Supreme Court New South Wales Medium Neutral Citation: EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310 Hearing dates: 03/07/2017, 04/07/2017, 05/07/2017, 06/07/2017, 07/07/2017, 10/07/2017, 11/07/2017, 12/07/2017, 13/07/2017, 14/07/2017, 17/07/2017, 18/07/2017, 19/07/2017, 20/07/2017, 21/07/2017, 31/07/2017, 01/08/2017, 02/08/2017; 03/08/2017; 04/08/2017; further written submissions 04/08/2017 and 18/08/2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Judgment in favour of all defendants. Costs to be dealt with on the papers. Catchwords: EVIDENCE – affidavit evidence – contents of documents – where admission into evidence would be unfair to the defendants – Evidence Act 1995 (NSW) s 135 – EVIDENCE – expert evidence – whether opinion wholly or substantially based on specialised knowledge – Evidence Act 1995 s 79(1) –EVIDENCE — course of evidence — evidence in reply – re-opening case – where admission into evidence would be unfair to the defendants – Evidence Act 1995 (NSW) s 135 – CIVIL PROCEDURE — pleadings — amendment — late application for amendment – where leave to amend would be unfair to the defendants and cause undue expense and delay – CONTRACT – the nature and extent of the contractual duties owed to the plaintiff – whether the defendants breached one or more of these duties – EQUITY – the nature and extent of the equitable and fiduciary duties owed to the plaintiff – the nature and extent of the duty of confidence – whether the defendants breached one or more of these duties – CONSUMER LAW – whether the defendants engaged in misleading and deceptive conduct – INTELLECTUAL PROPERTY – the nature and extent of the plaintiff's copyright protection in the various elements of an online system – whether the defendants breached the plaintiff's copyright protection Legislation Cited: Competition and Consumer Act 2010 (Cth) Copyright Act of 1976, 17 USC §§ 101 – 810 (2016) Copyright Act 1968 (Cth) Evidence Act 1995 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Amway Corporation v Eurway International Ltd [1974] RPC 82 A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd & King (1996) 65 FCR 478 Artedomus (Aust) Pty Ltd v Del Casale 68 ISR 577 Autodesk Inc v Dyason (No.2) At [86] (1993) 176 CLR 300 Bates and Partners Pty Ltd v The Law Book Company (1994) 29 IPR 11 Brand v Monks [2009] NSWSC 1454 Briginshaw v Briginshaw (1938) 60 CLR 336 Coco v AN Clarke (Engineers) Ltd [1969] RPC 41 Corrs Pavey Whiting and Byrne v Collector of Customs for Victoria (1987) 14 FCR 434 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Designers Guild Ltd v Russell Williams (Textiles) [2000] 1 WLR 2416 Exchange Telegraph v Central News [1897] 2 Ch 48 Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 Honeysett v The Queen (2014) 253 CLR 122 Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) (2012) 211 FCR 563 at [105] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Media.net advertising FZ – LLC v Netseer Inc 156 F Supp 3d 1052 (2016) Navitaire Inc v Easyjet Airline Co [2004] EWHC 1725 (Ch) Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219 O'Brien v Komesaroff (1982) 150 CLR 310 Rolleston v Insurance Australia Ltd [2017] NSWCA 168 SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch) StatusCard Australia Pty Ltd v Rotondo [2009] 1 Qd R 559 Tetris Holding LLC v Xio Interactive Inc 863 F Supp 2d 394 (2012) United Dominions Corporation Ltd v Brian (1985) 157 CLR 1 Watson v Foxman (2000) 49 NSWLR 315 Whelan Associates Inc v Jaslow Dental Laboratory, Inc 797 F 2d 1222 (1986) Category: Principal judgment Parties: EIFY Systems Pty Ltd (Plaintiff) 3D Safety Services Pty Ltd (First Defendant) Anthony Ian Conacher (Second Defendant) Simon Paul Morrow (Third Defendant) 3D Safety Systems Pty Ltd (Fourth Defendant) Wishbone Consulting Pty Ltd (Fifth Defendant) Representation: Counsel: F Corsaro SC / S Baron-Levi (Plaintiff) K Andronos SC / S Keizer (Defendants) Solicitors: Proctor Phair Lawyers (Plaintiff) Henry Davis York (Defendants) File Number(s): 2012/323876 Judgment 1. HIS HONOUR: The plaintiff (EIFY) provides web-based services to the construction industry and other areas of trade and commerce. Those services include online induction services, the purpose of which is to qualify a person to work either for a particular employer or (in the construction industry) at a particular construction site. There is a statutory obligation to provide site induction for those working in the construction industry. See regulation 316 of the Work Health and Safety Regulation 2011 (NSW). 2. EIFY says that its web-based system has other "functionality", including personnel management, access control and plant management. It is not necessary, at present, to give further details. In what follows, I shall generally refer simply to "the e-Induct System", on the basis that this phase embraces all relevant aspects of its functionality. 3. The first defendant (Services) and the fourth defendant (Systems) offer web-based safety management systems and other services (the 3D system) to contractors in the building, infrastructure and mining industries. The second defendant (Mr Conacher) is a director of and principal shareholder in those companies, and of the fifth defendant (Wishbone), and effectively controls their operations. In general, I shall refer to Mr Conacher's companies collectively as "3D Safety". 4. The third defendant (Mr Morrow) was, but no longer is, a director of Services and Systems. He has a small indirect shareholding, and has been closely involved in their activities over a number of years. 5. In 2011, EIFY (then known as e-Induct), Services and Systems decided to work together to integrate the e-Induct system with the 3D system. They hoped to present the integrated whole as an attractive proposition to contractors in the construction industry. A company called 3D Safety Group Pty Ltd (Group), of which EIFY's managing director, Mr Culbert, and Messrs Conacher and Morrow were directors, was incorporated to be the vehicle for this venture. 6. The joint venture came apart by the end of 2011. Since then, with the exception of some work for existing customers of the joint venture, EIFY and the defendants have gone their separate ways. 7. EIFY claims that Services and Systems have misappropriated what EIFY says is its copyright and confidential information, comprised in the web pages that constitute the e-Induct System. EIFY says that Mr Conacher, Mr Morrow and Wishbone are liable as accessories for those alleged wrongs. The real issues in dispute 1. Mr Corsaro of Senior Counsel, who appeared with Mr Baron-Levi of Counsel for EIFY, submitted that the real issues for decision were: (a) Having regard to the terms of the joint venture, and the basis on which the first and fourth defendants obtained access to the e-Induct System: (i) the nature and extent of the contractual duties owed to the plaintiff; and (ii) the nature and extent of the equitable and fiduciary duties owed to the plaintiff, and in particular the nature and extent of the duty of confidence in respect of the use of information obtained about the e-Induct System; (b) in the circumstances that have occurred, whether the first and fourth defendants breached any one or more of the duties owed to the plaintiff; (c) in the circumstances that occurred, whether the first and fourth defendants engaged in conduct that was misleading and deceptive, or acted unconscionably in contravention of the Australian Consumer Law; (d) the nature and extent of the plaintiff's copyright protection in the various elements of the eInduct System, and whether the defendants breached the plaintiff's copyright in developing the 3D System; (e) what remedies are appropriate in the circumstances. 1. Mr Andronos of Senior Counsel, who appeared with Mr Keizer of Counsel for the defendants, did not suggest that this statement of the issues was inappropriate. I propose to adopt Mr Corsaro's stated issues, although I should make it clear that, taking into account the way the defendants' case was run, each broad issue is underlain by a plethora of sub-issues. Web-based induction systems 1. It is necessary to give some detail of the operation of the e-Induct system. Because confidentiality is claimed, and to avoid risking any substantiated confidentiality (and I should note that confidentiality was very hotly in dispute), what follows is a general outline. I propose to give only so much detail as is necessary to facilitate understanding of these reasons. 2. The e-Induct online induction system (and, as I understand it, other online induction systems that are available to employers) comprises a number of web pages. A worker (for example, a sub-contractor) who has been engaged to work on a particular project must go through a site induction process. Traditionally, that was done face-to-face, with a representative of the contractor providing instruction to the worker, and the worker completing a series of tests to ensure that the information had been absorbed and understood. The web-based systems offer an alternative. 3. In essence, the worker goes to the home page of the induction system and completes the registration process. Once that is done, the worker is able to proceed through each of the web pages which, between them, set out all matters relevant to the site. Either at the end, or sequentially along the way, there is a test or series of tests that the worker is required to complete. Once the worker completes the process (and answers all the questions accurately), he or she receives a system-generated temporary "induction card". A permanent card is issued thereafter. 