and Credits Originating Producers agree that every billing of the Work and the Authors shall appear on all programs, house boards and displays in the following manner: Thank You For Being A Friend By Jonathan Worsley & Thomas Duncan-Watt The Authors to receive billing credit in all forms of publicity and advertising under the control of the Originating Producers, wherever and whenever the title of the Work appears. In addition, the Originating Producers agree that the following billing will appear in production programs: Puppets designed by Joey Creative Original Production produced by Jonathan Worsley 84 Clause 7 dealt with payments, royalties and accounting. 85 Clause 13 was headed "Reservation of Rights" and provided: The Licensor reserves for its use and disposition in the Territory and throughout the world at any and all time, all rights of any kind or nature other than the rights specifically licensed to Originating Producers hereunder, whether such rights are now known or shall hereafter come into existence, and whether such rights are of a competing nature with the rights licensed hereunder. The said reserved rights shall include, but shall not be limited to, all motion picture, synchronisation, broadcast, recording, television, radio, stage (other than the first-quality stage), electrica[l], or mechanical reproduction, commercial tie-in and publication rights of all kinds. The Licensor shall have the right to use and exercise and to permit others to use and exercise such reserved rights at any time, free from any claim or interference by the Originating Producers. 86 By cl 14, JWR Productions granted to Neil Gooding Productions and Matthew Management "the first right of refusal to produce, or invest, in any future productions of the Work in the Territory specified in this License, or throughout the World". 87 The governing law of the agreement was that of New South Wales: cl 24. B.8 Payment for puppets: July 2013 to November 2013 88 On 29 July 2013, Neil Gooding Productions and Matthew Management paid JWR Productions $4,400 for the cost of the four puppets. The puppets were delivered to them in accordance with cl 5.4 of the Licence Agreement. 89 In his affidavit, Mr Duncan-Watt gave the following account of a conversation with Mr Rockefeller in July or August 2013: TDW: Are we selling the puppets to Neil [Gooding] and Matt [Henderson] as part of the deal? JWR: I wasn't able to get any extra money from them, they will be included free as part of the deal. 90 Mr Duncan-Watt then gave an account of a telephone conversation with Mr Henderson which occurred on 2 November 2013 to the following effect: MH: I'm starting to question whether Jonathan has been entirely truthful in his business dealings with us. Are those puppets we've bought really worth $4000? TDW: You bought the puppets for $4000? MH: Yes, the Golden Girls puppets. 91 Mr Duncan-Watt said he rang Mr Rockefeller and had the following conversation: TDW: Matt Henderson just told me they paid you $4000 for the puppets. You told me we'd given them away for free. JWR: I was waiting to do the accounts for the whole deal, I wanted to see if there was any money left over to surprise you with a profit. 92 Mr Duncan-Watt's partner, Mr Policarpio, gave evidence that he was woken by a late night phone call from Mr Duncan-Watt on the same day, when Mr Duncan-Watt told him that Mr Rockefeller had sold the puppets without Mr Duncan-Watt's knowledge. Mr Policarpio made a journal entry at the time which confirmed the conversation. 93 Mr Rockefeller gave the following account of a conversation with Mr Duncan-Watt (which Mr Rockefeller considered occurred shortly after 14 November 2013): TDW: Speaking of money, I haven't received my half of the proceeds for the puppets yet. Neil [Gooding] said he sent it to you and it was the first I've heard about it. JWR: You and I agreed to the minimum terms and I negotiated a better deal with more money for us both. Why exactly are you complaining? TDW: Where's my money? I don't have my half yet. JWR: If you will recall on the first show I overpaid you by two thousand dollars and it took six months to get that money back from you. Once we finalise the reconciliations you will be paid your share. I think you conveniently forget how much more I've paid out of my pocket than you have. Remember – the whole entire reason we went into the assignment agreement in the first place was because you did not want to pay for legal fees, insurance and other costs. You don't take any responsibilities – you put them all on me – yet you want all the rewards. 94 I accept Mr Duncan-Watt's account of the conversation. Mr Rockefeller later paid Mr Duncan-Watt his share of the sale price of the puppets. B.9 Conversation between Mr Duncan-Watt and Mr Gooding on 18 October 2013 95 Mr Duncan-Watt and Mr Gooding spoke by telephone in October 2013. Although Mr Duncan-Watt stated in his affidavit that this telephone call was with both Mr Gooding and Mr Henderson, I conclude that he was honestly mistaken in recalling Mr Henderson as having been present. Mr Gooding's clear recollection was that Mr Henderson was not present during this call. Mr Henderson did not refer to the conversation in his affidavit. The fact that the conversation was only between Mr Duncan-Watt and Mr Gooding is consistent with Mr Duncan-Watt's email of 21 October 2013 referred to below. 96 Mr Duncan-Watt's account of the conversation was as follows: TDW: The only reason I assigned my rights in the show to Jonathan's company was that he told me you guys would only deal with one licensor. NG: That's not true. We could just as easily have an agreement with two licensors. We do that all the time. TDW: Is it too late to change it? NG: No, we can get a new version drawn up. 97 Mr Gooding's evidence in cross-examination included: … And then Mr Duncan-Watt in that phone call said to me that Mr Rockefeller had told him that Matthew [Henderson] and I would not sign the licence with the two of them as licence – as co-writers and that the rights had to be bundled into one company. 98 Mr Gooding confirmed that he had not said to Mr Rockefeller that he and Mr Henderson would not sign a licence with two licensors. He stated he had licensed a number of shows with writers and almost always done so "with multiple writers in their own capacity". 99 Mr Gooding confirmed that he said to Mr Duncan-Watt in the conversation in October 2013 that he and Mr Henderson could equally have had an agreement with two licensors. He confirmed that Mr Duncan-Watt asked if it was too late to change the agreement. Mr Gooding confirmed that he said to Mr Duncan-Watt that he could have a new version drawn up. 100 The substance of this conversation between Mr Duncan-Watt and Mr Gooding was confirmed by a contemporaneous email sent by Mr Duncan-Watt on 21 October 2013 to Mr Tom Hillyard, a lawyer at the Australian Writers' Guild. In that email, Mr Duncan-Watt described the history behind the Licence Agreement in the following terms (emphasis and errors in original): Basically in January/February, the person I co-created the show 'Thank You For Being a Friend' with, Jonathan Worsley (and the owner of half the copyright) told me and Bruce Pulsford that in order to sell this show to new producers (Neil Gooding and Matthew Henderson) these new producers were insisting they would only sign a contract with a single Pty Ltd company. Based on that fact (an[d] in consultation with Bruce, to whom Jonathan also reiterated this 'condition' to) we agreed I would sign a writer's agreement (attached), assigning my copyright to his production company on the proviso that the sale would go through and that the final contract met certain key criterion. 101 The email then described how Mr Duncan-Watt had found out about Mr Rockefeller's misrepresentation from Mr Gooding: On Friday last week [namely 18 October 2013], however, I learned – while meeting with one of the new producers, Neil [Gooding] regarding rewrites – that this 'pty ltd company' condition was a complete fabrication by Jonathan, and that not only did the new producers (both Neil and Matthew [Henderson]) never suggest they wouldn't sign a contract with an individual writer (me), they would prefer to have my name on the contract! 102 Mr Duncan-Watt then gave in the email an account of a conversation he had with Mr Rockefeller: Since I only found this out on Friday, I immediately contacted Jonathan [Rockefeller] about it, informing him that – for whatever reason – he misled both myself and Bruce [Pulsford] in his dealings. As a result of this information coming to light both myself and the new producers are keen that I be on the contract, so I need Bruce's help on what the best procedure is. Jonathan has also grudgingly agreed to this process so long as I take care of any rewrites to the contract! 103 Mr Duncan-Watt then recorded that Miriam (who worked at the Australian Writers' Guild) had suggested three possible courses of action, and asked for Mr Hillyard's advice in relation to those suggestions: So, basically what Miriam suggested was that there were a couple of ways of dealing with this smartly and efficiently. What I need is Bruce's advice and help on whether I need to: 1. 'Rescind' the writer's agreement I have with Jonathan? 2. Simply do an addendum to the existing contract adding me as one of the people signing it? 3. Rewrite the contract? Then I just need help execut[ing] this as simply and painlessly as possible. I already agree to everything in the final contract as it exists currently (except for the credit which Jonathan has agreed to change back to 'By Thomas Duncan-Watt & Jonathan Worsley' period), bar the absence of my name on the contract, rather than assigning any rights to Jonathan's production company via a writer's agreement. 104 I accept that the October 2013 conversation between Mr Duncan-Watt and Mr Gooding occurred in accordance with the evidence of Mr Duncan-Watt and Mr Gooding, as confirmed by Mr Duncan-Watt's contemporaneous email. Based on the email, I conclude that it occurred on 18 October 2013. B.10 Mr Rockefeller agreed to execute a new Licence Agreement, with Mr Duncan-Watt as a licensor 105 Mr Rockefeller stated in his first affidavit that – at the end of a conversation concerning his non-payment to Mr Duncan-Watt of a share of the proceeds from the sale of the puppets (which he incorrectly considered occurred on 14 November 2013) – the following was said: TDW: I want my interest back. JWR: You've assigned it away. You didn't want it. If you wanted to retain it you would have paid 50% of everything and lived up to your responsibilities – but you haven't and don't want to. I would never reverse the assignment agreement with you because you don't pay for anything and don't honour your promises. 106 The contemporaneous documents indicate that the conversation with respect to the sale of the puppets occurred on or about 2 November 2013. 107 Mr Duncan-Watt stated that, after his conversation with Mr Gooding on 18 October 2013, he had a conversation with Mr Rockefeller in which he understood Mr Rockefeller to have agreed to sign a new licence agreement which named both Mr Duncan-Watt and Mr Rockefeller as the licensors. Mr Duncan-Watt thought this occurred in November 2013. For reasons I will come to, I conclude that such conversations occurred on 18 October 2013 and possibly in a further conversation or conversations on or shortly before 3 November 2013. Mr Duncan-Watt said the conversation was in the following terms: TDW: Neil Gooding just told me that they'd never insisted on only signing with one proprietary limited company to do the license agreement? Why did you tell me they had? JWR: That's not what they told me. TDW: Well, now it's clear there's no reason to assign rights to your company, you won't have any objections to us signing a new agreement naming me as co-licensor then, right? JWR: Fine, as long as you take care of any legal fees. TDW: That's fine. 108 I accept the conversation occurred substantially in those terms. I conclude the conversation occurred at least on 18 October 2013. That is consistent with the email of 21 October 2013. It may also have been repeated in early November 2013. 109 In his second affidavit, Mr Rockefeller denied the conversation was in the terms just described and put forward the following account of the conversation: TDW: I want to sign the licensing agreement. JWR: Signing won't make any material difference. You do understand that the copyright is in the company and signing an agreement won't have any effect on the ownership of the copyright. TDW: But I co-wrote it. I think I should have signed it. JWR: But you don't own the copyright. TDW: Then, can I get it back? JWR: No. 110 I do not accept that a conversation occurred in those terms. I conclude that Mr Rockefeller gave that evidence solely because he considered it would advance his case. 111 On Sunday, 3 November 2013, Mr Duncan-Watt wrote an email to Mr Gooding and Mr Henderson stating that he and Mr Rockefeller had come together over the weekend and agreed to two amendments to the Licence Agreement. The first was to the order of credits and the second was that Mr Duncan-Watt would now also be a signatory to the Licence Agreement. 112 Mr Duncan-Watt recorded in the email that his lawyer suggested including a clause stating that the new contract with all four signatories would supersede any previous contracts. Consistently with his conversation with Mr Gooding on 18 October 2015, this email referred to Mr Duncan-Watt's understanding that Mr Gooding and Mr Henderson were amenable to both revisions. That understanding was evidently correct: the proposed amendments were implemented by Mr Gooding without any issue being raised. Mr Duncan-Watt's email of 3 November 2013 is consistent with the 21 October 2013 email and with Mr Gooding's evidence. 113 On 14 November 2013, Mr Gooding sent to Mr Duncan-Watt and Mr Rockefeller a revised licence agreement. This included as licensors, both Joey Creative Management Pty Ltd (now JWR Productions) and Mr Duncan-Watt. It also made changes to cl 6 dealing with "billing and credits". It included a new cl 26 providing that "all previous signed contracts will be superseded". 114 Having received from Mr Gooding the revised Licence Agreement on 14 November 2013, Mr Duncan-Watt suggested further minor changes by email sent on 15 November 2013. Mr Rockefeller wrote nothing to suggest that the revised Licence Agreement was not what had been agreed, or that he disputed it should be executed. A further draft was circulated by Mr Gooding by an email dated 20 November 2013. 115 I conclude that Mr Rockefeller agreed with Mr Duncan-Watt that he would execute a new licence agreement which provided for both Mr Duncan-Watt and JWR Productions to be the licensors. I conclude that Mr Rockefeller, on behalf of JWR Productions, represented that Mr Duncan-Watt's original assignment of copyright to JWR Productions would be accepted as ineffective by reason of the manner in which it had been procured by Mr Rockefeller (namely by a knowingly false representation), or that copyright would be assigned by JWR Productions back to Mr Duncan-Watt for the same reason. This occurred through the conversations and conduct between 18 October 2013 and 3 November 2013, set out above. 116 As will next be seen, Mr Rockefeller executed the 25 November 2013 Licence Agreement without demur. There was no contemporaneous documentary record which suggested that Mr Rockefeller did not agree to all aspects of the 25 November 2013 Licence Agreement. B.11 The 25 November 2013 Licence Agreement 117 In his first affidavit, Mr Rockefeller referred to a "revised Licence Agreement which appears on its face to have been signed by all of the parties". Mr Rockefeller stated in that affidavit that he had no recollection of ever signing that document and that he denied executing it in Mr Gooding's presence. 118 Mr Rockefeller's opening submissions stated that there was "some controversy" about the genesis and execution of this new Licence Agreement. 119 When cross-examined, Mr Rockefeller readily accepted that it was his signature on the new Licence Agreement, and ultimately accepted that he had signed the document on or around 25 November 2013. The "controversy" was thus largely if not entirely quelled. 120 It was submitted by Mr Rockefeller that the genesis of the 25 November 2013 Licence Agreement was Mr Duncan-Watt's concerns with respect to the form of the credits for Thank You For Being A Friend. This submission was made in aid of Mr Rockefeller's case that the 25 November 2013 Licence Agreement did not replace the July 2013 Licence Agreement and that Mr Duncan-Watt had nothing to licence because he had already assigned copyright to JWR Productions. 121 The "genesis" of the 25 November 2013 Licence Agreement could be said to have been the form of credits only in the limited sense that the first issue to arise between Mr Duncan-Watt and Mr Rockefeller was one concerning the form of credits. On 9 September 2013, Mr Rockefeller (then Mr Worsley) wrote an email to Mr Gooding and Mr Henderson confirming that he and Mr Duncan-Watt had "revised the way that we're billing ourselves." Mr Rockefeller confirmed that this would not affect anything in the contract other than the order of their names. This email followed a conversation between Mr Rockefeller and Mr Duncan-Watt in which they agreed that Mr Duncan-Watt's name would go first in the credits. It was not proposed to replace the July Licence Agreement at that stage. Rather, in the email of 9 September 2013, Mr Rockefeller proposed that the parties agree to an addendum to the July Licence Agreement. 122 However, a second issue had arisen by 18 October 2013. As set out above, Mr Duncan-Watt had discovered that he had been misled by Mr Rockefeller's false representation into thinking that he had no real option other than to assign copyright to JWR Productions. Mr Duncan-Watt had learned that, contrary to Mr Rockefeller's earlier representations, it had not been a requirement of Mr Gooding that a licence agreement be entered into with a single licensor. Mr Duncan-Watt raised this with Mr Rockefeller and consulted a lawyer from the Australian Writers' Guild. He received advice which ultimately resulted in the parties entering into the 25 November 2013 Licence Agreement. 123 Under the 25 November 2013 Licence Agreement, Mr Duncan-Watt was one of the licensors, together with JWR Productions (then Joey Creative Management). Clause 6 was changed (see [83] above) and now provided: 6. Billing and Credits Originating Producers agree that every billing of the Work and the Authors shall appear on all programs, house boards and displays in the following manner: Thank You For Being A Friend Conceived and Written by Thomas Duncan-Watt & Jonathan Worsley The Authors to receive billing credit on Posters, DL Flyers and websites under the control of the Originating Producers. In addition, the Originating Producers agree that the following billing will appear in production programs and any printed collateral where any credits appear: Originally produced by Jonathan Worsley & Thomas Duncan-Watt Puppets designed by JOEY 124 Clause 26 was added. It provided that all previous contracts between the parties were superseded: 26. Superseding Contract It is agreed between the parties, that upon the full execution of this contract, all previous signed contracts will be superseded, and this will be the only valid contact between the parties in relation to the production. 125 Mr Rockefeller submitted that cl 26 had no practical or legal effect: (1) First, he submitted that the clause only bound the parties to "this" contract and had no effect on other contracts to which the same parties were not privy. (2) Secondly, he submitted that Mr Duncan-Watt had assigned his rights to JWR Productions and that those rights had not been assigned back to him. Mr Duncan-Watt had nothing of legal consequence to give. It was submitted that "[h]is inclusion on the licence agreement may have meant something to him (and seemingly quite a lot) but it was redundant in any relevant sense". Mr Rockefeller submitted that the 25 November 2013 Licence Agreement could not operate as an assignment of copyright back from JWR Productions to Mr Duncan-Watt under the Copyright Act 1968 (Cth). 126 For the reasons which follow, I reject these contentions. 127 As to the first contention, each of the three parties to the 9 July 2013 Licence Agreement executed the 25 November 2013 Licence Agreement. The 25 November 2013 Licence Agreement introduced a fourth party, Mr Duncan-Watt. It could not have been clearer that the parties' intention, objectively ascertained from the words they employed, was that Mr Duncan-Watt was one of the licensors. 128 The opening words of the 25 November 2013 Licence Agreement expressly stated that Mr Duncan-Watt was one of the two licensors, defined as the "Licensors". Clause 1 then confirmed that the "Licensors [one of whom was Mr Duncan-Watt] represent[ed] that they have the right to licence the production and presentation of the Work". This representation was repeated in cl 10. 129 Clause 23 had previously provided for all royalty payments to be made to Joey Creative Management (JWR Productions). This was changed to provide that payments were to be made equally to the two "Licensors", Joey Creative Management (JWR Productions) and Mr Duncan-Watt: 23. Notices Notices to the Originating Producers shall be sent to Neil Gooding Productions Pty Ltd [address]. All payments (can be made by wire transfer) and statements due to the Licensors hereunder shall be addressed to JOEY CREATIVE MANAGEMENT PTY LTD (ABN 83 130 449 428) [JWR PRODUCTIONS] [address] and THOMAS DUNCAN-WATT (ABN 83 534 482 677). Payments to the Licensors shall be split 50% to JOEY CREATIVE MANAGEMENT PTY LTD and 50% to THOMAS DUNCAN-WATT. 130 Mr Duncan-Watt requested this alteration in his email of 15 November 2013. 131 The new clause 26 ("Superseding Contracts") must be read against the factual context in which the new Licence Agreement came into existence. The contract came into existence because the parties had discovered that Mr Rockefeller had, through a knowingly false representation, secured for the benefit of his company an assignment of Mr Duncan-Watt's copyright. The parties wanted to undo that wrongdoing. 132 Clause 26, understood in the context of the circumstances known to the parties, and in context of the agreement as a whole, was objectively intended to apply both to the 9 July 2013 Licence Agreement (between JWR Productions, Neil Gooding Productions and Mr Henderson) and to the Writers Assignment Agreement (between JWR Productions, Mr Rockefeller and Mr Duncan-Watt). If cl 26 was intended to refer only to the 9 July 2013 Licence Agreement it would not have referred to "all previous signed contracts", it would have referred only to the previous Licence Agreement. 133 As to the second contention, Mr Rockefeller relied upon s 196 of the Copyright Act which provides that copyright is personal property, transmissible by – amongst other things – assignment. Subsection 196(3) provides: An assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor. 134 Mr Rockefeller submitted that the 25 November 2013 Licence Agreement did not satisfy the requirements of s 196(3) of the Copyright Act, in that it was not an assignment in writing, signed by or on behalf of the assignor. 135 The better view of events is that the purported assignment of copyright by Mr Duncan-Watt to JWR Productions under the "Writers Assignment Agreement" was voidable by Mr Duncan-Watt, it having been procured by Mr Rockefeller's fraud – see: Derry v Peek (1889) 14 App Cas 337; Civil Service Co-operative Society of Victoria Ltd v Blyth (1914) 17 CLR 601 at 609 - 610. Mr Duncan-Watt rescinded the assignment to JWR Productions, as he was entitled to do – see: Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1988) 18 NSWLR 420. That rescission was unequivocally communicated by Mr Duncan-Watt's conduct in entering into the 25 November 2013 Licence Agreement under which Mr Duncan-Watt was a joint licensor of the rights – see: Heydon on Contract at [31.190]. 136 An alternative view is that the proper construction of the 25 November 2013 Licence Agreement is that JWR Productions impliedly assigned back to Mr Duncan-Watt the copyright Mr Duncan-Watt had assigned to it under the Writers Assignment Agreement. The implication is necessary to give the contract business efficacy. The terms of the 25 November 2013 Licence Agreement made it clear that the parties' intention was for both JWR Productions and Mr Duncan-Watt to be the "Licensors". This only made sense if Mr Duncan-Watt had copyright to licence. Clauses 1, 10 and 23 reveal that the implication is so obvious it goes without saying. The contract is a non-sense without the implication. 137 On this alternative view, if the assignment of copyright from Mr Duncan-Watt to JWR Productions was not rescinded, that company assigned copyright back to Mr Duncan-Watt, and the 25 November 2013 Licence Agreement is sufficient "writing" reflecting the assignment for the purposes of s 196(3). It is well-established that documents which do not in express terms assign copyright, or identify the subject matter of the assignment, can suffice for the purposes of a provision such as s 196(3): E W Savory Ltd v World of Golf Ltd [1914] 2 Ch 566; Greenfield Products Pty Ltd v Rover Scott Bonnar Ltd (1990) 95 ALR 275 at 280. 138 In any event, JWR Productions would have been estopped from denying that Mr Duncan-Watt was a joint licensor under the 25 November 2013 Licence Agreement, as a joint holder of copyright, with an entitlement to 50% of the payments required to be made by the "Originating Producers" as licensees. 139 All the elements of a common law estoppel by convention were made out. Where parties to a contract conduct themselves on the basis of an assumed state of affairs – including that a contract has a particular effect or its terms have a particular meaning – on the faith of which each to the others' knowledge acts in the conduct of their affairs, they are bound by that assumed state of affairs (or understanding or interpretation) if it would be unconscionable or inequitable to allow departure from it: Thompson v Palmer (1933) 49 CLR 507; Grundt v Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226. 140 The parties adopted a common understanding of that which governed their relations in circumstances which would render it unjust to allow departure from that understanding. The parties conducted themselves on the basis that Mr Duncan-Watt was the joint holder of copyright in Thank You For Being A Friend and that he was entitled to 50% of the payments due under the 25 November 2013 Licence Agreement. 141 It would be unconscionable to allow departure from that common assumption. Mr Duncan-Watt would not have let the matter rest if Mr Rockefeller had denied that Mr Duncan-Watt was the joint owner of copyright, rather than executing for JWR Productions an agreement which necessarily implied that Mr Duncan-Watt was the joint holder of copyright and proceeding to deal with all parties on that basis – see, for example: [224], [229] and Section B.29 below, particularly [240] to [242]. Mr Duncan-Watt would have taken action to protect his position, for example by seeking a declaration that the Writers Assignment Agreement had been rescinded. That inference arises from the facts outlined above, particularly Mr Duncan-Watt seeking legal advice immediately after he became aware of Mr Rockefeller's wrongdoing – see: in particular, Section B.9 above. B.12 Thank You For Being A Friend is revised and finalised: November and December 2013 142 During November 2013, Mr Duncan-Watt made revisions to the script for Thank You For Being A Friend. Some revisions were made as a consequence of suggestions from Mr Gooding and Mr Henderson. The revisions were approved by Mr Rockefeller. 143 Mr Rockefeller stated that he and Mr Duncan-Watt "went through a process of amending the script" of Thank You For Being A Friend and stated that this was a "very collaborative process" between Mr Duncan-Watt and himself. I am satisfied that the revisions were written almost entirely by Mr Duncan-Watt and approved by Mr Rockefeller. 144 The set for Thank You For Being A Friend had been constructed by December 2013 and the show was in rehearsals. The final version of the script for Thank You For Being A Friend was completed on around 12 December 2013. B.13 Thank You For Being A Friend is performed from January 2014 145 Thank You For Being A Friend was performed at the Theatreworks in Melbourne in January 2014. In February 2014 it was performed at the Seymour Centre in Sydney as an official Mardi Gras festival event. It was performed on subsequent occasions and attracted positive reviews. B.14 Mr Rockefeller moved to New York in June 2014 146 Mr Rockefeller moved to New York in June 2014. According to Mr Duncan-Watt, Mr Rockefeller said to him in 2014, during a telephone conversation: I wish we had never signed the agreement with them now that I have the money and contacts in New York. I could produce the show here myself. 147 Mr Rockefeller denied saying this but agreed that he said: They aren't doing well enough with the show overseas. I could do it much better from here. B.15 Mr Duncan-Watt commences work on Mr Rockefeller's novel: June to September 2014 148 On 19 June 2014, Mr Rockefeller gave to Mr Duncan-Watt a synopsis of a proposed novel, then with the title Blood, Sweat and Perfume. It was later renamed No. 5½. It was based on a screenplay written by Mr Rockefeller called Satisfaction. 149 The script for Satisfaction was an auto-biographical story of Mr Rockefeller's life and career experiences working with Baz Luhrmann. Mr Rockefeller described Satisfaction as being based on his experiences "working with Baz on La Bohème and on his Chanel No. 5 advertising commercial which featured Nicole Kidman". Mr Rockefeller had worked on writing Satisfaction for about 10 years and had prepared 10 versions of the script. 150 A revised synopsis of Blood, Sweat and Perfume was sent to Mr Duncan-Watt on 28 June 2014. 151 Mr Duncan-Watt began writing the novel in July 2014. The arrangement was that Mr Duncan-Watt would write the novel inspired by Mr Rockefeller's material, Mr Duncan-Watt and Mr Rockefeller would "plot it" together, and Mr Rockefeller would review and comment on what Mr Duncan-Watt had written. Mr Rockefeller and Mr Duncan-Watt reached an agreement, orally, that Mr Duncan-Watt was to be paid for his work, that copyright would be jointly owned and that both would be credited as authors. 152 On 5 December 2014, Mr Rockefeller sent to Mr Duncan-Watt a revised synopsis of what was by this time called No. 5½. As described below, a written agreement was put in place in late December 2014. B.16 Neil Gooding Productions and Mr Henderson execute a "Booking Services Agreement" and have a discussion with Mr Rockefeller: September and December 2014 153 On 1 September 2014, Mr Gooding sent an email to Mr Rockefeller stating: Matt [Henderson] and I are starting to talk seriously with a US producer and general manager who is about to start pitching the show for touring in the USA late 2015. Can you send through the details of the puppet maker etc. We are going to have to get new ones made at some point for USA etc. 154 On around 14 September 2014, Mr Gooding (for Neil Gooding Productions) and Mr Henderson executed a written "Booking Services Agreement" with East Bank Entertainment. Mr Matthew Chinn executed the contract for East Bank. The agreement related to Thank You For Being A Friend which was described as a "touring theatrical production". Under the agreement East Bank would promote Thank You For Being A Friend and use its best efforts to book engagements and to secure performances on a logical tour route at agreeable and commercially reasonable financial terms for the 'producer' (Neil Gooding Productions and Matthew Management). 155 On or around 10 December 2014, Mr Rockefeller, Mr Duncan-Watt and Mr Gooding met in Ultimo in Sydney. Mr Rockefeller had asked to borrow the puppets for a photo shoot and Mr Gooding brought them with him. Different accounts of the conversation were given by Mr Rockefeller and Mr Gooding. On either account it is clear that Mr Gooding did not mention that the Booking Services Agreement had been executed. Mr Gooding stated that there was complexity around getting the right General Manager in the United States. 156 Although a Booking Services Agreement had been executed in September 2014, a General Management Agreement had not. That was to occur only once a viable tour had been booked. B.17 Mr Rockefeller, Mr Duncan-Watt and the photo shoot: November and December 2014 157 Mr Rockefeller stated in his first affidavit that, in late November 2014, he spoke to Mr Duncan-Watt saying he wanted to do a photo shoot with the Thank You For Being A Friend puppets when he was in Australia. He said that, during this conversation, Mr Duncan-Watt asked if he could also have a shot taken with a Dennis the Menace puppet. Mr Rockefeller stated that, after this conversation had occurred, he made the relevant arrangements with Mr Dario Gardiman. 158 In fact, Mr Rockefeller had exchanged emails with Mr Gardiman on 9 November 2014, arranging a photo shoot for 13 December 2014 – see also: Section F below. 159 Mr Rockefeller stated that he had a second conversation with Mr Duncan-Watt on around 2 December 2014. Mr Rockefeller asserted he said to Mr Duncan-Watt that Mr Gardiman would take the additional photos and would charge Mr Duncan-Watt $1,000 for them and that he told Mr Duncan-Watt that he would also need to pay for usage of the photographs. He stated: JWR: Dario will take the extra photos for you. He will be charging you $1,000 for them. He doesn't have his studio anymore unfortunately, but he will find another location. TDW: Is that how much a shoot usually costs? JWR: They usually cost a lot more. You're getting a very good deal at mates' rates. You've more than doubled his work. TDW: I don't see why I have to pay when you are having some pictures taken anyway. JWR: They're not for me, they're for you - they're for your press and your website. You'll also need to pay for their usage. TDW: Why? JWR: Tom, you work in advertising, you know you have to pay for usage. If you don't want to do this, I'll go and do my own thing without you. TDW: How much will the studio be? JWR: I'm getting a quote from him. TDW: OK – fine. I'll pay for the shots and we'll split the other costs. But I'm, not paying for any re-touching – no one else knows how I like my face re-touched. I'll do that myself. 160 Mr Duncan-Watt gave a different account. He stated that Mr Rockefeller told him that he had organised a photo shoot with Mr Gardiman for them both. This was to take photographs of Mr Rockefeller and Mr Duncan-Watt with the puppets as publicity for Thank You For Being A Friend. Mr Duncan-Watt's account was that Mr Rockefeller said he was having Mr Gardiman do some other work for him and that Mr Gardiman could also do some shots for the novel, No. 5½. Mr Duncan-Watt asked if he could also get a shot with a Dennis the Menace puppet. Dennis the Menace & Gnasher had recently received a BAFTA nomination. According to Mr Duncan-Watt, Mr Rockefeller did not suggest that there would be any charge to Mr Duncan-Watt. For reasons expanded on immediately below and in Section F, I accept that the conversation occurred in the terms indicated by Mr Duncan-Watt, except that although Mr Rockefeller did say Mr Gardiman was doing other work for him, he may not have mentioned obtaining photographs for the novel, No. 5½. 161 Mr Rockefeller stated in his first affidavit at [59]: Mr Gardiman did not charge me for the photographs he took of only me, as he took those photographs as a personal favour to me. The $1000 he charged was for the photographs which included Thomas Duncan-Watt [namely those of both Mr Rockefeller and Mr Duncan-Watt for Thank You For Being A Friend]. This is not consistent with his account of the conversation with Mr Duncan-Watt given at [52] of his first affidavit set out at [159] above, in which Mr Rockefeller stated that the amount of $1,000 was for the "extra photos" requested by Mr Duncan-Watt, that is, for the photos that were to be taken of Mr Duncan-Watt with the Dennis the Menace puppet. In his second affidavit, Mr Rockefeller again asserted that he had agreed with Mr Duncan-Watt that Mr Duncan-Watt would pay for the whole photo shoot and that they would split certain incidental costs equally between them. There was no satisfactory explanation given as to why Mr Duncan-Watt would agree to pay the whole cost of a photo shoot conceived and arranged by Mr Rockefeller in part for his own purposes. 162 In the context of the whole of their dealings it is unlikely that Mr Rockefeller would have asked Mr Duncan-Watt to pay for the whole photo shoot or that Mr Duncan-Watt would have agreed to do so. As explained in detail in Section F below, I conclude that it was Mr Rockefeller who agreed with Mr Gardiman to pay $1,000 for the photo shoot. This is consistent with each contemporaneous document, with the fact that $1,000 was paid for the photo shoot by JWR Production and with Mr Gardiman's letter of 21 December 2016. 163 On 3 December 2014, Mr Rockefeller emailed Mr Gardiman stating: So we can start piecing together lighting, hair & makeup for the 13th, these are the two shots: 1) With the four Golden Girls puppets, similar lighting to this. 2) The b + w stylized and photoshopped figurine. I'll try and find the 'other half' before then, started looking already. I also have to let Tom have a go with the puppets – no doubt you remember him. 164 The reference to stylized and photo shopped figurines was a reference to photos in which half of the face was that of Mr Rockefeller and the other half was of a different person, as it turned out the image of a statue reminiscent of a Greek god which Mr Rockefeller had found online. 165 The photo shoot took place on 12 or 13 December 2014. 166 On 18 December 2014, Mr Rockefeller sent an email to Mr Gardiman thanking him for the shoot and stating: "Do you want to send me an invoice for $1,000? Or?". 167 Mr Rockefeller's evidence was that this was intended to convey that, if Mr Gardiman did not want to send an invoice, Mr Rockefeller would give him cash. None of the contemporaneous evidence suggested that there was to be a charge of $1,000 to Mr Duncan-Watt for the photo shoot or for the additional shots of him with the Dennis the Menace puppet. The only contemporaneous documents suggested that it was Mr Rockefeller or JWR Productions that was liable for the cost of the photo shoot. 168 On 6 January 2015, JWR Productions paid Mr Gardiman $1,000. No request was made at that time for Mr Duncan-Watt to pay any amount to Mr Gardiman or to reimburse JWR Productions. 169 I conclude that Mr Rockefeller's two accounts of his conversations with Mr Duncan-Watt in late November 2014 and on 2 December 2014 are incorrect and that Mr Rockefeller did not at that time discuss with Mr Duncan-Watt that Mr Duncan-Watt would be charged for any aspect of the photo shoot or for using the photographs – see also: Section F below. B.18 Lilianfels and the Author Collaboration Agreement: December 2014 170 Mr Rockefeller and Mr Duncan-Watt went to Lilianfels Resort in the Blue Mountains from 21 to 23 December 2014, to discuss and develop No. 5½. During the time at Lilianfels, Mr Duncan-Watt and Mr Rockefeller jointly created and wrote a new synopsis and chapter breakdown of the novel. 171 Mr Rockefeller stated that he took with him various scripts for various works he had written, including the 10 scripts for Satisfaction. He also stated that he took with him various other documents, including personal journal notes taken during his time working with Baz Luhrman, call sheets for La Bohème and the Chanel No 5 commercial, various magazine clippings and a book titled My Week with Marilyn. 172 Mr Rockefeller stated that Mr Duncan-Watt asked for this material at the end of the trip so that he could use the material in writing No. 5½. Mr Rockefeller says he gave all of this material to Mr Duncan-Watt. 173 Mr Duncan-Watt agreed that Mr Rockefeller gave him certain materials which Mr Rockefeller stated Mr Duncan-Watt might need for the book. Mr Duncan-Watt stated that he had collected scripts before that weekend from a friend of Mr Rockefeller's, Dani, in Paddington. Mr Duncan-Watt gave an account of a conversation with Mr Rockefeller in which Mr Rockefeller was said to have stated: I have some stuff at Paddington. You can have the PU chairs and the fan, and the Satisfaction scripts might be useful for 5 ½. Can you pick them up from there and hold onto them for me? There's also some books, if you could give them to Dario Gardiman when you come to the photoshoot. 174 Mr Duncan-Watt said he took the furniture, delivered the books to Mr Gardiman at the photo shoot and stored the scripts at his place. An email between Mr Rockefeller, Mr Duncan-Watt and Dani sent on 8 September 2014 referred to Mr Duncan-Watt making arrangement to collect the brown leather chairs from Dani. 175 After they returned from Lilianfels, Mr Rockefeller and Mr Duncan-Watt executed an "Author Collaboration Agreement" which related to No. 5½. This was done on 24 December 2014 at Mr Duncan-Watt's apartment in Elizabeth Bay. The "Author Collaboration Agreement" contemplated that copyright would be held in their joint names and that profits would be shared equally. The authorship of No. 5½ would be represented as follows: by Thomas Duncan-Watt & Jonathan Rockefeller (in that order). B.19 Mr Rockefeller considers a new Golden Girls puppet parody: January 2015 176 In early 2015, Mr Rockefeller was developing ideas for a series of shows he wanted to create, including one called "Puppet Parodies" based on several comedy shows. One of those he planned to include was a new puppet parody based on The Golden Girls, involving a stage production and several webisodes, to be called The Goldenish Girls: A Puppet Parody. 177 Mr Rockefeller stated that, in early 2015, he said to Mr Duncan-Watt: We can create an entirely different show from [Thank You For Being A Friend] that is still a puppet parody but completely different. We have to be mindful of our agreement, but it is well within our reserved rights. B.20 Mr Rockefeller raises possible breaches of the Licence Agreement with Mr Duncan-Watt: February and March 2015 178 Mr Duncan-Watt stated in his affidavit that at some time in 2015, Mr Rockefeller informed Mr Duncan-Watt that Mr Gooding and Mr Henderson were in breach of the Licence Agreement. I conclude this occurred after Mr Rockefeller raised with Mr Duncan-Watt the creation of a new Golden Girls puppet parody in January 2015. Mr Duncan-Watt said Mr Rockefeller said to him: Neil [Gooding] and Matt [Henderson] are in breach of the licence agreement – they're not consulting us where they should. We should get ready to do it ourselves. [and] My lawyers are sorting this all out. 179 I accept that this conversation occurred. 