4. The induction process for each contractor is specific to it, and incorporates a lot of material, including both text and images, that the contractor provides. Although each program is unique in that sense, there are obvious similarities between different programs offered to different contractors. EIFY says that the material used by it to create its induction system for a particular contractor includes not only material supplied by the contractor, but its own material, or material that it has obtained from other sources. 5. EIFY says, further, that its arrangement of all the accumulated material into the web pages that comprise a particular contractor's induction system is its confidential property. Alternatively, it says, each of those pages is something in which it has copyright. The copyright claim is based not so much on individual text and images (because in many cases, EIFY was not the creator of that text or those images) but on the overall arrangement of text and images, wherever sourced, into each webpage. I shall have to return to the pleaded basis of that claimed copyright when considering EIFY's application for leave further to amend its Commercial List Statement. 6. Mr Corsaro accepted that, substantially at least, each web page was a derivative work. However, he submitted, considered as a whole, each webpage involved EIFY's independent creative, technical or intellectual effort in its creation. Mr Corsaro submitted, alternatively, that the "look and feel" of each web page had copyright protection. Web page design 1. Professor Braun, an expert called by EIFY, gave an explanation of the operation of computers, and of the process of web page design, that (in its technical elements at least) is both helpful and uncontroversial. He said that the process of designing a web page comprises a number of steps. They include: 1. identifying and describing the function of the web system; 2. gathering together the textual and visual components required to build the web system; 3. designing the individual web pages (often done as an iterative process in conjunction with the preceding step); and 4. coding the design of each page into scripts or other sources that the computer could execute. 1. Computer code is a set of instructions given to and (ultimately) executable by the computer. The starting point (logically at least) is what is known as source code. That is code created and readable by human beings. It cannot directly cause the computer to perform the required tasks. 2. Object code is code that is readable by the computer and that causes the computer to perform the desired operation. Source code must be converted (an inexact but sufficient expression) into object code before it can be executed by the computer. That may be achieved by a process known as "compilation", whereby source code is converted directly into object code and then linked to existing "libraries" of standard functions. Alternatively source code may be converted into "byte code" by an "interpreter" (which is itself an executable object code) that has its own "library" of standard functions. 3. Whilst a computer is using executable object code in the performance of a task, that code is stored in the computer's random access memory (RAM), which also contains other data. That other data may include text, source code, and other object codes. 4. Images are stored in video RAM. They comprise object code that is effectively a pixel map of the display that is to be seen. The computer's hardware converts that pixel map into the display that the user sees on the computer's screen. 5. Thus, source code written by a human may be used, either by compilation into object code or by interpretation through an interpreter, to produce a display that includes both text and graphic (or image) components. Evidentiary rulings 1. There were numerous objections to EIFY's evidence. For the most part, the rulings on those objections were non-controversial (in the sense that the defect was so obvious that no reasons for those rulings were required). It is unfortunately not at all uncommon that, as seems to have happened in this case, affidavits are drafted with what appears to be wholesale ignorance of, or disregard for, the requirements of admissibility. The inevitable result is that a lot of time is wasted on the preparation of objections, and submissions and rulings on them. 2. The rulings that I gave on some of the objections were likely to have had a substantial impact on EIFY's case. I indicated that I would give my reasons at a later time. What follows are my reasons for ruling on objections to particular aspects of EIFY's evidence. The report of Professor Braun 1. Professor Braun, whose qualifications and experience are beyond question (and to the extent that Mr Andronos suggested otherwise, I do not agree), was asked to consider screenshots of selected EIFY web pages with screenshots of what was said to be "matched" Systems webpages, and to compare them with a view to expressing an opinion: [I]n respect of whether by substantial copying, either by reproduction or by adaptation, the [Systems'] Induction System has resulted in four possible copyright infringements, arising by virtue of the execution of the source code via the object code which manifests in the [Systems'] screen [1] . 1. The "four possible copyright infringements" were stated to be: 1. whether the Systems screens have infringed the EIFY screens by a substantial copying; 2. whether the Systems screens have infringed the EIFY source code; 3. whether the Systems screens' source code infringed the EIFY screens; and 4. whether the System screens' source codes (or structures) infringed the EIFY source codes (or structures). 1. There were three specific aspects of Professor Braun's report to which objection was taken. The first was a table that set out the results of Professor Braun's comparison of web pages from EIFY's induction system with equivalent web pages from Systems' induction system. The table included a column that indicated Professor Braun's deductions as to the relative contributions of source code and object code to the web pages in question. 2. The second aspect of the report to which objection was taken comprised a number of paragraphs in which Professor Braun, having studied matched pairs of web pages, identified what he saw as being similarities, and constructed a "similarity index". 3. The third aspect to which objection was taken were summaries of Professor Braun's conclusions, necessarily embodying the results of the analyses in the two sections of the report to which I have just referred. 4. Professor Braun had access to EIFY's source code. He did not have access to Systems' source code. His opinion was, relevantly, based on his examination of 30 selected "matching" screens produced by each system. It is important to note that Professor Braun said (and was not challenged on this) that "in cases where the screens are very similar, the underlying Object Code in the Video RAM is also very similar" [2] . 5. Along the way to expressing his opinions, Professor Braun considered "whether the graphical and textual content of the [EIFY] web pages may have been re-used in the [Systems] web pages". He inspected the 30 screens, listing what he considered to be their salient parts, and considered (on a scale of 0 – "not at all" – to 10 – "very") how similar they were. He then constructed a "similarity index" for each pair of pages. 6. Mr Andronos objected to the relevant passages [3] in Professor Braun's report. He submitted that the exercise that Professor Braun said he carried out, leading to the opinions that he sought to express, did not involve the application of specialised knowledge to proved or assumed facts. Mr Andronos relied on the decision of the High Court in Honeysett v The Queen [4] . 7. Mr Corsaro submitted that Professor Braun was an expert in, among other things, systems and software engineering. It followed, Mr Corsaro submitted, that the opinions expressed by Professor Braun were based on his specialised knowledge, and capable of assisting the court to understand the evidence and draw inferences from it. 8. The starting point is to be found in ss 76(1) and 79(1) of the Evidence Act 1995 (NSW). Those subsections provide, respectively: 76 The opinion rule (1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. … 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. … 1. It is clear, as s 79(1) says, that before an opinion can be admissible as an expert opinion, there must be shown first, "specialised knowledge" based on "training, study or experience" and, next, an opinion based "wholly or substantially… on that knowledge". As I have said, I have no doubt that Professor Braun amply meets the first of those requirements in a way that is relevant to the technical issues in this case. 2. Once the qualifications set out in s 79(1) are met, the expert opinion may be admissible if it is capable of proving, or helping to prove, a fact or facts in issue. It follows (although a number of expert reports appear to disregard this obvious requirement) that unless the relevant fact or facts in issue can be identified, an expert report, no matter how highly qualified the expert may be and how cogent his or her reasoning process, is irrelevant. In the present case, the opinions expressed by Professor Braun, if admissible, were capable of proving or assisting in the proof of facts in issue. 3. I start with the objection to the table. It purported to compare EIFY's and Systems' web-based induction systems "in the way that the web systems are created and deployed". It was this table that, among other things, identified the steps to which I have referred [5] . 4. The table included a column headed "Indicator of Source Code to Object Code Mix". When describing the way in which the designs had been coded and in which they were executed, Professor Braun expressed opinions that "the mix [of source and object codes] may be" varying percentages of one and the other: 50% each, 10% one, 90% the other, or entirely and only one. 5. The repeated statement that, for a particular step, the mix of source and object codes "may be" the stated percentage is entirely unhelpful. It could be entirely speculative. It could have been an unfortunate way of expressing a definite and precise conclusion. The reader does not know. 6. Mr Corsaro submitted that this was something that could be clarified in examination in chief (by leave), or that could be explored in cross-examination. Of course, either (or both) of those courses could have been taken. However, in my view, it would have been extremely unfair, and highly prejudicial, to permit the first of those courses to be taken, or to put Mr Andronos to the risk of taking the second. In my view, both the imprecision of the language used and the risk of prejudice that would follow if the material were admitted required that I reject the tender of that particular column, in the exercise of the discretion contained in s 135 of the Evidence Act. 7. There was a further problem with that column. Professor Braun's report gives no indication of the basis for his opinions as to what, in any case, "the mix may be". There is no way of telling, from his report, what (if anything) it was in the material submitted to him for his opinion that led to the conclusion that, for any particular step, the outcome might represent X percent application of source code and Y percent application of object code. In that respect, the opinions are entirely unreasoned. There is no way of assessing their validity. Professor Brown's methodology cannot be checked or replicated. 8. It follows, in my view, that the column was inadmissible on that basis also, for the reasons given by the High Court in Dasreef Pty Ltd v Hawchar [6] . The majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated [7] , applying what Heydon JA had said in Makita (Australia) Pty Ltd v Sprowles [8] , that the expert's evidence must explain how his or her specialised knowledge has been applied to the assumed or observed facts so as to ground the opinion. Thus, their Honours said [9] "[a] failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight". 1. The absence of any stated or discernible reasoning to support the allocation between source code and object code in the relevant column of Figure 3 rendered that opinion (if it were opinion and not merely speculation) inadmissible. See also Emmett AJA (with whom Beazley P and Meagher JA agreed) in Rolleston v Insurance Australia Ltd [10] . 2. Had the column not been inadmissible for that reason, I would have excluded it in any event, under s 135, were it necessary to do so. I repeat that to admit it in the absence of any apparent reasoning to support it would have put Mr Andronos in the untenable position of being required to cross-examine upon it (and perhaps establish a basis of reasoning) or to leave it unchallenged (and run the risk – even if small – that I might accept it). That is not a position in which a party to litigation should be placed. 3. I turn to Professor Braun's comparison of web pages, and his "similarity index". In my view, there is nothing in this part of Professor Braun's report to suggest that his analysis of the similarities that he perceived involved any application of his undoubted expertise in the fields of electronic engineering, network engineering, computer systems engineering and software engineering. He could not, and therefore did not, compare the source code created for EIFY with the source code created for Systems. Nor did he compare the respective object codes of the two web-based induction systems. On the contrary, his opinions in the passages of his report with which I am presently dealing [11] were based wholly on his visual inspection of the output of those systems: screenshots of particular web pages. 4. There is no reason to think that Professor Braun's years of study and experience in the fields to which I have referred have given him any specialised knowledge in the observation, analysis and comparison of visual images. I accept that what he was comparing were visual images produced by a computer. But that is incidental. There is nothing in the process of production of those images, as opposed to their visual appearance, that was the subject of this aspect of Professor Braun's analysis. 5. In my view, as was the case in Honeysett, those passages of Professor Braun's opinion are based not on his specialised knowledge but on his "subjective impression of what he saw when he looked at the images" [12] . 6. Professor Braun's exercise of "listing their salient parts with a similarity index from 0 to 10" and then creating "a similarity index for [a] particular pair of pages" does not appear to me to be anything more than an attempt to colour with quasi-scientific terminology his views as to what he saw and how, subjectively, he analysed it. It is no more persuasive than "the use of technical terms to describe [physical] characteristics", and no more apt to suggest "more telling similarity" than by saying that the images look similar [13] . It has the effect of giving a "spurious appearance of authority" to something that is outside the expert's field of expertise [14] . 7. Accordingly, I rejected the relevant passages in Professor Braun's report. 8. Next, I turn to the third aspect of the report to which objection was taken: Professor Braun's conclusions. They were set out in two places: a paragraph titled "Headline Opinions" [15] close to the beginning of his report, and an expression of "Overall Opinion" at the end of his report [16] . 9. I start with Professor Braun's "overall opinion", in which he expressed his views on the four questions that I have identified [17] . There were two problems with this part of his report. 10. The first problem is that they were based on his visual observation and subjective impressions of the thirty sets of matched screens that were provided to him. Because those opinions were inadmissible, conclusions founded (in whole or in part) upon them go nowhere. 11. The second problem is, quite clearly (and despite Mr Corsaro's valiant submission to the contrary), that in his answers to each of the four questions now under consideration, Professor Braun purported to express an opinion on the application of his observations to a particular legal issue: namely, whether Product A in some way "infringed" copyright in identified aspects of Product B. That is not the function of an expert – at least, an expert possessing Professor Braun's qualifications. 12. I turn to the "Headline Opinions". As Professor Braun stated, they were presented early on "for convenience only". It was clear that they were entirely based on the observations and analysis set out in the succeeding paragraphs of his report. To the extent that those paragraphs have been rejected, the headline opinions cannot stand as independently reasoned conclusions. I add that to the extent that they were intended to summarise Professor Braun's "overall opinion", the rejection of that part of the report is capable independently of sealing the fate of the "headline opinions". 13. Accordingly, I rejected both summaries of Professor Braun's opinions. 14. I add that the defects in Professor Braun's report to which I have referred should have been apparent to the lawyers on whose instructions the report was prepared. Whilst I accept entirely that an expert report must express the true and complete opinions of the expert, and that it is inappropriate for a party or its lawyers to suggest to the expert that he or she revise, amend or change any opinion, there is nothing to prevent the lawyers from assisting the expert in matter of form. Provided that the integrity of the expert and the views expressed by the expert are maintained absolutely, it is not just desirable, but in my view essential, that lawyers do what they can to ensure that the report meets the legal criteria for admissibility. That does not appear to have happened in this case. Mr Culbert's non-confidential affidavit affirmed 21 December 2012 1. As I have said, Mr (Patrick) Culbert is the managing director of EIFY. Another company, of which Mr Culbert is the sole director and shareholder, holds (as trustee for a family trust) all the issued shares in EIFY. 2. Mr Culbert's father Mr Robert Culbert was a director of EIFY. Although he gave evidence, it was very limited in extent compared to his son's. For convenience, I shall refer to the son simply as "Mr Culbert". Where it is necessary to refer to the father, I shall call him "Mr Robert Culbert". 3. In a number of places in his affidavit affirmed 21 December 2012, Mr Culbert sought to give evidence of the contents of what he called EIFY's "activity web log", or its "database records", or its "activity logs and data base records". The effect of that evidence was to refer to electronic records maintained in EIFY's computer system that showed, by reference to IP (Internet Protocol) addresses, who had registered on to and thereafter accessed EIFY's system at various times. The underlying records were not proved. 4. From paras 50 to 57, Mr Culbert sought to give evidence of a registration that, he said was created by Mr Morrow, using a particular IP address. Mr Culbert said that Mr Morrow had registered twice, giving different account names. At paras 58 to 62, Mr Culbert sought to give evidence in relation to a registration said to have been created by Mr Conacher. Mr Culbert said that Mr Conacher also created two accounts using different user names. 