180 On 24 February 2015 (US time), Mr Rockefeller wrote an email to Mr Gooding and Mr Henderson raising "a few small Housekeeping things outstanding as per our licensing agreement". The issues included issues with respect to artwork and marketing materials (cl 5.3 of the Licence Agreement) and inspection of books and records (cl 9.1 of the Licence Agreement) and also included: [Clause] 19.1 [of the Licence Agreement] Agents – we haven't received any further updates about a proposed US production or proposed US agents since December, and it seemed then that everything was progressing speedily. Is this going ahead? Or still in a discussion phase? As per agreement, it is a requirement that we mutually agree on any agents acting on behalf of the show; on any further licensing agreements; and no rights can be transferred or assigned in any way without prior written consent. 181 Mr Henderson responded on 24 February 2015 with respect to the artwork and books and records. 182 On 12 March 2015 (US time), Mr Rockefeller sent a follow up email to which Mr Henderson replied. Mr Henderson's response included: Regarding the US run there isn't much to report. We are still working on that and would hope to have some more concrete and confirmed information by mid this year. We are not assigning any third party the rights. Neil [Gooding] and I will be running the show from Australia with staff on the ground engaged by us. B.21 Mr Rockefeller obtains legal advice, including as to whether the Licence Agreement can be terminated: March 2015 183 On 16 March 2015, Mr Rockefeller sent to Mr Andrew Dawson (a lawyer from the firm Brett Oaten) an email stating: Hi Andrew, Thank you for looking at this. I have detailed any potential breaches and any responses received below. The document is marked and numbers [sic] below. As mentioned, we will be launching a completely new work and want to make absolutely certain there are no potential conflicts with our new US production and the current Licence. Best, Jonathan 9.1 – Records I have been continuing to request a copy of all the records and they have only provided GBO sales. My understanding is it is for all monies expended, internally or externally. This is their response: With the Records in clause 9.1, if you let me know what info you want, will send something through if its appropriate. The clause actually does not give the right to see all records. It puts an onus on Matt [Henderson] and I to maintain all records (which we have to do for the ATO anyway), but only gives the right of inspection for the purpose of verifying accuracy of all statements furnished and the sums paid by the Originating Producers under the terms of the License. So, in effect, it means that if you wanted to verify the ticket sales or income that your royalties are based upon, you have the right to inspect the paperwork from the venues and ticketing companies etc. It does not mean that we provide you with all information on cast wages, travel expenses etc. Some of this is all non-contentious anyway, so who really cares, but things like wages are contracted as being confidential. Anyway, all that legality aside, if you let me know what info you wanted [I] will get it for you. But, we certainly can't provide breakdowns of all expenses etc. GFO does not have to do this to the writers and rights holders of Wicked. All they want to know is what is the box office, and what are the royalties. The amount spent on set, costumes, cast etc are not part of that agreement. 19.1 & 21 – Agents/Assignability In several inquiries dating back prior to November, I have continued to ask about a proposed US production and proposed US agents. My understanding is that all agents acting on behalf of the show or representing the show; or any further agreements would need our approval, and no rights can be transferred or assigned in any way without prior consent. Response below, which, doesn't appear to be a breach, unless the staff are from another production company: Regarding a US run there isn't much to report. We are still working on that and would hope to have some more concrete and confirmed information by mid this year. We are not assigning any third party the rights. Neil [Gooding] and I will be running the show from Australia with staff on the ground engaged by us. 4. Preservation of Work's Integrity I was sent an archive copy of the show two weeks ago and there is without a doubt new bits added in that were not signed off on. I'm not sure if this would constitute a breach or technically if this means they could just fix it for the next time they present the show after a notification. 6. Credit Our names did not / do not appear wherever or whenever the title of the work appears. Websites, Twitter and Facebook for example: http://thankyouforbeingafriend.com.au https://www.facebook.com/ThankYouForBeingAFriend https://twitter.com/BeingAFriendAus 7.3 [Payments, Royalties, Accounting] We have not received statements on a quarterly basis. However, they also haven't done any shows since Feb 14th, 2014. But all the same, still did not receive the March 2014 statement or any post then. 184 Mr Rockefeller agreed that he spoke with Mr Dawson shortly before sending this email to him. 185 On 17 March 2015, Mr Rockefeller sent an email to Mr Duncan-Watt stating that he had sought advice from a lawyer and setting out that part of the email set out above which appears after Mr Rockefeller's name, that is, the part which identifies "potential breaches". 186 Also on 17 March 2015, Mr Rockefeller received advice from Mr Dawson. Mr Dawson's advice was in the following terms: Thanks for sending this through. I've had a read through the document and your comments below. My comments on the licence follow: (a) Licence Grant – There are a few points to consider here: • It is not clear to me whether the Originating Producers' ('OPs') rights are exclusive or non-exclusive. Clause 2 which contains the licence grant doesn't specify and clauses 14 and 20 seem to contemplate other productions within the Territory. What was the parties' intention in relation to exclusivity? • The licence grant is for the World. There are no carve-outs or holdbacks for the United States. • The licence automatically terminates if the production hasn't been presented by the OPs prior to 31 December 2014. Presumably it was presented prior to this date? • The licence grant is for 5 years from first presentation. • The OPs are required to present a minimum of 10 performances in a calendar year. Presumably this has occurred? (b) Termination – Clause 11 provides for terminate [sic] if the OPs breach and don't rectify the breach within 7 days of notice requiring them to do so. Have you issued any such notice? (c) First Right of Refusal– Clause 14 contains provisions granting the OPs the 'first right of refusal to produce, or invest, in any future productions of the Work in the Territory'. It's not clear to me how this works in the context of the rights granted to the OPs. It is also not clear to me whether or not this would extend to your proposed new work in the US. (d) Originating Producer's Royalty – Clause 20 provides that the OPs will receive a royalty of 2% of the gross weekly box office of all future productions of the Work. Again, it's not clear to me whether this would extend to your proposed new work in the US or how this ties in with the licence grant. In my view, the position is that: (i) There are no provisions that prevent the OPs taking the production themselves to the US. (ii) It is not clear to me that you have a clear right to terminate the Agreement. Termination must be handled carefully because a failure to terminate correctly can give rise to a claim against you for wrongful termination. (iii) It is not clear to me whether or not the OPs have any rights in or to box office for your proposed new work in the US (see clause 20). Is the new work entirely different to Thank You For Being a Friend? In summary then, the only clear path to preventing the OPs from taking Thank You For Being a Friend to the US is to terminate the licence agreement. In order to do this, we'd need to identify a clear breach of the licence agreement, give formal notice of the breach (taking into account the notice requirements of clause 23) and give the OPs 7 days to rectify the breach. Please let me know if you'd like to discuss further. 187 On 18 March 2015, Mr Rockefeller responded to Mr Dawson's email. This stated (emphasis in original): Thank you for this, I'll mull it over a bit more. To answer your questions: • I haven't issued any notice, and am deciding on advice if it is worthwhile doing so (if we have clear breaches) • I agree with you that termination would have to be clear breaches and as they are between seasons (next one in Sept) it would be hard to creatively fault the show for failing to fix things within 7 days i.e. changes they've made to the work. • The New Work is entirely new from this work - no scripts, scenarios are similar other than [those] derived from the original source material, they will even be different puppet designs. 188 Mr Rockefeller forwarded Mr Dawson's email of 17 March 2015 to Mr Duncan-Watt on 20 March 2015. This also included the text of Mr Rockefeller's 18 March 2015 email response to Mr Dawson (set out above). 189 Mr Rockefeller was cross-examined at length about these emails and his conversation with Mr Dawson on 16 March 2016. His evidence as to what he instructed Mr Dawson was to the effect that, first, Mr Gooding and Mr Henderson had been "behaving appallingly" and he wanted to bring things back into line and, secondly, he wanted to make sure that his new show would not come into conflict with the licensing arrangement that had been granted to Mr Gooding and Mr Henderson. 190 I conclude that Mr Rockefeller obtained the advice from Mr Dawson for three purposes: first, to see whether he could prevent Mr Gooding and Mr Henderson from taking Thank You For Being A Friend to the US; secondly, to find out whether the Licence Agreement could be terminated; and, thirdly, to see whether Mr Gooding and Mr Henderson might have some rights in relation to his proposed new work. I reach this conclusion primarily from the structure of the advice given in the email of 17 March 2015 which answers those three questions, read in light of the email sent by Mr Rockefeller on 16 March 2015 after Mr Rockefeller and Mr Dawson had spoken. Mr Rockefeller's email of 16 March 2015 to Mr Dawson stated that Mr Rockefeller had "detailed any potential breaches and any responses received". It is inherently unlikely that Mr Dawson would have given advice in respect of these issues if he was not asked about them. 191 In his advice, Mr Dawson set out his conclusions in the three numbered paragraphs (i)-(iii) and then repeated: "In summary then, the only clear path to preventing the OPs [Originating Producers] from taking Thank You For Being a Friend to the US is to terminate the licence agreement". Mr Dawson also emphasised that any termination must be handled carefully because "failure to terminate correctly can give rise to a claim against you for wrongful termination". In cross-examination, Mr Rockefeller gave the following evidence: Q: So is it your evidence that Mr Dawson just simply voluntarily provided this advice without being requested to do so on that particular topic? A: Mr Dawson usually gives incredibly thorough advice across the licence. 192 The explanation given by Mr Rockefeller is unconvincing. The fact that he gave such evidence in the face of the content of the emails and the overwhelming probabilities reflects poorly on his credibility. Mr Dawson was not called to give evidence. 193 I am satisfied that, at this point in time, Mr Rockefeller had decided to put on a Golden Girls puppet parody show in New York. He had not actually got Mr Duncan-Watt to commence writing the new show and could not have known how the script would differ from the script for Thank You For Being A Friend. He wanted to prevent Thank You For Being A Friend from coming to the US if he possibly could. He knew that Mr Gooding and Mr Henderson were working toward a late 2015 production – see: [153] and [182] above. Mr Rockefeller held a concern that he would be in breach of the 25 November 2013 Licence Agreement by putting on a Golden Girls puppet parody. It was for these reasons that he was seeking legal advice. This is also consistent with Mr Rockefeller's draft press sent to Mr Duncan-Watt on 23 March 2015, referred to next. B.22 Mr Rockefeller continues to pursue the new Golden Girls puppet parody with Mr Duncan-Watt: March to May 2015 194 On 23 March 2015, Mr Rockefeller sent Mr Duncan-Watt an email with a draft press release. In the covering email, Mr Rockefeller said: This is how we will deal with the Matt/Neil problem in April/May (post Matthew [Henderson]'s US visit). Think of a good quote for yourself of the previous show (example included). It will be checked by lawyers for all wording in the release before it goes to them for comment and then release. No time rush on this, it won't be going out until April / May. 195 The draft press release included (emphasis in original): Jonathan Worsley and Thomas Duncan-Watt the creators of the hit parody puppet show "Thank You For Being a Friend" are proud to announce that they are currently working on a brand new show with the Jim Henson Puppetry Workshop as part of Jonathan Rockefeller's "Puppet Parodies" Series. The brand new show, will debut Off-Broadway January next year, performing live for audiences, while also being filmed episodically for release online: a ground breaking platform that will bring the stage show to online communities. … Thank You For Being a Friend has been licensed to producers Neil Gooding and Matthew Management for seasons at the Arts Theatre and the Seymour Centre. Neil Gooding and Matthew Management will continue to keep the golden flame alive at the Glen Street Theatre and Joan Sutherland Theatre in September this year with plans to tour more in the future. (Tickets available at thankyouforbeingafriend.com.au) … "We certainly have talked about it [including the Golden Girls puppets in the new venture]", states Worsley [Rockefeller]. "But one thing we don't want to do is give audiences the same experience. They're very different shows. We love what Neil and Matthew [Henderson] have done with 'Thank You for Being a Friend' – it's a very clever tribute, but 'Puppet Parodies' is a completely different proposition and far less tamed; its satire and parody is on a whole different level, coupled with unprecedented audience interaction both live and online. We can't wait." 196 Mr Duncan-Watt said the he had a conversation with Mr Rockefeller shortly after receiving this email to the following effect: TDW: What exactly are you planning that we do? Have you sorted everything out with Neil [Gooding] and Matt [Henderson]? JWR: All will be made clear. Whatever we do there won't be legal problems. My lawyers are on it. TDW: If you want to start working on this show, where is the contract? JWR: I'm sending one to you. 197 On 29 March 2015, Mr Rockefeller sent Mr Duncan-Watt a synopsis for the new parody. The synopsis comprised five pages and contemplated two Acts: Act One to last 60 minutes and Act Two to last 45 minutes. 198 At around this time, Mr Rockefeller and Mr Duncan-Watt had a conversation in which Mr Rockefeller said that the Licence Agreement would be terminated during or by the end of 2015. As noted earlier, the draft press release foreshadowed the new show as commencing in January 2016. 199 On 2 and 3 April 2015, Mr Rockefeller and Mr Duncan-Watt exchanged emails concerning the commercial arrangements between them for The Goldenish Girls. 200 Mr Rockefeller emailed a second synopsis to Mr Duncan-Watt on 1 May 2015. His email stated that he had "simplified it enormously, mainly because now if we're at 90 minutes no break, we should be approaching it like a movie". B.23 The "Scriptwriter Agreement" between JWR Productions LLC and Mr Duncan-Watt: 11 May 2015 201 Mr Rockefeller's company, JWR Productions LLC, and Mr Duncan-Watt entered into a "Scriptwriter Agreement" for The Goldenish Girls on 11 May 2015. Mr Duncan-Watt was required to deliver a script for a 90-minute stage show and scripts for 10 short webisodes. Copyright was assigned to JWR Productions LLC: see cl 6. 202 Clause 3 provided: 3. Credit Provided Scriptwriter substantially renders the services contemplated in the Agreement on the Show, and further provided that Scriptwriter is not in breach of any of the terms of this Agreement, then Scriptwriter shall be accorded credit underneath the title of the Work in all Playbills and also on the Show website: Created and written by Thomas Duncan-Watt and Jonathan Worsley (or Rockefeller) 203 Clause 3 set up two conditions which had to be satisfied in order for Mr Duncan-Watt to be given the credit: he must have substantially performed the services contemplated by the agreement and he must not otherwise be in breach of the agreement. 204 Clause 8 of the Scriptwriter Agreement dealt with "Scriptwriter Default" and provided for termination on written notice and allowing for 7 days to cure the notified default. It provided: 8. Scriptwriter Default If Scriptwriter fails or refuses to perform or comply with any material terms or conditions for any reason including but not limited to Scriptwriter's physical or mental incapacity, then Company shall have the right to terminate this Agreement upon written notice thereof to Scriptwriter. Except as indicated below, prior to termination of this Agreement by Company based upon Scriptwriter Default, Company shall notify Scriptwriter, specifying the nature of the Scriptwriter Default. Scriptwriter shall have 7 days after the giving of such notice to cure the Default. If the Scriptwriter Default is not cured within the 7 day period, Company may terminate this Agreement forthwith. B.24 Dinner at Rosa Mexicano in New York: June 2015 205 On 27 June 2015, Mr Duncan-Watt, his partner, Mr Policarpio, and Mr Rockefeller had dinner at Rosa Mexicano in New York City. Mr Duncan-Watt enquired as to what was happening with the Licence for Thank You For Being A Friend. Mr Duncan-Watt said that he stated to Mr Rockefeller: Given you want to open so soon, I was wondering what's going on with the licence for Thank you for Being a Friend? It's still in effect, right? Obviously we can't stage this [The Goldenish Girls] if that licence is in effect. 206 Mr Duncan-Watt was cross examined about the meeting at the restaurant. He was adamant that he mentioned the licensing arrangement. I accept that Mr Duncan-Watt made the statement set out above. It is consistent with the surrounding events that Mr Duncan-Watt would have raised a concern. It is also consistent with Mr Policarpio's evidence. 207 Mr Policarpio's evidence of the conversation was that Mr Duncan-Watt enquired "what's happening with the Thank You For Being A Friend licence?" Mr Policarpio's recollection was that Mr Rockefeller stated: "You don't need to worry about that side of things. My lawyers are dealing with it." Mr Policarpio was not challenged on this. 208 Mr Rockefeller characterised Mr Duncan-Watt's version of the conversation as "completely revisionist": T 152.25. When Mr Rockefeller was asked about this conversation, he stated at T152.31: Q: And then you said, "You don't have to worry about that. My lawyers are on it. You just worry about writing it and I will deal with Neil [Gooding] and Matt [Henderson]"; correct? A: Not in those words. … Q: And at that stage, you were assuring him that that licence was going to be terminated? A: No. I made no assurances. 209 I conclude that Mr Duncan-Watt remained concerned about producing The Goldenish Girls when the Licence for Thank You For Being A Friend was in effect and was reassured by Mr Rockefeller that the matter would be dealt with by Mr Rockefeller and his lawyers. I am satisfied that Mr Rockefeller reassured Mr Duncan-Watt that the Licence Agreement for Thank You For Being A Friend would not prevent any new show going ahead. 210 Mr Duncan-Watt had delivered the script for Act One before the dinner on 27 June 2015. Mr Duncan-Watt said that Mr Rockefeller had stated to him: I can honestly say this is the best writing you've ever done. Well done getting the first draft completed so quickly. It's going to be great. 211 Mr Rockefeller's evidence was quite different. He stated: At approximately 1 PM on that day, Thomas Duncan-Watt sent me the draft of the first act of the Golden-ish Girls. I did not read that draft before meeting Thomas Duncan-Watt for dinner that evening. 212 Mr Duncan-Watt had emailed the completed draft of Act One in an email to Mr Rockefeller which indicated that it was sent on 26 June 2015 at 6:47pm. The date and time is not necessarily reliable given that Mr Duncan-Watt had only recently travelled to the US. It is quite possible – perhaps even more likely – that the email was sent earlier than 26 June 2015 at 6:47pm as recorded on the email, on the basis that Mr Duncan-Watt's computer remained set to Australian time. In any event, I accept on the balance of probabilities that the email was sent at the latest on 26 June 2015 at 6:47pm New York time, well before the time Mr Rockefeller asserted. 213 The reason Mr Rockefeller asserted he had not received the script until the afternoon of the dinner on 27 June 2015 was that, on his case, he had not read the script before the dinner and so could not have complimented Mr Duncan-Watt on the script. Mr Duncan-Watt's email stated: Here it is! Obviously we're going to continually tweak and punch it up, but I think at this stage getting the comedy style right is important, and deciding what are [sic – our] parody targets are is top priority. Have a read and look forward to speaking further later/tomorrow . 214 I think it likely that Mr Rockefeller said the words attributed to him by Mr Duncan-Watt and that he had read at least substantial parts of Act One, and more likely than not the whole of it, before dinner at Rosa Mexicano on 27 June 2015. Even if Mr Rockefeller had only received the script several hours before the dinner, he would have made every effort to have read it before the meeting. I am satisfied he did. B.25 Work continues on 5 ½ and The Goldenish Girls: July to September 2015 215 On 5 July 2015, Mr Rockefeller sent an email attaching a timeline which showed when various items for The Goldenish Girls and the novel No. 5½ were expected to be written by Mr Duncan-Watt and reviewed by Mr Rockefeller. The timeline recorded that, in the week preceding 5 July 2015, it was Mr Rockefeller's role to read Act One which Mr Duncan-Watt had written. Whilst the timeline provided for each of the three Acts, it was silent on the writing of any webisodes. The timeline also included dates for completion of work on No. 5½ and another project they were both working on. The email probably also attached Mr Rockefeller's comments in relation to Act One, although the second attachment had at some point become corrupted and was not in evidence. 216 Mr Duncan-Watt wrote the script for Acts Two and Three from July through to September 2015. Mr Duncan-Watt described the process at T539.15 as: "I would write the script and he would give me notes on what I had written" and at T540.2: "I wrote The Goldenish Girls, the actual script, with script editor or style notes from Mr Rockefeller". 217 On 26 July 2015, Mr Duncan-Watt wrote an email to Mr Rockefeller indicating he was "polishing" Act One and Act Two, Parts I and II, which he described as 80% of the show. 218 On 5 August 2015, Mr Rockefeller wrote an email stating he was almost through Part II, which he described as an "excellent first draft". He also identified, as if to remind himself for later, his current thinking in relation to the "six webisodes", but did not request that they be written. Indeed, it is clear from the terms of the email that Mr Rockefeller had not yet settled on what he wanted for the webisodes. He did not mention webisodes again in any substantial way before he terminated the Scriptwriter Agreement. 219 On 15 August 2015, Mr Duncan-Watt wrote an email to Mr Rockefeller indicating he had completed a rough beat sheet for Act Three. On 24 August 2015, Mr Rockefeller wrote an email providing some amendments to the beats of Act Three. 220 Mr Duncan-Watt delivered the first complete draft of the script, comprising Acts One to Three, on 9 September 2015. Mr Duncan-Watt heard nothing of substance from Mr Rockefeller after providing this complete draft of The Goldenish Girls script on 9September 2015. On 27 June 2016, over nine months later, JWR Productions LCC purported to terminate the Scriptwriter Agreement. 221 In his first affidavit, Mr Rockefeller stated that Mr Duncan-Watt was to deliver the final scripts in time for an anticipated stage debut in January 2016 and that the draft script delivered in September 2015 was wholly unsuitable. He stated: Thomas Duncan-Watt was to deliver the final scripts for the stage show and webisodes in time for an anticipated stage debut in January 2016. Thomas Duncan-Watt did not deliver the scripts in accordance with the required timeframes or the specifications for the show. In particular, he delivered a first draft script on 9 September 2015 for a show that was 2 hours in duration. This script was delivered too late for the planned debut and was not in a form that I considered to be appropriate for use as a script for a stage performance in New York as it was too long for a stage show, stylistically it departed too far away from the original series, and it showed a lack of understanding for American audiences and their expectations. In particular, instead of quoting directly certain jokes and lines from the original 'The Golden Girls', Thomas had written his own alternative jokes and lines or re-worded the original. In my opinion, an American audience that would go to see 'The Golden Girls' would go expecting it to be a parody of the original television show. They are likely to be lovers of that show and want to hear actual lines from the show. In my opinion, that is what the audience would be looking for. Also, some of the humour that Thomas had included, in my view was insensitive and was unlikely to be acceptable to a New York audience in the politically correct New York culture … 222 Mr Rockefeller's statement that the script was unsuitable in the ways mentioned is not consistent with the lack of any contemporaneous complaint about the script, the fact that Mr Rockefeller went on to promote the script to a Canadian producer (see Section B.29 below) and the fact that he was later to use substantial parts of it in producing the script for That Golden Girls Show!. I do not accept that Mr Rockefeller genuinely regarded the script as wholly unsuitable or, indeed, that he had any significant problem with it at all. If any of the matters referred to by Mr Rockefeller in his first affidavit at [96] had been perceived to be an issue, he would have raised them at the time. He did not. His statements also provide serious tension with his assertion of the level of his contribution to writing the script for The Goldenish Girls – see: Section B.37 below. B.26 Mr Rockefeller learns about the agreement with East Bank Entertainment: 12 September 2015 223 On 12 September 2015, Mr Rockefeller discovered that Thank You For Being A Friend was at that time already represented in the US by a booking agent, East Bank Entertainment. He emailed Mr Duncan-Watt, who also evidently did not know. 224 On 13 September 2015, Mr Rockefeller emailed Mr Dawson of Brett Oaten Solicitors instructing his firm to send a "cease and desist" letter to Neil Gooding Productions and Matthew Management, purportedly for breaching cl 19 of the Licence Agreement. Mr Rockefeller attached the 25 November 2013 Licence Agreement to his email to Mr Dawson, describing it as "our licence agreement with them". 225 On 15 September 2015, Brett Oaten Solicitors wrote to Neil Gooding Productions and Matthew Management asserting that they were in breach of cl 19 of the Licence Agreement and requiring them to terminate East Bank's appointment as agent. 226 Clause 19 provided: 19. Licensing Agent The Originating Producers will actively seek to sign the Work into the catalogue of Agents, both in Australia and internationally so that the Work can be Licensed for Professional, Stock and Amateur productions globally. The choice of Agent, and the terms of the Licensing Agreement will be as per the mutual agreement of the Licensor. 227 Mr Rockefeller said that he considered that clause 19 of the Licence meant that Mr Gooding and Mr Henderson required his permission before hiring a US booking agent. It clearly did not. 228 A letter was also written by Brett Oaten Solicitors to Mr Chinn of East Bank on 15 September 2015. It included: This firm represents Joey Creative Management Pty Ltd (JCM). JCM and Thomas Duncan-Watt are the rights owners of Thank You For Being A Friend (Work). Certain rights to exploit the Work have been licensed to Matthew Management (MM) and Neil Gooding Productions Pty Ltd (NGP). Under the terms of that licence, our client has the right to approve the appointment of any Agent who represents the Work and the terms and conditions of the appointment. Our client understands that East Bank Entertainment has been appointed to represent the Work (see http://www.eastbankentertainment.com/#!/sitepage_1). Our client has not approved East Bank Entertainment's appointment nor has it approved the terms and conditions of its appointment. MM and NGP have appointed East Bank Entertainment to represent the Work in breach of their obligations to our client. Accordingly, our client requires that East Bank Entertainment immediately cease to represent the Work and that East Bank Entertainment immediately remove the Work from its catalogue, website and related materials. Please provide written confirmation to me within 7 days of the date of this letter that East Bank Entertainment has ceased its [sic – to] represent the Work and has undertaken such removal. Our client reserves its rights. 229 This letter, written on Mr Rockefeller's instructions, records that the "rights owners" of Thank You For Being A Friend were Mr Duncan-Watt and Joey Creative Management Pty Ltd. This was consistent with the 25 November 2013 Licence Agreement and the conduct of the parties referred to earlier. 230 In cross-examination, Mr Rockefeller denied that he was seeking, at this time, to prevent the US tour of Thank You For Being A Friend: T155.37 and T156. For the following reasons and the further facts outlined below, I conclude that Mr Rockefeller was in fact seeking to undermine a US tour of Thank You For Being A Friend. (1) Mr Rockefeller knew from Mr Gooding's email of 1 September 2014 that Mr Gooding and Mr Henderson were already then in serious discussions with US people or entities with a view to touring Thank You For Being A Fried in late 2015 – see: [153] above. This was confirmed by the email sent by Mr Henderson on 12 March 2015 – see: [182] above. He knew from his conversation with Mr Gooding and Mr Henderson in December 2014 that people or entities located in the US would be used to assist. (2) Mr Rockefeller sought legal advice shortly after receiving Mr Henderson's email of 12 March 2015 about whether he could legally terminate the Licence Agreement and prevent Thank You For Being A Friend from touring the US and had been advised that, at that time, he could not – see: Section B.21. (3) Mr Rockefeller had told Mr Duncan-Watt that they would be able to terminate the Licence Agreement before putting on the new Golden Girls puppet parody which was to be based on Mr Duncan-Watt's revised script. (4) By 9 September 2015 Mr Rockefeller had a complete script of The Goldenish Girls and was planning to put on a puppet parody of the Golden Girls in New York. He must have known it would be a commercial nonsense to seek to run that show in New York at the same time as Thank You For Being A Friend. (5) It made no commercial sense, if, as he asserted, it was Mr Rockefeller's intention to bring Thank You For Being A Friend to the US, to demand the immediate termination of the booking agency agreement. (6) The 15 September 2015 letter to East Bank required removal of reference to Thank You For Being A Friend from its catalogue, website and related materials. Any work which had been undertaken to that point in time in organising a US tour would have to cease immediately and was likely to be wasted. It also suited Mr Rockefeller's commercial interests because he wanted to produce The Goldenish Girls. 231 Mr Gooding sought to telephone Mr Dawson on 16 September 2015 to explain that Mr Dawson had misinterpreted cl 19 of the Licence Agreement and caused difficulties with East Bank. Mr Rockefeller had, however, instructed Mr Dawson not to speak with Mr Gooding and only to take communications in writing. Mr Gooding therefore exchanged a number of emails with Mr Dawson on 16 September 2015. 232 One email from Mr Gooding to Mr Dawson on 16 September 2015 included: They are not an agent. Clause 19 is in reference to a licensing agent (e.g. a literary rights agent who tries to license professional and amateur productions once the professional life of the show is finished) We have engaged a General Manager (or producing partner) for the USA. This is how productions are toured in the USA. They are not a licensing agent. They do not have a catalogue of shows where they are trying to license out the literary rights. They are contracting venues to house the current production (our sets, costumes, creative etc) That is a totally different scenario, and not what was covered by Clause 19. It is also not an area where the writers get approval of who our producing partners are. Absolutely, under Clause 19, they get approval of who their work is assigned to to be their literary agent. But, the current arrangement does not fall under Clause 19. If you are unwilling to have a simple conversation that could clear this up, then please inform your client to contact me directly so that I can clarify it with him. Our relationship to this point has been very amicable, so we are bemused why it has become so heavy-handed in this case and so legalistic. There is no legal right under Clause 19 for this arrangement to be challenged. I will not be wasting further time, energy or money on this matter, but am more than happy to have a conversation with you or with Jonathan whenever you so desire. I am happy to discuss this, and to resolve it. But simply do not have time to do a legal backwards and forwards when there is no legal basis for it. 233 Another email, written by Mr Gooding on about 17 September 2015 included: The issue here for clarity is that Clause 19 should say literary agent, not agent. What does Jonathan want here? Does he want to terminate the agreement (which we don't believe he has any legal ground to do anyway) If so, we need to know right now before we commit further time and funds into expanding his show into the USA market immediately. 234 From this time Mr Rockefeller started to respond slowly to communications concerning East Bank. As explained in more detail below, I infer that this was because he was seeking to ensure that Thank You For Being A Friend could not successfully be brought to the US before he put on his competing production. About a month after Mr Gooding's emails of 16 and 17 September 2015, namely on 10 October 2015, Mr Rockefeller wrote an email to Mr Gooding, copied to various others, which included: As you are aware, I have sought the counsel of our solicitors and their recommended litigators with regard to our license agreement. Per the terms of the contract, we have asked for discrepancies to be clarified and breaches to be cured within the provided seven-day period. Such reassurances and cures of various breaches have not been received from you. Mindful of the high costs you and the production would incur should the contract be legally terminated, I would suggest as a last, good faith effort to resolve our differences – a conference call among myself, Thomas and our legal counsel at Rockefeller Productions to see whether a way can be found to salvage the agreement; otherwise, we shall have no recourse but to instruct counsel in Australia and declare the contract null and void. B.27 Mr Duncan-Watt writes substantial pars of No. 5½ from October 2015 235 From October 2015, Mr Duncan-Watt wrote substantial parts of No. 5½. B.28 Telephone conference of 14 October 2015 and subsequent events 236 On 14 October 2015, there was a telephone conference call between Mr Rockefeller and his husband Mr Jones, Mr Duncan-Watt, Mr Gooding and Mr Henderson. There were competing accounts of exactly what was said during the telephone conversation. Mr Jones was introduced by Mr Rockefeller as the lawyer for JWR Productions and went by the name "Wilson Rockefeller". There is nothing to suggest that, at this time, anyone apart from Mr Rockefeller was aware of Wilson Rockefeller's full name. During the conversation, there was no attempt by Mr Rockefeller to work towards progressing a US tour of Thank You For Being A Friend. It was agreed that Mr Gooding would send copies of the agreement with East Bank to Mr Rockefeller. 237 Before the telephone conference began, Mr Rockefeller had given to Mr Duncan-Watt a scripted line to memorise, to the effect that Mr Gooding and Mr Henderson lied about the arrangement with East Bank when they last met. Mr Rockefeller emailed Mr Duncan-Watt during the conference call and told him when to deploy the line. Mr Duncan-Watt made the scripted comment when directed to, and Mr Rockefeller later congratulated him for his performance. 238 On 22 October 2015, Mr Gooding emailed Mr Henderson, Mr Rockefeller and Mr Duncan-Watt. Mr Chinn was also copied into the correspondence. By that time, Mr Gooding had obtained permission from Mr Chinn to provide to Mr Rockefeller a copy of the "Booking Services Agreement" which had been executed in September 2014. The email explained that there was a draft "General Management Agreement" which had not been executed but which would be executed once a viable tour was able to be booked. A copy of this draft agreement was also attached. The email asked Mr Rockefeller and Mr Duncan-Watt if they required any further information. There was no proximate response. 239 About a month later, on 18 November 2015, Mr Gooding pursued the issue again. Again, there was no response from Mr Rockefeller. If Mr Rockefeller had genuinely wanted to see Thank You For Being A Friend brought to the US as he suggested in his evidence, he would have responded rather than delayed. B.29 A Canadian producer expresses interest in Thank You For Being A Friend: January 2016 240 In January 2016, a producer in Canada was interested in doing a licensed production of Thank You For Being A Friend. Mr Gooding emailed Mr Rockefeller and Mr Duncan-Watt on 16 January 2016 stating: As this will be a non-replica production it falls into the category of pure licensing, and is therefore solely at the discretion of both of you as the writers in the absence of any literary agent. 241 On 30 January 2016, Mr Duncan-Watt emailed Mr Rockefeller stating: Just letting you know I give you permission to negotiate and finalise the licensing deal with Joseph Patrick Presents in the territory Canada for 'Thank You For Being a Friend', providing the royalties/profits of such deal are split equally between you and I, 50-50. 242 These communications are consistent with the parties' common assumption that it was the 25 November 2013 Licence Agreement which governed their legal relations. 243 In an email sent on 3 February 2016, Mr Rockefeller referred to the fact that the Canadian producers were going to be doing both Thank You For Being A Friend and The Goldenish Girls. Mr Rockefeller stated it was a "shame they STILL wanted to do [Thank You For Being A Friend] before Golden-ish Girls" despite his "best sales pitch". B.30 Events from February to March 2016 244 By February 2016, Mr Rockefeller had not raised any concerns with respect to the script for The Goldenish Girls which had been completed and provided to him on 9 September 2015. Nor had Mr Rockefeller apparently progressed his nascent thinking in respect of webisodes: he had not communicated any final ideas for webisodes nor requested Mr Duncan-Watt to turn to writing them. 245 On 23 February 2016, Mr Duncan-Watt wrote an email to Mr Rockefeller saying he was looking forward to doing press for The Goldenish Girls. 246 After further months of not having received a response to the email of 22 October 2015 concerning the "Booking Services Agreement" with East Bank which had been provided to Mr Rockefeller at his request, Mr Gooding sent a further email on 25 February 2016. Mr Gooding's email elicited a response on 4 March 2016 from "E W Jones", who described himself as an "Attorney in Fact", written for and on behalf of Rockefeller Productions. Mr Gooding did not know at this time that "E W Jones" was "Wilson Rockefeller", Mr Rockefeller's husband. The email stated (emphasis in original): Gentlemen, On behalf of Rockefeller Productions, I have been asked to state and reinforce the company's position, which is unchanged from the date of your conversation with the Messrs Rockefeller and Mr Duncan-Watt. To make any 'assumptions' otherwise would be naive; equally, doubting our resolve or resources to enforce our contractural [sic] rights would be foolhardy, and we expressly reserve all rights contained therein. We regard the date on the agreement submitted by you several months ago, and an unsigned 'General Manager' contract with East Bank Entertainment to be highly suspect and not credible. We ascribe the same incredulity to your other attempted explanations and justifications. In sum, we are unpersuaded by either the sincerity or the representations you have made, and regard them [as] false and untrustworthy, with the specific intention to mislead. Further, your abrasive, discourteous nature and ambivalence toward my clients as they exercise their rights has not enhanced your position. We shall continue to abide by the letter of our contract at law; but we caution you that we will closely monitor your ongoing actions to insure [sic – ensure] you do likewise. It would be unwise on your part to assume our patience is without limit, or that any issue too insignificant as to not merit legal action. You have followed neither the letter nor the spirit of our agreement, you have not been forthright nor truthful in your representations to the Messrs Rockefeller or Mr Duncan-Watt and, while reserving all our legal and equitable rights. It is a contractural [sic] requirement incumbent upon you to gain our consent for 'agent' - literary agent, licensing agent, booking agent or otherwise, and we have not consented. You should not assume you have been granted such right by acquiescence or default and by a deadline of your own determination and imagination; i.e., Monday next. Our contract is not subject to whim or circumstance, and will be strictly construed at law against you, the author of the agreement. You are required by our contract to have our affirmative, written and informed consent before your plans may proceed. That consent is explicitly withheld. For and behalf of Rockefeller Productions, E.W. Jones Attorney-in-Fact 247 Mr Gooding responded to "E W Jones" on 7 March 2016 stating: Dear Mr Jones Thank you for your email. We strongly deny your assertion that there has been any attempt to mislead your clients. Since October last year, we have been waiting on your clients to approve East Bank Entertainment and Matthew Chinn as the General Manager for the North American market. This has still not been dealt with in your reply below. However, to further this along, Matthew Henderson has arranged directly with Jonathan Rockefeller to meet with Matthew Chinn in New York on either the 17th or 18th of March. Once that meeting has taken place, we expect that approval will not be unreasonably withheld, and the plans for a US Tour can be finalised. As you are now the legal representative for Rockefeller Productions. can [sic] you please provide us with your full contact details, as these are not included with your email below. Best Wishes Neil 248 E W Jones responded on 8 March 2016 with these words: It is highly inappropriate and ill-advised for you to attempt or to have any direct communication with opposing legal counsel. The law presumes the knowledge and skill of the attorney to be superior to that of the layman in all things legal; hence, the prohibition. As I assume you are not an attorney, and hence, unfamiliar with this legal precept, I [am] bound by the Code of Ethics to delete your e-mail as unread. 