5. Thereafter, at paras 63 and 64, Mr Culbert sought to give evidence of other accounts created by people who had a "3dss.com.au" email address (for example, "XYZ@3dss.com.au"). 6. Mr Andronos objected to most of those paragraphs. Because there was some dispute as to whether the underlying records had been produced to the defendants to enable them to assess and test what was said, I reserved ruling on the objection until that dispute could be resolved. 7. Later in the same affidavit, from paras 169 to 179, Mr Culbert sought to give further evidence of matters revealed by EIFY's web server logs (which he called "Web Logs"), Event Log, and User Register, all of which he called "Log Data". They were all records maintained as part of EIFY's system. 8. At para 173, Mr Culbert identified what he said was "a summary of parts of the Log Data", which he said he had "extracted from" the Log Data. The purport of that evidence was to identify "the total number of URLs accessed by [what he called] the "'Shayda Fanaeyan' account" between 8 December 2011 and 29 September 2012", and certain other data for a similar but not identical period. Ms Fanaeyan was then, but for some time has not been, an employee of 3D Safety. The expression "Shayda Fanaeyan account" does not appear to have been defined in the affidavit. 9. In subsequent paragraphs, Mr Culbert purported to identify features of the usage of the Shayda Fanaeyan account that, he said, were in some way abnormal. 10. Again, objection was taken to many of the paragraphs in question. Again, I reserved ruling on the objection until the position, with relation to production of the underlying data or records, had been clarified. 11. In the result, Mr Andronos maintained his objections to paras 57, 58, 173, 174 (in part), 175, 176 and 179. I shall refer to those paragraphs as "the reserved paragraphs". 12. Looking ahead for a moment, objections on similar grounds were taken to a number of paragraphs of Mr Culbert's reply affidavit affirmed 19 June 2017. To the extent that they were maintained, those objections related to part of para 39 and to paras 42 and 43. I include those paragraphs also in the category of "reserved paragraphs". 13. Mr Culbert's cross-examination could not be completed until I had ruled on the objections to the reserved paragraphs. The parties agreed that it would be convenient to interrupt his cross-examination and exchange affidavit evidence and submissions on the objections. This they did overnight on 13 July 2017 and during the morning of 14 July 2017. I heard argument on the reserved paragraphs on the afternoon of 14 July 2017, and on 17 July 2017. At the conclusion of the argument, I rejected the reserved paragraphs, and said that I would give reasons at a later time. 14. For convenience, I shall give those reasons when I come to consider objections to the further evidence on which EIFY sought to rely [18] . Mr Culbert's "reply" affidavit affirmed 19 June 2017 1. Mr Culbert affirmed in all 10 affidavits, of which nine were read. Why it was necessary for his evidence to be spread across so many affidavits is a mystery. The fact that it was so spread did not make it any easier to gain an overall appreciation of Mr Culbert's testimony. 2. A particular problem arose with Mr Culbert's "reply" affidavit affirmed 19 June 2017. That was an affidavit purporting to reply to affidavit evidence for the defendants. It could only have been read on that basis, because it was affirmed some 96 days after the expiry of the time finally limited for service of EIFY's evidence in chief. By "guillotine" orders of the court made on 3 March 2017, service of evidence in chief (leaving aside expert evidence) was to be completed by 15 March 2017, and EIFY was not to rely on lay evidence in chief served after that date without the leave of the court. No application for leave was made. 3. The particular passage of Mr Culbert's reply affidavit (I shall call it that for convenience) with which I am presently concerned is paras 102 to 198, comprising 57 pages in all. In those paragraphs, Mr Culbert sought to give evidence of: 1. the design of various web pages in induction systems prepared for various customers of EIFY; and 2. a comparison of those web pages with web pages prepared by Systems or Services (to whom, with Messrs Conacher and Morrow, Mr Culbert referred, collectively and unhelpfully, as "3D Safety"). 1. Mr Andronos objected to that evidence on the ground that it was evidence in chief. He submitted that EIFY was splitting its case. 2. Mr Corsaro submitted that the paragraphs in question were evidence in reply, because the whole affidavit replied to affidavits sworn by Messrs Conacher and Morrow. Mr Corsaro submitted that Messrs Conacher and Morrow had denied that they, Services or Systems had copied any of EIFY's material, and that Mr Culbert was entitled to reply to those paragraphs. 3. I accept that Mr Culbert was entitled to reply. I do not accept that the evidence in question is evidence in reply. 4. Up to the commencement of the relevant paragraphs (that is to say, in paras 6 to 101), Mr Culbert referred to specific paragraphs of the affidavits sworn by Mr Conacher or Mr Morrow (or by another witness, Mr Cook), and said what he wished to say in answer. There was no such preface to the paragraphs to which objection was taken on the basis with which I am presently dealing. On the contrary, as Mr Culbert made clear at para 102, "[t]he information and exhibits below detail the creation of the e-Induct Systems' induction slides, showing" material provided by the customer and the slides (ie, screen shots of web pages) produced from that material. As I have said, the paragraphs in question in fact went further, because they sought to compare slides prepared by EIFY for a particular customer with equivalent slides prepared by "3D Safety" for that same customer. 5. It is, if I may say so, self-evident that in a case based on misuse of confidential information or breach of copyright, the plaintiff must prove, in chief, that the material in question does possess the necessary qualities. It must prove that the material was produced and used (by or for it) in such a way that it can be classified as confidential, in the sense of being entitled to protection in equity. Alternatively, it must be shown that it was produced (by or for it) in such a way as to be capable of protection under the Copyright Act 1968 (Cth). The paragraphs in question were relevant to proving those matters. To the extent that they were otherwise admissible, the material in them should have comprised part of EIFY's evidence in chief. 6. Again, the case being that the defendants have infringed EIFY's rights in its confidential information or copyright, EIFY was required to prove that infringement as part of its case in chief. To the extent that the paragraphs in question, having set out how and from what sources EIFY prepared the web pages in question, sought to compare and contrast them with equivalent web pages prepared by "3D Safety", that was evidence in chief. 7. An available, and in my view correct, inference is that EIFY, recognising a significant defect in its case in chief, sought to rectify this under the guise of replying to the defendants' affidavit evidence. That is not an appropriate use of evidence in reply; a fortiori, where further evidence in chief is not available without the leave of the court. 8. Since the evidence in question was evidence in chief, then having regard to the court's "guillotine order" made on 3 March 2017, it could not be relied upon without leave. No application for leave having been made, it followed that the material should be rejected. 9. To the extent that Mr Andronos' objection was based upon the (correct) proposition that EIFY was splitting its case, it is unnecessary to express a view. I note that in the current era, where (generally at least) all testimonial evidence is adduced through affidavits or statements that are served before the hearing, the real (as opposed to notional) detriment to a defendant that could arise where a plaintiff splits its case is probably not as significant as it was in the days of oral evidence and trial by jury. 10. However, it should also be noted that in this case, even if the defendants were minded to seek to reply to the paragraphs in question, they would have been forced to do so in the limited time (about two weeks) that remained between the service of the reply affidavit and the commencement of the hearing. It is not difficult to understand the disruptive impact of that exercise on the defendants' preparation for hearing. Mr Quicke's reply affidavit 1. Mr Quicke is a graphic designer, and the sole director and shareholder of a company known as Clearsite Pty Ltd. Through that company, he provides "3D graphic design, presentations and web design services" to various customers [19] . Mr Quicke (through Clearsite) performed design work for EIFY, including work on the e-Induct system, and for Group. 2. Mr Quicke's affidavit in reply purported to comment on paragraphs of Mr Morrow's affidavit. Mr Quicke referred in particular to paragraphs in which Mr Morrow gave evidence as to a series of images of web pages. EIFY had identified those pages, in effect by way of particulars, as being the subject of its claims for copyright or confidentiality. Mr Morrow gave evidence of what he said was material, including text and graphics, from other sources that had been provided to Mr Culbert in 2011 or earlier. 3. Mr Quicke's reply referred to each of those paragraphs and purported to "respond" to it by a number of bullet points. I say "purported" because it is not at all clear that what he said was in any way responsive. The proposition that it was depended on what was in my view an untenable reading of the relevant paragraphs of Mr Morrow's affidavit [20] . 4. It is not clear whether Mr Quicke was commenting on Mr Morrow's identification of the source material, or giving evidence of work that he (Mr Quicke) had done in the preparation of the relevant web pages, or indeed giving evidence of something entirely different. The bullet points look like notes prepared, with a view to expansion into an affidavit. They may well have been meaningful to Mr Quicke. They were not meaningful to me. 5. Further, two of the bullet points included comments suggesting some degree of doubt on Mr Quicke's part. The third bullet point for para 7 included the words "(don't think any of them are from non-stock sources)". The second bullet point for para 24 stated "not sure whose decision it was… it may have been my choice" (Mr Quicke's italics). 6. For Mr Quicke's evidence in reply (assuming it to have been such) to have had any value, it would have been necessary for him to give oral evidence explaining what he meant by the cryptic comments contained in his bullet points. But to permit the matter to proceed in that way would have been extremely unfair to the defendants. Had Mr Quicke's reply affidavit set out the evidence that he wished to give (as opposed to Delphic hints of what that evidence may have been), the defendants could have analysed it and given appropriate instructions for Mr Quicke's cross-examination. Permitting the matter to proceed by way of oral evidence explaining the bullet points would have deprived the defendants of the opportunity to consider the substance of what it was that Mr Quicke wished to say. 7. Accordingly, the affidavit being in such a form that it was meaningless without explanation, I rejected it. I relied on s 135 of the Evidence Act, because to permit the affidavit to be read and explained would have been highly prejudicial to the defendants for the reason just given. I note that there was no explanation as to why Mr Quicke's affidavit in reply had not been completed (that is to say, in a form which permitted his evidence to be absorbed without the need for explanation) and filed by the due date. 8. I add that in the course of Mr Quicke's re-examination, Mr Corsaro sought to have Mr Quicke give evidence of what it was that he had done in the creation of each of the images that was the subject of the commentary in his reply affidavit. Mr Corsaro submitted that this was justifiable in re-examination, because Mr Quicke had given some evidence of that in the course of his cross-examination. Mr Andronos objected. He submitted that the line of re-examination did not arise from his cross-examination of Mr Quicke. I rejected the specific question on that basis. Mr Corsaro accepted that the ruling would apply to similar questions on the same topic. 9. To explain this specific ruling, it is necessary to pay a little more attention to what Mr Morrow said in his affidavit, and to see how this was handled in Mr Quicke's cross-examination. 10. In the relevant paragraphs of his affidavit, Mr Morrow referred to the 34 images that had been specified by EIFY as being the subject of its claim for copyright. For convenience, I shall refer to them as "the 34 images" in these reasons. For each image, Mr Morrow identified: 1. the particular image; 2. material from other sources that (although Mr Morrow did not say it) appeared on inspection to contain similar visual or textual material [21] ; 3. from time to time, that the material had been discussed with others, including Mr Culbert; and 4. from time to time, that a particular image had been "developed" by Mr Andrew Quicke for an online induction that was prepared for Mirvac in 2011. 1. Mr Morrow did not say that the material in any of the 34 images was only, or no more than, the other graphic and textual material that he identified in respect of it. Nor did he say, as to any image that he identified as having been developed by Mr Culbert, that it was only and no more than a compilation of that other material. 2. The cross-examination of Mr Quicke on this topic commenced at T604.11. He gave the following evidence [22] : Q. No? You created a number of specific images for inclusion in these induction applications; do you recall that? A. Yes. Q. Each image that you created was a modification of an existing image, wasn't it? A. No, no, I will do illustration if there's reason for it. Like, I'll do 3D illustration, 3D modelling, I'll do 2D illustration, paint stuff. 2D illustration, like - sorry, I said paint stuff, but like Photoshop type work, illustration like line drawing type of illustration 3D illustration, making a three dimensional model and rendering. Q. Do you recall whether you created any completely new images for the Mirvac or Thiess inductions in 2011? A. It's a long time, but I can't imagine I wouldn't have because I pretty much always do. So, I mean, if we could see it, I could point to you and say it's that one, that one and that one, or whatever. 1. Mr Quicke was then shown a number of pages that were said to be copies of the 34 images. For some reason, he was shown black and white copies and not colour copies. Mr Quicke was asked whether he could identify "any of those images which [he said he] designed from scratch" [23] . Mr Quicke responded (and I omit interjections by Counsel and by me) [24] : THE WITNESS: When you say designed from scratch, are you talking about all source imagery like from - as in a drawing, from a blank piece of paper? MR ANDRONOS: Yes. …. THE WITNESS: I can say that I don't think any of these are a completely from scratch drawing. HIS HONOUR: Q. Do you mean your completely from scratch drawing? A. I don't think any of these would be something where I started with a blank piece of paper and drew the whole thing. These are mostly things which may have been modified considerably from the original, or they are assemblies that use imagery such as lots of stock imagery, compiled to make a graphic design, or they are things where photographs have been, you know, cut out, re-coloured, tinted, positioned with other objects from other photos and, you know, labels and things attached. This is normal graphic design work, it's not illustration work. For instance, this thing here -- 1. Mr Quicke then, and non-responsively (I am not being critical of Mr Quicke in saying this; I am quite satisfied that he thought that he was assisting the court by giving as full an account as possible of what it was that he had done) started to describe, by reference to several images, what he had done to prepare it. That cross-examination then continued until it was summarised in the following way [25] : Q. If this is a fair summary of what you did: by way of graphic design, you modified those images in such a way as to conform with the overall design that you had in mind for the pages? A. Yes, modified or re-touched or - I mean, I can't tell you the exact story for each of those without looking up what it was. HIS HONOUR: Q. In some cases did you go back to the source and replace them with better qualities of the same images? A. Definitely I would go back to the source and replace them. Photos generally I would do something to every time, because most of these sort of photos supplied by clients of work sites, and those sorts of things, are very low quality. You may be doing a bit of just, you know, adjusting the brightness or the contrast or the colour levels, or maybe painting out bits of dirt or something, even adjusting perspectives. So if you look at a building shot that someone has taken on a camera phone or something, you might just adjust the perspective to make it all straight lines, so that all the lines look vertical, and soon. It's hard to tell without checking each one, saying what happened to it. 1. Mr Corsaro submitted that the evidence that Mr Quicke could have given, in accordance with his bullet points, in his reply affidavit, was responsive to the relevant paragraphs of Mr Morrow's affidavit. That was so, Mr Corsaro submitted [26] , because Mr Morrow was purporting to indicate the origin of the material comprising or included in each of the 34 images over which copyright was claimed. However, Mr Morrow was doing no such thing. He identified a particular image. He identified images from other sources. Where relevant, he pointed out how those images (or other material) from other sources had been given to Mr Culbert. Again where relevant, he noted that Mr Quicke had "developed" the image. Mr Morrow did not say (nor was he qualified to say) that the slides had been prepared from that material. 2. Whether the images were prepared from material that was not "original", in the sense that it had been developed solely and exclusively by EIFY (or by Clearsite or Mr Quicke for EIFY) was, no doubt, a legitimate topic to be covered in evidence in chief. It was not a legitimate topic for evidence in reply. Further, unless the subject matter had been clearly broached in cross-examination, and the evidence left in such a state that a full understanding of it could not be obtained without some elucidation in re-examination, it was not a proper topic for re-examination. 3. The questions that were put to Mr Quicke in cross-examination were carefully framed. To the extent that they sought to gain an understanding of what it was that Mr Quicke had done, the answers were complete and comprehensible in themselves. It was not legitimate to use those answers as some sought of trigger for the explication of the topics that, apparently, Mr Quicke had wished to cover in his affidavit in reply. 