249 Mr Rockefeller's evidence was that these emails were written by his husband, Mr Jones, also known by his middle names, Wilson Rockefeller. Mr Eugene Wilson Rockefeller Jones holds a law degree. The idiosyncratic style of the emails from "E W Jones" is not consistent with what Mr Rockefeller was prone to write, albeit Mr Rockefeller was also prone to writing aggressive emails. I accept that the emails written by "E W Jones" were written by Mr Jones (Wilson Rockefeller). 250 Mr Rockefeller's evidence was also to the effect that the email from Mr Jones of 4 March 2016 was drafted and sent without his authority or knowledge and that the first he knew of its existence was by being copied on the reply from Mr Gooding on 7 March 2016. For the following reasons, I consider it unlikely that the email of 4 March 2016, or any of the emails sent by "E W Jones", were sent without Mr Rockefeller's consent or knowledge: (1) Mr Rockefeller stated in cross-examination that he did not "vehemently disagree" with any of the content of the email of 4 March 2016. Mr Rockefeller did not ever correct anything in it, until his evidence in these proceedings, or contemporaneously state that the email was sent without his knowledge or instruction. (2) It is likely – having regard also to the content of the emails referred to earlier and the later emails written by Mr Jones under the names "Jaime Robbins" and "Jamie Robins" – that Mr Rockefeller and his husband discussed the matters then in dispute regularly, and that Mr Rockefeller relied on his husband to draft responses on particular occasions. Mr Jones' knowledge of the matters the subject of his emails must have come from Mr Rockefeller. It would be natural for spouses to discuss such matters. (3) That Mr Rockefeller and his husband drafted emails together, or that they assisted each other in this respect, was also confirmed by the following evidence: Mr Rockefeller was asked who wrote the email signed off by Mr Rockefeller and dated 7 July 2016 which was copied to "Jamie Robins, Esq"; Mr Rockefeller said that it was he who drafted it; however, when shown his affidavit evidence to the effect that it had in fact been written by his husband, Mr Rockefeller stated he wrote a draft of the email but that his husband then wrote the final version. 251 The emails of 4 and 8 March 2016 indicate that Mr Rockefeller was not genuinely seeking to set matters straight concerning the dispute surrounding Mr Chinn's appointment. By this time, Mr Rockefeller had had possession of the relevant contractual documents for some months. He had been asked to respond several times by Mr Gooding. The E W Jones email of 4 March 2016 emphasised that consent was "explicitly withheld". 252 Even if (contrary to my conclusion) the email was sent without Mr Rockefeller's authority, Mr Rockefeller was aware of the email, agreed with its contents and took no step to correct or alter anything in it. 253 I conclude that Mr Rockefeller deliberately delayed matters and did so because he wanted to prevent or delay Thank You For Being A Friend being brought to the US by Mr Gooding and Mr Henderson. 254 Mr Rockefeller coordinated with Mr Henderson to meet Mr Chinn in New York. They met on 17 March 2016. Mr Rockefeller wrote an email on 23 March 2016 reporting on his meeting which included: I had a great chat with Matt [Chinn] on Thursday, we know a lot of people in common and it was great to compare notes. In fact he was surprised that I had been living here for two years and had never been introduced. His family also came to my show on the weekend and had a great time, particularly his little boys. Within our Thursday chat he mentioned that the booking agreement you had in place had lapsed. To that effect I promised to send around an email to all to demonstrate that we were 'all good', which I will do following this email in the continuing spirit that we (all the people on this email) are all moving forward collectively and communicating effectively together. I reiterated to Matt [Chinn] that Thomas [Duncan-Watt] and I are very much passionate about the project and do want to see it succeed in its biggest potential market, and want to ensure that it is launched in the right way. I didn't delve into anything remotely to do with financials during this meeting or how it was structured. In regards to creative however, Matt [Chinn] and I spoke about how to freshen the show up and keep it fresh in the future to ensure a long shelf-life, and that potentially content of the scripts will need to be adjusted for certain American demographics (e.g. Texas Blue Rinse brigade). We also conferred that some of the political landscape had changed since it was written a few years ago – gay marriage is not the hot topic button it was. So I guess that's a conversation we'll probably all have sometime in the future. Matt H[enderson], Thank you for setting the meeting; it was most informative and I do believe that Matt Chinn is a good choice with a solid reputation for the show. If anyone would like to go into any more detail about the meeting, let's set up a call. 255 Mr Rockefeller's expression of enthusiasm for Thank You For Being A Friend contained in this email stands in stark contrast to the advice he had sought from Mr Dawson as to how to prevent a US tour of Thank You For Being A Friend, his procuring Mr Duncan-Watt to write The Goldenish Girls and his then recent attempt to promote The Goldenish Girls over Thank You For Being A Friend in Canada. This email stands in stark contrast to the delay which had occurred to that point, and the emails which had been written by his husband. 256 I conclude that, by the time he agreed to meet with Mr Chinn, Mr Rockefeller was comfortable that it would not be possible to organise a US tour of Thank You For Being A Friend to commence in 2016 or at a time which would interfere with the time he was then planning to put on his Golden Girls puppet parody. This was a reason why he was then prepared to meet Mr Chinn, but had not been willing to do so over a period of many months before then. Mr Rockefeller erroneously believed, at this time, that the Booking Services Agreement with East Bank had expired. 257 It was a year after Mr Rockefeller had received legal advice that he could not prevent Thank You For Being A Friend from going to the US in the absence of a clear breach of the Licence Agreement. He had subsequently thought there was a potential breach of cl 19 and raised the spectre of termination only to come to the understanding that, in fact, there was no argument about any breach at all. He knew it was risky to terminate the 25 November 2013 Licence Agreement in the absence of a breach permitting termination and, accordingly, he sought to delay a US tour of Thank You For Being A Friend. See also: [296] below. B.31 Mr Rockefeller terminates the Author Collaboration Agreement: 14 May 2016 258 Somewhat out of the blue, on 14 May 2016, Mr Rockefeller wrote a letter to Mr Duncan-Watt terminating the Author Collaboration Agreement relating to No. 5½ which had been entered into on 24 December 2014 after their trip to Lilianfels. Mr Rockefeller's letter stated: Unfortunately, our collaboration on my autobiographic stories and screenplays has not proved as productive as hoped for; but, has devolved into a slow, painful and argumentative process. Consequently, I am withdrawing immediately from our Author Collaboration Agreement dated 24th December, 2014. While you have received financial compensation for your efforts, I hereby reassert all my legal and moral rights to the Work, all my original ideas and work product pre-dating and throughout the collaborative process. I very much regret this necessary conclusion, but you have given me no other choice. 259 Mr Rockefeller sent an email to Mr Duncan-Watt on 15 May 2016 proposing a new agreement. Further emails were then exchanged. 260 An email from Mr Rockefeller dated 17 May 2016 made reference to a "final warning to cure under your Goldenish Girls contract", but did not specify any breach and was clearly written in the context of terminating the Author Collaboration Agreement in relation to No. 5½. This email did not purport to be a notice under cl 8 of the Scriptwriter Agreement which related to The Goldenish Girls and did not constitute such a notice – see: [200] above. At the time this email was written, Mr Rockefeller had had possession of the script for The Goldenish Girls since 9 September 2015 and had expressed no dissatisfaction with it. Indeed, he evidently liked it and had promoted it over Thank You For Being A Friend to the Canadian producers – see: Section B.29 above, in particular [243]. 261 On 31 May 2016, Mr Rockefeller sent an email setting out the purported reasons for having decided on 14 May 2016 to terminate with the Author Collaboration Agreement. In that email he referred to "different aspirations creatively, in [the project's] execution and lastly its commercialisation". B.32 Mr Rockefeller requests return of material, and further deterioration of relationship: May to June 2016 262 In his email of 31 May 2016, Mr Rockefeller also requested the return of his copies of, and notes relating to, his screenplays Satisfaction and Coming of Age. 263 On 5 June 2016, Mr Duncan-Watt wrote an email to Mr Rockefeller stating (emphasis in original): I'm not sure of the real reason for your knee-jerk decision to abandon our novel, but I am sure it has nothing to do with your multitude of contradictory excuses on the matter, and everything to do with the fact I was not willing to be railroaded into signing over all my rights to you in not just one, but a series of legal documents totally at odds with the spirit and content of our original, complete and binding legal agreement (signed 24.12.14). In fact, even after consulting legal advice - on your insistence - to try to ameliorate the situation, you simply rebuffed any of my legal counsel's concerns without discussion, making it clear you have no intention of even attempting to come to a mutually beneficial solution. In these vital respects, you've acted in an unnecessarily officious, unprofessional and totally deplorable manner. This is undoubtedly the reason you don't want to discuss the matters via Skype or on the telephone. I won't, however, take this personally. After all, I've seen you take this path with a stream of collaborators in the past: I simply thought you'd grown out of it. Sadly not. In any case, after taking advice, I intend to maintain my intellectual, moral and legal rights to the completed work as it stands. Simply put, if you do intend to begin a new novel, you will have do so without using any of the ideas, names, themes, plot, situations, ideas, story, and any other aspects of the work conceived or executed throughout the collaborative creative process. This includes, but is not limited to the title, the setting, the structure, design, etc, all of which constitutes part of our collaboration, and into which I have poured countless hours and months of work, apparently now - and as a direct result of your actions - with no hope of return or publication. As for getting you the 'materials', including your old screenplays, etc, I'm not sure exactly why you want these? Frankly, Jonathan, my counsel smells a rat, and has advised me on making witnessed copies of the 'source material' that inspired 5½ , in case I ever need them to demonstrate the colossal divide between this 'source material' and the novel as it stands. If you have any further questions, I suggest you refer to our existing agreement. 264 On 10 June 2016, Mr Rockefeller wrote an email to Mr Duncan-Watt. This stated (emphasis in original): You have my property that is not yours. I have been requesting for its safe return for more than a month, asking that they be mailed or return them to an address in Australia. I reiterate: there is no 'our' novel, there is no collaboration – there is my story, my scripts and my source material – which you are being obstinate and petulant in not returning. If you really intended to actually return them – ever – you would have done so by now, or at the very least identified a timetable to complete these amazing 'witnessed copies', which I welcome you to do so because they just confirm that it is my story, scripts and source material. [Illegible] despite current developing and imminent plans of 'The Golden-ish Girls', I will not be giving you any more updates. There is nothing more to be said between us on a professional or friendship level until you return the above. Any communication I am required to send you will now be done so by an assistant, but fortunately there are only 2.5 years left on the TYFBAF license and then we'll never have to actually communicate again. 265 On 24 June 2016, Mr Duncan-Watt wrote an email stating: I have offered to make myself available to receive a courier or any other person of your choosing to pick up the materials that I have been storing for you at my place. Naturally, arrangements would need to be made for a suitable time. If that is difficult for you to arrange I have also offered to drop off the materials to an address in Sydney that suits you. I do not, however, intend to pack and send the materials to New York at my own expense. To demand that I do so is unreasonable. You have also made it clear that unless I comply with your demands in this matter you intend to continue to refuse to provide me with ongoing updates about other projects in which we have a joint interest. Namely, you have stated that you will not provide me with updates about The Goldenish Girls. You have also ignored my repeated requests for a copy of the contract for the Toronto production licence to which I am entitled. I think that as professionals we should be able to deal with separate projects without conflating and confusing any issues relating to them. Jonathan, I have said to you on many occasions I am available and willing to talk through and try to resolve any issues of concern to you that have an impact on our professional relationship. That remains the case. 266 On 25 June 2016, a "Mr Jaime Robbins", described as "Assistant to Mr Rockefeller" wrote to Mr Duncan-Watt stating: I discovered your email of June 23 in the trash and took the liberty of showing it to Mr Rockefeller, who is otherwise extremely preoccupied with rehearsals on his forthcoming production. He says that whereas you describe your absolute and lawful obligation to return his property presently in your possession as 'unreasonable', I have been directed by Mr Rockefeller to compile herewith a statement for immediate payment by you for your proportionate share of all legal bills, correspondence and insurance which have been heretofore paid by Rockefeller Productions on your behalf and inuring to your benefit. Legal expenses - $2,415 Insurance - $1,800 Total - $4,215 Thomas Duncan-Watt share (50%) – 2,107.50 [Deposit instructions redacted] As you do not evidence any intention to resolve any professional differences, as evidenced by your continual refusal to return Mr Rockefeller's personal property, Mr Rockefeller will follow your own example. He sees no reason to remain in contact with an individual who remains so indifferent to his property. Kindly remit the owed sums per the banking details above and return his possessions to Mr Rockefeller's New York address. As you are in unlawful possession of both his money and his property, I suggest you proceed without delay; otherwise, Mr Rockefeller will be forced to resort to other, more direct remedies available at his disposal in Australia to retrieve those items and funds that are lawfully due and owing him. Please direct any future correspondence to me or the legal department. For and on Behalf of Mr Rockefeller and the Company, Sincerely, Jaime Robbins Assistant to Mr Rockefeller B.33 Mr Rockefeller terminates the Scriptwriter Agreement: 27 June 2016 267 On 27 June 2016, Mr Rockefeller terminated the Scriptwriter Agreement between JWR Productions LLC and Mr Duncan-Watt relating to The Goldenish Girls. The termination letter stated: This letter confirms termination of the Scriptwriter Agreement between you and JWR Productions, LLC dated May 13, 2015, pertaining to the "multi-platform" stage and webisode production of The Golden-ish Girls. With respect to the production, your failure to deliver work product and other materials specified in the Agreement compounds your neglect of the terms of the 'work-for-hire' Agreement, and your ongoing non-cooperation and willful [sic] neglect and disregard of a professional working relationship with the Company and its principals frustrates the purpose of the Agreement. Therefore, as a direct consequence of services and materials not delivered and your non-compliance with said Agreement, your services are hereby terminated. Whereas you have acknowledged to having been compensated in full per the May 13 Agreement, you are hereby released from all obligations to deliver any further work product for the production and no further services shall be required thereunder. This Letter of Termination is effective immediately, with any and all further duties and obligations of all parties being deemed fully-discharged. 268 As mentioned earlier, Mr Duncan-Watt had not received any adverse comment from Mr Rockefeller in relation to the script for The Goldenish Girls which Mr Duncan-Watt had completed and provided to Mr Rockefeller on 9 September 2015. 269 By his evidence in these proceedings, Mr Rockefeller asserted that the reasons for termination were that the script was inadequate and that no webisodes had been delivered. 270 In cross-examination, it was pointed out to Mr Rockefeller that the notice of termination of 27 June 2016 made no reference to any notice to rectify any breach. Mr Rockefeller referred to several oral warnings and a written warning. There was no document which specified the nature of any default as was required by cl 8 of the Scriptwriter Agreement. Mr Rockefeller was not re-examined to identify any oral or written warning given. 271 The timing of the termination suggests that the true reason for termination of the Scriptwriter Agreement was the dispute between Mr Duncan-Watt and Mr Rockefeller in relation to the Author Collaboration Agreement and, more particularly, Mr Rockefeller's anger in respect of Mr Duncan-Watt's possession of the documents which Mr Duncan-Watt had been using to write No. 5½. I note that Mr Rockefeller referred to his "imminent plans" for The Goldenish Girls in his email to Mr Duncan-Watt of 10 June 2016 – see: [264] above. He told Mr Duncan-Watt he would provide him no more updates. However this was not because of any asserted breach. Rather, it was because there was "nothing more to be said between us on a professional or friendship level" until Mr Duncan-Watt returned Mr Rockefeller's scripts. 272 The only reference in the contemporaneous documents to any dissatisfaction with respect to The Goldenish Girls was in the email sent on 17 May 2016 referred to at [260] above. 273 I do not accept Mr Rockefeller was genuinely dissatisfied with the script or that he had any good basis for being dissatisfied with it. Most of the objective facts before Mr Rockefeller's purported termination of the Scriptwriter Agreement indicated that Mr Rockefeller was entirely satisfied with the The Goldenish Girls script, as does the extent to which Mr Rockefeller later used that script in producing his show, That Golden Girls Show!. As noted earlier, in his email dated 3 February 2016, Mr Rockefeller referred to the fact that the Canadian producers were going to be doing both Thank You For Being A Friend and The Goldenish Girls. The email suggests no dissatisfaction with the script. Indeed, Mr Rockefeller stated he considered it was a "shame they STILL wanted to do [Thank You For Being A Friend] before Golden-ish Girls" despite his "best sales pitch". 274 Nor do I accept that there was any genuine dissatisfaction on the part of Mr Rockefeller with the fact that no webisodes had been written. My reasons for this conclusion include: (1) The timeline which Mr Rockefeller had emailed on 5 July 2015 after the meeting at Rosa Mexicano did not contemplate webisodes being written at all. Rather, it contemplated that, once The Goldenish Girls script had been completed, Mr Duncan-Watt would turn to writing No. 5½. That is what in fact occurred. (2) Although Mr Rockefeller had identified in general terms the six webisodes he was then thinking about on 5 August 2015, he made no request after this email for any webisodes to be prepared and nor did he identify any final plan with respect to them. (3) No default identifying a failure to write webisodes was ever communicated to Mr Duncan-Watt in accordance with cl 8 of the Scriptwriter Agreement. 275 I conclude that Mr Rockefeller terminated the Scriptwriter Agreement on 27 June 2016 because he had, by that stage, decided to use the script which Mr Duncan-Watt had written in preparing a show which would not involve Mr Duncan-Watt or Mr Gooding or Mr Henderson. 276 There was no proper basis for termination of the Scriptwriter Agreement. There had been no notice in accordance with cl 8 of that Agreement. Although Mr Duncan-Watt had assigned copyright in the product of his services to JWR Productions LLC in accordance with cl 6 of the Scriptwriter Agreement, there was no entitlement for Mr Rockefeller to take material written by Mr Duncan-Watt and use it on another show without giving him any credit for writing that material – see: cl 3. 277 Mr Duncan-Watt had substantially performed the Scriptwriter Agreement as implemented by the parties at the time of the purported, but wrongful, termination and was not in breach of it. 278 Ambitiously, Mr Rockefeller submitted that the fundamental premise of both the Scriptwriter Agreement and the Author Collaboration Agreement, namely the collaborative creative relationship between Mr Rockefeller and Mr Duncan-Watt, had ended such that the contracts were therefore terminated by frustration. He submitted that the agreements necessarily contemplated an amicable personal and professional relationship with respect to the creative endeavours, which had disappeared by no later than the end of June 2016. 279 Mr Rockefeller submitted that the facts fell within one of the following situations such that the contracts should be regarded as frustrated: (1) when the happening of an event results in a situation fundamentally different from that in contemplation when the contract was made: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 360 (Mason CJ); (2) where performance depends upon the continuation of a state of affairs which ceases to exist after the making of the contract: Anyanwu and Another v South Bank Student Union and Another (No 2), The Times Law Reports, December 5, 2003 at 678; or (3) when a thing which is not the subject matter of the contract, but is one the continued existence of which is essential for the performance of the contract, is destroyed or substantially damaged: The Elizabeth (1819) 2 Dods 403. 280 The doctrine of frustration does not apply to the circumstance where one party simply takes the view that their relationship with the other has broken down, particularly where that other – here, Mr Duncan-Watt – continued to offer to speak about whatever issues existed and stated that he considered the issues could be resolved. There was no supervening event which occurred to frustrate performance of the contract, without default of either party. All that happened was that Mr Rockefeller did not want to perform the contract because he had decided to use the script largely written by Mr Duncan-Watt to produce a work on his own. 281 Lord Radcliffe summarised the doctrine of frustration in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 729: [F]rustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. … There must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for. 282 This summary was adopted with approval in Codelfa at 357 (Mason J) and Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 at 161 (Stephen J). 283 More recently, in oOh! Media Roadside Pty Ltd (formerly Power Panels Pty Ltd) v Diamond Wheels Pty Ltd (2011) 32 VR 255, Nettle JA (Redlich and Weinberg JJA agreeing) referred to the doctrine in the following terms at [70]: … Consistently with Codelfa, I take the law to be that a contract is not frustrated unless a supervening event: (a) confounds a mistaken common assumption that some particular thing or state of affairs essential to the performance of the contract will continue to exist or be available, neither party undertaking responsibility in that regard; and (b) in so doing has the effect that, without default of either party, a contractual obligation becomes incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. 284 Mr Rockefeller terminated the Scriptwriter Agreement because he was angry with Mr Duncan-Watt because he had decided to use the script which Mr Duncan-Watt had largely written for his own purposes. The email correspondence between Mr Duncan-Watt and Mr Rockefeller set out above demonstrates Mr Duncan-Watt's willingness to continue the collaborative creative relationship. 285 In circumstances where I have concluded that what in fact occurred is that Mr Rockefeller terminated the Scriptwriter Agreement without cause, his submission with respect to the doctrine of frustration faces two further hurdles: (1) a party who breaches a contract, for example by wrongfully terminating it, cannot contend that it is frustrated by its own breach: DGM Commodities Corp v Sea Metropolitan SA (The "Andra") [2012] 2 Lloyd's Rep 587 at [18]-[20]; and (2) "the frustrating event [must not be] the fault of the party seeking to rely upon the doctrine": Brisbane City Council at 160 (Stephen J). 286 Mr Rockefeller's submission that the Scriptwriter Agreement and the Author Collaboration Agreement were terminated by frustration must be rejected. 287 Mr Rockefeller submitted that, in any event, he was lawfully entitled to make use of any or all of the script of The Goldenish Girls if he so chose, because Mr Duncan-Watt had, pursuant to cl 6 of the Scriptwriter Agreement, assigned his copyright to JWR Productions LLC, which therefore owned it. That may be accepted. However, Mr Duncan-Watt had not breached the Scriptwriter Agreement and indeed had substantially performed it. Mr Rockefeller unlawfully purported to terminate the agreement. JWR Productions LLC was not entitled to use the product of Mr Duncan-Watt's writing services without crediting Mr Duncan-Watt: cl 3. That was a critical term of the Scriptwriter Agreement. 288 Mr Gooding submitted that the Scriptwriter Agreement was drafted by Mr Rockefeller with the idea that he might later seek to terminate the agreement and use the product without attribution to Mr Duncan-Watt. That is certainly what in fact happened and there is much to commend that view given the terms of the Scriptwriter Agreement and the manner in which Mr Rockefeller conducted himself in other dealings with Mr Duncan-Watt and Mr Gooding and Mr Henderson. However, it is not necessary to reach a concluded view about whether Mr Rockefeller planned that course from the outset. B.34 The events of July 2016 289 On 7 July 2016, Mr Bryant Apolonio who was an Industrial Officer with the Australian Writers' Guild wrote an email to Mr Joseph Patrick, the Canadian producer of Thank You For Being A Friend. Mr Apolonio had been instructed by Mr Duncan-Watt to obtain a copy of the Licence Agreement relating to Thank You For Being A Friend relevant to the Canadian production which was then due to open soon. 290 On 8 July 2016, Mr Rockefeller wrote an email to Mr Apolonio, copied to "Jamie Robins, Esq", Mr Duncan-Watt, Mr Gooding and Mr Henderson. It included: I am writing to you in regard to one of your members, Thomas Duncan-Watt who is attempting to reach the producers for "Thank You For Being a Friend". Though intentionally not copied on your previous email for the reasons below, I ask that you please send all future correspondence to me on this matter. In fact, Mr Duncan-Watt is fraudulently misrepresenting himself, and his business arrangement and license for "Thank You For Being a Friend" (Canada) to you. On January 30, 2015, Thomas Duncan-Watt agreed in writing that I should hold the power to negotiate and finalize a licensing deal with Joseph Patrick Presents – provided that the writers' royalties and profits were equally split (attached). The agreement with Joseph Patrick was duly negotiated and finalized per our agreement while also honouring our mutual obligations under our Australian agreement that entities Neil Gooding and Matthew Henderson to a 2% Originating Producer royalty which will be split equally amongst them. I am copying those parties on this email, as it appears Mr Duncan-Watt is attempting to involve them in this matter unnecessarily and I am reassure them [sic] that the obligations an[d] royalty of 2% to them will be met. I do not believe henceforth it is necessary to include them on any future correspondence on this matter. I would note that, as 'co-owner' of the work, Mr Duncan-Watt categorically refuses to pay his 50% of all expenses, including legal fees and counsel and insurance, while continuing to represent himself as a 50% co-owner. Unfortunately, he is now also apparently attempting to abuse the good will and services of The Australian Writer's [sic] Guild to avoid his personal and financial obligations under a 50-50 ownership arrangement. Mr Duncan-Watt was notified in writing over a fortnight ago that he is obliged to pay the expenses below if he wishes to maintain 50% ownership of the license. … Further to this, Mr Duncan-Watt remains in larcenous possession of personal and professional materials belonging to me that I have repeatedly requested their return since May – all to no avail. The crux of the matter would appear to be one of money and control: Mr Duncan-Watt desperately wishes to renege on an agreement, and yet to control a property for which he refuses to bear his share of legal and financial obligations. I am certain that if the above issues are resolved it would lead to a satisfactory conclusion to your member's (Thomas Duncan-Watt) demands, but unfortunately your member has misrepresented himself, his legal standing and his actions to you and the Writer's [sic] Guild for personal and economic gain to which he is not justly entitled, and which constitutes an abuse of the Guild and its principles – not to mention considerable damage to his aspirations and reputation internationally. Sincerely, Jonathan cc Jamie Robins, Esq. 291 On 15 July 2016, "Mr Jamie Robins" – described as an "Attorney in Fact" – wrote an email to Mr Apolonio, which stated (emphasis in original): Dear Mr Apolonio, I represent Mr Jonathan Rockefeller, Rockefeller Productions, LLC and The Rockefeller Foundation for Arts and Literacy. If you knew Duncan-Watt as well as Mr Rockefeller and this office, you would not have written your email. Duncan-Watt continues to misrepresent himself, the facts and the circumstances of this situation to the Australian Writers' Guild in order to avoid his personal, legal and financial obligations under the original agreement. Duncan-Watt authorised Mr Rockefeller to negotiate and finalise a licensing deal with Joseph Patrick Presents. This authority was duly executed by Mr Rockefeller. Duncan-Watt continues to be a debtor to Rockefeller Productions and, hence, Mr Rockefeller, in the sum of $2107.50. Duncan-Watt continues to be in possession of certain personal literary materials belonging to Mr Rockefeller. Demands for both the monies owed and return of the literary materials have fallen on deaf ears. Duncan-Watt must take personal responsibility by honouring his financial and legal obligations to Mr Rockefeller (rather than adhering to his long-standing efforts to cling to Mr Rockefeller's intellectual and financial coattails). Once, but not until, Duncan-Watt honours his legal and financial obligations to Mr Rockefeller, we will provide a copy of the license agreement to him. … Duncan-Watt should seriously consider his position and the damage he is doing to his reputation by continuing this matter, and not only in Australia, Canada the United States of America and elsewhere. Duncan-Watt continues a pattern of misrepresenting himself and exaggerating 'facts' with respect to Mr Rockefeller on his website, www.thomasduncanwatt.com. So much of what is described there – past, present and future – can at best be described as an exercise in exaggeration and self-aggrandisement: e.g. Duncan-Watt's claim of ownership of Mr Rockefeller's autobiographical novel, No 5½. Further, and in addition, Duncan-Watt has never reimbursed Mr Rockefeller for his share of the monies expended for the publicity photographs Duncan-Watt uses freely on his website – an additional $2000 to the amount claimed above. Such is the nature of the member you are attempting to assist in good faith, but I assure the Guild it is always a one-way street with Duncan-Watt. As with the matter at hand, Mr Rockefeller has repeatedly requested Duncan-Watt to edit and revise his website to accurately reflect his past professional relationship with Mr Rockefeller but, to no avail. … Further, [Mr Duncan-Watt] never bore his portion of a legal opinion he very much favoured and encouraged Mr Rockefeller to cause to be rendered by Australian Counsel relating to validity and possible breach of the Thank You for Being a Friend contract by Messrs Henderson and Gooding. Yet again, Mr Rockefeller footed the bill ($800) … I could cite further instances of Duncan-Watt's penchant for the Free Ride, but I do not wish to waste any more of the Guild's time. Simply put, it is inconceivable that Duncan-Watt with a straight face can rationally portray himself to the Guild as the innocent, wronged, yet reasonable party. Again, Duncan-Watt desperately seeks the spotlight, but never wants to pay for the electricity. Our office is awaiting further instructions from Mr Rockefeller, as all patience being exhausted, this matter may soon be referred to the judicial system. Duncan-Watt believes that he is entitled to all the benefits, but none of the burdens of this world – resulting in a serious waste of everyone's time, patience and money through his immaturity and petulance; nevertheless, he has the sole, absolute power to bring this situation to a swift conclusion: he must first pay all monies owed to Mr Rockefeller, and return the literary materials belonging to Mr Rockefeller's New York address, forthwith. Until such time, but not before, Duncan-Watt will receive a copy of the license he authorised Mr Rockefeller to negotiate and execute pursuit [sic – pursuant] to an Agreement governed by the laws and subject to the exclusive jurisdiction of the State of New York. Again, we thank you for your email, and are deeply sorry the good offices of the Australian Writer's [sic] Guild are being misused and misled by Duncan-Watt in such a self-serving manner. FOR AND ON BEHALF OF MR ROCKEFELLER, THE COMPANY & THE ROCKEFELLER FOUNDATION FOR ARTS AND LITERACY Sincerely, Jamie Robins Attorney in Fact B.35 Mr Gooding learns about That Golden Girls Show!: August 2016 292 Mr Gooding first became aware on 13 August 2016 that Mr Rockefeller intended to produce That Golden Girls Show! in the US. Mr Duncan-Watt sent Mr Gooding an email on that day. This provided a link to the casting call, which indicated rehearsals would begin on 22 August 2016 and that the show would run from 19 September until 11 December 2016. 293 Mr Gooding stated that he called Mr Duncan-Watt between 14 and 15 August 2016. Of his conversation with Mr Duncan-Watt, Mr Gooding stated: Q: He started telling you about the creation of The Goldenish Girls? A: Yes. Q: So what did he say, as best you can recall? A: He said that Jonathan had told him that Mathew and I had breached our licence agreement - - - Q: Yes? A: - - - and that his lawyers were dealing with that. Q: Yes? A: And that – so they now had free rein to write another version of a Golden Girls puppet show that - - - Q: Yes? A: - - - Jonathan would take to the world. 294 Mr Duncan-Watt could remember feeling numb and Mr Gooding asking: "What the hell is going on?" 295 On 14 and 15 August 2016, Mr Gooding wrote emails seeking to elicit the name of the lawyer who had been writing from Mr Rockefeller's "legal department". Mr Rockefeller responded that the lawyer's name was "Jamie Robbins" and confirmed that his contact details included legal@rockefellerproductions.com and that he worked Mondays and Thursdays "and via email". There was no dispute that each of "Jamie Robbins" and "Jaime Robbins" and "Jamie Robins" was Mr Jones. 296 On or about 15 August 2016, Mr Gooding and Mr Henderson contacted Mr Rockefeller, and Mr Henderson's unchallenged evidence was that he said to Mr Rockefeller: Why was this so underhand? Why didn't you have a conversation with us about this? The fact that you were being so secretive about it shows that you knew it was not correct to do this. When you were arguing about Matt Chinn's involvement, you knew that we were trying to take the show to New York. By doing this you are trying to get a monopoly on the show [TGGS] in New York to block us from taking Thank You For Being A Friend there. 297 Mr Rockefeller's evidence was that there was a lengthy conversation. He said he informed Mr Henderson and Mr Gooding that there was nothing they could do as they had a "non-exclusive strict licence agreement for a script, and I have my very explicit reserved rights". Mr Rockefeller did not at this time put forward the argument, which he was later to put forward, that That Golden Girls Show! was a completely different theatrical production and that the reserved rights was not an issue for that reason. 298 Mr Rockefeller then sent an email to Mr Henderson and Mr Gooding on 15 August 2016 which stated: With respect to New York, there is not a non-compete clause in your license, nor is the license exclusive. The scripts, sets, puppets, scenarios, plot, outline of our new show are 100% different and we have assiduously differentiated the Australian show from the New York Show. We have gone to great lengths to communicate that this is a brand new show and has no connection and bears no relation to the Australian show whatsoever. Having just spoken again to our Australian counsel, Andrew Dawson, we have been advised that your claims are baseless and without merit. As such, any attempted interference by you with the New York production may result in liability attaching to you and your companies. As an aside, Mr Dawson has reminded us of the fact that it is a criminal offense in both USA and Australia to record telephone conversations without the other party's knowledge or consent. As the contract with you is between two Australian entities and is governed by the laws of New South Wales, all correspondence from you should be directed to Mr Dawson at Brett Oaten Solicitors. 299 Mr Gooding made numerous requests for a copy of the script for That Golden Girls Show!. Mr Rockefeller refused to provide a copy. B.36 That Golden Girl Show! opens: 19 September 2016 300 That Golden Girls Show! opened on 19 September 2016 at the DR2 Theatre in the Grammercy Park Neighbourhood of New York. Mr Gooding purchased a ticket and watched the show. He had received, the day before, the script which Mr Duncan-Watt had written for The Goldenish Girls. He took the view that the show was, in substance, practically the same as Thank You For Being A Friend. He took the view the script was substantially the same as The Goldenish Girls. 301 Mounted on the wall of the DR2 Theatre on either side of the entrance were posters, billing Jonathan Rockefeller's That Golden Girls Show!. These included in large bold lettering: "The Golden Girls with Puppets – SOLD!" underneath which appeared five golden stars and the words "Time Out": 302 The same quote had been used by Mr Rockefeller in advertising That Golden Girls Show! in print shortly before it commenced: 303 This wording was taken by Mr Rockefeller from material, existing over three years earlier, which related to Thank You For Being A Friend. The Thank You For Being A Friend Facebook timeline indicated as early as 23 May 2013: "It's the Golden Girls with Puppets: SOLD – Time Out Magazine": 304 In his evidence, Mr Rockefeller did not deny using the material from Thank You For Being A Friend but defended its use by saying he was entitled to use it because it was an advertorial which he invented with Time Out Magazine. Mr Rockefeller did not suggest that Time Out Magazine had reviewed That Golden Girls Show! or authorised the use of the comment attributed to them in connection with That Golden Girls Show!. The line was used before That Golden Girls Show! was first performed. 305 It is also relevant to note that Mr Rockefeller had supplied reviews of Thank You For Being A Friend to The Stage Review (and others) in the US for the purpose of promoting That Golden Girls Show!: T289.22. The resulting The Stage Review publication included the following: His earlier Golden Girls themed parody show entitled "Thank you For Being a Friend" sold out in Australia and Canada where it was called 'Akin to Genius' Gay Toronto; 'A unique tribute show that is as funny as, if not more, than the original' – The Daily Telegraph; 'The entire audience laughed out loud throughout the show' – Daily Sydney; 'Belly-achingly funny' – Sydney Arts Guide; 'A must for diehards' – The Age, Melbourne; 'Truly sensational … headed for Broadway' – Stage Whispers; 'Five out of five Stars' – Same Same: 'Delight from start to finish. I would happily sit through re-runs' – Media Culture; 'A lovingly hilarious tribute show!' – Byte Media; 'The show is a treat' – The Australian. The show is currently being presented at Canada's Al Green Theatre. 306 In promoting That Golden Girls Show!, Mr Rockefeller had described it in an 8 August 2016 radio interview as a "second version" of Thank You For Being A Friend. 307 Other promotional material for That Golden Girls Show! included film clips or photographs from Thank You For Being A Friend, depicting the puppets from that show. This evidence had been put forward by Mr Gooding in his evidence. Nothing was said or tendered by Mr Rockefeller in reply to Mr Gooding's evidence. In cross-examination, Mr Rockefeller asserted that he had asked the relevant publishers for a correction: T287.15. In circumstances where Mr Rockefeller's reply evidence made no such suggestion, and in light of my conclusion that Mr Rockefeller's evidence was generally unreliable, in particular where he perceived it was in his interests to make particular assertions, I am not satisfied that he made any such request of the relevant publishers. 308 Mr Rockefeller's use of material relating to Thank You For Being A Friend in promoting That Golden Girls Show! stands in stark contrast to his email to Mr Henderson and Mr Gooding of 15 August 2016 referred to at [298] above, in which Mr Rockefeller stated: The scripts, sets, puppets, scenarios, plot, outline of our new show are 100% different and we have assiduously differentiated the Australian show from the New York Show. We have gone to great lengths to communicate that this is a brand new show and has no connection and bears no relation to the Australian show whatsoever. 309 This email was written only a week after Mr Rockefeller had described That Golden Girls Show! in a radio interview as being "a second version" of Thank You For Being A Friend – see: [306] above. B.37 The respective contributions of Mr Rockefeller and Mr Duncan-Watt to The Goldenish Girls plot and script and the similarities between the two 310 There was no issue in the proceedings that the plots for The Goldenish Girls and That Golden Girls Show! were relevantly identical. As explained below, the plot was largely the creation of Mr Duncan-Watt. 311 Mr Rockefeller's evidence in cross-examination included: Q: And a substantial proportion of that script, of The Goldenish Girls script, was adopted by you in your script for [That Golden Girls Show!]; correct? A: With cause. Q: I'm sorry? A: With cause. Q: With cause? A: Yes. Q: So your answer is "yes"? A: No, my answer is "yes, with cause". 312 The following day, Mr Rockefeller was asked what he meant by this last statement: Q: Well, my question to you is what did you mean by that qualification, "Yes, with cause"? A: Well, there are several aspects. There are some passages that come from the Goldenish Girls and are entered into That Golden Girls Show. Those portions that survive were the portions that were written by me. Q: So what you say is that the portions from The Goldenish Girls which ended up in [That Golden Girls Show!] were all written by you? A: Yes. Q: I suggest that's not true at all? A: That is true. Q: I suggest that the vast majority of that work from The Goldenish Girls was written by Mr Duncan-Watt? A: It might have been but the vast majority didn't end up in That Golden Girls Show. 313 Later in cross-examination, Mr Rockefeller stated: Q: And I suggest that the plot for [The] Goldenish Girls at least, was identical to that of [That Golden Girls Show!], correct? A: Yes. That's because I wrote it. 314 Mr Rockefeller's position, as explained by his evidence just set out, was that anything in That Golden Girls Show! which happened also to be in The Goldenish Girls and was not sourced from the Golden Girls television series, was written by him. His position was also that he wrote the plot. Neither proposition is true. 315 Contrary to Mr Rockefeller's evidence and for the reasons set out below, Mr Rockefeller did not write The Goldenish Girls script; at best, Mr Rockefeller contributed to aspects of the script. The script was largely written by Mr Duncan-Watt in accordance with the Scriptwriter Agreement. Whilst acknowledging that various aspects of the script took their colour from the original Golden Girls television series, I am satisfied that the component of the central plot and script of The Goldenish Girls which was original was largely based on the ideas and work of Mr Duncan-Watt. B.37.1 The plot 316 As to the plot or storyline, Mr Gooding contended that little of the storyline contained in the synopses which had been sent by Mr Rockefeller to Mr Duncan-Watt on 29 March 2015 and 1 May 2015 was to be found in the first draft of Act One of The Goldenish Girls which had been written by Mr Duncan-Watt by 25 or 26 June 2015, and provided to Mr Rockefeller before their meeting at Rosa Mexicano on 27 June 2015. 317 Mr Rockefeller submitted that that there was significant contribution from the synopsis sent on 29 March 2015 to the whole script sent by Mr Duncan-Watt to Mr Rockefeller on 9 September 2015. 318 When Mr Rockefeller's synopsis of 29 March 2015 is compared to the final The Goldenish Girls script, they are evidently telling quite different stories. It is true that there are certain matters contained in the 29 March 2015 synopsis which can also be found in the 9 September 2015 script, but they are in the main little more than expositions of the underlying idiosyncrasies of the main characters drawn from the original television series. The synopsis prepared by Mr Rockefeller tells a different story to the one in the script of The Goldenish Girls largely written by Mr Duncan-Watt. 319 One central element of the plot of The Goldenish Girls (and That Golden Girls Show! which copied it) was that Dorothy's ex-husband, Stan, inherited a significant amount of money from his Aunt Regina, but – under the terms of the will – had to marry within 48 hours. 320 Act One of The Goldenish Girls ends as follows, with Stan bursting in the door and saying: Stanley: Dorothy, it's me Stan. And I really DO having [sic] something I need to tell you about. I just got given a fortune in a will, and if you marry me, I'll make you rich beyond your wildest dreams! Dorothy: Stan we have just one thing to say to you … Sophia pushes in front of Dorothy. Sophia: Welcome to the family! 321 Act Two Part I opens with Dorothy's mother, Sophia, singing about love and apparently imagining life with more money. She wants Dorothy to marry Stan. Dorothy insists that she will not re-marry Stan for money. When Stan comes back, he and Dorothy reminisce about their time together. Dorothy remembers some good times and apparently imagines that being married to Stan might be better if they did not have any financial strain. Stan tries to propose but interventions get in the way. The second time Stan tries to propose, Sophia interrupts to prevent Dorothy accepting. Sophia has changed her mind. Dorothy and Sophia exit after a hug. 322 At the end of Act Two Part I, immediately before leaving, Stan says: I just wish I could at least get the money. I mean, $40, 000 or not, where am I going to conveniently find a wife in 48 hours in order to meet this oddly specific deadline. I was going to be rich. (sobs) 323 This evidently sparks the interest of Rose and Blanche, who muscle each other out of the way to get out of the door fastest, as Act Two Part I closes. 324 Act Two Part II opens with Stan entering the front door, wearing a hand puppet which is holding a bunch of roses. Stan is looking for Dorothy. First Rose, then Blanche, seek to get Stan to marry them. They both agree that they would marry him just to get access to his money. Just before Dorothy comes back into the scene, Stan says to his hand puppet: Oh, I know Burt-Othy: 'snap out of it: I have two babes who both want me. I mean, so they're both batshit crazy! But As long as I marry one of them I can take the money and run. I just have to make sure nothing else goes wrong tonight and I'm home free! 325 Dorothy says she had to be dismissive in front of her mother. She explains that, at first, she had decided to refuse his proposal, but felt right when they started going through the old photos together. They agree to get back together and Stan ushers Dorothy off stage. Blanche returns and throws herself at Stan. Rose comes in and Stan tells her "this isn't what it looks like". Dorothy returns and learns that Blanche and Rose both aspire to marry Stan. Sophia returns and asks if they are really all three of them fighting over Stan. She would have understood if it was Burt Reynolds that they were fighting over. Dorothy tells Stan he will never change and Stan leaves "with his tail between his legs". 326 Act Two Part II ends with Sophia expressing her disappointment at the grab for money she has seen, saying she cannot live in the house any longer and leaving to her bedroom. Dorothy, Rose and Blanche are worried. 327 None of this was in the synopsis of 29 March 2015 prepared by Mr Rockefeller. Act One in the 29 March 2015 synopsis contemplates Dorothy realising she does love Stan (after he seeks her blessing to marry someone else) and asking him to come over. Dorothy confesses her love for him. Stan says that, for a school teacher, she is pretty irrational for liking someone like him, but he will take what he can get. They kiss, but Sophia interrupts, telling Dorothy that Dorothy will go out with Stan again over Sophia's dead body. Dorothy and Sophia get into a fight and Stan leaves "like the spineless hack that he is". Sophia is telephoned by CBS which wants to buy the rights to her memoirs. She makes a deal with them. Blanche arrives back from having had plastic surgery. 328 Act Two in the 29 March 2015 synopsis prepared by Mr Rockefeller contemplates the premiere of Sophia's television series. Burt Reynolds is coming to collect Sophia as her date to the premiere. He arrives and "all of them gush". They all claim to be accompanying Sophia to the premiere. Blanche and Rose go off to get changed. Stan arrives and Dorothy slams the door telling him she hates him. Dorothy exits and Blanche returns wearing a 1980's sequin dress. Rose enters with the same dress, followed by Dorothy. They all argue about who should be wearing the dress, ripping each other's sleeves. As they are fighting Sophia enters and says to Burt "let's go". 329 Dorothy, Rose and Blanche plan for a night in and go out to slip into something more comfortable. They all enter again wearing the same night gown. They sit in front of the television and turn it on. Sophia's show debuts. Her show is a version of the Golden Girls with sock puppets. They mock the characters at their own expense, until eventually Dorothy has enough and turns it off. Sophia arrives home, waving goodbye to Burt. Dorothy says Sophia made a mockery of them in the television series because they all looked like terrible puppets. Sophia says that every time she insults them, she does it with love. She says they are family – "even though you [Rose] are stupid, a slut [Blanche] and practically a man [Dorothy]". They all hug. They get cheesecake, whipped cream and chocolate sauce. Sophia tells them more about her night. B.37.2 The script 330 As to the actual writing of the script as opposed to the plot or storyline adopted, a comparison between Act One as it was sent to Mr Rockefeller on 25 or 26 June 2015 and as it appeared in the final version of the whole script sent to Mr Rockefeller on 9 September 2015 reveals that the great majority of Act One remained in the same form as drafted by Mr Duncan-Watt. I conclude that Act One, in its final form, was almost entirely the work of Mr Duncan-Watt. 331 Having regard in particular to the contemporaneous written exchanges between Mr Rockefeller and Mr Duncan-Watt, and my preference for the reliability of Mr Duncan-Watt's evidence over Mr Rockefeller's, I conclude that the script for the whole of The Goldenish Girls was substantially written by Mr Duncan-Watt. Mr Rockefeller had some input by way of providing some ideas in synopses and into the beats, and made some suggested changes to the script. 332 In summary, accepting that some of the jokes were sourced in the Golden Girls television series: (1) Mr Duncan-Watt wrote the whole of Act One without any significant contribution from Mr Rockefeller and provided it to him on 25 or 26 June 2015. Mr Rockefeller did not substantially contribute to Act One, as it was finally drafted. (2) Acts Two and Three were largely if not entirely written by Mr Duncan-Watt. 333 At one point in cross-examination, Mr Rockefeller accepted that the vast majority of the script for The Goldenish Girls "might have been" written by Mr Duncan-Watt, but asserted that the material which Mr Duncan-Watt wrote did not end up in That Golden Girls Show!. This was untrue. 334 The material written by Mr Duncan-Watt in respect of all of the Acts of The Goldenish Girls was used by Mr Rockefeller in the script of That Golden Girls Show!. Mr Rockefeller's alterations to, and reordering of, the material written by Mr Duncan-Watt were not shown to be of any particular significance. 335 In closing written submissions, Mr Rockefeller did not dispute that there were substantial similarities between The Goldenish Girls and That Golden Girls Show! It was submitted, however, that both Mr Rockefeller and Mr Duncan-Watt were writers, in the sense of authors, of the dramatic work The Goldenish Girls. It was submitted that Mr Rockefeller provided synopses, steps and beats, and participated in a collaborative process with Mr Duncan-Watt who implemented that material into a script which was then reviewed and polished. It was submitted that those parts of the dramatic work that find their source in Mr Rockefeller's contribution (especially in the combination or series of incidents, character development and plot) may properly be described as being written by him, irrespective of any separate or additional act of "wordsmithery" on those parts by Mr Duncan-Watt. It was submitted that Mr Rockefeller also re-crafted (or re-wrote) words that had previously been framed by Mr Duncan-Watt. 336 I accept the submission made by Mr Gooding, and adopted by Mr Duncan-Watt, that Mr Rockefeller took the identical plot of The Goldenish Girls and the script of it which had been largely if not entirely written by Mr Duncan-Watt and used this material in That Golden Girls Show!, without providing any recognition or credit for Mr Duncan-Watt's work, when he should have recognised that contribution. B.38 Similarities between Thank You For Being A Friend and That Golden Girls Show! 337 Mr Duncan-Watt wrote the script for The Goldenish Girls over June to September 2015. The resulting script altered the plot of Thank You For Being A Friend, but used many of the same jokes, and, like Thank You For Being A Friend, adopted common themes from the original television series. When considering the similarities between Thank You For Being a Friend and That Golden Girls Show!, particularly with reference to Mr Duncan-Watt's contributions to The Goldenish Girls script as set out at Section B.37 above, it is to be recalled that Mr Rockefeller had greater input in preparing the script for Thank You For Being A Friend than in relation to The Goldenish Girls – see Section B.4 above. 338 Mr Rockefeller submitted, and I accept, that in comparing the various scripts, it was necessary to recall that each drew upon elements of the original Golden Girls television series. In particular, each revolved around the four main characters – Blanche, Dorothy, Rose and Sophia – and their idiosyncrasies. The television series included, as a regular character, Stan Zbornak, who was Dorothy's ex-husband. There was a lot of cheesecake. Sophia and Dorothy made frequent enough reference to the Shady Pines retirement home. 339 Mr Rockefeller also submitted, and I accept, that, in comparing the puppet shows and the scripts, it is necessary to recall that they draw upon the house used in the Golden Girls television series. This had the front door on the left opening to the lounge area. There was a lanai at the back left of the lounge area and the bedrooms to the back right. A swing door on the right hand side, lead to the kitchen which featured, among other things, a round table at the front, a telephone (with a long cord), a central island bench and a refrigerator on the right tucked behind the hob. 340 It is fair to say that one would expect to see similarities between two parodies of the same television series. 341 However, what Mr Rockefeller's submission misses – as Mr Gooding submitted – is that both parodies (Thank You For Being A Friend and That Golden Girls Show!) operated on the format or framework of actors operating puppets on stage. A second parody might have taken any number of formats, for example, a musical. It may be accepted that the concept of a puppet parody was not novel. As Mr Duncan-Watt readily acknowledged, that idea had been done by Avenue Q. However, a puppet parody of the Golden Girls television series was novel. Thank You For Being A Friend and That Golden Girls Show! both reproduced elements from the television series, including the layout of the rooms and repeated references to cheesecake, and both drew on the themes of the original series and the idiosyncrasies of the main characters. However, this only adds to the conclusion that the two shows were substantially similar when assessed through the lens that both shows were puppet parodies. 342 The parties accepted that there were differences in the plot of Thank You For Being A Friend and that of That Golden Girls Show!, but – that aside and for the reasons which follow and those at [596] below – the shows were substantially similar. 343 First, both shows used puppets controlled by on-stage actors. The puppets themselves were of the same size and drew upon the physical characteristics of the four main characters from the television series. The puppets in both Thank You For Being A Friend and That Golden Girls Show! were cartoon-like caricatures of their televised namesakes. The puppets accordingly had the same feel and looked similar. The puppets were operated from the use of an internal hand and an external stick. The puppets were controlled in the same way by visible on-stage actors, as opposed to puppets being suspended from string or manoeuvred by puppeteers from off-stage, or who were otherwise unseen by the audience. Photographs of the actors on stage with their puppets in each of the shows are set out below: Thank You For Being A Friend That Golden Girls Show! 344 Mr Rockefeller submitted that there was no monopoly in the idea of using puppets with actors visible on stage. He submitted it was not novel; the adoption of that style of puppetry (in contrast to the use of marionettes in the manner of "The Lonely Goat Herd" from The Sound of Music or invisible actors in the manner of The Muppets television show) went nowhere. 345 However, it does go somewhere. It was a striking and central feature of both shows which highlighted their similarity. That Golden Girls Show! was little more than a second production of Thank you For Being A Friend, with plot changes based predominantly on the ideas and work of Mr Duncan-Watt on The Goldenish Girls. 346 Mr Rockefeller submitted that, on any brief visual inspection, the puppets used in Thank You For Being a Friend were different to those used in That Golden Girls Show!. He accepted that each had a likeness to their respective original character, but that was insufficient. The puppets in That Golden Girls Show! were, so it was submitted, superior in aesthetic quality, "akin to Henson-style puppets". Whilst this matter is inevitably subjective, it seemed to me that the puppets were similar. The average theatre-goer watching the two shows within a few months of each other is unlikely to have noticed a difference. 347 Secondly, both shows used a male actor to perform the female role of Dorothy. Again, this was an important and in some ways defining feature of the parody shows. 348 Thirdly, both shows used a male actor – without a puppet – to perform the role of the featured male love interest. Again, this was an important and in some ways defining feature of the parody shows. 349 Fourthly, in both shows, the actors simultaneously acted the role of their puppet – that is, the actors conveyed the facial expressions and moods of their characters. This was central to the production. 350 Fifthly, the sets of Thank You For Being A Friend and That Golden Girls Show! were substantially similar, as one would expect when they drew on the Golden Girls television series. The first run of Thank You For Being A Friend, which occurred before Mr Gooding and Mr Henderson were involved, did not have a set of any substance. Both shows were presented as if the audience was watching an actual episode of the Golden Girls television show. However, there was no requirement to adopt for the purposes of a second puppet parody the layout of the Thank You For Being A Friend set simply because of the original television show. 351 Sixthly, both shows used a substantial number of jokes drawn from the original Golden Girls television series. Mr Rockefeller submitted that the appearance of the same or similar jokes, of itself, went nowhere. Mr Rockefeller made the following submissions in this regard: (1) To the extent that those jokes (whether in identical expression or in broadly similar form) emanated from the original the Golden Girls television show, then that was a common source. Audience members who were aficionados might well recognise, and appreciate, them for that reason alone. (2) The mere presence of the original jokes cannot be viewed in isolation, but should be taken into account with their relative position in the scripts. (3) In any event the copyright was in Mr Rockefeller's companies (assuming that copyright represents an appropriate analytical tool with respect to individual jokes in the context of a dramatic work as a whole). Put another way, the jokes were neither the dramatic work, nor a substantial part of it. 352 Contrary to Mr Rockefeller's submission, the use of common jokes obviously increased the similarity between the two shows. There were multiple seasons of the television series from which jokes could potentially have been sourced. In Thank You For Being A Friend, seventeen original jokes were used. Except for two, each of these found their way into the script of That Golden Girls Show!, through the script of The Goldenish Girls. These would have been well-recognised by aficionados of the Golden Girls television series and, perhaps more particularly, they would have been recognised by any reasonable audience watching Thank You For Being A Friend and then That Golden Girls Show!. As Mr Gooding submitted, it would have been commercial madness to run Thank You For Being A Friend in New York at the same time or immediately after That Golden Girls Show!, because of the similarities between the two shows. The jokes represented a common device between the two shows, adding to the impression which would have been gained that one was a copy of the other, albeit with some changes to plot. 353 Seventhly, in addition to the use of jokes drawn from the original television series, there were other similarities between the scripts for Thank You For Being A Friend and That Golden Girls Show!. Mr Gooding submitted, and I accept, that these included: (1) Sophia trying to make money through a food-based business; (2) Blanche introducing the concept of getting plastic surgery; (3) a male character introduced to create competition between Dorothy, Rose and Blanche as they all vie for his attention; (4) Rose, Blanche and Dorothy having a confrontation over the male character; (5) Rose, Blanche and Dorothy contemplating the possibility of Sophia leaving the house; (6) Dorothy and Sophia reconciling and apologising to each other; (7) Sophia coming into a lot of money; (8) the show concluding with "the girls" realising that the most important thing is that they have each other; and (9) the end credits are similar, involving the playing of the theme music ('Thank you for being a friend') and fading to black. 354 Mr Rockefeller submitted that, taken at their highest, these matters, themes or devices were characterisations of events at a generalised level. At that level of abstraction, they reflected mere similarities to common literary elements in dramatic works, for example, the introduction of conflict or dramatic tension, its denouement and subsequent resolution. He submitted that these themes or devices should not be divorced from the combination or series of situations, incidents, character development and plot of the respective dramatic works, or the common source of the television series. 355 Mr Rockefeller submitted: (1) As to Mr Gooding's submissions concerning the introduction of a "male character" (see points (3) and (4) above), there is significant difference between that male character being an unknown dance instructor (Emilio in Thank You For Being a Friend) and it being Dorothy's ex-husband, Stan, who was a constantly recurring character throughout the television series (in That Golden Girls Show!). As to this submission, I accept that there is a difference; but it is a difference in plot, which is otherwise swamped by the similarities of the two productions. (2) As to Mr Gooding's submissions which referred to "conflict" between some of the main characters which reached its climax and resolution and the presentation of a moral as to the importance of their friendship (see points (4), (6) and (8) above), this is merely emblematic of common dramatic tropes, as well as being reflective of the dramatic arc deployed in the television series. This may be so, but it does not cause any differentiation between the two shows which were both produced in the format and framework of puppet parodies. (3) Other devices are illustrative of the personalities of the characters themselves, namely Sophia's financial schemes (see points (1) and (7)) and Blanche's vanity (see point (2)). Again, this submission may be accepted. However, maintaining those devices emphasises the similarities, or the lack of difference, between Thank You For Being A Friend and That Golden Girls Show!. (4) Finally, Mr Rockefeller submitted that the format of the "end credits" is a device that brings to mind the closing credits of the Golden Girls television series. Again, that may be accepted. However, the audience watching both Thank You For Being A Friend and That Golden Girls Show! would be left with the impression, upon seeing the shows conclude with the "end credits", that one has watched what is, in essence, the same show with some differences in plot. 356 Mr Rockefeller submitted that the concession that there were "changes to the plot from the story in Thank You For Being A Friend" should be given "its full weight and significance, bearing in mind the critical importance of the combination or series of situations, incidents, character development and plot". Mr Rockefeller submitted that Mr Gooding pivoted away from this concession, when he asserted that "it is no answer therefore to say that they both follow the same set and themes from the original television show". Mr Rockefeller says that, taken to its logical conclusion, Mr Gooding's submission permits of having two puppet parody plays based on the Golden Girls provided that, after the plot changes, the audience is presented with something unlike the Golden Girls and more like, for example, Anna Karenina or War and Peace. 357 Mr Rockefeller described the plots in the following way: Thank You for Being a Friend Thank You For Being a Friend is a 'contemporary' episode of the Golden Girls, as though it were still on television today, being filmed in-front of a live studio audience with breaks for 'real' commercials which play during the show. Dorothy tricks her mother Sophia into going to the doctor. Sophia doesn't take too kindly to being swindled and places a Sicilian curse on her daughter. Blanche's gay son wants to have a Chinese baby via artificial insemination which causes the Southern Belle to reconcile her prejudices, and the more devastating consequence of being old enough to be a Grandmother. Rose is determined to win the 'Miami theme song' competition and enlists Dorothy to help her write the song lyrics. Meanwhile, Dorothy, wanting to lose some weight, employs a dance instructor called Emilio, which all of her other flatmates fight over in a last-ditch effort to find a date for Saturday night. Dorothy, Blanche and Sophia all purchase the same dress which brings about a large altercation. Unbeknownst to Dorothy, Sophia cooks up a Green Card scheme with Emilio, and hoodwinks Dorothy as revenge for taking her to the doctor. That Golden Girls Show! That Golden Girls Show! is a prequel of fictionalized events that lead up to the genesis and creation of the Golden Girls television series. Sophia tries selling all of the other three girls' belongings to afford a new big screen television. Dorothy's ex-husband Stan proposes to Dorothy who turns down his offer. Unbeknownst to Dorothy, Stan's proposal is linked to a clause in his Aunt's will that he can only inherit a large sum of money if he marries within 48 hours. Rose has alarming news from her home town of St Olaf that the "Herring Circus" is in financial trouble, and Blanche has plastic surgery that botches her beyond recognition. A competition begins between Rose and Blanche to try and seduce Stan for his inheritance. After some soul searching, Dorothy realizes she indeed still has feelings for Stan which complicates the other two's chance for the cash. Sophia sells Dorothy's diary to a television station, which adapt the events of the diary into a new 1980's television series called 'The Golden Girls'. 358 It is perfectly possible that a second puppet parody of the Golden Girls television series could be made differently or substantially differently as the discussion above indicates. However, That Golden Girls Show! could not be so described. The combination of similarities, even recognising the plot differences, left the two shows substantially similar. An audience of both shows would have been left with the impression that they had seen the same show, in the same format, with the same jokes, but with certain plot differences. 359 Mr Gooding submitted that, apart from the changes to the plot from the story in Thank You For Being A Friend, there was very little to differentiate between the two shows. I accept that submission for the reasons set out above. B.39 The New York proceedings 360 On 19 October 2016, Mr Duncan-Watt, Mr Gooding (Neil Gooding Productions) and Mr Henderson (trading as Matthew Management) instituted proceedings against Mr Rockefeller and corporate entities including JWR Productions and JWR Productions LLC in the Supreme Court of the State of New York (New York proceedings). The central allegations included: Mr Rockefeller was having dinner with Mr Duncan-Watt, described as a script writer, when Mr Duncan-Watt came up with the idea of creating a Golden Girls puppet parody. Mr Duncan-Watt wrote a script for that show, which was entitled Thank You For Being A Friend. Mr Rockefeller contributed little more than minor edits. In February 2013, despite having a minimal set, Thank You For Being A Friend successfully debuted in Australia. After the debut, Mr Rockefeller approached Mr Henderson about potentially becoming involved in the show's production. Mr Henderson and Mr Gooding then suggested re-working of the script, and the way the show was presented, including but not limited to: casting the role of Dorothy as a male actor, playing music from the 1980's. Mr Duncan-Watt and Mr Rockefeller jointly issued a worldwide production license for Thank You For Being A Friend to Mr Gooding and Mr Henderson, who continued to produce Thank You For Being A Friend in Australia while seeking additional opportunities for its production worldwide. Mr Rockefeller soon came to regret issuing the worldwide license. Mr Rockefeller (who had all communications with Mr Gooding and Mr Henderson at that point) then falsely informed Mr Duncan-Watt that the License Agreement for Thank You For Being A Friend had been breached and that he thus wanted to produce the show with Mr Duncan-Watt, but not before freshening-up the Thank You For Being A Friend script. Mr Rockefeller asked Mr Duncan-Watt to start writing a revised script of Thank You For Being A Friend for a show with the same concept and with a significant number of the same jokes, this one entitled, "The Goldenish Girls: A Puppet Parody". Pursuant to a Scriptwriter Agreement dated on or about 11 May 2015, Mr Duncan-Watt drafted the script for The Goldenish Girls with little input from Mr Rockefeller. Mr Duncan-Watt travelled to New York to meet with Mr Rockefeller, look at venues in which he proposed to produce The Goldenish Girls, and discuss the show. Mr Rockefeller thanked Mr Duncan-Watt for what he stated was "the best writing you've ever done" and said he would be in touch when he had additional news. Many months later, Mr Rockefeller, without any reason or cause, and without notice, sent Mr Duncan-Watt a letter attempting to terminate the Scriptwriter Agreement. One month after that, Mr Rockefeller announced that his "brand new" Golden Girls puppet parody show (That Golden Girls Show!) would be opening in New York in September 2016. Mr Rockefeller and his attorneys had refused to provide to Mr Duncan-Watt, Mr Gooding and Mr Henderson a copy of the That Golden Girls Show! script, but upon seeing the show at its opening, it was readily apparent that Mr Rockefeller simply took the Goldenish Girls script, made minor tweaks, gave it a new name, and was fraudulently attempting to pass it off as his own original creation. Mr Rockefeller's conduct had also caused a breach of both the letter and spirit of the License Agreement for Thank You For Being A Friend, as Mr Gooding and Mr Henderson were being denied the opportunity to produce Thank You For Being A Friend in New York. Mr Rockefeller's show, That Golden Girls Show!, caused confusion in the marketplace and caused substantial damage to the worldwide production of Thank You For Being A Friend. Mr Rockefeller intentionally caused such confusion. For example, on the website selling That Golden Girls Show! tickets, Mr Rockefeller used the actual Thank You For Being A Friend puppets – and on posters outside the DR2 Theatre in New York (where That Golden Girls Show! was playing), Rockefeller used the positive reviews of Thank You For Being A Friend from Time Out and Gay Toronto in an attempt to mislead consumers into believing that those reviews were for his show, That Golden Girls Show!. Mr Rockefeller had falsely claimed that he was the creator and writer of That Golden Girls Show! in numerous print, television and on-line media outlets when in fact, he took The Goldenish Girls script written by Mr Duncan-Watt (which was a revised version of the Thank You For Being A Friend script) and combined it with the puppets and set design of Thank You For Being A Friend. This extended to using the idea of having a male actor to play the female character of Dorothy. B.40 The New York Times Article 361 Having had access to, and I infer read, the "Complaint" (the pleadings) in the New York proceedings, a journalist from The New York Times contacted Mr Duncan-Watt and Mr Gooding on 21 October 2016 for comment. 362 On 23 October 2016, The New York Times published an article, the online form of which included the following (the line numbers have been inserted for ease of reference in discussing the claims made in these proceedings and continue from those allocated to the Facebook Post, set out below): 10 Lawsuit Filed Over 'Golden Girls' Puppet 11 Parody 12 The court documents don't exactly scream out, "Thank you for being a friend." 13 The documents, part of a lawsuit filed by a writer and producers, claim that 14 the current Off Broadway run of "That Golden Girls Show! A Puppet Parody" 15 was stolen when a creative partnership - and friendship - turned sour. 16 "That Golden Girls Show!," which opened at the DR2 Theater in early 17 October, lists Jonathan Rockefeller as its writer and creator. But according to 18 the documents filed in State Supreme Court in Manhattan last week, the 19 production is nearly identical to a previous show, "Thank You for Being a 20 Friend," that Mr. Rockefeller created with the writer Thomas Duncan-Watt. 21 "Thank You for Being a Friend" was produced by Neil Gooding and 22 Matthew Henderson and has had runs in Australia and Toronto. 23 The format of "That Golden Girls Show!" – a Muppets-like puppet parody 24 of the similarly named 1980s sitcom – is exactly the same as "Thank You for 25 Being a Friend," said Mr. Duncan-Watt, who filed the suit along with Mr. 26 Gooding and Mr. Henderson. Both shows, he added, even have a man perform 27 the role of Dorothy (played by Bea Arthur in the television series). 28 Court documents also contend that early promotional materials for "That 29 Golden Girls Show!" quoted reviews of "Thank You for Being a Friend" from 30 Time Out and Gay Toronto. 31 But Mr. Rockefeller and his lawyers say this new Off Broadway production 32 is completely legal. 33 "The plaintiffs had a very limited license from us to produce 'Thank You for 34 Being a Friend,' and their license made absolutely clear that we are free to 35 proceed with another show, even if it competes with their show," Mr. 36 Rockefeller's legal team said in a statement. "We intend to defend ourselves 37 against plaintiffs' frivolous claims and look forward to vindication in court." 38 After the initial run of "Thank You for Being a Friend" in Australia, Mr. 39 Gooding, Mr. Henderson and Mr. Duncan-Watt planned to take the show to 40 North America and Britain. They claim, however, that Mr. Rockefeller made his 41 own arrangements in licensing the show to a Canadian theater and removed Mr. 42 Duncan-Watt from the credits. 43 Mr. Gooding said that Mr. Rockefeller then convinced Mr. Duncan-Watt to 44 write a new script and promised him that it would be produced internationally. 45 Instead, the plaintiffs assert, Mr. Rockefeller removed Mr. Duncan-Watt's 46 name from the revised work and brought it to New York as "That Golden Girls Show!" 47 When he saw "That Golden Girls Show!" this month, Mr. Gooding said in 48 an interview, "In the first 10 minutes, I sat there and knew the script we were 49 dealing with because it was word for word" what Mr. Duncan-Watt had written. 50 "A best friendship of 10 years has been fractured by the selfishness of 51 Jonathan, who needs to be seen as an all-powerful genius that writes, directs, 52 produces and does it himself," Mr. Gooding added. 53 The team behind "Thank You for Being a Friend" asked to see the script for 54 "That Golden Girls Show!" in advance, but Mr. Rockefeller refused, according to 55 the court documents. Richard Roth, a lawyer for the plaintiffs, said that Mr. 56 Rockefeller then set up email accounts seeming to be from lawyers in an effort 57 to have Mr. Duncan-Watt and his producers stop contacting him. 58 "To me, it was nothing short of harassment and intimidation," Mr. Roth 59 said. 60 Mr. Duncan-Watt and his producers claim that Mr. Rockefeller stole the 61 show, cut them out of any royalties and harassed and intimidated them. They 62 are seeking damages from the run of "That Golden Girls Show!," which is 63 scheduled through Dec. 31. 64 The plaintiffs said they hoped to reclaim rights to the show and continue to 65 produce "Thank You for Being a Friend" internationally. "The show is very 66 personal to me," Mr. Duncan-Watt said in an interview. "It was really a labor of 67 love. For someone to so callously and without cause just steal it – I was 68 completely speechless." B.41 Mr Gooding's Facebook post 363 On 24 October 2016, Mr Gooding posted a message on his personal Facebook page. This provided a link to The New York Times article referred to and extracted above. The message was (the line numbers have been inserted for ease of reference in discussing the claims made in these proceedings): C DEFAMATION C.1 Introduction 364 The defamation aspect of the case concerned only Mr Rockefeller and Mr Gooding. It arises out of the publication by Mr Gooding on 24 October 2016 of the Facebook Post set out at [363] above. As noted, the Post contained a hyperlink to the New York Times Article entitled "Lawsuit Filed Over 'Golden Girls' Puppet Parody" set out at [362] above. 365 It was common ground that the published matter or "matter complained of" was a "hybrid" or "compendious single" publication comprised of both the Post and the Article. Any imputations found to be conveyed by the published matter would need to be conveyed by the Post and Article read together. 366 The tort of defamation is concerned with damage to reputation and it is that damage which founds the cause of action: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [25]. In the context of a "hybrid" publication, damages must be assessed by reference to those who read and comprehended all aspects of the publication, namely the Post and the Article. 367 It was common ground that, in order to make out the tort of defamation, Mr Rockefeller bore the onus of establishing three elements, namely that the published matter: (1) was in fact published by Mr Gooding; (2) identified Mr Rockefeller; (3) was defamatory of Mr Rockefeller, in that it: (a) conveyed one or more of the imputations pleaded (or imputations not differing in substance); and (b) the imputations conveyed would make the ordinary reasonable reader think less of Mr Rockefeller. 368 It was only the third element which was in dispute. Nevertheless, it is relevant to address the first two elements briefly. C.2 Publication 369 Harm to reputation occurs when a defamatory publication is comprehended by the reader. Publication is a bilateral act, involving the publisher making the published matter available and a third party having it available for comprehension: Gutnick at [26]. 370 In the case of a publication such as the Post with the link to the Article, publication occurs when the published matter is downloaded and the whole of it comprehended within the jurisdiction: David v Abdishou [2012] NSWCA 109 at [259]-[260] (McColl JA, Beazley JA and Sackville AJA agreeing); Sims v Jooste (No 2) [2016] WASCA 83 at [8] – [12] (Martin CJ, Buss JA and Mitchell J agreeing). At common law, every communication of defamatory matter founds a separate cause of action: Gutnick at [27]. 371 Mr Gooding properly conceded in opening submissions that, given the number of individuals who commented on the Post, there was a reasonable inference that a number of individuals must have downloaded and comprehended the Post and clicked on the hyperlink to the Article and comprehended that article. 