4. Further, and to the extent that the re-examination was sought to be justified by reference to answers given by Mr Quicke which on any view went further than was responsive to the questions asked, that could not justify re-examination. The proposition, that it is legitimate to re-examine a witness based on, or to expand on, non-responsive answers given in cross-examination, so as to broach evidentiary topics that could and should have been dealt with in chief, need only be stated to be rejected. 5. Again, and underlying all this, there is the proposition that to permit evidence on a very important topic to proceed in the way that I have outlined would be fundamentally unfair to the party against whom that evidence was sought to be tendered. The reserved paragraphs and the further affidavit evidence of Messrs Culbert and Birmingham 1. Mr Birmingham is a senior and experienced programmer employed by EIFY. He worked on EIFY's system, and on the attempt to integrate that system with the 3D system. Mr Birmingham affirmed affidavits on 10 July 2015 and 22 June 2017. In the course of the hearing (which commenced on 3 July 2017), EIFY filed and served a third affidavit affirmed by Mr Birmingham, on 13 July 2017. Mr Andronos objected to paragraphs 10 to 42 of the third affidavit. At the conclusion of the argument, I rejected those paragraphs. 2. In preparation for the argument on the reserved paragraphs, Mr Birmingham affirmed two further affidavits, on 14 July 2017. I permitted those affidavits to be filed and read in effect on the voir dire – that is to say, on the argument as to the admissibility of the reserved paragraphs. Mr Corsaro sought to rely on them also on the substantive issues. I rejected them on that basis. 3. The clear and obvious inference from Mr Culbert's affidavits of 21 December 2012 and 19 June 2017 is that originally, the exercise of searching EIFY's computer records to find out who had registered and who had accessed the e-Induct system during the period in question was based on the IP address from or by reference to which, originally, registration had been effected. 4. On 13 July 2017, Mr Andronos submitted that on his instructions, analysis of data by reference to the IP address of the person who accessed the e-Induct system would not give a complete understanding of the number of times that that person, or the entity for which he or she worked, had done so. The data would show, at most, the times that the person or entity had accessed the e-Induct system from a computer having, or using, the IP address in question. Where access was obtained from a different computer, or from a tablet or other mobile device, a different IP address would show. 5. Further, if access were obtained other than from the premises of Services and Systems, using a different wifi network, a different IP address might be shown. The defendants' evidence was, in effect, that in the course of their duties, employees of Services or Systems routinely (and, the defendants said, legitimately) accessed the e-Induct system from devices and premises other than those of Systems or Services. 6. The instructions referred to in the two preceding paragraphs were proved, on information and belief, for the purposes of the voir dire [27] . 7. Those matters attained some significance. One of the points made by (in particular) Mr Morrow in his affidavit was that the defendants had legitimately accessed the e-Induct system for the purpose of assisting subcontractors and others to register. Mr Culbert sought to rebut that evidence by saying, in effect, that only a very small number and percentage of registrations had been effected from a computer having Systems' or Services' IP address. 8. Mr Birmingham's two further affidavits were intended to deal with this point. The effect of those was to show that although the analysis could be conducted by reference to the IP addresses of the computer from which access had been obtained, he had in fact analysed the data using different queries. That was inconsistent with what Mr Culbert had said in his affidavits of 21 December 2012 and 19 June 2017. It was also inconsistent with the way in which the issue had been debated up to then. 9. Further, in his affidavit affirmed on 13 July 2017, Mr Birmingham sought to give evidence (in the paragraphs, 10 to 42, to which objection was taken) of further analysis that he had undertaken, and tables that he had created. 10. There were numerous factual problems in this aspect of the evidence. One problem related to Mr Culbert's first affidavit (the one affirmed 21 December 2012). He purported to give evidence, in the two places to which I have referred, of information garnered from EIFY's electronic records. The affidavit was served under cover of a letter (from EIFY's then lawyers) that noted that the affidavit referred "to our client's activity logs". The letter said that "these… have not been included as part of the exhibits", but that EIFY was prepared to make them available, "preferably in the form of electronic information saved onto a USB key". The letter added that "these logs are unlikely to be of any value… solely due to the amount of data contained in them". They were said to "comprise roughly 14 gigabytes of electronic data … printing [of which] would require millions of sheets of paper". 11. A few months later, EIFY's then lawyers did provide the defendants' lawyers with what was called "a USB key which contains the e-Induct activity logs" to which Mr Culbert had referred. 12. Whatever might have been the correct description of the data comprised in that USB key, it was not the whole of the "activity logs". On examination, it was found to contain only 80 megabytes of data; a minuscule amount of information (at least, compared to the 14GBs of data to which reference had been made). Further, on analysis, it contained no reference whatsoever to the particular IP address that Mr Culbert had identified as the one from which Mr Conacher had effected registration. 13. There was no explanation of this extraordinary and unsatisfactory situation; no explanation as to why (as it now appears) the defendants and their lawyers had been misled, no doubt innocently, in a very serious way. 14. The debate over the reserved paragraphs ranged far and wide. Mr Andronos submitted that what was said in the reserved paragraphs, as to the contents of the records, was hearsay. Mr Corsaro submitted that the reserved paragraphs were admissible as summaries pursuant to s 50 of the Evidence Act. It should be noted, firstly, that no formal application was made, as s 50 contemplates. Secondly, and more significantly, because of the misleading way in which the USB key was provided and the misleading representation as to its contents, it could not be said that EIFY had given the defendants "a reasonable opportunity to examine or copy" the underlying computer records (as required by s 50(2)(b)). 15. Mr Corsaro noted that printouts of extracts from what were said to be EIFY's computer records appeared in various parts of the court book. He submitted that those extracts were documents produced by a device or process, and were admissible pursuant to s 146 of the Evidence Act. If I may say so, the question is not so much one of admissibility of screeds of printouts of the computer records in question. It is one of the admissibility of the opinions expressed by Mr Culbert as to the content and effect of those records. 16. A recurrent theme in Mr Andronos' objections was that the evidence in question was evidence in chief, and that EIFY could not rely upon it except with the leave of the court (because of the guillotine order to which I referred earlier in these reasons [28] ). He submitted that it was unfair in the extreme, and thus prejudicial, for his client to be faced, in the course of the trial, with fresh evidence: evidence intended to prove not merely in a formal way matters that had been adequately but informally flagged in preceding evidence, but an important part of the case on a different factual basis. 17. I start with those of the reserved paragraphs that are found in Mr Culbert's affidavit affirmed 21 December 2012. Paragraph 57, which seems to be some sort of summary of what precedes it, says that EIFY's database records would demonstrate that when a certain account was created (by Mr Morrow), "the user created a company account for" Services. The difficulty with that paragraph is that nothing in what precedes it justifies the conclusion that is expressed. Nor do the documents actually identified in any of those paragraphs do so. Paragraph 57 appears to reflect no more than some conclusion by Mr Culbert that when a person who is a director or employee of a company creates an account with EIFY, what is created is "a company account". To the extent that, in the preceding paragraphs, Mr Culbert gives evidence of what information was provided at registration, it cannot provide an evidentiary foundation for the conclusion expressed in para 57. 18. Accordingly, I rejected para 57. 19. Paragraph 58 refers to certain pages printed from what is said to be EIFY's "activity web log". Those pages were said to prove the fact that someone using a specified IP address registered with EIFY on a particular date. The difficulty with that is that the information contained in the USB key that was provided by EIFY to the defendants back in 2013, which was said to constitute the "activity logs" in question, shows no such thing. 20. Mr Corsaro submitted that the material in question was proved by other evidence: presumably, some scattered pages printed from the 14GBs of data comprising the totality of the various activity log records of EIFY. That material had not been provided to the defendants. Mr Corsaro submitted that this did not matter, because the records in question had been proved, and pages of their output had been printed, identified and put into evidence. 