372 There was also no dispute that Mr Gooding could be liable as a publisher of the Article by reason of his repeating its contents – see: Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50 (Manning, Hope and Reynolds JJA); John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at [88]-[91] (McColl JA, Sheller JA and McClellan A-JA agreeing). So far as publication is concerned, there is no requirement that Mr Gooding adopt or endorse the contents of the Article: Obeid at [90]-[95]. However, endorsement may be relevant to other issues, including defences. C.3 Identification 373 Assessed objectively, the published matter must be "of and concerning" the applicant. The question is whether the published matter might reasonably be understood to refer to the applicant by those comprehending the matter: David Syme & Co v Canavan (1918) 25 CLR 234 at 238 (Isaacs J); Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Chan [2008] NSWCA 1 at [42] (McColl JA, Mason P and Young CJ in Eq agreeing). 374 As mentioned, there was no dispute that the published matter (the Post and the Article) identified Mr Rockefeller. C.4 Was the publication defamatory? C.4.1 Relevant principles 375 The third element of the tort involves determining whether: (1) the asserted imputations (or imputations not differing in substance) were conveyed by the matter complained of; and (2) the imputations conveyed were defamatory in that they would make the ordinary reasonable reader think less of the applicant. 376 These two questions are questions of fact to be determined objectively from the perspective of a hypothetical construct, the "ordinary reasonable reader". C.4.1.1 The ordinary reasonable reader 377 The characteristics of the ordinary reasonable reader were summarised by White J in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [64]: Ordinary reasonable readers are taken to be persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal. They do not live in ivory towers and can and do read between the lines in the light of their general knowledge and experience. They do not engage in over-elaborate analysis in search for hidden meanings, nor do they adopt a strained or forced interpretation. They are not lawyers and their capacity for implication may be greater than that of lawyers. 378 Justice White also summarised the behaviour to be attributed to, or assumed of, the ordinary reasonable reader. The ordinary reasonable reader: (1) does not look at the published matter in isolation but rather in the whole context in which it is published, including the surrounding circumstances: at [65]; (2) is taken to have read the whole of the matter complained of, not – for example – just a headline or the particular portions about which complaint is made: at [66]; (3) does not search for strained or forced meanings, but will – where appropriate – read between the lines: at [64]; (4) would read a sensational newspaper article with less analytical care than he or she might otherwise give a serious publication: at [67]; (5) would read a serious publication more cautiously and critically, especially having regard to the opportunity to reflect on its contents: at [67]. 379 Whilst the ordinary reasonable reader is not a lawyer, that does not mean he or she has no knowledge of the legal process. As McColl JA stated in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173 at [138] (Beazley P and Simpson AJA agreeing), "today's ordinary reasonable reader is exposed on almost a daily basis to the latest from the courts". Her Honour observed at [139] that "the ordinary reasonable reader is well sensitised to the legal process of making allegations which lead to judicial resolution". C.4.1.2 Whether the imputation is conveyed 380 A pleaded imputation is a statement of the meaning which an applicant contends the ordinary reasonable reader of the whole of the published matter would understand the matter to convey or impute as an act or condition or attribute of the applicant: Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91-92 (Griffith CJ); Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 14-15 (Stephen J). 381 The meaning conveyed by the published matter might be the literal meaning, or the meaning which the ordinary reasonable reader would infer from, or conclude is implied by, the published matter. As White J stated in Hockey at [63], the statement of the meaning which it is contended is conveyed can include: [I]nferences and conclusions which the ordinary reasonable person draws from the words used, taking into account the observation of Lord Reid in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245, that the reader may engage in a certain amount of "loose thinking". Lord Reid went onto to say: The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look at it again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought. 382 The determination of whether the published matter conveys the pleaded imputation requires the Court to identify one meaning, despite the obvious truth that the publication could mean different things to different people. As Diplock LJ stated in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173: [When] words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicators at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is "the natural and ordinary meaning" of words in an action for libel. 383 The question is whether the ordinary reasonable reader, having the characteristics and adopting the behaviour described earlier, would conclude that the pleaded imputations were conveyed. Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285: [I]t is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. 384 In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301, Mason J stated: A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader. See also: Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 (Brennan J); Hockey at [69]. 385 The precision of the language used in the published matter is relevant. The use of "loose" language provides greater opportunity for the ordinary reasonable reader to infer adverse meaning to the published matter than the use of precise and unambiguous language – cf: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [134] (Kirby J); Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165 (Hunt CJ at CL); Hockey at [68]. The words used in a publication might be so precise as practically to mandate a particular meaning or, conversely, be so imprecise as to leave the reasonable reader to roam freely between the lines to reach conclusions beyond the constraints of the words actually used. 386 In the case of a publication which includes a repetition of another publication (as in the present case where the Post links to the Article), the manner in which the repetition occurs is relevant to whether the whole of the published matter conveys the pleaded imputation. The way in which the repetition occurs might, for example, indicate to the ordinary reasonable reader that the publisher was adopting or approving of the other publication or, conversely, repudiating or discounting it – see: Obeid at [100]-[102], [119]; Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 at 848 (Hunt J). C.4.1.3 Whether the imputation is defamatory 387 An imputation is defamatory of a person if it would cause the ordinary reasonable reader to think the less of the person when applying the ordinary reader's general knowledge and their knowledge of standards held by the general community: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-639 (Mason and Jacobs JJ, Gibbs and Stephen JJ agreeing), Chakravarti at [57] (Gaudron and Gummow JJ); Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] and [60] (French CJ, Gummow, Kiefel and Bell JJ). C.4.2 Were the imputations conveyed? C.4.2.1 The pleaded imputations 388 Mr Rockefeller alleged that the published matter, in its natural and ordinary meaning, gave rise to the following seven imputations (the relevant lines of the published matter primarily relied on as conveying each imputation are also set out (see [346] and [347] above)): (a) Jonathan Rockefeller is a liar in that he claims to be the writer and creator of the off-Broadway show "That Golden Girls Show!" when in truth he stole that show from his collaborator Neil Gooding (in particular lines 1-9, 13-17, 21-26, 38-42, 60-61); (b) Jonathan Rockefeller is a liar in that he claims to be the writer and creator of the off-Broadway show "That Golden Girls Show!" when in truth he stole that show from his collaborator, Thomas Duncan-Watt (in particular lines 1-9, 13-20, 23-30, 36-49, 60-68); (c) Jonathan Rockefeller is a liar in that he claims to be the writer and creator of the off-Broadway show "That Golden Girls Show!" when in truth he stole that show from his collaborator, Matthew Henderson (in particular lines 1-9, 13-17, 21-26, 38-42, 60-61); (d) Jonathan Rockefeller is a plagiarist in that his off-Broadway show "That Golden Girls Show!" is an illegal copy of the show, "Thank You for Being a Friend" (in particular lines 1-11, 13-20, 23-30, 38-42, 60-68); (e) Jonathan Rockefeller is deceitful in that he tricked Thomas Duncan-Watt into writing the script for the off-Broadway show "That Golden Girls Show!" by promising him it would be produced internationally but instead took the show to New York and removed Mr Duncan-Watt's name from the credits (in particular lines 1-9, 43-49); (f) Jonathan Rockefeller is dishonest in that he cut his collaborators, Neil Gooding, Thomas Duncan-Watt and Matthew Henderson out of royalties for the off-Broadway show "That Golden Girls Show!", to which they are entitled (in particular lines 1-9, 13-30, 60-63); (g) Jonathan Rockefeller is dishonest in that he cut his collaborators Neil Gooding, Thomas Duncan-Watt and Matthew Henderson out of royalties for a Canadian production of "Thank You For Being A Friend", to which they were entitled (in particular lines 1-5, 16-22, 38-42, 60 and 61). C.4.2.2 Preliminary observations 389 The reader of the published matter would have first read the Post (published at 9:32am on 24 October 2016) before clicking the link and reading the Article (bearing the date 23 October 2016). 390 The Post included the headline to the Article: "Lawsuit Filed Over 'Golden Girls' Puppet Parody". The reader would have understood the Post as expressing Mr Gooding's reaction to the Article published by The New York Times. The Article included Mr Gooding's responses to questions he had been asked by one of the authors of the Article. 391 Having read the whole publication, the reader would have appreciated it was made by a person who was one of the plaintiffs in the lawsuit the subject of the Article. The reader would have well appreciated that Mr Gooding could not be regarded as objective. The reader would have read the Article having first read, in the Post, that Mr Gooding had asserted that one of his collaborators (who would be understood to be Mr Rockefeller) had stolen a show on which the "collaborators" had jointly worked. The reader would have understood the reference to the show being "stolen" as a shorthand description of the more detailed account which the reader would come to understand when reading the linked Article. 392 The ordinary reasonable reader of the Post and the Article would have understood that: Mr Rockefeller jointly created Thank You For Being A Friend with the writer, Mr Duncan-Watt (line 20). The producers of the show were Mr Gooding and Mr Henderson (lines 21-22). Mr Rockefeller stated that he (and probably also Mr Duncan-Watt) had given a limited licence to Mr Gooding and Mr Henderson to produce Thank You For Being A Friend (lines 33-34). The limited licence made clear that the creators of Thank You For Being A Friend (Mr Rockefeller and Mr Duncan-Watt) were able to produce another show, even if it competed with Thank You For Being A Friend (lines 34-36). Mr Rockefeller convinced Mr Duncan-Watt to write a new script, being a revision or rewriting of the script of Thank You For Being A Friend, promising that the resulting show would be produced internationally (lines 43-44). It was alleged that Mr Rockefeller removed Mr Duncan-Watt's name from the new script and used the script to bring a new production, That Golden Girls Show!, to New York (lines 45-46). That Golden Girls Show! was a production which was substantially similar to Thank You For Being A Friend or, leaving aside the new or revised script (lines 43-44), nearly identical to Thank You For Being A Friend (line 19) because: o the production format was the same (lines 23-27); and o the script of That Golden Girls Show!, which Mr Rockefeller convinced Mr Duncan-Watt to write, was a revision of the Thank You For Being A Friend script (lines 48-49). Mr Duncan-Watt, Mr Gooding and Mr Henderson, as plaintiffs in a lawsuit, claimed that Mr Rockefeller had "stolen" Thank You For Being A Friend in the sense that Mr Rockefeller had put on a show which was substantially similar to Thank You For Being A Friend, claiming to be the sole creator of it, without acknowledging that the script, being a revised script from that used in Thank You For Being A Friend, had been written by Mr Duncan-Watt (lines 13-15, 45-46). Mr Rockefeller and his lawyers claimed that Mr Rockefeller was perfectly entitled to put on the new production, That Golden Girls Show!, even if – because of the similarities between the two – it did compete with Thank You For Being A Friend (lines 33-37). 393 In closing submissions, Mr Rockefeller submitted that the meanings said to be conveyed by the whole of the published matter were that Mr Rockefeller was guilty of certain conduct, not merely that he was alleged to have engaged in that conduct. There were two principal reasons given for that submission. 394 First, it was said that Mr Gooding's Post adopted the allegations made in the Article in a way that elevated the Article beyond an account of competing allegations made in Court documents. It was submitted that the structure of the hybrid publication was important. The reader would have passed through and read the Post before accessing and reading the Article. The context provided by, and the contentions made in, the Post were the filter through which the reader would have understood the Article. 395 It was submitted that the Post conveyed to the reader: "what you are about to read in The New York Times Article is true, the off-Broadway show That Golden Girls Show! A Puppet Parody has been stolen and Mr Gooding is one of the victims of the theft". 396 Secondly, it was submitted that the Article went beyond a mere recitation of allegations made in court documents, because it contained: interviews with Mr Duncan-Watt, for example: "It really was a labour of love. For someone to so callously and without cause just steal it – I was completely speechless"; interviews with Mr Gooding, which were in language described as "high handed", for example: "A best friendship of 10 years has been fractured by the selfishness of Jonathan [Rockefeller], who needs to be seen as an all-powerful genius that writes, directs, produces and does it himself"; interviews with Richard Roth, a lawyer for the plaintiffs in the New York proceedings, who said that Mr Rockefeller had engaged in "harassment and intimidation"; an account of Mr Rockfeller's side of the story which occupied seven lines out of a 58 line article, which appeared in the middle of the Article; no mention of the fact that Mr Rockefeller had not yet put on his defence and that the version of events recounted in the Article was therefore necessarily one sided. 397 I accept that the reader would have approached the published matter by first reading the Post and next reading the Article. 398 As to the Post (read alone), the ordinary reader would have understood the words above the picture as being written by Mr Gooding. Read with the Article, the reader would have understood Mr Gooding's reference to "one of your collaborators" (lines 2 and 3) as being a reference to Mr Rockefeller. 399 The reader would have understood the words underneath the picture, containing a link to the Article and a caption, as reproducing words chosen by The New York Times. Read with the Article, the reader would have understood the reference in the Post to a "playwright" (line 7) as being a reference to Mr Duncan-Watt. 400 The reader of the Post would have understood that Mr Gooding was affirming that Mr Rockefeller had done something morally wrong in the context of his dealings with Mr Duncan-Watt, Mr Gooding and Mr Henderson. The reader would have understood that Mr Gooding was affirming that the content of the Article was broadly correct, in so far as it reported the position of Mr Gooding, Mr Duncan-Watt and Mr Henderson. 401 As to the Article (read alone), it is true that there are more references to the allegations made by the plaintiffs in the New York proceedings than to Mr Rockefeller's side of the story. The Article recounted statements made by two of the plaintiffs and by one of their lawyers. The Article recorded that Mr Rockefeller's legal team alleged that the plaintiffs had only been given "a very limited licence" to produce which made it "absolutely clear" that Mr Rockefeller was free to proceed with a competing show. However, read alone, the Article would have been understood as presenting what the journalists understood from the Court documents and those comments they had been able to obtain from parties to both sides of the dispute. 402 The ordinary reasonable reader would have understood from the Article that there was a bitter dispute, now reflected in a recently commenced lawsuit, in which the plaintiffs asserted, but Mr Rockefeller denied, that Mr Rockefeller's recent production (That Golden Girls Show!) was similar or substantially identical to a previous one which had been licensed to Mr Gooding and Mr Henderson (Thank You For Being A Friend). 403 As I have noted earlier, the question is whether the imputations were conveyed by the whole of the published matter and I approach the matter that way in what follows. C.4.2.3 Imputations (a) to (c) 404 For ease of reference, imputations (a) to (c) were: (a) Jonathan Rockefeller is a liar in that he claims to be the writer and creator of the off-Broadway show "That Golden Girls Show!" when in truth he stole that show from his collaborator Neil Gooding. (b) Jonathan Rockefeller is a liar in that he claims to be the writer and creator of the off-Broadway show "That Golden Girls Show!" when in truth he stole that show from his collaborator, Thomas Duncan-Watt. (c) Jonathan Rockefeller is a liar in that he claims to be the writer and creator of the off-Broadway show "That Golden Girls Show!" when in truth he stole that show from his collaborator, Matthew Henderson. 405 Imputation (a) is to the effect that Mr Rockefeller "stole" That Golden Girls Show! from Mr Gooding, whereas imputation (b) is that Mr Rockefeller stole the show from Mr Duncan-Watt and imputation (c) is that Mr Rockefeller stole the show from Mr Henderson. 406 Mr Rockefeller submitted that the published matter taken as a whole, read as an unmasking of Mr Rockefeller in that his production of That Golden Girls Show! was an act of fraud: Mr Rockefeller's claim to be the "writer and creator" of That Golden Girls Show! was exposed as a lie because Mr Rockefeller did not write or create that show at all; rather, he stole that show. 407 Mr Rockefeller submitted: The reader understands that the theft involved effectively rebadging of a "nearly identical" show "Thank you for Being a Friend, that Mr Rockefeller created with the writer Thomas Duncan-Watt" and which was "produced by Neil Gooding and Matthew Henderson …". 408 The Post written by Mr Gooding included the words, chosen by him, "steal a show" (lines 3-4). The Post also included words chosen by The New York Times (lines 6-8). These included: A playwright claims that the current Off-Broadway show was stolen when a creative partnership turned sour. 409 As mentioned, the reader would have understood, in the context of the whole of the published matter, that the "playwright" was Mr Duncan-Watt. The "creative partnership" (lines 7-8) would have been understood to be the creative partnership between Mr Rockefeller and Mr Duncan-Watt. 410 The words of the Article included that That Golden Girls Show! "was stolen" (lines 14-15). The Article also included that "Mr Rockefeller stole the show" (lines 60-61). 411 The thrust of the published matter was that, whilst Mr Rockefeller was but one of the two members of the "creative partnership" who wrote Thank You For Being A Friend, and those two creators had given a limited licence to Mr Gooding and Mr Henderson to produce the show, Mr Rockefeller had put on a competing show – That Golden Girls Show! – which adopted the same production format as Thank You For Being A Friend and used a script which was a revision or rewriting of the Thank You For Being A Friend script which had been written by Mr Duncan-Watt at Mr Rockefeller's request. The reader would have understood that That Golden Girls Show! "was stolen" (lines 14-15) in the sense that it was based on a script written by Mr Duncan-Watt and the production format and ideas from Thank You For Being A Friend without acknowledgement of the contribution of Mr Duncan-Watt. Mr Rockefeller was not telling the truth in representing that he was the sole writer and creator of That Golden Girls Show!. 412 At the risk of repetition, the ordinary reasonable reader would have understood that That Golden Girls Show! was "stolen" in the sense that: (1) Mr Rockefeller had used the concept and format which had been used in Thank You For Being A Friend – namely a puppet parody of the Golden Girls – which had been jointly created by Mr Duncan-Watt and Mr Rockefeller; (2) to the concept and format of Thank You For Being A Friend, Mr Rockefeller had applied a "new" or "revised" script which Mr Duncan-Watt had written; (3) the resulting show, That Golden Girls Show!, was – notwithstanding the "new" or "revised" script – substantially similar to Thank You For Being A Friend; and (4) Mr Rockefeller had not acknowledged the contribution of Mr Duncan-Watt when he should have. 413 Understood in the way just indicated, imputation (b) was conveyed by the published matter. 414 The published matter did not convey that That Golden Girls Show! was stolen from Mr Gooding or Mr Henderson. The reader of the published matter would have understood that Mr Gooding and Mr Henderson were the producers of Thank You For Being A Friend (lines 21-22). The reader would not have understood either producer as having something which was stolen from them. This is made clear from what Mr Gooding wrote in the Post (lines 1-5), the caption beneath the picture in the Post (lines 7-8) and the content of the Article. The Article makes clear that That Golden Girls Show! was stolen when the "creative partnership" (which the reader would have understood as being a reference to the partnership between Mr Rockefeller and Mr Duncan-Watt) and friendship turned sour (lines 14-15; 47-52). 415 It follows that imputations (a) and (c), which relate to Mr Gooding and Mr Henderson, were not conveyed. C.4.2.4 Imputation (d) 416 Imputation (d) was: Jonathan Rockefeller is a plagiarist in that his off Broadway show "That Golden Girls Show!" is an illegal copy of the show, "Thank You for Being a Friend". 417 It should be emphasised that imputation (d) is not pleaded by reference to the new or revised script written by Mr Duncan-Watt, that is, The Goldenish Girls. Imputation (d) expressly relates to the Thank You For Being A Friend, a script Mr Rockefeller jointly created with Mr Duncan-Watt. Pleading the imputation in that way is likely to have been a forensic choice. If the imputation had been pleaded with respect to The Goldenish Girls, Mr Duncan-Watt may have pleaded justification by way of defence. 418 Imputation (d) centres on the allegation that Mr Rockefeller was a plagiarist. Mr Rockefeller contended that the ordinary meaning of the word "plagiarism" was "reproducing someone else's work without permission". 419 Mr Gooding submitted that the ordinary meaning involves something more. Mr Gooding gave the example of an author who included in a book a letter written by another person without obtaining the permission of the letter writer. The author of the book would not be regarded as a plagiarist. The author may have infringed copyright by reproducing the letter without a licence, but is not guilty of plagiarism. 420 This example assumes, of course, that the content of the book makes it clear that the letter is not the work of the author of the book. I accept that, if the author has not expressly or implicitly suggested that he was the author of the letter, the author of the book would not ordinarily be called a "plagiarist" in reproducing the letter in the book without permission. 421 A further example is perhaps also helpful in light of the present context. Assume an author produces a work in which he uses, without attribution, a section of an earlier work which he wrote jointly with another. Whilst it would depend on the particular facts and context, the fact that the earlier piece of work was a piece to which he had substantially contributed would tend against labelling the author a "plagiarist" for reproducing that work a second time. After all, the author is using ideas or work which were at least partly his creation. Rather, the issue in this example is a failure to acknowledge that the work was taken from an earlier work to which another person had also contributed. 422 The word used in the imputation is "plagiarist" not "plagiarism". For present purposes, a "plagiarist" is a person who took and used the words, thoughts or ideas of another or others, to which he had made no substantial contribution, intentionally passing them off as his own. A failure to acknowledge the work as being that of another person is a necessary ingredient, but is not of itself sufficient in this context to attract the label "plagiarist". 423 The word might mean different things when used in different contexts. In a university, for example, a different meaning might prevail. A university might consider any failure to acknowledge the original source of work as plagiarism, whether intentional or accidental. A university might distinguish between "accidental plagiarism" and "dishonest plagiarism". In that context, labelling a person a "plagiarist" might be understood as implicitly harsher than stating that the person's work involved "plagiarism". 424 The ordinary reasonable reader would have understood from the published matter that Mr Rockefeller created Thank You For Being A Friend with Mr Duncan-Watt. The reader would have understood that Thank You For Being A Friend was their joint creation. Because Mr Duncan-Watt was referred to in the published matter as the "writer", the reader would have assumed that substantial amounts of the script were written by Mr Duncan-Watt, but that the thoughts and ideas which were used to create Thank You For Being A Friend were ones in which Mr Rockefeller participated in a substantial way together with Mr Duncan-Watt. The reader would not have understood Mr Rockefeller to have had no involvement in writing the script of Thank You For Being A Friend. 425 The reader would not have understood Mr Rockefeller to have copied the script of Thank You For Being A Friend. The reader would have understood Mr Rockefeller to have used a "new" or "revised" script prepared by Mr Duncan-Watt. As mentioned, the reader may have had a different understanding about whether Mr Rockefeller copied the "new" or "revised" script (namely the script for The Goldenish Girls), but that is not the imputation pleaded. 426 The reader may have understood that there was an issue about whether Mr Rockefeller could lawfully use the joint creation in the way he did, but would not have understood the published matter to convey that Mr Rockefeller was a "plagiarist" by reason of him using material which he had jointly created. The reader would also have understood that Mr Rockefeller considered his show was completely legal (line 32) and that his lawyers regarded the lawsuit as "frivolous" (line 37). The ordinary reasonable reader would have understood that there was a dispute which included whether Mr Rockefeller's show should have acknowledged the contributions of others. 427 Imputation (d) was not conveyed. C.4.2.5 Imputation (e) 428 Imputation (e) was: Jonathan Rockefeller is deceitful in that he tricked Thomas Duncan-Watt into writing the script for the off-Broadway show "That Golden Girls Show!" by promising him it would be produced internationally but instead took the show to New York and removed Mr Duncan-Watt's name from the credits. 429 Mr Rockefeller submitted: (1) The matter complained of stated that Mr Rockefeller "convinced" Mr Duncan-Watt to write a "new script and promised him that it would be produced internationally". The use of the word "convince" connoted persuasion or inducement to do something that might otherwise be resisted. (2) The "trick" referred to in the imputation (or that which was used as the inducement) was a false promise made by Mr Rockefeller that the revised script written by Mr Duncan-Watt would be "produced internationally". (3) The ruse was revealed when Mr Rockefeller then "removed Mr Duncan-Watt's name from the revised work and brought it to New York as That Golden Girl's Show!". (4) The ordinary reasonable reader would have understood that a person who engaged in such conduct was deceitful by reason of having done so. 430 Mr Gooding submitted: (1) The Article described two separate actions. First, Mr Rockefeller convinced Mr Duncan-Watt to write a new script and promised that it would be produced internationally. Secondly, instead of doing this, once the script had been written and given to Mr Rockefeller, Mr Rockefeller removed Mr Duncan-Watt's name from the revised script and used it in bringing That Golden Girls Show! to New York. (2) Nowhere does the Article state or imply that Mr Rockefeller deceitfully tricked Mr Duncan-Watt into writing the revised script. Such an implication involves a deceitful intention from the beginning that Mr Rockefeller tricked Mr Duncan-Watt without any intention of producing the resulting work with him. This was not a sting conveyed by the words used without searching for a "hidden meaning" or a "strained or forced interpretation" – see: Hockey at [64]. (3) The sting actually conveyed was that Mr Rockefeller breached his agreement with Mr Duncan-Watt by failing to perform his promise to produce the resulting work internationally with Mr Duncan-Watt. That was not however the imputation pleaded. (4) There was no suggestion in the Article that Mr Rockefeller set out with a Machiavellian plan, deceitfully to trick Mr Duncan-Watt. The imputation was set too high to be conveyed from the matter complained of. 431 Imputation (e) centres on lines 43 to 46 of the Article: 43 Mr. Gooding said that Mr. Rockefeller then convinced Mr. Duncan-Watt to 44 write a new script and promised him that it would be produced internationally. 45 Instead, the plaintiffs assert, Mr. Rockefeller removed Mr. Duncan-Watt's 46 name from the revised work and brought it to New York as "That Golden Girls Show!" 432 As Mr Gooding submitted, there is no question that the published matter conveys that Mr Rockefeller breached his agreement with Mr Duncan-Watt. The published matter conveys that Mr Rockefeller promised to produce with Mr Duncan-Watt a show based on the revised script of Thank You For Being A Friend but "instead" (line 45) removed Mr Duncan-Watt's name from the revised script and produced That Golden Girls' Show! himself. 433 The published matter does not convey that Mr Rockefeller tricked Mr Duncan-Watt into writing a new script holding the deceitful intention of later removing Mr Duncan-Watt's name from the script and bringing a show based on that script as his own. The Article might convey that Mr Rockefeller ought not to have removed Mr Duncan-Watt's name, and that to do so was a part of how That Golden Girls Show! should be regarded as "stolen", but that is not the imputation pleaded by imputation (e), and is covered by imputation (b). 434 Imputation (e) is not conveyed. C.4.2.6 Imputation (f) 435 Imputation (f) was: Jonathan Rockefeller is dishonest in that he cut his collaborators Neil Gooding, Thomas Duncan-Watt and Matthew Henderson out of royalties for the off-Broadway show "That Golden Girls show!", to which they are entitled. 436 Mr Rockefeller submitted: (1) The Article stated in terms that Mr Rockefeller "cut them out of royalties" (lines 60-61). In context, "them" would be understood to refer to Mr Gooding, Mr Henderson and Mr Duncan-Watt. The question then becomes, royalties for what? Once the reader accepts that Thank You For Being A Friend and That Golden Girls Show! are effectively one and the same, the answer is that the plaintiffs in the lawsuit were cut out of royalties from That Golden Girls Show!. (2) The reader would understand that the claim for "damages from the run of That Golden Girls Show!" (line 62), was an attempt by Mr Gooding, Mr Henderson and Mr Duncan-Watt to recoup the royalties of which they had been deprived. 437 Mr Gooding submitted: (1) The imputation cannot be conveyed because the reader could not have understood that the plaintiffs in the lawsuit were each entitled to royalty payments in respect of That Golden Girls Show!. There was no mention of any contract or licence in respect of That Golden Girls Show! from which royalties might flow. If they were not entitled to royalties, then they could not have been cut out of them, dishonestly or otherwise. (2) The reference to "royalties" would not be understood or interpreted by the reader as a reference to damages, for example, reflecting the income lost from the plaintiffs being unable to produce Thank You For Being A Friend in New York. (3) Mr Rockefeller's submissions suggested that a different imputation to that pleaded was in fact conveyed, namely that Mr Rockefeller deprived his collaborators of royalties for Thank You For Being A Friend by putting on That Golden Girls Show! in New York. This, however, was not the imputation pleaded. 438 In reply, Mr Rockefeller stated: (1) The imputation was silent on the source of the plaintiffs' rights to royalties for That Golden Girls Show!, stating only that they were entitled to royalties. (2) Mr Rockefeller did not submit that the reference to "royalties" should be understood as a reference to damages claimed. He submitted the claim for damages would be understood by the reader as an attempt by the plaintiffs to recoup the royalties of which they had been deprived. 439 Imputation (f) is not conveyed. The reader would not have understood the published matter to convey that the plaintiffs had an "entitlement" to royalties for That Golden Girls Show!. The imputation pleaded by the applicants cannot fairly be read as contending for an imputation that the plaintiffs were cut out of royalties for Thank You For Being A Friend. C.4.2.7 Imputation (g) 440 Imputation (g) was: Jonathan Rockefeller is dishonest in that he cut his collaborators Neil Gooding, Thomas Duncan-Watt and Matthew Henderson out of royalties for a Canadian production of "Thank You for Being a Friend", to which they were entitled. 441 Mr Rockefeller submitted: (1) The published matter states that Mr Gooding, Mr Henderson and Mr Duncan-Watt (the plaintiffs in the New York proceedings) were cut out of "any royalties" by Mr Rockefeller (lines 60-61) but does not specify for which production. (2) The reader would infer that, since Mr Rockefeller breached his obligations to the plaintiffs by making "his own arrangements in licensing the show to a Canadian theater and remov[ing] Mr Duncan-Watt's name from the credits" (38-42), that is at least one of the productions on which Mr Rockefeller cut them out of royalties. 442 Mr Gooding submitted: (1) The words of the Article did not state, and no inference was available to suggest, that Mr Rockefeller's licensing of Thank You For Being A Friend to a Canadian theatre (set out at lines 38-42) was unlawful or in breach of any agreement or done behind the backs of the plaintiffs. (2) Further, there was nothing to suggest that any of the plaintiffs were entitled to royalties for this licensing or that Mr Rockefeller dishonestly cut them out of royalties. (3) The imputation relies upon the summary of claims, made later (at line 61), where one of the claims made generally is that Mr Rockefeller cut the plaintiffs out of royalties. (4) It is a strained and forced interpretation of the published matter to take a part of line 61 and place it into the discussion at line 41 of the fact that Mr Rockefeller made his own arrangements in licensing the show Thank You For Being A Friend to a Canadian theatre. 443 I accept Mr Gooding's submissions that the published matter does not convey that Mr Rockefeller's licensing of Thank You For Being A Friend to a Canadian theatre was unlawful or in breach of any agreement. The reader would not have understood the reference to being cut out of "royalties" in line 61 to be related to the earlier mention of the Canadian production. 444 Imputation (g) is not conveyed. C.4.3 Were the imputations defamatory? 445 I have concluded that imputation (b), understood in the way earlier identified, was conveyed. 446 For an imputation to be defamatory, it must cause the ordinary reasonable reader to think less of the person, applying the ordinary reader's general knowledge and their knowledge of general community standards – see: [372] above. The imputation that a person is a "liar" and has "stolen" a show, understood in the way earlier indicated, is plainly defamatory. The ordinary reasonable reader would think less of Mr Rockefeller. C.5 Defences C.5.1 Introduction 447 Mr Gooding relied upon four defences of relevance to imputation (b): (1) justification; (2) contextual truth; (3) honest opinion and fair comment; (4) publication of public documents. C.5.2 Justification 448 Mr Gooding pleaded that imputation (b) was substantially true at common law and under s 25 of the Defamation Act 2005 (NSW). 449 To succeed on a complete defence of justification both at common law and under s 25 of the Defamation Act, it is necessary to prove the truth of each imputation found to be conveyed and defamatory. Section 25 of the Defamation Act provides: It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 450 The phrase "substantially true" is defined by s 4 of the Defamation Act as "true in substance or not materially different from the truth". 451 In Besser v Kermode (2011) NSWLR 157 at [86], McColl JA summarised the defence of justification at common law in Kermode at [59]: In summary, at common law in Australia: (a) a defendant seeking to justify defamatory matter had to prove all stings of the defamatory matter relied upon by the plaintiff were substantially true; (b) a defendant seeking to justify defamatory matter could not do so by seeking to plead and justify an imputation with a substantially different sting from that or those pleaded by the plaintiff; a defendant could only plead nuance imputations; and (c) if a defendant could only establish that one of two or more stings relied upon by the plaintiff was substantially true, the defence of justification failed, but the evidence led to establish that defence could be relied upon in mitigation of damages: Channel Seven Sydney Pty Ltd v Mahommed (at [158]); P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell (at [35.14]) ('Gatley'). 452 Her Honour summarised the defence of justification as modified by s 25 in the following way: In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law: (a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25; (b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true; (c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and (d) to the extent the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26. 453 The principal issue is whether the substantial truth of each material part or "sting" of the imputation found to be conveyed has been proven – see: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at [138] (McColl JA; Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing); O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1 at [172] (McColl JA, Macfarlan and Leeming JJA relevantly agreeing); Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [70]-[71] (Beazley JA) and the authorities cited therein. Mr Gooding bears the onus in this respect. 454 I am satisfied that imputation (b) understood in the way earlier identified was substantially true and that the defence is therefore made out. The facts have been referred to extensively earlier. In claiming or representing that he was the sole writer and creator of That Golden Girls Show! Mr Rockefeller was untruthful. The truth was that That Golden Girls Show! was based on: (1) a script largely written by Mr Duncan-Watt – see: Section B.37; and (2) creative ideas which had been collaboratively developed in relation to Thank You For Being A Friend and the production format of that show – see: Sections B.4 and B.38 above and [597] below. 455 By failing to acknowledge Mr Duncan-Watt's contribution, and representing the work to be his alone, Mr Rockefeller "stole" (in the sense earlier described) That Golden Girls Show! from his collaborator, Mr Duncan-Watt. 456 As noted earlier, in closing submissions, Mr Rockefeller contended: The reader understands that the theft involved effectively rebadging of a "nearly identical" show "Thank you for Being a Friend, that Mr Rockefeller created with the writer Thomas Duncan-Watt" and which was "produced by Neil Gooding and Matthew Henderson …" 457 The reader would have understood that Thank You For Being A Friend was "stolen" in the sense that Thank You For Being A Friend was rebadged and a new or revised script applied to create a substantially similar show, That Golden Girls Show!. That understanding correctly reflects the facts. 458 It follows that Mr Gooding has a complete defence of justification. C.5.3 Contextual truth 459 Mr Gooding relied upon s 26 of the Defamation Act, in answer to all imputations found to be conveyed. He therefore relies on it in answer to the only imputation conveyed. Section 26 provides: It is a defence to the publication of defamatory matter if the defendant proves that -- (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 460 The pleaded contextual imputations were: (a) [Mr Rockefeller] callously cheated his former friends and business partners by entering into a legal agreement with them granting them the right to produce a show he had co-created but then subsequently created and produced a substantially similar show which resulted in the original show losing its commercial value. (b) [Mr Rockefeller] dishonestly caused to be sent emails which purported to be from [Mr Rockefeller's] Attorney. (c) [Mr Rockefeller], as a businessman, is unethical. (d) [Mr Rockefeller] is dishonest. C.5.3.1 Contextual imputation (a) 461 Although it is not strictly necessary to decide in light of my conclusion that imputation (b) is the subject of a complete defence of justification, in my view contextual imputation (a) was conveyed and was substantially true. 462 Each element of contextual imputation (a) is substantially true: (1) Mr Rockefeller by JWR Productions (together with Mr Duncan-Watt) granted a licence to Neil Gooding Productions and Mr Henderson to produce Thank You For Being A Friend under the 25 November 2013 Licence Agreement – see: Sections B.7 and B.11 above. (2) Mr Rockefeller produced That Golden Girls Show!, which was substantially similar to Thank You For Being A Friend – see: Sections B.36 to B.38 above. (3) In producing a show which was so similar to Thank You For Being A Friend Mr Rockefeller "cheated" his friends in the circumstances: (a) To Mr Rockefeller's knowledge, Mr Gooding and Mr Henderson were in the process of bringing Thank You For Being A Friend to the US, including to New York: see [153], [182] and [193] above. (b) Producing That Golden Girls Show! directly undermined the very benefit granted under the 25 November 2013 Licence Agreement. (c) Mr Rockefeller took steps to hinder and delay Mr Gooding and Mr Henderson from bringing Thank You For Being A Friend to the US – see: Sections B.21 B.26 (particularly [230] and [234]); B.28; B.30 (particularly [256] and [257]). (d) Mr Rockefeller had advertised That Golden Girls Show! by reference to materials produced for Thank You For Being A Friend; he put That Golden Girls Show! forward as a "second version" of Thank You For Being A Friend – see: Section B.36 above. (4) The consequence of Mr Rockefeller putting on That Golden Girls Show! in New York was that Thank You For Being A Friend lost its commercial value there. It would have been a commercial non-sense to have pursued bringing Thank You For Being A Friend to New York after Mr Rockefeller had put on That Golden Girls Show!. It was for that equivalent (but obviously inverted) reason that Mr Rockefeller sought legal advice with a view to attempting to prevent Thank You For Being A Friend being brought to the US – see: Sections B.19 to B.21, B.26, B.28, B.30 above. C.5.3.2 Contextual imputation (b) 463 Contextual imputation (b) relies principally upon the following lines of the Article: 55 … Richard Roth, a lawyer for the plaintiffs, said that Mr. 56 Rockefeller then set up email accounts seeming to be from lawyers in an effort 57 to have Mr. Duncan-Watt and his producers stop contacting him. 58 "To me, it was nothing short of harassment and intimidation," Mr. Roth 59 said. 464 In terms, the Article states that Mr Rockefeller "set up email accounts" rather than that he dishonestly caused emails to be sent, as pleaded in the contextual imputation. Nevertheless, read with lines 58 and 59, the reader would have understood the Article to convey that Mr Rockefeller either sent or caused to be sent, emails which purported to be from his lawyers. The reader would have understood that this was the point of setting up email accounts. 465 Mr Rockefeller submitted that contextual imputation (b) fell short of capturing the "defamatory act and condition" in the Article, because the Article conveyed that Mr Rockefeller posed as a lawyer (rather than simply caused emails to be sent). Assuming that the Article did go as far as Mr Rockefeller submitted, that does not mean that the Article did not also convey the less serious imputation put forward by Mr Gooding. In my view, it did. 466 Accordingly, contextual imputation (b) was conveyed. 467 Mr Rockefeller did cause emails to be sent which purported to be from a lawyer for JWR Productions. At least in the case of "Mr Robins" or "Mr Robbins", this was a fictitious person in the sense that it was a false name being used for Mr Jones. Mr Rockefeller, knowing it not to be true, represented that such a person existed – see: [295] above and, more generally, Sections B.34 and B.35. It follows that contextual imputation (b) is substantially true. C.5.3.3 Contextual imputations (c) and (d) 468 Contextual imputations (c) and (d) were not conveyed. The Post and Article were concerned with specific events. The published matter did not suggest that Mr Rockefeller was generally dishonest or unethical. C.5.3.4 Complete or partial defence? 469 In circumstances where I have concluded that the imputation conveyed is the subject of a complete defence of justification, it is not strictly necessary to determine whether the contextual imputations operate as a complete defence or only operate to reduce the damages which would have been awarded if imputation (b) was not the subject of a complete defence of justification. 470 Nevertheless, in my view, the damage to reputation flowing from contextual imputation (a) is broadly equivalent to the damage flowing from imputation (b), when it is understood in the way earlier indicated. Both imputations flow from the same underlying facts of which the reader was informed and it is those facts which operate to damage Mr Rockefeller's reputation. The same could not be said of the damage arising from contextual imputation (b), which is comparatively minor. C.5.4 Fair comment and honest opinion 471 Both parties proceeded upon the basis that there was no material distinction between the statutory defence of honest opinion and the common law defence of fair comment. 472 Section 31(1) of the Defamation Act provides a defence to the publication of defamatory matter if: (a) the matter was an expression of opinion of the defendant rather than a statement of fact; (b) the opinion related to a matter of public interest; and (c) the opinion was based on proper material. The phrase "proper material" is defined in s 31(5): For the purposes of this section, an opinion is based on proper material if it is based on material that – (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. 473 The elements of the defence of fair comment at common law require a defendant to establish that: (a) the words in question are an expression of comment or opinion as opposed to a statement of fact; (b) the comment is based on facts truly stated within the matter complained of or else sufficiently identified; (c) the opinion is expressed on a matter of public interest; and (d) the opinion is one capable of being honestly held by a fair minded person on the facts stated or identified. 474 It was not disputed that, to the extent the statutory or common law defence was otherwise attracted, the requirement that the opinion relate to a matter of public interest was satisfied. 475 Mr Gooding gave evidence that he did not intend to convey the imputations pleaded by Mr Rockefeller. However, he accepted that he intended to convey that Mr Rockefeller stole Thank You For Being A Friend. Taking his evidence as a whole, I understood Mr Gooding to mean that he intended to convey that the underlying facts in the Article so far as they concerned the contributions to That Golden Girls Show! were accurate. His opinion as to the consequence of those facts was that Mr Rockefeller should be regarded as having "stolen" Thank You For Being A Friend rather than That Golden Girls Show!. However, this is really just the expression of a preference about how to characterise the consequences or the articulation of a particular perspective. 476 Thank You For Being A Friend was stolen in the sense that That Golden Girls Show! used the format, concept and ideas of Thank You For Being A Friend without proper attribution. 477 That Golden Girls Show! was stolen in the sense that it was based on Thank You For Being A Friend and the contribution of others to that show had not been acknowledged. 478 The "proper material" identified by Mr Gooding was: Mr Rockefeller co-created Thank You For Being A Friend; Thank You For Being A Friend was licensed under the Licence Agreement to inter alia, Mr Gooding to produce that show; Thank You For Being A Friend was performed under the Licence Agreement in Australia and Canada and produced by inter alia, Mr Gooding; Mr Gooding planned to take Thank You For Being A Friend to North America and Britain for performances there; Mr Rockefeller created another show, namely That Golden Girls Show!, without first disclosing the content of That Golden Girls Show! to Mr Gooding or Mr Henderson, and produced That Golden Girls Show! at an off-Broadway theatre in New York City; That Golden Girls Show! was substantially similar to Thank You For Being A Friend; By producing and performing a substantially similar show in New York the commercial viability of Thank You For Being A Friend was adversely affected so far as performing that show in New York; Mr Rockefeller persuaded Mr Duncan-Watt to write a new script consisting of a revised version of Thank You For Being A Friend; Mr Rockefeller represented to Mr Duncan-Watt that the revised show would be performed and produced internationally; Mr Duncan-Watt produced such a revised work and gave it to Mr Rockefeller; Mr Rockefeller used that revised work for the show That Golden Girls Show! and failed to credit Mr Duncan-Watt as a writer of the material taken from the revised work. 479 In Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [4], Gleeson CJ said: The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else's opinion (or inference, or evaluation, or judgment). 480 In the Post, Mr Gooding stated that Mr Rockefeller stole a show. The Article made clear that Mr Gooding amongst others had commenced proceedings to reclaim rights in relation to a theatrical production. The ordinary reasonable reader would not have understood Mr Gooding's Post as being an expression of opinion, rather than a statement of fact. 481 For this reason, the defence is not made out. C.5.5 Publication of public documents 482 Section 28 of the Defamation Act provides a defence for publication of certain public documents. Section 28(1) provides: 28 Defence for publication of public documents (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document. 483 The phrase "public document" is defined in s 28(4), which includes: (4) In this section, 'public document' means: … (c) any report or other document that under the law of any country: (i) is authorised to be published, or … 484 Mr Gooding relied upon the Summons, Complaint and Exhibits filed in the New York proceedings as being "public documents". That proposition was not seriously contested. 485 Mr Gooding submitted that the Article, which formed part of Mr Gooding's hybrid publication, was a "fair summary of" the public documents, particularly the Complaint, and attracted the defence provided in s 28(1). 486 Mr Rockefeller denied this proposition and, further, relied upon s 28(3): (3) A defence established under subsection (1) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. 487 The "defamatory matter" referred to in s 28(3) is not the imputation or imputations conveyed, but is a reference to the whole of the published matter which has been found to convey defamatory imputations such that it becomes relevant to consider whether the defence applies: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2017] NSWSC 657 at [87] to [89] (Rothman J) (not relevantly disturbed on appeal in Cummings v Fairfax Digital Australia & New Zealand Pty Ltd (2018) 99 NSWLR 173). 488 In my view, Mr Gooding's hybrid publication was not a summary of a public document. It may be accepted that the Article included a summary of a public document. However, the Article also included a summary of what various people connected with the litigation had said about the proceedings which went beyond what was contained in the "public documents". Further, Mr Gooding's Post travelled beyond summarising a public document. 489 Mr Gooding's publication as a whole was, accordingly, more than a summary of a public document. 490 Accordingly, the defence does not apply. 491 The parties did not make lengthy submissions concerning s 28(3). In the case of a media organisation publishing a summary of a statement of claim or pleadings in Court proceedings, an intention honestly to bring the nature of the proceedings to the attention of the public might readily be inferred – see, for example: Cummings at [236]-[243]. 492 I would not have concluded that Mr Gooding's predominant purpose in publishing the Post was to bring the nature of the proceedings to the attention of the public. In so saying, I should not be taken as concluding that his purpose was to cause Mr Rockefeller harm. C.6 Conclusion in relation to defamation 493 The defamation claim must be dismissed. D ACL CLAIMS AGAINST BOTH MR DUNCAN-WATT AND MR GOODING 494 This section deals with Australian Consumer Law (ACL) claims made against both Mr Duncan-Watt and Mr Gooding under s 18 of Sch 2 to the Competition and Consumer Act 2020 (Cth). Other ACL claims were made against Mr Duncan-Watt only and these are dealt with in Section E below. D.1 Jurisdictional issues 495 Whilst s 18 applies to the conduct of corporations, ss 27 to 34 of the Fair Trading Act 1987 (NSW) (FTA) incorporate the ACL (Cth) as a law of NSW, applying to and in relation to "persons carrying on business" within NSW: s 32 FTA. Section 4 of the FTA defines "business" to include "a trade or profession" and defines "trade or commerce" to include any business or professional activity. 496 If this Court otherwise has jurisdiction in relation to a claim which is not brought merely to attract such jurisdiction, this Court has accrued jurisdiction in relation to the ACL claims to the extent they relied upon the ACL (NSW): Walker v Sell (2016) 245 FCR 308 at [83] (Bromwich J). This Court's jurisdiction is otherwise enlivened by the defamation claim brought against Mr Gooding – see: Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [7] to [18] (Lee J). It also has jurisdiction in relation to the copyright claims made against Mr Duncan-Watt. 497 In any event, this Court has jurisdiction by reason of s 6(3) of Competition and Consumer Act which extends the operation of provisions including s 18 of the ACL to conduct engaged in by a person not being a corporation where, amongst other things, the conduct involved the use of "postal, telegraphic or telephonic services" as they did in this case. 498 In any event, the respondents made it clear in oral submissions that they did not have any objection to the applicants amending to plead the relevant State legislation so that this Court's jurisdiction was properly engaged if it were not otherwise engaged. D.2 Relevant principles 499 The relevant legal principles may be briefly stated. 500 First, s 18 prohibits conduct that is misleading or deceptive or is likely to mislead or deceive. Accordingly, it is critical to commence consideration of whether the section applies by first identifying the conduct with precision: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [32] (French CJ); Google Inc v ACCC (2013) 429 CLR 435 at [89] (Hayne J). 501 It is useful to give an example. The first representation pleaded against Mr Gooding is the same as that pleaded against Mr Duncan-Watt, namely: Mr Duncan-Watt was the owner of all rights, including copyright, in the stage play entitled Thank You For Being A Friend. While the first representation is the same as against both Mr Gooding and Mr Duncan-Watt, their conduct was quite different. The relevant conduct pleaded against Mr Gooding was significantly more extensive than that pleaded against Mr Duncan-Watt: (1) In the case of Mr Gooding, the conduct included: (a) speaking to the journalist from The New York Times and (b) later publishing the Post which provided a link to The New York Times' Article. Mr Gooding's conduct in publishing the Post provides scope for the argument that he conveyed the representations in the Article because he adopted the Article in publishing his Post. (2) In the case of Mr Duncan-Watt, the only relevant conduct was his conversation with the journalist from The New York Times. His conduct did not involve publishing or adopting the Article or providing a link to the Article to others. 502 Secondly, it is necessary to consider whether the conduct was "in trade or commerce". Again, this must be assessed by reference to the particular person's conduct and the context in which that conduct occurred. The relevant conduct pleaded against Mr Duncan-Watt was confined to one conversation with a single journalist and did not involve any publication of the representations, unlike the case pleaded against Mr Gooding. 503 Thirdly, where the assertion is that certain representations were made, it is necessary to determine whether the representations were in fact conveyed by the relevant conduct as a whole and assessed in context. The representation may be oral or in writing, or arise by implication from words or conduct: Given v Pryor (1979) 24 ALR 442 at 446; Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267; Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 at [78] (Collier J). 504 Fourthly, it is necessary to determine whether any of the representations in fact conveyed were misleading or deceptive or likely to mislead or deceive. The conduct of a respondent must be viewed as a whole to determine whether the conduct, in context, was likely to mislead or deceive: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 (Gibbs CJ); Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [39] (Gleeson CJ, Hayne and Heydon JJ). 505 Conduct will be misleading or deceptive if it induces or is capable of inducing error or has a tendency to lead into error. In ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 at [39], French CJ, Crennan, Bell and Keane JJ stated: … Conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error. That is to say there must be a sufficient causal link between the conduct and error on the part of persons exposed to it [Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 at 241 (Gummow J)]. 506 Conduct which merely causes confusion or uncertainty is not misleading or deceptive: ACCC v Coles Supermarkets (Australia) Pty Ltd (2014) 317 ALR 73 at [39] (Allsop CJ). 507 In ACCC v Telstra Corp Ltd (2007) 244 ALR 470 at [17], Gordon J approved the summary by Finkelstein J in .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [12]: … On the question of s 52, I am going to guide myself by the following principles. Most of them are uncontroversial: (1) Conduct will be misleading or deceptive if it conveys a false representation. (2) The question whether conduct is misleading or not is an objective question of fact which the court must determine for itself against the background of all relevant facts. Accordingly, while evidence of deception may be led it is not essential to the case. (3) Whether conduct is misleading does not, however, depend upon the defendant's intention, for a corporation which acts honestly and lawfully may contravene s 52. But if there is an intention to mislead, the court may more easily infer that the conduct was in fact misleading. (4) Conduct which does no more than cause confusion or uncertainty is not misleading or deceptive. Section 52 is directed to something else. (5) For there to be a contravention of s 52 the conduct must cause (in the sense explained in point 6) an erroneous assumption or misconception. That is, there must be a "sufficient nexus" between the conduct and the error or misconception. (6) Nevertheless, it is not necessary to show that anyone has in fact been misled. It is enough that the conduct is likely to mislead or deceive in the sense that there is a real chance or possibility of deception. (7) Where the conduct involves the making of a statement which is literally true or accurate the conduct may still be misleading. It all depends upon the circumstances. D.3 The claims against Mr Gooding D.3.1 The conduct 508 As against Mr Gooding, the applicants contended that, by his conduct culminating in the Post and Article, he represented that: (1) Mr Duncan-Watt was the owner of all rights, including copyright, in the stage play entitled Thank You For Being A Friend (the first NG representation); (2) Mr Rockefeller stole the stage play Thank You For Being A Friend (the second NG representation). 509 The second NG representation might be contrasted with imputations (a) to (c) pleaded in the defamation aspect of the case which was that the published matter conveyed that Mr Rockefeller stole That Golden Girls Show! rather than Thank You For Being A Friend. 510 As explained earlier, I do not attach to this the significance suggested by Mr Gooding. I do not regard imputation (b) in the defamation case and the second NG representation in this ACL case to be necessarily inconsistent – see: [475] above. D.3.2 Was the conduct in trade or commerce? 511 Mr Gooding admitted that the representations were made in trade or commerce. D.3.3 Was the first representation conveyed? 512 Mr Rockefeller contended that the first NG representation (which is the same as the first representation pleaded against Mr Duncan-Watt) was conveyed through the combination of the following aspects of the Article (which Mr Gooding re-published by the Post): (1) the emphasis placed by Mr Gooding and Mr Duncan-Watt, as reported in the Article, on the alleged plagiarism – for example: "'word for word' what Mr Duncan-Watt had written": line 49; (2) the express commercial objectives to "reclaim rights to the show": line 64; and (3) what the applicants described as the "central allegation of theft, with Mr Duncan-Watt cast as the authorial victim who has been deprived of the rights" in Thank You For Being a Friend. 513 As to the first matter, the reference to "word for word" is at line 49 in the following passage: 43 Mr. Gooding said that Mr. Rockefeller then convinced Mr. Duncan-Watt to 44 write a new script and promised him that it would be produced internationally. 45 Instead, the plaintiffs assert, Mr. Rockefeller removed Mr. Duncan-Watt's 46 name from the revised work and brought it to New York as "That Golden Girls Show!" 47 When he saw "That Golden Girls Show!" this month, Mr. Gooding said in 48 an interview, "In the first 10 minutes, I sat there and knew the script we were 49 dealing with because it was word for word" what Mr. Duncan-Watt had written. 514 The words attributed to Mr Gooding are that he said Mr Rockefeller "convinced" (line 43) Mr Duncan-Watt to write a "new script" (line 44) which Mr Rockefeller then brought to New York as That Golden Girls Show! (line 46). 515 The reference to "'word for word' what Mr Duncan-Watt had written" is to be understood as comparing the "new script" (which was the script just written (The Goldenish Girls, although this was not mentioned by name)) with the script for That Golden Girls Show! and not the script for Thank You For Being A Friend. A reasonable reader would not have understood the "new script" as being the script for Thank You For Being A Friend but as something "new". 516 As to the second and third matters, the reference to the hope to "reclaim the rights to the show" is at line 64 and the reference to stealing the show is at line 67. It is necessary to view those lines in the context of other passages from the Article (emphasis added): 12 The court documents don't exactly scream out, "Thank you for being a friend." 13 The documents, part of a lawsuit filed by a writer and producers, claim that 14 the current Off Broadway run of "That Golden Girls Show! A Puppet Parody" 15 was stolen when a creative partnership - and friendship - turned sour. 16 "That Golden Girls Show!," which opened at the DR2 Theater in early 17 October, lists Jonathan Rockefeller as its writer and creator. But according to 18 the documents filed in State Supreme Court in Manhattan last week, the 19 production is nearly identical to a previous show, "Thank You for Being a 20 Friend," that Mr. Rockefeller created with the writer Thomas Duncan-Watt. … 60 Mr. Duncan-Watt and his producers claim that Mr. Rockefeller stole the 61 show, cut them out of any royalties and harassed and intimidated them. They 62 are seeking damages from the run of "That Golden Girls Show!," which is 63 scheduled through Dec. 31. 64 The plaintiffs said they hoped to reclaim rights to the show and continue to 65 produce "Thank You for Being a Friend" internationally. "The show is very 66 personal to me," Mr Duncan-Watt said in an interview. "It was really a labor of 67 love. For someone to so callously and without cause just steal it – I was 68 completely speechless". 517 When the passage at line 67 is read in the context of the article as a whole, the central complaint the reader would understand from the words attributed to Mr Duncan-Watt is clear: the show which Mr Rockefeller had produced, namely That Golden Girls Show!, had been stolen in the sense that: (1) Mr Rockefeller had used the concept and format which had been used in Thank You For Being A Friend – namely a puppet parody of the Golden Girls – which had been jointly created by Mr Duncan-Watt and Mr Rockefeller; (2) to the concept and format of Thank You For Being A Friend, Mr Rockefeller had applied a "new" or "revised" script which Mr Duncan-Watt had written; (3) the resulting show, That Golden Girls Show!, was – notwithstanding the "new" or "revised" script –substantially similar to Thank You For Being A Friend ; and (4) Mr Rockefeller had not acknowledged the contribution of Mr Duncan-Watt. 518 The phrase "reclaim rights to the show" is used in the sentence: "The plaintiffs said they hoped to reclaim rights to the show and continue to produce 'Thank You for Being a Friend' internationally". This sentence must be understood in the context of the whole article. The Article conveys: (1) Mr Duncan-Watt wanting his contribution acknowledged, be it his joint contribution to Thank You For Being A Friend or any rights arising from him having written the "new" or "revised" script which was used in That Golden Girls Show!; and (2) Mr Gooding and Mr Henderson wishing to continue to produce Thank You For Being A Friend without interference and competition from That Golden Girls Show!. 519 The Article does not convey that the script for Thank You For Being A Friend was stolen, although it conveyed that the concept and format of Thank You For Being A Friend was used to produce That Golden Girls Show!. 520 The Article did not convey a representation that Mr Duncan-Watt was the exclusive owner of all rights, including copyright, in Thank You For Being A Friend. This was an essential element of the first NG representation. The Article expressly acknowledged, and would have been understood as conveying, that Thank You For Being A Friend was jointly created by Mr Duncan Watt and Mr Rockefeller. A number of express statements made clear that Mr Rockefeller was at least a joint owner of the rights in Thank You For Being A Friend. Line 20 stated that Thank You For Being A Friend was created by Mr Rockefeller with Mr Duncan-Watt. Line 33 in the following extract made it clear that Mr Rockefeller had rights in Thank You For Being A Friend: 31 But Mr. Rockefeller and his lawyers say this new Off Broadway production 32 is completely legal. 33 "The plaintiffs had a very limited license from us to produce 'Thank You for 34 Being a Friend,' and their license made absolutely clear that we are free to 35 proceed with another show, even if it competes with their show," Mr. 36 Rockefeller's legal team said in a statement. "We intend to defend ourselves 37 against plaintiffs' frivolous claims and look forward to vindication in court." 521 Mr Gooding's Facebook Post also made it clear in lines 1 to 5 that Thank You For Being A Friend was a show in respect of which Mr Rockefeller had "collaborated". 522 The first NG representation was not conveyed by Mr Gooding's conduct, either in speaking with the journalist or publishing the Post with a link to the Article. D.3.4 Was the first NG representation misleading or deceptive? 523 Mr Gooding (and Mr Duncan-Watt) accepted that, if the first representation was conveyed, it would have been factually wrong and therefore misleading. Mr Duncan-Watt did not own, and never owned, all of the rights including the copyright in Thank You For Being A Friend. D.3.5 Was the second NG representation conveyed? 524 Mr Gooding accepted that the Post with the link to the Article conveyed the second representation pleaded, namely that Mr Rockefeller stole the stage play Thank You For Being A Friend. 525 The second NG representation as pleaded is a distillation into one sentence of what was conveyed by the whole conduct of Mr Gooding including, in particular, his publication of the Post with the link to the Article. The degree of moral wrongdoing implied by the word "stole" – as used in pleading the second NG representation as a shorthand description of what Mr Rockefeller did – is to be found in the context of the conduct as a whole. 526 The second NG representation can be understood as meaning that Mr Rockefeller "stole" Thank You For Being A Friend in the sense that he used the core concept and format of Thank You For Being A Friend, together with a "new" or "revised" script written by Mr Duncan-Watt, to produce a show which was substantially similar to Thank You For Being A Friend without acknowledging, as he should have, that he was not the sole creator of the resulting show. Mr Gooding's conduct gave rise to the second NG representation understood in that way. 527 The second NG representation as pleaded could also possibly be understood as meaning that Mr Rockefeller misappropriated a show which was someone else's work, and the creation of which he had nothing to do with. If that is what the second NG representation, as pleaded, was intended to mean, Mr Gooding's conduct did not convey any such representation. D.3.6 Was the second NG representation misleading or deceptive? D.3.6.1 The applicants' contentions 528 The applicants submitted that the second NG representation was misleading for the following reasons: (1) Mr Rockefeller could not have stolen Thank You For Being A Friend as the rights in Thank You For Being A Friend were exclusively held by his company JWR Productions, subject only to a licence to Mr Gooding and Mr Henderson. (2) To the extent that Mr Rockefeller was said to have "stolen" Thank you for Being a Friend from Mr Gooding and Mr Henderson by staging That Golden Girls Show!, that contention fails because That Golden Girls Show! is not the "work" licenced to Mr Gooding and Mr Henderson under the Licence Agreement. (3) Thank You For Being A Friend and That Golden Girls Show! were not the same, substantially or otherwise. (4) Mr Rockefeller could not have stolen The Goldenish Girls, as those rights belonged to JWR Productions LLC. (5) Mr Rockefeller was within his rights under the 17 July 2013 and 25 November 2013 Licence Agreements for Thank You For Being A Friend to write and produce That Golden Girls Show! D.3.6.2 Mr Gooding's contentions 529 Mr Gooding's first answer to these contentions was a submission that the representation was a statement of opinion rather than a statement of fact and, so understood, was not misleading or deceptive. 530 Mr Gooding submitted that a statement of opinion will not be misleading or deceptive unless the respondent "misstated the facts on which the opinion was based", referring to Madden v Seafolly Pty Ltd (2014) 313 ALR 1 at [90] and [93] (Rares and Robertson JJ, Marshall J agreeing at [2]-[7]). 531 Mr Gooding submitted that none of the facts stated in the published matter (the Post and Article) were false and, therefore, the statement of opinion – that Mr Rockefeller stole Thank You For Being A Friend – was not misleading or deceptive. Mr Gooding submitted that the facts as stated to the readers included: a lawsuit has been filed concerning That Golden Girls Show!: line 10; That Golden Girls Show! lists Mr Rockefeller as its writer and creator but the court documents state that the production is nearly identical to a previous show Thank You For Being A Friend: lines 18-19; Thank You For Being A Friend was created by Mr Rockefeller and Mr Duncan-Watt: line 20; Thank You For Being A Friend was produced by Mr Gooding and Mr Henderson and has had runs in Australia and Toronto: lines 21-22; the format of That Golden Girls Show!, a Muppets like puppet parody of the 1980's sitcom is the same as Thank You For Being A Friend: lines 23-25; both shows have a man perform the role of Dorothy: lines 26-27; That Golden Girls Show! used reviews of Thank You For Being A Friend: lines 28-30; Mr Rockefeller refused to provide the script for That Golden Girls Show! in advance: line 54; Mr Rockefeller informed the journalist for The New York Times that the plaintiffs had a licence to produce Thank You For Being A Friend: line 33; Mr Rockefeller informed the journalist for The New York Times that the licence was very limited and that he was free to proceed with another show even if it competed with Thank You For Being A Friend and therefore the claims were frivolous: lines 33-35. 532 Mr Gooding submitted that no statement was made that Mr Rockefeller was legally in breach of contract by putting on That Golden Girls Show!. Indeed, Mr Gooding pointed out that the opposite was the case as the journalist included the view expressed by Mr Rockefeller that he was not in breach of the licence. D.3.6.3 Consideration 533 The first issue raised by Mr Gooding raises the question of whether the class of persons reading the Post and Article would reasonably have understood the second NG representation as conveying a statement of fact or a statement of opinion. 534 In my view, it would have been understood as a statement of fact. What was conveyed was that, because the various matters had occurred, Mr Rockefeller "stole" Thank You For Being A Friend. That was the reason why the plaintiffs brought proceedings in New York and is what Mr Gooding would have been understood as conveying by making his Post. No doubt that was Mr Gooding's opinion, but it would have been understood as a statement of fact which he was putting forward as true. 535 Mr Gooding contended that, if the Court were to find that the second NG representation was a statement of fact and not opinion (which it does), then – to determine whether the representation was misleading – the Court would need to examine the terms of the relevant Licence Agreement "to determine whether the applicants were in breach of the Licence by producing [That Golden Girls Show!] in New York during the term of the licence". 536 Mr Rockefeller disputed that this was the correct question and submitted that "the answer" to the question whether the representation was misleading or deceptive involves an analysis of the intellectual property rights held by Mr Rockefeller (and his company) and a consideration of the 'Work' under the relevant Licence Agreement". 537 As to the intellectual property rights held by JWR Productions, I have earlier concluded that the applicable licence was the 25 November 2013 Licence Agreement – see: Section B.11 above. JWR Productions was not the sole holder of rights in Thank You For Being A Friend. The rights in Thank You For Being A Friend were jointly held with Mr Duncan-Watt. Their joint rights were enjoyed subject to the exclusive licence given to Mr Gooding and Mr Henderson as "Originating Producers". 538 The "Work" was defined in both Licence Agreements as the "dramatico-musical work entitled THANK YOU FOR BEING A FRIEND by JONATHAN WORSLEY and THOMAS DUNCAN-WATT". The applicants submitted that That Golden Girls Show! was not the "Work" as defined and so was not the subject of either of the Licence Agreements. 539 It may be accepted that That Golden Girls Show! was not Thank You For Being A Friend. However, That Golden Girls Show! was based on: (1) Thank You For Being A Friend the rights in which were held jointly by JWR Productions and Mr Duncan-Watt. So much is evidenced by the manner in which Mr Rockefeller promoted That Golden Girls Show!, describing it as a "second version" of Thank You For Being A Friend – see: Section B.36 above. (2) The Goldenish Girls script – which itself was a modification of the script for Thank You For Being A Friend – written by Mr Duncan-Watt. 540 It is an overly technical view of the meaning of the second NG representation to say that, because That Golden Girls Show! was not the precise "Work" licensed to the Originating Producers, and because Mr Rockefeller produced That Golden Girls Show! and not Thank You For Being A Friend, then Thank You For Being A Friend could not have been understood as being "stolen". 541 By use of the word "stole", the second NG representation can be understood as including a meaning that Mr Rockefeller had used the core concept and format of Thank You For Being A Friend, together with a "new" or "revised" script written by Mr Duncan-Watt, to produce a show which was substantially similar to Thank You For Being A Friend without acknowledging, as he should have, that he was not the sole creator of the resulting show. Understood in this way, Mr Gooding's conduct conveyed the second NG representation. That is not inconsistent with the conclusion in respect of imputation (b), which included as a component that Mr Rockefeller stole That Golden Girls Show! (rather than Thank You For Being A Friend) – see: [475] above. Mr Rockefeller stole That Golden Girls Show! in the sense described at [411] and [412] above. 542 In producing That Golden Girls Show!, Mr Rockefeller (or entities associated with him) arrogated Mr Duncan-Watt's rights in Thank You For Being A Friend to himself. Even if the 25 November 2013 Licence Agreement did not prevent the licensors from putting on a show which competed with Thank You For Being A Friend, neither it nor anything else permitted Mr Rockefeller, JWR Productions or JWR Productions LLC to infringe the intellectual property rights of Mr Duncan-Watt in Thank You For Being A Friend as joint licensor and joint owner of copyright. 543 Whatever the position might be vis-à-vis the licensees, Mr Rockefeller may properly be seen as having "stolen" (in the sense conveyed by the Post and Article) Thank You For Being A Friend from Mr Duncan-Watt. 544 Further, Mr Rockefeller's termination of the Scriptwriter Agreement was unlawful. His use of the script for The Goldenish Girls, which itself was a revision of the script for Thank You For Being A Friend, without credit to Mr Duncan-Watt was unlawful. 545 As to the licensees, Mr Rockefeller put on That Golden Girls Show! in New York, knowing that the Originating Producers were seeking to bring Thank You For Being A Friend to the US, particularly New York, and took steps to prevent that from happening. 546 Mr Rockefeller's evidence was that he informed Mr Gooding and Mr Henderson in August 2016 when they contacted him on learning about That Golden Girls Show! that there was nothing they could do as they had a "non-exclusive strict licence agreement for a script, and [Mr Rockefeller had his] very explicit reserved rights". Mr Rockefeller had received legal advice that the licence was ambiguous about exclusivity. His position was that he could produce a Golden Girls puppet parody which openly competed with Thank You For Being A Friend – which That Golden Girls Show! did – including by using promotional material from Thank You For Being A Friend and describing his show as a "second version" of Thank You For Being A Friend –see: Section B.36 above. Mr Rockefeller did not assert, at this time, that there was no breach because That Golden Girls Show! was substantially different to Thank You For Being A Friend. 547 Clause 13 of the Licence Agreement was headed "Reservation of Rights" and provided: The Licensors reserves for its use and disposition in the Territory and throughout the world at any and all time, all rights of any kind or nature other than the rights specifically licensed to Originating Producers hereunder, whether such rights are now known or shall hereafter come into existence, and whether such rights are of a competing nature with the rights licensed hereunder. The said reserved rights shall include, but shall not be limited to, all motion picture, synchronisation, broadcast, recording, television, radio, stage (other than the first-quality stage), electrica[l], or mechanical reproduction, commercial tie-in and publication rights of all kinds. The Licensor shall have the right to use and exercise and to permit others to use and exercise such reserved rights at any time, free from any claim or interference by the Originating Producers. 548 The reservation of rights clause in the 25 November 2013 Licence Agreement must be read consistently with the rights expressly granted by the licence, namely the right to produce the Work for theatrical productions anywhere in the world in the licence period. 549 Clause 13 did not permit Mr Rockefeller to produce "the Work" for theatrical production in New York, because that fell within "the rights specifically licensed to Originating Producers". The "Work" comprised all of the components making up Thank You For Being A Friend. Much of it was used in staging That Golden Girls Show!: see Section B.38 above. The rights specifically licensed would be rendered practically nugatory if the licensors could produce a "theatrical production" on "stage" which was substantially similar to "the Work", using the same creative ideas and production format and the same principal concepts and jokes. The mere fact that the name was changed and that a new or revised script was used does not mean that Mr Rockefeller (or his associated entities) did not use "the Work" which had been exclusively licensed to others. Thank You For Being A Friend and That Golden Girls Show! were objectively similar and that similarity was the result of Mr Rockefeller copying ideas and scripts – cf: SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 472. 550 Mr Rockefeller also argued that clause 13 applied because what was licensed was only "first-quality stage" productions and his production of That Golden Girls Show! was not "first-quality stage". By his evidence, Mr Rockefeller argued that he was permitted to produce That Golden Girls Show! at a small theatre because "first-quality" was restricted to large theatres with over 500 seats and he was therefore at liberty to produce a "third-quality" production. 551 In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] French CJ and Hayne, Crennan and Kiefel JJ said (footnotes omitted): [T]his court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd (in rec), unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties … intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". 552 Thank You For Being A Friend had only ever been shown in a small theatre when the first Licence Agreement was entered into on 17 July 2013. It was the obvious intention of the parties, objectively ascertained from the agreement and the context then known to the parties, that Thank You For Being A Friend was to be produced in theatres in Australia with fewer than 500 seats. There was no contemporaneous evidence to suggest that the reference to "first-stage" was a reference to theatres with over 500 seats. Mr Rockefeller's argument was nothing more than convenient afterthought. It was not raised by him contemporaneously with the relevant events, notwithstanding Thank You For Being A Friend was only ever performed in theatres with fewer than 500 seats. 