21. In my view, having regard to the way in which this aspect of the evidence developed, and leaving to one side the question, whether what was stated in the relevant pages was hearsay, to permit the fact to be proved in the manner that I have outlined would have been unfairly prejudicial to the defendants. That in my view is axiomatic, given the way that the defendants were misled as to the relevant records. It would also be likely to cause or result in an undue waste of time, because, the apparent true source of the fact (or of the primary facts leading to the relevant inference of fact) having been proved only in the course of the hearing, it would be reasonable for the defendants to seek to investigate it by the use of expert evidence. That would have necessitated an adjournment of the hearing whilst this was done. 22. Mr Corsaro submitted that the supposed need for investigation was in fact hypothetical, because the further evidence of Mr Birmingham showed that the fact could be proved other than by reference to the IP address in question. There are two things to say about that submission. The first is that it demonstrates why the relevant further evidence of Mr Birmingham was indeed evidence in chief, and not merely in reply. The second is that such potential unfairness cannot be alleviated by requiring a party to accept, at face value, complex evidence provided to it well outside the time limited by the court's order, and in the course of a hearing. 23. In my view, even if the evidence were technically admissible (and I see no need to lengthen these reasons by dealing with the authorities to which Mr Corsaro referred), it should be rejected, pursuant to s 135, for the reasons I have given. Accordingly, I rejected it. 24. I turn to paras 173 and following of the same affidavit (to the extent that the defendants' objections to those paragraphs were maintained, so that they form part of the "reserved paragraphs"). Again, it is clear that the evidence that Mr Culbert sought to give in those paragraphs was based on an analysis conducted by reference to IP addresses. Again, Mr Corsaro submitted, the same result could be obtained by a different analysis, as Mr Birmingham's late-served affidavit demonstrated. 25. I accept, contrary to Mr Andronos' submission, that the evidence in question was in reply. It is no doubt correct to say, as Mr Andronos submitted, that proving misuse of confidential information (and that is all that this part of the affidavit could go to) should form part of EIFY's case in chief. However, in the paragraphs with which I am now dealing, Mr Culbert was seeking to rebut a particular proposition emerging from Mr Morrow's evidence. 26. Concluding that the paragraphs in question are evidence in reply does not resolve the objection in EIFY's favour. The difficulty again is that the conclusions sought to be proved are based on "Log Data" which, at least until very recently, were not separately proved. If the Log Data are the 14GBs of information to which I have referred, they have never been proved in their totality. If they are the 80MBs of information that was given to the defendants, they have been proved, but they cannot sustain the analysis and conclusions in the paragraphs in question. 27. It may be, and for the sake of argument I am prepared to assume, that the conclusions expressed in the paragraphs in question could be made good by the late-served affidavits of Mr Birmingham. But that is beside the point. I repeat what I have said [29] as to the consequences (in terms of s 135 of the Evidence Act) to the defendants of permitting EIFY to rely on that evidence. 28. The analysis by reference to IP address is particularly significant in the case of paras 173 and following, because that is avowedly (and only) the analytical method relied upon in those paragraphs to support the conclusions expressed. It is clear, from an affidavit sworn by the defendants' solicitor Mr Higby on 13 July 2017 and read on the application, that analysis by IP address cannot of itself sustain those conclusions. Mr Corsaro did not contend otherwise. No doubt, as Mr Corsaro submitted, more comprehensive analysis, using other data, could do so. It would however be unfairly prejudicial (extremely so) to the defendants to permit EIFY, part way through the hearing and in disregard of the court's orders, to rely on that evidence. It is obvious that to permit EIFY to do so would, in addition, be very likely to cause or result in an undue waste of time. 29. I accept, both in relation to paras 173 and following of the affidavit in question and in relation to the earlier paragraphs with which I have dealt, that there is a legitimate public interest in the court's having as much information as possible to enable it to decide contested questions of fact. I accept, further, that a party is entitled to a reasonable opportunity to advance its case. What I do not accept, taking into account the history of this litigation, is that EIFY has been denied a reasonable opportunity to put before the court all relevant evidence on the disputed questions of fact. 30. I add that there are other important interests to consider. There is the public interest in the efficient administration of justice, with particular reference to both public resources (court time) and private resources (costs). And the interests of justice of necessity require that attention be given to the position of all parties, not just that of one party alone. 31. There were other particular complications with paras 174 and 179. The former paragraph referred to "the Shayda Fanaeyan account" without that account's ever having been identified. The latter paragraph referred to access from yet another IP address, which was said to have been the address of an IT company that from time to time provided services to the defendants. It was common ground that the process Mr Culbert described in para 179(a) would not, of itself, have produced the outcome that he described. 32. I turn to Mr Culbert's affidavit affirmed 5 July 2017. In para 32, he referred to and purported to state the effect of certain paragraphs of his reply affidavit of 19 June 2017 where he had referred to the number of occasions on which the staff of Systems or Services accessed the EIFY system to upload documents, and to their percentage occurrence. The underlying paragraphs have been rejected. To the extent that para 32 seeks to repeat their effect, it too had to be rejected; and it was. 33. Paragraph 33 by itself both meant nothing and led nowhere. Were it permitted to stand, it would cause, at least, confusion. I rejected it too. 34. I admitted para 35. It is doubtful that what it says has any great relevance, but it appears to be adequately supported both by the underlying records and by para 41 of the reply affidavit of 19 June 2017 to which, ultimately, no objection was pressed. 35. Paragraph 36 referred to "paragraph 51" of Mr Culbert's affidavit of 21 December 2012. In terms, that cross-reference was meaningless. However, it appeared to be common ground that the paragraph should be read as referring to para 58 of that earlier affidavit. 36. In para 36 of the later affidavit, Mr Culbert returned to the topic of searching what he called "the Log File" by reference to an IP address and a date. 37. Paragraph 58 of the earlier affidavit had been rejected, and para 36 of the later affidavit did nothing to explain or justify the admission of the evidence sought to be given in para 58. Accordingly, I rejected para 36. 38. It is unclear whether para 37 of the affidavit of 5 July 2017 built on para 36, or was independent of it. Regardless, it seemed to me to go nowhere, and accordingly I rejected it. 39. Paragraph 38 referred to otherwise unidentified "entries in the Log Files", and purported to say what those entries might show to the knowing reader. To the extent that objection was taken to para 38, I rejected it. In addition, it appeared to relate not to the induction system but to the series of "relational databases" that EIFY maintained. Whether or not that topic was strictly within the confines of the pleaded case (Mr Andronos submitted that it was not; Mr Corsaro submitted that it was) can be put to one side. On the assumption (which I am prepared to make, but do not find made good) that it did relate to the pleaded case, it was clearly evidence in chief. Mr Culbert made no attempt to link it to any part of the defendants' evidence, so as to justify the proposition that it might be regarded as evidence in reply. 40. I turn to Mr Birmingham's affidavit affirmed 13 July 2017. To the extent that objection was taken, it was to paragraphs that referred to and sought to prove matters as to the relational databases. If that were within the pleaded case (which again I am prepared, without deciding, to assume), it was quite plainly evidence in chief. Accordingly, I rejected the paragraphs in question. 41. I turn to Mr Birmingham's two affidavits of 14 July 2017. One of them (comprising three paragraphs) supplemented the other (comprising 36 paragraphs and a number of annexures). Both, in my view, were evidence in chief. The longer affidavit purported to verify aspects of Mr Culbert's evidence that on any view was in chief, and to give yet further evidence as to the way in which Mr Birmingham had extracted data from EIFY's system relating to the defendants' access to data within that system. The only apparent purpose of that evidence was to supplement the deficiency in proof arising from the "IP address" issues. Mr Birmingham was seeking to bolster that aspect of EIFY's evidence. This is made clear by, for example, paras 6, 17 and 28, where Mr Birmingham refers specifically to objections to the earlier evidence on which EIFY relied. 