553 Mr Rockefeller's production did not fall within the reservation of rights in clause 13. 554 The second NG representation, understood in the way identified above, was not misleading or deceptive. D.3.7 Conclusion with respect to ACL claims against Mr Gooding 555 The ACL claims against Mr Gooding fail for the reasons set out above and summarised directly below. 556 As to the first NG representation: (1) The relevant conduct was conceded to be in trade or commerce. (2) Mr Gooding's conduct did not convey the first representation. (3) The first representation would have been misleading or deceptive if it had been conveyed, but it was not. (4) If I had concluded that the first representation was conveyed by Mr Gooding's conduct, and accepting that such a representation would have been misleading, the representation was not shown to have resulted in any loss. It was not demonstrated that any loss arose from a misleading representation that a co-owner of rights was the sole owner. No other relief would have been warranted in the circumstances of this case, particularly given the lapse of time or demonstrated utility of such relief. 557 As to the second NG representation: (1) The relevant conduct was conceded to be in trade or commerce. (2) The conduct engaged in by Mr Gooding – which included publishing the Post with a link to the Article – represented that Mr Rockefeller "stole" Thank You For Being A Friend in the sense that Mr Rockefeller had used the core concept and format of Thank You For Being A Friend, together with a "new" or "revised" script written by Mr Duncan-Watt, to produce a show which was substantially similar to Thank You For Being A Friend without acknowledging, as he should have, the contribution of others to the resulting show. He did so knowing that Mr Gooding and Mr Henderson were attempting to bring Thank You For Being A Friend to the US. (3) The second NG representation, understood in the way indicated above, was not misleading or deceptive. D.4 Mr Duncan-Watt D.4.1 The conduct 558 As against Mr Duncan-Watt, the applicants contended that, by his conduct, Mr Duncan-Watt represented that: (1) he was the owner of all rights, including copyright, in the stage play entitled Thank You For Being a Friend (the first TDW representation); (2) Mr Rockefeller "callously and without cause just [stole]" the stage play Thank You For Being a Friend (the second TDW representation). 559 Mr Duncan-Watt did not publish the Post or Article. His conduct was more confined. On 21 October 2016, Mr Duncan-Watt spoke to a journalist from The New York Times. Mr Duncan-Watt was in Australia. He was quoted in the Article as stating: 23 "The format of "That Golden Girls Show!" – a Muppets-like puppet parody 24 of the similarly named 1980s sitcom – is exactly the same as "Thank You for 25 Being a Friend," said Mr. Duncan-Watt, who filed the suit along with Mr. 26 Gooding and Mr Henderson. Both shows, he added, even have a man perform 27 the role of Dorothy (played by Bea Arthur in the television series). … 64 The plaintiffs said they hoped to reclaim rights to the show and continue to 65 produce "Thank You for Being a Friend" internationally. "The show is very 66 personal to me," Mr Duncan-Watt said in an interview. "It was really a labor of 67 love. For someone to so callously and without cause just steal it – I was 68 completely speechless". 560 Mr Duncan-Watt admitted that the matters attributed to him in the Article were accurately reported where quotation marks appeared. An express caveat to that concession was noted in opening. The reference in line 67 to Mr Rockefeller stealing the show was said in fact to have been a reference to The Goldenish Girls, not to Thank You For Being A Friend: T51.24-47. Mr Duncan-Watt also accepted that he said words to the effect of those attributed to him, without quotation marks, at lines 26-27. 561 In his affidavit, Mr Duncan-Watt gave evidence that the conversation with the journalist was in words to the following effect: JOURNALIST: What prompted the lawsuit? TDW: I was astonished when I saw what looked like the show I'd written and co-created being advertised with my name nowhere in sight. Instead, Mr Rockefeller was listed as the sole writer and creator. When confronted about this, Mr Rockefeller claimed this 'new' show was using a totally new script, and that my old one had been chucked out. He still, however, refused to let us see this 'new' script for purposes of comparison. Then when Neil Gooding went to see the show on opening night, he told me that the show on stage and my script, written almost a year prior, were basically one and the same. 562 Mr Duncan-Watt was not challenged on this evidence and I accept his evidence. D.4.2 Was the conduct in trade or commerce? 563 Mr Duncan-Watt denied that the conduct he engaged in – answering questions put to him by the journalist – was "in trade or commerce". 564 Mr Rockefeller submitted that Mr Duncan-Watt promoted his business as a writer (including screenplays and theatrical productions) via his website, www.thomasduncanwatt.com. It was said that he had a "global digital presence" and that, by speaking to a journalist from The New York Times from Australia, and by making the representations that he did, Mr Duncan-Watt knew, or must have known, that the representations would be published, both in print and online and be available for download in Australia. This was also said to be the context of the statement that he and Mr Gooding wished to "reclaim the rights to the show and continue to produce Thank You For Being a Friend internationally". The goal was to promote and encourage further productions of Thank You For Being A Friend both in Australia and internationally. 565 Mr Duncan-Watt submitted that the impugned conduct, comprising one conversation with a journalist from The New York Times, was not conduct in trade or commerce. Mr Rockefeller referred to Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, where Mason CJ, Deane, Dawson and Gaudron JJ held that the conduct in question must, of its nature, bear a trading or commercial character. After referring to remarks of Dixon J in Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 381, their Honours said at 603: [T]he words "in trade or commerce" refer to "the central conception" of trade or commerce and not to the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. 566 Justice Toohey observed at 614 (emphasis in original): Even taking a broad view of s 52(1), the preposition "in" clearly operates by way of limitation. The question is not whether the conduct engaged in was in connexion with trade or commerce or in relation to trade and commerce. It must have been in trade and commerce. While there are dangers in seeking for the meaning of an expression through the substitution of another, the phrase "as part of trade and commerce" does, I think, come close to what is intended. 567 The reasoning in Concrete Constructions governs the approach under provisions such as those of the FTA: Plimer v Roberts (1997) 80 FCR 303 at 304F (Davies J); at 309B-G and 312A (Branson J); at 326B (Lindgren J). Of course, one must have regard to the description of "trade or commerce" in the particular statute. I have earlier noted the definition in the NSW provision. 568 In Plimer, statements made by a lecturer about the remains of Noah's Arc were held not to have been made "in" trade or commerce. It was held that since the delivery of lectures is not inherently a trading or commercial activity, where a speaker is not paid, but understands that the institution arranging the lecture has charged an admission fee, or is selling various recorded forms of the address, what is said in the course of the delivery of the lecture would not, ordinarily, be "in" trade or commerce: Plimer at 327B-D, 328A-C. 569 Mr Duncan-Watt submitted that his conduct in speaking to the journalist, did not, by its nature or in substance, bear a trading or commercial character. Speaking to a journalist was not an inherently commercial activity. There were no commercial dealings between Mr Duncan-Watt and the journalist. The interview did not address any of Mr Duncan-Watt's other works (whether, past, present or future) or promote Mr Duncan-Watt's ability or availability as a wordsmith for hire. He received no fee. Rather, the quotes attributable to Mr Duncan-Watt expressly related to the New York proceedings and the material facts that gave rise to them. 570 Mr Rockefeller submitted that the giving of the interview by Mr Duncan-Watt to the journalist was akin to a form of press release sent by him to a journalist from a major newspaper with an international and global presence where the ensuing article was sure to be published online and made available in Australia. Mr Rockefeller accepted that readers of The New York Times comprise the public at large, but noted that this must include those particularly interested in the production of theatrical works. It was said that the comment that "they hoped to reclaim rights to the show and continue to produce Thank You For Being a Friend internationally" was an indirect form of promotion. It was submitted that Mr Duncan-Watt's activities as a writer were not incidental; they were core activities of his business as a professional writer, and that it was in that context that his statements to the journalist bore the character of being in trade or commerce. Mr Rockefeller submitted it was not to the point that the website was not mentioned in the article, or by Mr Duncan-Watt in his conversation, because it was a part of the broader context. 571 As was said in Concrete Constructions at 604, the dividing line between what is and what is not "trade and commerce" may be unclear. In the circumstances of this case, Mr Duncan-Watt's conduct in answering questions put to him by a journalist about proceedings commenced in New York was not "in" trade or commerce. It can be accepted that some of Mr Duncan-Watt's activities as a writer generally were in trade or commerce, but the question is whether the particular conduct complained of was in trade or commerce. I do not infer from what was attributed to Mr Duncan-Watt in the Article, or his evidence more generally, that there was any objective of seeking to promote himself or Thank You For Being A Friend or engage in or promote activities of a commercial or trading character. Leaving aside questions of Mr Duncan-Watt's purpose, Mr Duncan-Watt's conduct, viewed objectively, was confined to answering questions put to him in respect of litigation in which he was a party. The readers of the Article were the general public, even though that would have included industry specialists. The conduct of answering questions about the New York proceedings was not engaged in by Mr Duncan-Watt "in" trade or commerce. D.4.3 Was the first TDW representation conveyed? 572 Mr Rockefeller contended that the first TDW representation (which is the same representation as pleaded against Mr Gooding) was conveyed through the combination of: (1) the emphasis placed by Mr Duncan-Watt on the alleged plagiarism: line 49; (2) the express commercial objective to "reclaim rights to the show": line 64; and (3) what the applicants described as the "central allegation of theft, with Mr Duncan-Watt cast as the authorial victim who has been deprived of the rights" in Thank You For Being a Friend. 573 The reference at line 49 of the Article that "'it was word for word' what Duncan-Watt had written" was attributed to Mr Gooding in respect of the "new script", being the script for The Goldenish Girls. The focus of the inquiry is whether the representation was made by Mr Duncan-Watt through his conduct. Accordingly the focus is on what Mr Duncan-Watt said to the journalist. 574 The first representation was not conveyed by anything said by Mr Duncan-Watt, whether as attributed to him by the Article or as set out in his affidavit evidence. What he said to the journalist as set out in his affidavit was that he wrote and co-created a show and, by inference, was surprised to see Mr Rockefeller listed as the sole writer and creator. The reference in his affidavit to a script "written almost a year prior" was a reference to The Goldenish Girls script, although it seems he may not have mentioned it by name: see [561] above. Mr Duncan-Watt made no claim about owning all of the rights, including copyright, in Thank You For Being A Friend. The statement recorded in the Article at line 64 that the "plaintiffs said they hoped to reclaim the rights to the show" was not directly attributed to Mr Duncan-Watt and it was not put to Mr Duncan-Watt in cross-examination that he made such a statement. 575 Because it is the conduct engaged in by Mr Duncan-Watt which is relevant, it is not directly to the point whether the Article as a whole conveys the representation. It is, however, relevant. As Mr Duncan-Watt submitted, the Article as a whole does not convey the first TDW representation for the reasons given in Section B.3.3 above. I infer that, whatever Mr Duncan-Watt said to the journalist, it did not lead the two authors of the Article into any misunderstanding. The Article expressly stated that Thank You For Being A Friend was created by Mr Rockefeller with Mr Duncan-Watt: lines 19 and 20. 576 The first TDW representation was not conveyed by Mr Duncan-Watt's conduct. D4.4 Was the first TDW representation misleading or deceptive? 577 This has been dealt with above in the context of the first representation pleaded against Mr Gooding – see: Section D3.4 above. If – contrary to my view – the first representation was conveyed, it would have been factually wrong and therefore misleading: Mr Duncan-Watt did not own, and never owned, all of the rights, including the copyright, in Thank You For Being A Friend. D.4.5 Was the second TDW representation conveyed by Mr Duncan-Watt's conduct? 578 The second TDW representation was: Mr Rockefeller "callously and without cause just [stole]" the stage play Thank You For Being a Friend. 579 As stated earlier, it is necessary to focus on whether this representation was conveyed by Mr Duncan-Watt's conduct rather than by the Post or Article or those publications read together. The relevant conduct was Mr Duncan-Watt's conversation with the journalist. 580 Lines 66-68 of the Article included (emphasis added): 64 The plaintiffs said they hoped to reclaim rights to the show and continue to 65 produce "Thank You for Being a Friend" internationally. "The show is very 66 personal to me," Mr Duncan-Watt said in an interview. "It was really a labor of 67 love. For someone to so callously and without cause just steal it – I was 68 completely speechless". 581 As noted at [560] above, Mr Duncan-Watt's counsel made clear that Mr Duncan-Watt accepted the accuracy of what was reported as his words, with the exception that the reference in line 67 to Mr Rockefeller stealing the show was a reference to The Goldenish Girls, not to Thank You For Being A Friend: T51.24-47. 582 Mr Duncan-Watt's evidence as to what he said to the journalist is set out at [561] above. 583 Mr Duncan-Watt was not cross-examined in respect of what he said to the journalist and his denial of ever having made the second TDW representation in the form pleaded was not directly challenged. 584 Taking Mr Duncan-Watt's evidence as to what he said at face value, what he represented to the journalist was: the format of That Golden Girls Show! was the same as Thank You For Being A Friend, which was a collaborative exercise between him and Mr Rockefeller: lines 23-25; he was astonished when he saw what looked like the show he had written and co-created being advertised with his name nowhere in sight – see [561]; instead, Mr Rockefeller was listed as the sole writer and creator – see [561]; when confronted about this, Mr Rockefeller claimed this "new" show was using a totally new script, and that Mr Duncan-Watt's old one had been chucked out – see [561]; Mr Rockefeller refused to let Mr Duncan-Watt or the others see Mr Rockefeller's "new" script for purposes of comparison – see [561]; when Mr Gooding went to see the show on opening night, he told Mr Duncan-Watt that the show on stage and Mr Duncan-Watt's script, written almost a year prior, were basically one and the same – see [561]. Mr Rockefeller stole the "new" script Mr Duncan-Watt had written: line 67. 585 The journalist evidently understood that Mr Rockefeller had used a script which was different to the script for Thank You For Being A Friend – namely, a "new" or "revised" script, written by Mr Duncan-Watt: lines 43 to 46. Although it was not named, this was the script for The Goldenish Girls. 586 As Mr Duncan-Watt submitted, the applicant does not sue on a representation that Mr Rockefeller stole the script for The Goldenish Girls, or that he stole that show. 587 By use of the word "stole", the second TDW representation can be understood as including a meaning that Mr Rockefeller had used the core concept and format of Thank You For Being A Friend, together with a "new" or "revised" script written by Mr Duncan-Watt, to produce a show which was substantially similar to Thank You For Being A Friend without acknowledging, as he should have, that he was not the sole creator of the resulting show. Understood in this way, Mr Duncan-Watt's conduct – namely his conversation with the journalist – conveyed the second TDW representation. D.4.6 Was the second TDW representation misleading or deceptive? 588 The applicants submitted that the second TDW representation was misleading for the same reasons as were advanced in relation to the second representation pleaded against Mr Gooding: see [541] above. 589 In my view, the second TDW representation, understood in the manner set out at [587] above, was not misleading or deceptive including for the reasons given in relation to the second representation pleaded against Mr Gooding – see: Section D.3.6.3. 590 Many of Mr Duncan-Watt's arguments as to why the second representation was not misleading or deceptive have been dealt with earlier in the context of the second representation pleaded against Mr Gooding. Some of Mr Duncan-Watt's additional submissions should be addressed. 591 First, it was submitted that Mr Duncan-Watt was commenting on the New York proceedings, in which he pleaded that his script was stolen. It was submitted that representations made about matters in dispute, where there is to be a full hearing on questions of fact and law, are not ordinarily misleading or deceptive. Mr Duncan-Watt cited Nine Films & Television Pty Ltd v Ninox Television Ltd [2005] FCA 1404 at [98] (Tamberlin J). It was submitted that the reader of the Article would take the quotations of what Mr Duncan-Watt said as representing what Mr Duncan-Watt alleged in the New York proceedings and be aware that there is always another side to a legal dispute. 592 In Nine Films at [98], Tamberlin J stated (emphasis added): No specific evidence was led by Nine to support this claim and the allegation was not developed or clarified in submissions except to say that it followed from the finding of unjustified threats of copyright infringement that there was misleading and deceptive conduct by Ninox in making those threats. This does not necessarily follow. In my view, there was no misleading and deceptive conduct on the part of Ninox in making the threats of copyright infringement against Nine. To make of claim of infringement is not, of itself, misleading and deceptive conduct simply because the claim fails after a full hearing on disputed questions of fact and law. In my view, a claim or threat, without more, would not constitute misleading and deceptive conduct. If the making of a claim or threat which ultimately fails is considered to constitute misleading and deceptive conduct, then in any case where a claim fails, the claimant could arguably be said to contravene the norm prescribed by s 52 of the TPA. This is an extreme consequence. There was no evidence or argument by Nine that anyone had, in fact, been misled by the making of the threats and the allegation was not developed. 593 Mr Rockefeller correctly submitted that, unlike Nine Films, it was not the mere making of the claims in the New York proceedings which was said to be misleading or deceptive. Here, the statements made by Mr Duncan-Watt were not expressions of opinion based on facts, but were presented as assertions by him as to the facts. Accordingly, whilst I conclude that the second representation was not misleading, I do not so conclude for this reason. 594 Secondly, Mr Duncan-Watt submitted that the second representation was an expression of Mr Duncan-Watt's opinion and that it would not be misleading or deceptive unless the respondent had "misstated the facts on which the opinion was based": Seafolly at [2]-[7] (Marshall J); at [90] and [93] (Rares and Robertson JJ). 595 As indicated in relation to the first submission above, what Mr Duncan-Watt stated to the journalist were not expressions of opinion based on facts, but were assertions by him as to the facts. Accordingly, whilst I conclude that the second representation was not misleading, I do not so conclude for this reason. 596 Thirdly, Mr Duncan-Watt submitted that the second TDW representation would not lead the ordinary reasonable reader into error. 597 It was submitted that Mr Rockefeller's conduct was aptly described as "stealing" or "dramatic piracy", irrespective of the effect of the Licence Agreements. It was said that That Golden Girls Show! at least "steals" the genre, production format, principal concepts and jokes of the stage-play Thank You For Being A Friend, including: the format of an on-stage Muppets-like puppet parody of the 1980's sitcom, The Golden Girls (as opposed to a Golden Girls musical, or drag show, or one-woman show); the use of puppets which are controlled by on-stage actors (as opposed to puppets being suspended from string and/or manoeuvred by puppeteers from off-stage, or who were otherwise unseen by the audience); the use of a male actor to perform the female role of Dorothy; the use of a male actor (without a puppet) to perform the role of the male love interest; the use of actors who simultaneously "act" the role of their puppet – ie: they convey the desired facial expressions of their characters (as opposed to the stage directions for a ventriloquist); the overwhelming similarities between the get-up, look and feel of the puppets that existed in addition to the obvious physical resemblance between the puppets and their on-screen characters. The puppets in both Thank You For Being A Friend and That Golden Girls Show! were cartoon-like caricatures of their televised namesakes (akin to the Muppets); the strong similarities between the sets of Thank You For Being A Friend and That Golden Girls Show! in circumstances where the first run of Thank You For Being A Friend did not have a set: T395.35; the use of the same jokes in both Thank You For Being A Friend and That Golden Girls Show!. Whether or not the use of the same jokes infringed copyright, Mr Rockefeller had, so it was submitted, capitalised on the intellectual effort of Thank You For Being A Friend that was a joint collaboration. 598 The second TDW representation, understood in the way identified at [587], was not misleading or deceptive. Mr Rockefeller arrogated to himself what he and Mr Duncan-Watt had jointly created. The matters identified above as similarities between Thank You For Being A Friend and That Golden Girls Show! are each correct. I have earlier described other similarities – see: Section B.38 above. 599 Fourthly, Mr Duncan-Watt submitted that, if determination of the contractual rights of the parties were necessary, Mr Duncan-Watt held rights to Thank You For Being A Friend as a scriptwriter under the 25 November 2013 Licence Agreement. It was submitted that Mr Rockefeller indeed "stole" the stage-play Thank You For Being A Friend. 600 I accept this argument for the reasons given at [537] to [543] above. 601 Fifthly, Mr Duncan-Watt submitted that, even if Mr Rockefeller owned all of the copyright in Thank You For Being A Friend by reason of the "Writers Assignment Agreement", Mr Rockefeller "stole" Mr Duncan-Watt's copyright in the Thank You For Being A Friend stage-play by inducing Mr Duncan-Watt to sign that assignment agreement fraudulently or under false pretences. 602 I have earlier concluded that the Writers Assignment Agreement was rescinded by Mr Duncan-Watt: see [132] above. Alternatively, JWR productions implicitly assigned copyright back to Mr Duncan-Watt: see [136] and [137] above. If I were wrong in those views, then this submission by Mr Duncan-Watt would be correct. I accept that Mr Rockefeller procured Mr Duncan-Watt to execute the Writers Assignment Agreement by making false representations – see: Sections B.5, B.6 and B.11 above. In this way, he would have "stolen" Thank You For Being A Friend. 603 Finally, Mr Duncan-Watt submitted that "stole", in context, conveyed a moral wrongdoing including, as in fact occurred, a breach of trust and abuse of a long-standing collaboration and friendship. The facts demonstrated that Mr Rockefeller covertly staged a rival production that adopted the principal ideas, concepts and production format of Thank You For Being A Friend and The Goldenish Girls without regard to the teamwork and spirit of collaboration underlying their creation. It was said that, in that sense at least, Mr Rockefeller indeed "stole" from Mr Duncan-Watt. I broadly accept this submission. I would add as a relevant fact: Mr Rockefeller's conduct in terminating the Scriptwriter Agreement in relation to The Goldenish Girls without lawful basis, knowing there was no lawful basis to do so, and altering that script (without changing the plot) for use in That Golden Girls Show! without acknowledgement of Mr Duncan-Watt's work. D.4.7 Conclusion with respect to ACL claims against Mr Duncan-Watt 604 The ACL claims against Mr Duncan-Watt fail for the reasons set out above and summarised directly below. 605 As to the first TDW representation: (1) The relevant conduct was not in trade or commerce. (2) Mr Duncan-Watt's conduct did not convey the first representation. (3) The first representation would have been misleading or deceptive if it had been conveyed by conduct in trade or commerce, but it was not. (4) Even if I had concluded that the first representation was conveyed, and was conveyed by conduct in trade or commerce, the fact that it would have been misleading or deceptive was not shown to have resulted in any loss and was not of a nature which warranted any relief, monetary or otherwise. 606 As to the second TDW representation: (1) The relevant conduct was not in trade or commerce. (2) The conduct engaged in by Mr Duncan-Watt represented that Mr Rockefeller "stole" Thank You For Being A Friend in the sense that Mr Rockefeller had used the core concept and format of Thank You For Being A Friend, together with a "new" or "revised" script written by Mr Duncan-Watt, to produce a show which was substantially similar to Thank You For Being A Friend without acknowledging, as he should have, the contribution of others to the resulting show. (3) The second representation, understood as just mentioned, was not misleading or deceptive. E SATISFACTION AND NO. 5½ E.1 Introduction 607 As noted earlier, Mr Rockefeller wrote a number of versions of a script for a screenplay entitled Satisfaction which was an auto-biographical story of Mr Rockefeller's life and career experiences working with Baz Luhrmann on Mr Luhrmann's La Bohème and his advertising commercial for Chanel No 5 featuring Nicole Kidman. 608 Mr Rockefeller and Mr Duncan-Watt collaborated to write a novel (ultimately called No. 5½) based on the characters and story which appear in Satisfaction. The Author Collaboration Agreement was executed in December 2014 – see: Section B.18 above. Under the terms of that agreement: (1) all copyright in the work created pursuant to the Author Collaboration Agreement would be owned jointly by Mr Rockefeller and Mr Duncan-Watt; (2) authorship would appear on the work and in all other material (including advertising) as "by Thomas Duncan-Watt & Jonathan Rockefeller". 609 By letter dated 14 May 2016, Mr Rockefeller wrongfully terminated the Author Collaboration Agreement – see: Section B.31 above. By that time, Mr Duncan-Watt had written a novel called "No. 5½". Mr Rockefeller's wrongful termination of the Author Collaboration Agreement did not affect joint copyright ownership of the novel No. 5½. 610 Mr Duncan-Watt had a website, <www.thomasduncanwatt.com>, which was used in connection with his professional writing. A user typing the URL landed on the "About" page as the home page. From as early as June 2015 until at least November 2016, the final line of the "About" page of Mr Duncan-Watt's website included the sentence (emphasis in original): His debut novel, No. Five and a Half, is also due out later this year. 611 The "About" page was in the following form: 612 The text on the right hand side of that image is: Thomas is an AWGIE-nominated screenwriter who has written comedy for Australians (Good News Week), the British (NewsJack), and animation lovers all over the world (Dennis the Menace & Gnasher, Pirate Express, Winston Steinburger & Sir Dudley Ding Dong). In fact, last year, one of his scripts for Dennis the Menace was the sole script selected by the BBC – of all 52 produced – to represent Dennis at the BAFTAs, earning the series its first ever BAFTA nomination. In late 2012, in collaboration with producer and long-time collaborator Jonathan Rockefeller, Thomas also wrote and created Thank You For Being a Friend, a live puppet comedy stage show that – following sell-out seasons – was licensed to two new production companies, including multiple Helpmann Award-winner Neil Gooding Productions, and has been touring ever since. On July 29 this year, the show will make its debut in Toronto, Canada, with a US tour now in the works. Currently, Thomas is writing on a number of new screen projects, including several animated series, a pilot for Disney XD and his recently optioned feature, Chan and the Shadow of Peking. His debut novel, No. Five and a Half, is also due out later this year. 613 Mr Rockefeller's principal complaint relevant to this aspect of the case concerned Mr Duncan-Watt maintaining the last line on the "About" page after Mr Rockefeller's wrongful termination of the Author Collaboration Agreement in May 2016. 614 It is not clear when the line was removed. However, by at least February 2018, when Mr Duncan-Watt instructed his solicitors to take screen-shots of his website, it had been removed. 615 A user could navigate from the "About" page, to the "Work" page, by clicking on the menu at the top of the "About" page. The "Work" page featured: (1) nine smaller coloured images arranged in tiles depicting projects which Mr Duncan-Watt was involved with; (2) above them, a larger image which rotated among the different projects. 616 Of the nine tiles, there were: (1) six without a red banner, being: Dennis the Menace and Gnasher, Good News Week, Pirate Express, Thank You For Being A Friend, Winston Steinburger and Sir Dudley Ding Dong and Newsjack; and (2) three with a red banner across the top right hand corner, being: The Housewives of History, Chan and the Shadow of Peking and No. 5½. 617 The tiles, on the particular printout tendered into evidence, culminated in the following image: 618 The words on the red banner are "Coming 2016", although the parties proceeded on the basis it may also have appeared as "Coming Soon". Whilst the sentence from the "About" page stating "His debut novel, No. Five and a Half, is also due out later this year" had been removed by February 2018, this image had not been removed at that time. 619 A user of the website could click on each of the six tiles without a red banner, to link to further information about each of the projects the subject of the particular tile. Mr Duncan-Watt participated as an author in each of those projects as part of a collaboration. 620 By contrast, clicking on the three tiles with a red banner did not take the user any further. This was presumably because those projects were not complete. 621 By the time of the hearing, there was no reference at all to the novel No. 5½ on the website. E.2 The ACL Claims E.2.1 The pleaded representations 622 Mr Rockefeller contended that Mr Duncan-Watt's conduct gave rise to representations, in trade or commerce in Australia, that: (1) Mr Duncan-Watt was the sole author of a debut novel, No. 5 ½ or No. Five and a Half, which was due out "later"; (2) Mr Duncan-Watt's copyright works included No. 5 ½ which was "coming soon"; (3) Mr Duncan-Watt was authorised to publish the manuscript of No. 5 ½; (4) Mr Duncan-Watt was authorised to publish and or promote the manuscript of No. 5½ as a work of which he was the sole author. E.2.2 Trade or commerce 623 Mr Duncan-Watt submitted that the conduct was not in trade or commerce. It was submitted that, while the website conveyed information about Mr Duncan-Watt's professional life, it was "still a personal website" which offered nothing for sale. There were no rates of charge, or terms of trade. No one was invited to hire Mr Duncan-Watt's writing services. He did not practice through the website. 624 Mr Rockefeller submitted that conduct in trade or commerce included promotional activities in relation to, or for the purposes of, the supply of services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public, referring to Concrete Constructions at 604 (Mason CJ, Deane, Dawson and Gaudron JJ). 625 In my view, the website was evidently intended to and did in fact promote Mr Duncan-Watt's professional writing services with a view to attracting custom. The maintaining of the website was conduct in trade or commerce. The website was more than a mere "personal website". E.2.3 Were the representations conveyed? E.2.3.1 The parties' submissions 626 Mr Rockefeller submitted that the ordinary reasonable consumer in Australia looking at Mr Duncan-Watt's website would understand him to be saying that he alone was the author of the novel No. 5½, which he was entitled or authorised to publish "soon". 627 Mr Rockefeller drew attention to the structure of the "About" page (set out at [611] and [612] above) submitting it was "significant for the way in which it concisely conveys messages in a subtle yet effective way". Specifically: (1) In the first paragraph Mr Duncan-Watt was promoted by reference to his participation as an author in the collaborative projects for television. More information about each of these projects was available by clicking onto the "Work" page and following the image for the respective project. (2) In the second paragraph, the focus turned to the theatre, emphasising his collaboration with Mr Rockefeller. (3) In the final paragraph, attention turned to Mr Duncan-Watt's then current projects. A couple of anonymous projects were mentioned and then what was submitted to be "a subtle but critical shift" in the language when it came to the two upcoming named projects , Chan and the Shadow of Peking and No. Five and a Half. It was submitted that Mr Duncan-Watt asserted complete ownership over both of these works through the use of the singular possessive pronoun in juxtaposition with the description of the project's genre: "his recently optioned feature …" and "his debut novel …". It was said that, in this way, Mr Duncan-Watt's use of the possessive pronoun distinguished and emphasised these particular works from the others and claimed them as his own. It was submitted (emphasis in original): As an ordinary matter of grammar, that is the very function and purpose of the possessive. It is the identical function and purpose when Mr Duncan-Watt deploys it in the first paragraph, where he uses it to isolate and distinguish "one of his scripts" from the collaborative collective of the BBC series in order to highlight his script for the special credit and attention it brought to that BBC series by way of an industry accolade with which Mr Duncan-Watt plainly, and naturally, wishes to associate himself. 628 It was further submitted that Mr Duncan-Watt asserted sole authorship through the absence of any other information in respect of these two upcoming projects on his website. Unlike many of the other works, no collaboration was specifically identified. 629 Reliance was also placed on the copyright symbol at the bottom of the web page. Mr Rockefeller submitted that this symbol, read in context, represented an assertion of copyright in the novel No. 5½. 630 Mr Duncan-Watt submitted that the assessment of whether the representations were conveyed must have regard to the context of the publication as a whole. It was, in his submission, not appropriate to dissect and isolate parts from the whole, when no such emphasis was placed on them in the original text. The overwhelming context provided by the website was that Mr Duncan-Watt was a writer who engaged in collaborative projects. E.2.3.2 Consideration 631 The sentence referred to must be read in the context of the whole of the text, and in the context of the website as a whole, in the manner in which the likely audience would have read it: Google Inc v ACCC (2013) 249 CLR 435 at [102] and [118] (Hayne J); ACCC v Kimberly-Clark Australia Pty Ltd [2019] FCA 992 at [258] (Gleeson J). 632 The ordinary reader of the website would probably have concluded from the final sentence of the "About" page, read in context, that Mr Duncan-Watt was the sole author of the novel No. 5½ which it was anticipated would soon be published. 633 Leaving aside the position of a reader who was from the same or a connected industry, I do not think a reader would be left merely considering whether or not Mr Duncan-Watt was the sole author, but would actually have been lead into error – cf: ACCC v TPG at [39] (French CJ, Crennan, Bell and Keane JJ); ACCC v Coles at [39] (Allsop CJ). 634 I conclude that Mr Duncan-Watt did not intend to mislead anyone when he included the relevant line on his web page. However, the lack of any such intention does not have the consequence that the sentence, read in context, was not in fact misleading. Mr Duncan-Watt's intention is relevant to questions about whether and what relief, if any, is appropriate. 635 It follows that the first representation, set out at [622(1)] above, was conveyed. 636 The ordinary reader would have understood the copyright symbol © on the bottom of the web page to be a reference to the webpage or website itself and would not have understood it as indicating an assertion of ownership of copyright in each of the individual works mentioned on the web page, including No. 5½. The website did not otherwise convey a representation that Mr Duncan-Watt owned copyright in No. 5½. 637 It follows that the second representation, set out at [622(2)] above, was not conveyed. 638 The website did not represent that Mr Duncan-Watt was "authorised to publish" the novel No. 5½. The website said nothing about who would publish the novel. The reader of the website would not have supposed from the content of the "About" or the "Work" pages that Mr Duncan-Watt was asserting a right to publish any of the works mentioned on those pages. The words "Coming Soon" or "Coming 2016" simply conveyed that the work had not yet been completed or published but was expected to be completed and published. Read in context there was no representation of any authority to publish No. 5 ½ or to promote it as a work of which Mr Duncan-Watt was the sole author. 639 It follows that the third and fourth representations, set out at [622(3) and (4)] above, were not conveyed. E.2.4 Was the conveyed representation misleading or deceptive 640 At the hearing it was not suggested that Mr Duncan-Watt was in fact the sole author of No. 5½. It follows that the first representation was misleading. E.2.5 Relief 641 Mr Rockefeller claimed declaratory relief. The claim for an injunction was abandoned in closing submissions. 642 Mr Rockefeller was the only person proved to have viewed Mr Duncan-Watt's website. Nevertheless, I proceed on the basis that it is likely to have been viewed by others, including for commercial purposes. 643 Mr Rockefeller complained to Mr Duncan-Watt about the content of the website on 20 December 2016, in a letter sent by Mr Rockefeller's then solicitors to Mr Duncan-Watt. In addition to raising concerns about Mr Duncan-Watt's "unlawful promotion" of No. 5½, the letter addressed a number of other concerns the subject of these proceedings, including the copyright claims relating to the photographs, defamation concerns, and Mr Duncan-Watt's alleged failure to return Mr Rockefeller's scripts. The letter was written after the Author Collaboration Agreement had been unlawfully terminated in May 2016. 644 I do not consider declaratory relief appropriate. The conduct occurred in the context of a bitter dispute between two people who had been friends. The website displayed the representation before the Author Collaboration Agreement was terminated, and did not apparently cause Mr Rockefeller any concern at that earlier time. 645 The conduct is unlikely to have mislead many people. Indeed, there is a real question whether any person was in fact misled by the conduct. The website would have been of particular interest only to those working in the same or connected industry. Of those people, it is difficult to imagine that any of them would have paid particular attention to the forthcoming novel. And if such a person did pay attention to it, that person may not have been misled at all. Mr Rockefeller was cross-examined about him stating in his affidavit evidence that he was nominated for a "Cannes Lion" award and that he had won a "Cleo" award. The true position was that it was a team, of which Mr Rockefeller was part, who had been nominated and won. Mr Rockefeller stated that it was "industry practice to use that phrasing" and that each of the members of the team would have claimed that it was them individually who had been nominated and won. Whether or not that be true – and it seems rather odd not to want to, or to fail to, acknowledge the contribution of others with whom one has worked – it is highly unlikely that any person was misled by Mr Duncan-Watt's website in a material way. 646 The website no longer displays the representation. There was no pattern of misleading or deceptive conduct, such that a declaration might be thought to have some prophylactic effect. It was unintentional. There is no obvious public interest in making a declaration. No person, including Mr Rockefeller suffered any financial loss or damage from the conduct. There are no consumers who are likely to benefit from the making of the declaration. For these reasons, declaratory relief is refused. E.3 The Copyright Claims 647 Mr Rockefeller also claimed there was a threat of copyright infringement, based on the website and web pages just discussed. The claimed threat of copyright infringement was made in respect of the screenplay, Satisfaction, written by Mr Rockefeller. There was no dispute that copyright subsisted in Satisfaction as an original literary or dramatic work and that Mr Rockefeller owned the copyright. 648 The exclusive rights given to the owner of the copyright in a literary work include the rights to publish the work and to make an adaptation of it: s 13 and s 31(1)(a)(ii) and (vi) of the Copyright Act. A person infringes copyright if, in Australia, they do "any act comprised in the copyright" without the licence of the owner of the copyright: s 36(1). 649 Mr Rockefeller submitted that the novel No. 5½ was an "adaptation" of Satisfaction. 650 An adaptation in relation to a literary work in a dramatic form means a version of the work in a non-dramatic form: s 10 of the Copyright Act. 651 Mr Duncan-Watt denied that the novel No. 5½ was an "adaptation" of Satisfaction. 652 The extent of similarity between No. 5½ and Satisfaction was neither proved nor properly explained. No party tendered a script of Satisfaction. The expressed basis for Mr Rockefeller's termination of the Author Collaboration Agreement was that No. 5½ had moved away from the events and characters described in the synopsis prepared by Mr Rockefeller. Mr Rockefeller's synopsis was not shown to be an "adaption" of Satisfaction even if it is to be inferred that it was based upon the script. A fortiori, No. 5½– which itself had moved away from Mr Rockefeller's synopsis – was not shown to be an "adaption" of Satisfaction. 653 In an email to Mr Duncan-Watt sent on 5 June 2016, Mr Rockefeller stated: … I do not disagree that your new contributions remain entirely yours – e.g. "Pakistani Suren Patel" and "Jermaine" are characters and stories from your experience and remain so – and I have no intention of using them. As I said clearly in my last email, the net result is the process of working with you has become extremely unproductive. You want to taking [sic] my story to a place that I simply don't want it to go; and I don't want to continue in that direction … 654 The evidence establishes that the material used to write No. 5½ included the scripts for Satisfaction and other material, but not in a way which permits the Court to be able to draw the conclusion, with a sufficient degree of confidence, that No. 5½ is an "adaptation" of Satisfaction. In an email to Mr Rockefeller on 5 June 2016, Mr Duncan-Watt described the difference between the novel and the source material as a "colossal divide" – see: [263] above. 655 In any event, I would not have granted the injunctive relief sought. I am not satisfied that there was a threat to publish the novel No. 5½. The website does not threaten such publication, Mr Duncan-Watt did not otherwise threaten publication and it was not put to him in cross-examination that he was proposing to publish the novel No. 5½. His email of 5 June 2016 indicated there was "no hope of [financial] return or publication" – see: [263] above. 656 Mr Rockefeller submitted that Mr Duncan-Watt continued to promote No. 5½ on his website beyond the breakdown in their relationship and that other than being a threat to publish there was no other plausible commercial purpose or logical explanation that could justify the continued reference to No. 5½ on the website. By February 2018, Mr Duncan-Watt had removed the only textual reference to No. 5½ from the "About" page of the website, leaving only the "mysteriously brooding image of the Gothic-style house emblazoned with No. 5½", as Mr Rockefeller's counsel so elegantly put it – see: [617] above. It was said that this was a threat directed primarily to Mr Rockefeller. 657 I accept that, after the explanatory text was removed by February 2018, the mysteriously brooding image could only have had any meaning to Mr Rockefeller. I do not accept that Mr Rockefeller could reasonably have thought that Mr Duncan-Watt was threatening to publish No. 5½. It was unlikely in the extreme that Mr Duncan-Watt would have published, or would have wanted to publish, the novel, given the circumstances which prevailed and the communications between the parties. Mr Duncan-Watt had received a number of aggressive communications from Mr Rockefeller and his husband accusing him, amongst a plethora of other things, of fraudulent misrepresentation and threatening him with legal proceedings – see, for example: [290] and [291] above. It is fanciful to suggest Mr Duncan-Watt would have published No. 5 ½ in that context or that Mr Rockefeller thought he would. 658 Mr Rockefeller's copyright claims regarding Satisfaction and No. 5½ must be dismissed. F COPYRIGHT CLAIM – PHOTOGRAPHS F.1 Overview 659 The copyright claim in relation to photographs concerns two photographs of Mr Duncan-Watt which were published on his website. One is a portrait of Mr Duncan-Watt with a Dennis the Menace puppet – see [611] above. Another is of Mr Duncan-Watt and Mr Rockefeller with the puppets from Thank You For Being A Friend. 660 There was no dispute that these two photographs were published on Mr Duncan-Watt's website at least during the period 5 December 2016 to 22 March 2017. As noted below, the evidence was insufficient to establish publication after those dates. 661 Mr Rockefeller sought damages of $1,000 for the cost of the photo shoot and $350, representing half the amount of additional expenses of $700. Mr Rockefeller also sought an amount for "usage", calculated in accordance with "industry calculators". For the way in which Mr Duncan-Watt used the photographs, the amount claimed, depending upon the calculator used, was US$1,145 or £1,866.90 per photograph per year. 662 The photographs were taken on 12 or 13 December 2014 in the circumstances described earlier – see: Section B.17 above. The author of the photographs, and the owner of copyright in them when they were taken, was Mr Gardiman. 663 Over two years after the photographs were taken, Mr Gardiman signed a letter dated 21 December 2016, drafted or settled by Mr Rockefeller's lawyers, confirming assignment of copyright by Mr Gardiman to Mr Rockefeller and JWR Productions. This letter stated: Dear Jonathan, I confirm that in January 2015, I was commissioned by you and your company JWR Productions Pty Ltd to photograph you, Thomas Duncan-Watt and the 'Thank You For Being a Friend' puppets. The photographs were in a variety of compositional combinations of you, Thomas Duncan-Watt and/or the puppets, including individual portraits of you, Thomas Duncan-Watt and the puppets. Additionally, photographs were taken of Thomas Duncan-Watt posing with an individual 'Dennis the Menace' hand puppet, separate from the 'Thank You For Being a Friend' puppets. Approximately 600 photographs were taken in the photo shoot (the Photographs). I confirm that in consideration for payment from you for the photoshoot, in January 2015 I assigned all copyright in the Photographs to you, Jonathan Rockefeller (then known as Jonathan Worsley) and your company JWR Productions Pty Ltd. I confirm you paid me in full. This letter operates as a written and binding confirmation of the assignment of all copyright in the Photographs by me to you and JWR Production[s] Pty Ltd as joint owners which was effective in January 2015. I also note that you have given me and my company permission in perpetuity to use the Photographs for my portfolio and my own professional promotion. Kind regards Dario Gardiman 664 For the reasons which follow, I conclude: (1) contrary to his evidence, Mr Rockefeller did not say to Mr Duncan-Watt that there would be a charge to Mr Duncan-Watt in respect of the photographs, either for them being taken or for them being used, before the photo shoot on 12 or 13 December 2014 or at any reasonably proximate time thereafter; (2) neither Mr Rockefeller nor Mr Gardiman ever intended that Mr Duncan-Watt should pay any amount for the photo shoot; (3) there was no discussion between Mr Rockefeller and Mr Duncan-Watt, or between Mr Rockefeller and Mr Gardiman, or between the three of them, about ownership of copyright in the photographs; (4) Mr Rockefeller told Mr Duncan-Watt, when the photographs became available shortly after the photo shoot, that Mr Duncan-Watt was free to use the two photographs on his website. The probabilities are that the parties assumed they were each free to use the photographs. However, if I am wrong in that conclusion, then Mr Rockefeller was conveying Mr Gardiman's position as owner of copyright, or Mr Rockefeller granted Mr Duncan-Watt an express licence to use the photographs. F.2 No agreement to charge Mr Duncan-Watt for the photographs or their use 665 At [49]-[50] of his first affidavit, Mr Rockefeller stated that he contacted Mr Duncan-Watt before making arrangements with Mr Gardiman. The true position is that Mr Rockefeller had already arranged the photo shoot in early November 2014; he raised the photo shoot with Mr Duncan-Watt only after the arrangements had already been put in place with Mr Gardiman. Mr Rockefeller's email to Mr Gardiman sent on 9 November 2014 confirmed that Mr Rockefeller would pay the costs of the photo shoot and proposed 13 December 2014 as the date. There was no mention of any involvement of Mr Duncan-Watt at that time. Mr Rockefeller's email of 9 November 2014 was not referred to by Mr Rockefeller in his first affidavit, and was introduced into evidence during his cross-examination. 666 At [52] of his first affidavit, Mr Rockefeller stated that, on or around 2 December 2014, he had a conversation with Mr Duncan-Watt to the effect that Mr Gardiman would charge Mr Duncan-Watt $1,000 for the photos, and that Mr Duncan-Watt would have to pay for their usage – see: [159] above. I do not accept that any such conversation occurred. Nor do I accept that Mr Rockefeller was merely mistaken in his asserted recollection to that effect. 667 Mr Rockefeller did not inform Mr Gardiman that Mr Duncan-Watt would be attending the photo shoot until 3 December 2014, which was after the asserted conversation in which Mr Rockefeller said that he told Mr Duncan-Watt that there would be a $1,000 charge for taking the photographs and further charges for Mr Duncan-Watt using them. 668 Mr Rockefeller could not have known there would be an additional charge by Mr Gardiman in circumstances when he had not yet raised the issue with Mr Gardiman. 669 Mr Rockefeller did not give evidence that he said to Mr Duncan-Watt at this or any reasonably proximate time that it would be him or JWR Productions who would be paid for the use of the photographs. This supports the conclusion I reach below that there was no discussion at the time, or agreement, for copyright to be assigned to Mr Rockefeller or JWR Production by Mr Gardiman. 670 Each of the contemporaneous documents is consistent with Mr Gardiman's charges being incurred by Mr Rockefeller and JWR Productions. At no stage during the email communications between Mr Rockefeller and Mr Gardiman, did either Mr Rockefeller or Mr Gardiman record that Mr Duncan-Watt was required to pay, or would be paying, any costs of the photo shoot or anything for use of the photographs. 671 Further, Mr Rockefeller caused JWR Productions to pay Mr Gardiman $1,000 – see: [168] above. There was no mention of any obligation on the part of Mr Duncan-Watt to make that payment or to reimburse Mr Rockefeller. No demand was made of Mr Duncan-Watt at that time. 672 The contemporaneous documents were silent on there being any assignment of copyright. The contemporaneous documents were utterly silent on any supposed obligation to pay for usage, whether such payment was to be made to Mr Rockefeller (or JWR Productions) or Mr Gardiman. 673 Apart from the evidence given by Mr Rockefeller, which I find to be unreliable, there was no evidence that Mr Gardiman ever considered Mr Duncan-Watt was liable to pay him $1,000 or to contribute to the costs of the photo shoot, or that he ever sought such payment from Mr Duncan-Watt. To the knowledge of Mr Rockefeller, Mr Gardiman was available to give evidence, but was not called to do so. Mr Rockefeller gave evidence in cross-examination concerning Mr Gardiman, from which I conclude both that Mr Gardiman was in Mr Rockefeller's camp and that he was not sympathetic to Mr Duncan-Watt's interests. I conclude that Mr Rockefeller did not call Mr Gardiman because Mr Gardiman's evidence could not have assisted Mr Rockefeller's case. 674 Mr Gardiman's letter of 21 December 2016, executed some two years after the relevant events, did not suggest that there had ever been a liability on the part of Mr Duncan-Watt for payment. Indeed, the letter suggested there was no such obligation. It was, according to the letter, Mr Rockefeller and JWR Productions who commissioned Mr Gardiman. Further, the letter stated that the assignment of copyright was in consideration of Mr Rockefeller's payment of $1,000. If Mr Rockefeller was paying $1,000 on behalf of Mr Duncan-Watt, that might suggest that copyright was assigned to Mr Duncan-Watt. 675 It was not until 14 August 2016, a few months before Mr Gardiman's letter of 21 December 2016, that Mr Rockefeller sent an invoice relating to the photographs to Mr Duncan-Watt. This is the first document which suggested a requirement on the part of Mr Duncan-Watt to make any payment, and it originated after termination of the Author Collaboration Agreement, at a time when Mr Rockefeller and Mr Duncan-Watt were in dispute and the relationship between the two, at least from Mr Rockefeller's perspective, was acrimonious. Moreover, the invoice stated that the charge for the photo shoot was $2,000, which was twice the amount Mr Rockefeller claimed that Mr Duncan-Watt owed. That invoice does not make any mention of supposed "usage" fees. 676 Another invoice was sent to Mr Duncan-Watt on 3 October 2016, which referred to usage fees for the photographs. This is the first document to mention fees for use of the photographs. I do not accept that it reflects any conversation or agreement made at or around the time of the photo shoot or at all. It is dated about two months before the letter from Mr Gardiman referring to an assignment of copyright, set out at [663] above. 677 I conclude that Mr Rockefeller did not inform Mr Duncan-Watt before or at any time proximate to the photo shoot that he was to be charged for the photographs or for any costs associated with them or that he would be charged a usage fee. I conclude that the "assignment" and concept of Mr Duncan-Watt paying a "usage" fee were made up by Mr Rockefeller at some point after termination of the Author Collaboration Agreement, probably in September or October 2016. 678 I accept Mr Duncan-Watt's evidence that Mr Rockefeller told him, when the photos became available shortly after the photo shoot, that Mr Duncan-Watt was free to use the photographs. F.3 Any assignment of copyright was on 21 December 2016, not in 2014 or 2015 679 None of the contemporaneous communications suggested that there had been an agreement in January 2015 to assign copyright. I am satisfied that there was no such agreement. I conclude that the agreement was invented so that Mr Rockefeller could argue that Mr Duncan-Watt was obliged to pay him for usage of the photographs. Without an assignment of copyright in the photographs, it was Mr Gardiman who would be the only person potentially able to seek "usage" fees. 680 As noted, Mr Gardiman did not give evidence at all. Mr Rockefeller did not give affidavit evidence of any discussion or agreement with Mr Gardiman in relation to assignment of copyright at or around the time of the photo shoot. The probabilities favour the conclusion that the parties acted on the basis that each was free to use the photographs as they saw fit. 681 Mr Gardiman's letter dated 21 December 2016 was drafted by Mr Rockefeller's Australian legal team shortly before these proceedings were commenced by Mr Rockefeller. I do not accept that there had been an express assignment of copyright to Mr Rockefeller at the time the photographs were taken in December 2014 or in January 2015 when Mr Rockefeller paid for them in accordance with his agreement with Mr Gardiman. 682 It follows that, if anything, copyright was only assigned to Mr Rockefeller and JWR Productions on 21 December 2016 when the terms of the letter which Mr Gardiman signed were agreed. F.4 Period over which photographs were published 683 These proceedings were commenced by Mr Rockefeller and JWR Productions on 23 February 2017. As noted earlier, the parties agreed that the two photographs were displayed on Mr Duncan-Watt's website from at least 5 December 2016 to 22 March 2017. Mr Rockefeller argued that they were published both before and after that period. 684 Mr Rockefeller tendered screenshots from the "Wayback Machine" with the objective of establishing that the photographs were on the website from January 2016. This evidence was not objected to when admitted. In closing submissions, Mr Duncan-Watt contended that the evidence could not be relied upon in support of a finding as to the content of Mr Duncan-Watt's website at those times. 685 The question is the use to which the screenshots can be put. They are evidence of what the "Wayback Machine" showed at the time the screenshots were taken. Absent some explanation as to the operation of the Wayback Machine website and how its data is collected and held, they are not evidence of what Mr Duncan-Watt's website showed at the times nominated by Mr Rockefeller: E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 at [127] and [129] (Flick J) (not relevantly disturbed on appeal in E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144); Shape Shopfitters Pty ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 at [20]-[22](Mortimer J); Voxson Pty Ltd v Telstra Corporation Limited (No 10) [2018] FCA 376 at [33]-[41] (Perram J); see also: Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) [2019] FCA 1552 (Burley J). 686 Mr Rockefeller also relied on screenshots which he said he caused to be made on 30 October 2016. These were undated. The evidence did not disclose who made the screenshots and there was no evidence from the person who made them. It was not put to Mr Duncan-Watt in cross-examination that the photographs appeared on his website before 5 December 2016. Nevertheless, I accept that the photographs appeared on the website before 5 December 2016. 687 Given that I have concluded that, if anything, copyright was only assigned to Mr Rockefeller and JWR Productions on 21 December 2016, it does not matter how long the photographs were published for on the website before that date. 688 There was no evidence to establish that use of the two photographs continued after 22 March 2017. I would not infer that the two photographs continued to be displayed on the website after 22 March 2017 despite Mr Rockefeller's submissions that I should draw that inference. By that time Mr Rockefeller had commenced these proceedings, it was well within Mr Rockefeller's capacity to collect evidence as to the content of Mr Duncan-Watt's website. The inference is equally available that Mr Rockefeller would have proved that the photographs continued to be published if they in fact were. After all, this was central to Mr Rockefeller's claim. F.5 Conclusions 689 As noted earlier, Mr Rockefeller said to Mr Duncan-Watt when the photographs were taken that Mr Duncan-Watt was free to use the photographs. This reflected the fact that the parties each conducted themselves at the time on the basis that they were free to use the photographs in whatever way they saw fit, consistently with the purposes for which they had been taken. Mr Gardiman granted an implied licence for the photographs to be used or would be estopped from denying that he had. In the absence of an agreement that the licence was irrevocable, the implied licence might be brought to an end on reasonable notice of the copyright owner. 690 However, if I am wrong about an implied licence, Mr Rockefeller was likely communicating to Mr Duncan-Watt an express licence as agent for Mr Gardiman. If I am also wrong about that and, contrary to my conclusion, Mr Gardiman had assigned copyright to Mr Rockefeller and JWR Productions in January 2015, Mr Rockefeller's words amounted to the granting of an express licence to Mr Duncan-Watt by Mr Rockefeller and JWR Productions – cf: Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1988) 20 FCR 46 at 49-50 (Sheppard, Spender and Gummow JJ). 691 On any of those scenarios, the licence to Mr Duncan-Watt was terminable on reasonable notice. Mr Duncan-Watt submitted that reasonable notice was three months. This was not seriously disputed. I conclude that three months would be reasonable given that new photographs would need to be taken and the website updated. 692 Mr Rockefeller sent a letter of demand to Mr Duncan-Watt asserting copyright infringement (among other things) on 20 December 2016. The evidence did not establish that the photographs continued to be used substantially over three months later. Accordingly, Mr Duncan-Watt did not infringe copyright and this claim must be dismissed. 693 If infringement had been established, I would not have awarded anything other than nominal damages, whether under s 115(2) or 115(4) of the Copyright Act or otherwise. There was not shown to be any damage to the copyright. There was not shown to be any loss to Mr Rockefeller. I do not accept that there was any agreement for payment of a fee for using the photographs. 694 I also would not have granted the requested injunction. There is no apparent threat to use the photographs and I would not infer a risk of infringement from any past conduct – cf: Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 at [15], [17] (Finkelstein J); Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 2) (2011) 282 ALR 43 at [8] (Perram J); Adidas AG v Pacific Brands Footwear Pty Ltd (No 4) (2013) 308 ALR 143 at [7] (Robertson J). G DETINUE CLAIM – THE SCRIPTS G.1 The subject matter of the claim 695 The claim in detinue relates to the following chattels: (1) scripts (and versions of scripts) entitled Satisfaction (10 versions), Coming of Age (7 versions), Live Out Loud (3 versions) and The Good Old Days (1 copy), each of which Mr Rockefeller created; (2) documents recording work product and research materials relating to the scripts, being: (a) synopses of the versions of Satisfaction and Coming of Age, which Mr Rockefeller also created; (b) documents containing notes and feedback from producers relating to Satisfaction and Coming of Age, including evaluations of the scripts for project viability from producers including Anne Mary Bell, Weinstein Co, Screen Australia and Sony Classics, which were given to Mr Rockefeller; (c) personal journal notes written by Mr Rockefeller recording his day-to-day experiences during his time working with Baz Luhrmann; (d) call-sheets given to Mr Rockefeller from the filming of the Chanel No 5 commercial and from rehearsals and performances of La Bohème; (e) a series of magazine clippings, which were purchased and gathered by Mr Rockefeller over the years that relate to the characters and events referenced in Satisfaction; (f) a book entitled My Week with Marilyn, which was purchased by Mr Rockefeller. 696 Mr Rockefeller contended that these were all given to Mr Duncan-Watt on 24 December 2014 at the end of their trip to Lilianfels, described earlier – see: Section B.18 above. 697 On 30 January 2019, Mr Duncan-Watt instructed his lawyers to cause to be delivered to Mr Rockefeller's lawyers materials which he had in his possession (Returned Material). He accepted that he once had, but had since lost, the book My Week with Marilyn. 698 Mr Duncan-Watt denied that he had been given any of the material apart from the Returned Material and the book My Week with Marilyn (Other Material). G.2 Relevant legal principles 699 The elements of the tort of detinue are as follows: (1) First, the applicant must make a sufficient written or oral demand for the return of the goods at a time when the applicant has the immediate right to possession: Timewell v Virgoe (1868) 5 WW&A'B L 147 at 151 (Stawell CJ); Banks v Ferrari [2000] NSWSC 874 at [60] (Dowd J); Slaveski v State of Victoria [2010] VSC 441 at [318], [320], [321] (Kyrou J). A demand may be made even where the respondent is not in possession of the goods at the time of the demand: EE McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 553 at 556-557, note 8 (McGregor J); Slaveski at [326], referring to Goodman v Boycott (1862) 2 B & S 1 and John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 at 167. (2) Secondly, the respondent must refuse to comply with the demand: McCurdy at 556-557; Nelson & Anor v Nelson [1923] St R Qd 37 at 40 (McCawley CJ); Slaveski at [318]. The refusal must be clear and unqualified: Slaveski at [323]. Where the chattel is in the respondent's possession, the refusal to comply with the demand must be unreasonable. Where the chattel is not in the respondent's possession, the respondent must have wrongfully parted with possession; the onus of establishing that the parting of possession was not wrongful is on the respondent: John F Goulding at 167, 169; Houghland v RR Low (Luxury Coaches) Ltd [1962] 1 QB 694 at 698-9. 700 As to the sufficiency of the demand required by the first element, Kyrou J in Slaveski observed that a demand will be insufficient if it would require the defendant to do more than to permit the plaintiff to come and collect the goods. His Honour stated at [322]: A demand will be insufficient if it would require the defendant to do more than to permit the plaintiff to come and collect the goods: [Capital Finance Co Ltd v Bray [1964] 1 WLR 323, 328-9; Crowther (1985) Aust Torts Reports ¶80-709, 69,102]. In Capital Finance Co Ltd v Bray [[1964] 1 WLR 323, 328-9], the action in detinue failed because the letter of demand required the recipient to deliver up a car, at his own expense, to one of three named addresses. The result in this case is consistent with the decision of the Supreme Court of New South Wales in Lloyd v Osborne [(1899) LR (NSW) 190]. In the latter case, a letter sent to the defendant demanded that he immediately deliver certain sheep in his possession to the plaintiff or her agent. The demand was held to be insufficient because it did not state where the sheep were to be delivered or identify the plaintiff's agent, but it was also observed that the demand could not impose upon the defendant a positive burden in relation to the delivery of the goods. Darley CJ said: The letter says, 'You will at once deliver to her or her agent all the sheep,' but it does not say where they are to be delivered, nor does it say who the agent is. Is [the defendant] to drive the sheep into Jugiong for delivery to [the plaintiff]? The law casts no such duty on him. If the letter of demand had said, 'you must deliver the sheep to the bearer of this letter,' and the bearer had then gone to [the defendant] and demanded the sheep, and [the defendant] had then done nothing, there would have been sufficient evidence of a demand and a refusal [Lloyd v Osborne (1899) LR (NSW) 190, 194]. 701 The cause of action accrues at the time of refusal: John F Goulding at 166; Slaveski at [323]. G.3 A pleading point 702 In closing submissions, Mr Duncan-Watt submitted that the demands relied upon were not sufficient to establish the first element of the test. In response, Mr Rockefeller submitted that the fact of the demands had been admitted on the pleadings. To this, Mr Duncan-Watt rejoined that he had opened his case on the basis that "Mr Duncan-Watt was not unreasonable in refusing [to return the chattels] having regard to the courier expenses of returning these materials, but that he has always made those materials available for Mr Rockefeller's collection". 703 It is clear that Mr Duncan-Watt's case was that there was no unreasonable refusal on his part to return the chattels and the case was fought on that basis. The unreasonable refusal to comply with a demand, required by the second element of the tort, is necessarily linked to the nature of the demand required by the first element of the tort. For example, if the demand required the defendant to pay for delivery of the goods (which would mean that the demand was not sufficient for the purposes of establishing the first element of the tort), the refusal to comply with the demand would not be unreasonable. 704 Mr Duncan-Watt admitted the simple fact that Mr Rockefeller had demanded that he return the chattels. The specific demands identified were the demand by Brett Oaten Solicitors dated 13 September 2016 and the demand from Minter Ellison dated 20 December 2016. By admitting the fact that demands had been made, Mr Duncan-Watt did not thereby admit that what each and every demand required was reasonable, or that the demands were sufficient for the purpose of establishing the tort of detinue. Indeed, Mr Rockefeller did not plead that the demands were sufficient. G.4 Consideration: the "Returned Material" 705 As set out earlier, on 24 June 2016, Mr Duncan-Watt wrote an email to Mr Rockefeller stating his position that it was unreasonable for him to have to meet the expense of returning Mr Rockefeller's chattels, but they could be collected. His email included: I have offered to make myself available to receive a courier or any other person of your choosing to pick up the materials that I have been storing for you at my place. Naturally, arrangements would need to be made for a suitable time. If that is difficult for you to arrange I have also offered to drop off the materials to an address in Sydney that suits you. I do not, however, intend to pack and send the materials to New York at my own expense. To demand that I do so is unreasonable. … Jonathan, I have said to you on many occasions I am available and willing to talk through and try to resolve any issues of concern to you that have an impact on our professional relationship. That remains the case. 706 On 13 September 2016, Brett Oaten Solicitors wrote to Mr Duncan-Watt demanding that the "Loaned Materials" be delivered to Mr Rockefeller in New York. The "Loaned Materials" was identified as: (a) 10 copies of the script titled Satisfaction; (b) 7 copies of the script titled Coming of Age; (c) 1 copy of the script titled The Good Old Days; and (d) work product and research materials relating to each of the scripts referred to in paragraphs (a) – (c) (inclusive) above. 707 It was asserted that Mr Duncan-Watt's refusal to return the material was a breach of the contract made in January 2015 "and/or [a] breach of applicable criminal laws". This demand did not refer to detinue and was plainly insufficient as a demand for the purposes of that tort. 708 On 16 September 2016, Mr Duncan-Watt responded to Brett Oaten Solicitors by an email which again stated that Mr Duncan-Watt considered returning the material at his own expense to be an unreasonable request. His email included: I refer to your letter dated 13 September, 2016 demanding that I return "Loaned Materials" by courier to your client at my expense. To my knowledge, there is no agreement between myself and your client from January 2015 as referred to in your letter. There is an Author Collaboration Agreement dated 24 December 2014 between us but this agreement contains no such terms and conditions referred to in your letter. I suggest you request a copy from your client so that you can satisfy yourself of the same. I have no objection to your client retrieving his "Loaned Materials" from me and have stated this to your client on several occasions. However, I do not believe that returning materials that he has left with me for several years now and refused to collect is an expense for which I am responsible for or have ever consented to pay for under a written agreement or otherwise. Accordingly, there has been no such breach of any agreement or criminal law by me in this matter. You may not be aware that there is now a long history of dispute between myself and your client over a number of issues, of which this "complaint" appears to be frivolous and retaliatory for my filing of valid civil and now criminal actions to protect myself and my rights. Should your client not wish to arrange for collection of his "Loaned Materials" at his own expense by 30 September 2016, I would be happy to destroy them in the alternative. Please advise what your client would prefer. I hereby reserve all of my rights. 709 The penultimate paragraph was perhaps unnecessarily provocative, but understandable in light of the sorts of communications which Mr Rockefeller had earlier made to Mr Duncan-Watt or instructed be made on his behalf. Leaving that aside, the email made Mr Duncan-Watt's position perfectly clear: Mr Rockefeller was free to have his material collected by 30 September 2016. Mr Duncan-Watt had offered for the material to be collected previously and he considered it unreasonable that he, Mr Duncan-Watt, be required to pay for delivery of the material to Mr Rockefeller. 710 On 20 December 2016, Minter Ellison wrote to Mr Duncan-Watt in a lengthy letter headed "Unlawful Conduct". The letter included: 4. Failure to return scripts We are also instructed that you are in possession of personal property which is owned by Mr Rockefeller. In particular, you are in possession of: (a) 10 copies of the script titled "Satisfaction"; (b) 7 copies of the script titled "Coming of Age"; (c) 3 copies of the script titled "Live Out Loud"; (d) 1 copy of the script titled "The Good Old Days"; and (e) documents recording work product and research materials relating to each of the scripts referred to above. Those documents are the property of Mr Rockefeller. We are instructed that numerous requests have been made for the return of that property, including but not limited to via letters from Brett Oaten Solicitors. Despite those requests, you have failed to return that property. Such conduct amounts to the tort of detinue. Our client is also concerned that your retention of those documents constitutes a threat by you to use the scripts in a manner which would infringe his copyright in those materials. 5. Required Action The conduct referred to above has caused, and will continue to cause, significant damage to our clients. Our clients will not tolerate these serious infringements of their rights. We have been instructed to demand that you provide the undertakings set out below by no later than 29 December 2016. You are required to undertake that you (whether by yourself, your servants, agents or otherwise) will: … (j) deliver up to MinterEllison, at Level 40, Governor Macquarie Tower, 1 Farrer Place, Sydney NSW 2000 marked to the attention of Lynne Lewis, copies of each of the documents referred to in paragraphs 4 (a) to (e) above. 711 This demand did refer to the tort of detinue. However, the letter does not expressly demand the return of the original scripts at all. That is left for implication. In the circumstances which then prevailed – namely that Mr Rockefeller had consistently demanded that the scripts be returned to him in New York (see for example Mr Jaime Robbins' email of 25 June 2016 at [266] above) – the demand might be understood as repeating the demand made by Brett Oaten Solicitors that Mr Duncan-Watt return the scripts, at his expense, to Mr Rockefeller in New York. 712 If the Minter Ellison letter was intended to demand the return of the original scripts to Mr Rockefeller in New York as well as the provision of copies of those scripts to Minter Ellison, the demand for delivery of copies to Minter Ellison made the letter of demand even more unreasonable than that of Brett Oaten Solicitors and, equally, made Mr Duncan-Watt's refusal to comply with the demand more reasonable. 713 If the Minter Ellison letter was intended to demand the return of the original scripts to Minter Ellison, then the demand was insufficient for two reasons: first, the demand was not sufficiently clear because it did not in fact state that the original scripts should be delivered to Minter Ellison; secondly, if that was the intention, the corollary was that Mr Duncan-Watt had to return the scripts at his expense. 714 Mr Duncan-Watt had made his position clear: Mr Rockefeller's chattels could be collected from him. Mr Duncan-Watt had repeatedly indicated that it was unreasonable for him to be required to return the chattels at his own expense. 715 Consistently with the observations of Kyrou J in Slaveski and the cases referred to in the passage set out at [700] above, Young J held in Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244 at 62,522, that in detinue: … the defendant must merely make available the plaintiff's goods again to the plaintiff by informing the plaintiff of the whereabouts of the goods and by indicating that there would be no interference with the plaintiff retaking possession. 716 That is, in substance, what Mr Duncan-Watt did. 717 Mr Rockefeller did not retake possession as Mr Duncan-Watt had offered simply because he, Mr Rockefeller, would not abandon his position that Mr Duncan-Watt should, at Mr Duncan-Watt's expense, return the chattels to Mr Rockefeller or his agent. Mr Rockefeller failed to avail himself of the only lawful remedy to which he was entitled. 718 The evidence does not reveal why neither Brett Oaten Solicitors nor Minter Ellison were instructed to send someone to collect the chattels from Mr Duncan-Watt. 719 In cross-examination, Mr Rockefeller referred to asking his accountant to pick up materials from Mr Duncan-Watt. However, there was no evidence of Mr Rockefeller speaking to his accountant, Mr Rockefeller's accountant speaking to Mr Duncan-Watt, or Mr Rockefeller speaking to Mr Duncan-Watt in relation to an arrangement for Mr Rockefeller's accountant to collect the materials. 720 Mr Rockefeller admitted that he had known Mr Duncan-Watt had made an offer that the Returned Materials could be picked up from Mr Duncan-Watt's home, but had then not sent any courier or any other person to collect them. His evidence in cross-examination included: Q: Did you send a courier? A: Did I send a courier? Q: Yes? A: No. Thomas Duncan-Watt wouldn't be home to receive a courier. Q: Did you send a mutual friend? A: No. 721 Mr Duncan-Watt did not unreasonably refuse a sufficient demand and certainly did not refuse to permit Mr Rockefeller to collect his chattels from him. 722 There is another aspect of the case so far as concerns the Returned Material that warrants mentioning in the event that I am wrong in the conclusion just reached. A respondent does not act unlawfully in refusing a demand for the return of a chattel, if the goods are detained a reasonable time, for example, to inquire into the title of the plaintiff: EE McCurdy at 557, citing Clayton v Le Roy [1911] 2 K B 1031. 723 Mr Duncan-Watt called this principle in aid for the submission that it was reasonable for him to detain the chattels in order to make certified copies of them in order to defend a potential later claim that anything he wrote was a copy of Satisfaction or breached copyright in material which had been provided to him. 724 I accept that argument at the level of principle: it would have been reasonable for Mr Duncan-Watt to refuse a sufficient demand for a reasonable time to allow the making of certified copies. However, if I had concluded (which I do not) that Mr Duncan-Watt unreasonably refused a sufficient demand for return of the chattels, I would not have accepted that the chattels were kept only for a reasonable time. Mr Duncan-Watt did not keep the chattels only for so long as was reasonably necessary to make certified copies. The Returned Material was not provided to Mr Rockefeller's solicitors until 30 January 2019. G.5 Consideration: the "Other Material" 725 That leaves for consideration the Other Material. With the exception of the book My Week with Marilyn, Mr Duncan-Watt denied ever having this material. 726 Mr Rockefeller submitted that his evidence as to what material was provided to Mr Duncan-Watt at Lilianfels should be preferred to Mr Duncan-Watt's evidence. Particular reliance was placed on the fact that the items were of personal significance to him and, presumably, that his recollection should therefore be preferred. The Other Material was said to comprise: • 3 versions of the script entitled 'Live out Loud'; • 1 copy of the script entitled 'The Good Old Days'; • synopses of the versions of 'Satisfaction' and 'Coming of Age'; • documents containing notes and feedback from producers relating to 'Satisfaction' and 'Coming of Age' including evaluations of the scripts for project viability from producers including Anne Mary Bell, Weinstein Co., Screen Australia and Sony Classics; • personal journal notes that Jonathan wrote during his time working with Baz Luhrman which recorded his day-to-day experiences; • call sheets from the filming of Chanel No. 5 commercial; • call sheets from rehearsals and performances of 'La Boheme'; • a series of magazine clippings that Jonathan gathered over the years that relate to characters and events which are references in Satisfaction; and • a book entitled 'My Week with Marilyn'. 727 It is striking that many of these items of Other Materials were not specified in any demand made for the return of Mr Rockefeller's chattels whether in the earlier email demands from Mr Rockefeller, the Brett Oaten Solicitors letter or the Minter Ellison letter. Many of the items were not specified in the Statement of Claim or Originating Application filed on 23 February 2017. The Brett Oaten Solicitors letter stated that Mr Rockefeller owned copyright in all of the materials he wished returned. That would be true of the scripts and screenplays, but not of many or most of the items in the list of Other Materials. 728 Mr Rockefeller bears the onus of establishing his claim. Mr Duncan-Watt denied in cross-examination that he had ever had the Other Materials, although he readily accepted that he had been given, but could no longer find, the book My Week with Marilyn. I accept Mr Duncan-Watt's evidence. Mr Rockefeller has not discharged the onus of establishing that – apart from My Week with Marilyn – he gave the Other Material to Mr Duncan-Watt. 729 With respect to the book My Week with Marilyn, Mr Duncan-Watt bore the onus of establishing that he parted with possession lawfully. The evidence did not deal in any detail with how or why he could no longer find the book. I conclude that Mr Duncan-Watt has lost it given that he has returned all the other material. The only relief claimed was delivery-up on the basis of the tort of detinue. That order cannot properly be made in circumstances where Mr Duncan-Watt has lost the book. No claim was made for conversion and no damages were sought. G.6 Conclusion 730 Mr Rockefeller has not made good his claim in detinue except perhaps with respect to the book My Week with Marylin. To the extent the claim is successful with respect to that book, an order for delivery up should not be made for the reasons indicated. H. CONCLUSION 731 The proceedings against both Mr Gooding and Mr Duncan-Watt must be dismissed. I certify that the preceding seven hundred and thirty-one (731) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate: Dated: 5 March 2020