42. For the reasons I have given already, that is evidence that should have been given in chief. It was thus served in defiance of the court's orders. Further, and quite independently, it would be unfairly prejudicial to the defendants (extremely so) now to permit EIFY to rely on that evidence. Again, were EIFY to be permitted to do so, the defendants' entirely understandable desire to consider and investigate it would result in undue waste of time. There is no need to repeat what I have said already as to the balancing exercise that, of necessity, is involved for the purposes of s 135(c) of the Evidence Act. 43. Accordingly, I rejected the whole of the affidavits in question. Reserved ruling: admissibility of evidence in re-examination 1. By December 2011, the parties were agreed that the joint venture (as for convenience I shall describe the commercial relationship between EIFY and 3D Safety briefly described at [5] above) had come to an end, and should be wound up. On 15 December 2011, Messrs Culbert, Conacher and Morrow met, in their capacities as directors of Group. The topics discussed included identification of the intellectual property that EIFY on the one hand and 3D Safety on the other had brought to the joint venture, and identification of the intellectual property belonging to Group. The former topic was the subject of resolution 3. The latter was the subject of resolution 4. Resolution 4 simply noted that the topic "was discussed in previous point. There were no contentious issues identified…". The "previous point" was resolution 3. 2. Relevantly, resolution 3 stated: It was resolved that the framework for the Plant Module was in existence prior to the Joint Venture and is the property of e-Induct. It was resolved and agreed that the content of the Plant Module – particularly form content and the compliance requirements for various plant items was jointly developed and common property of both parties and no restrictions are placed on their future use. It was resolved that the framework for the Procurement Portal was developed by Chris Birmingham and is the property of e-Induct. 3D Safety was not provided with access to source code or design elements of the Procurement Portal. It was resolved and agreed that the content of the Procurement Portal – particularly form content and the compliance requirements was jointly developed, would be client specific and common property of both parties and no restrictions are placed on their future use. 1. Mr Conacher was asked about those resolutions in cross-examination, and gave the following evidence [30] : Q. Am I right in believing that what was being expressed there was that the joint intellectual property had been discussed and identified? A. Yes. Q. And that did not include the content of the e-Induct system, did it? A. No. Q. Are you agreeing or disagreeing with the proposition I put to you? A. I agree. 1. Mr Andronos sought to re-examine Mr Conacher on that evidence. He asked, in substance, what Mr Conacher understood Mr Corsaro to mean when he used the words "and that did not include the content of the e-Induct system" [31] . 2. There was an objection to the question, on the basis that the question was clear, there was no ambiguity, and nothing was said that could properly be the subject of re-examination. Mr Andronos submitted that the use of the term "e-Induct system", both undefined and (he said) at variance with the definition in the pleadings, introduced ambiguity. 3. I ruled that I would permit the question to be answered subject to the objection, and hear from the parties in final submissions if either the objection or the question and answer were pressed. Perhaps not surprisingly, the question was pressed, and so was the objection. 4. I am not certain that anything turns on the admissibility of the evidence in question. Mr Corsaro certainly accepted, in the course of submissions, that what was important was what the minutes actually (objectively) conveyed, not what Mr Conacher's subjective understanding may have been [32] . However, as I understand it, Mr Corsaro submitted that the answer might be relevant in any event on the question of credit. 5. Mr Andronos submitted that there was no consistency of use, or inherent clarity, in the expression "e-Induct System" (with or without an upper case "S") as it had been bandied about in the pleadings and in the course of the hearing. That submission is plainly correct. Mr Andronos submitted that when one read the whole of this aspect of Mr Conacher's cross-examination (that is to say, when one puts into context the particular questions and answers on which the re-examination focused), it was clear that he was confused as to what might be meant by the expression "the e-Induct System", and inconsistent in his own use of it. 6. The particular question that was asked and was the subject of the objection, and the particular answer that was admitted subject to the objection, read as follows: [33] Q. I will ask you that question again, Mr Conacher. What did you understand Mr Corsaro to be referring to when he used the words "that did not include content of the e-Induct system", in the question at line 14 of page 952 of the transcript? A. I understood that to be the framework of the e-Induct system. As I understand it, it was written in PHP, or open-source software, and they'd developed an interface with a perimeter security system. 1. In my view, to the extent that the evidence given in cross-examination that was the subject of re-examination is relied upon either as going in some way to Mr Conacher's credit or as an admission against interest, it would be legitimate for him to be asked how he understood the question. I say that because knowing how Mr Conacher understood the question (assuming, of course, that I accept his evidence of that understanding) might assist in determining whether it went to his subjective honesty or whether he intended subjectively to make some sort of admission. 2. On that basis, I think, the question asked in re-examination was proper, and the answer given to it was admissible. 3. If on the other hand the evidence were to be relied upon in some way as explaining the meaning or effect of what was recorded and agreed at the directors' meeting on 15 December 2011, the evidence would not be admissible. What the directors agreed is recorded in the minutes. No one has suggested that the minutes are in any way inaccurate or incomplete. What they record is a matter of objective construction. 4. In the result, I conclude that the answer should be allowed, for the limited purpose that I have explained. Having said that, and having taken into account all the submissions that were put, I remain of the view [34] that nothing will turn on that ruling. As so often happens, the expense of intellectual effort on arguing and ruling on the point far exceeds the value to one side, or the detriment to the other, that could possibly flow from a ruling either way. An application for leave to amend 1. At the end of the third week of the hearing (I note that, when the matter was set down for hearing, the parties gave an estimate of 10 days' duration), EIFY made an application for leave further to amend its Commercial List Statement. One of the two amendments sought was unopposed. I granted leave to make that amendment. 2. The other amendment, to para 33H, was opposed. I refused leave to make it, and said that I would give my reasons later. What follows are my reasons for refusing leave to make that amendment. 3. Paragraph 33H, unamended, read as follows: 33H. The structure (or sequence or organisation) of the eInduct System, layout, format and look of the eInduct Induction Web Pages and the eInduct Source Code and Object Code Associated with those eInduct Induction Web Pages of each of, or alternatively one or more of: (a) the 2007 System; (b) the Version 1 Series; (c) the Version 2 Series; (d) the Version 3 Series; (e) the Version 4 Series; (f) the Version 5 Series; (g) the Version 6 Series; (h) the Version 7 Series (collectively the "Works") are original literary works within the meaning of the Copyright Act, 1968 (Cth). 1. The "System" and the various "Series" referred to in subparas (a) to (h) are, as the preceding paras 33AD to 33G make clear, versions of the e-Induct Source Code, the e-Induct Object Code and the e-Induct Induction Web Pages, which are concepts defined earlier in the Commercial List Statement. 2. As it stood unamended, para 33H alleged (I think this is the correct way to read it) that each of the "structure" and "layout, format and look" of the Web Pages, together with the Source Code and Object Code, of each of the eight specified versions of those works, was an original literary work within the meaning of the Copyright Act. If one multiplies out the possibilities that amounts, I think, to a possible 32 permutations of the allegation of copyright, in each case as an original literary work [35] . 3. The amendment sought to allege, in the alternative, that copyright arose because each of those possible permutations was an original artistic work. It sought to achieve this by inserting the words "or artistic" between the words "literary" and "works" at the conclusion of para 33H. 4. Mr Corsaro submitted that the amendment did nothing more than give an alternative legal characterisation to facts that were already in evidence. He said that EIFY would not seek to adduce any further evidence if it were given the leave sought. (No doubt, in saying this, Mr Corsaro had in mind that if he had indicated that EIFY would seek to adduce further evidence if granted leave to make the amendment, it would have been fatal to the application.) 5. Mr Andronos opposed the amendment. He said that if it were made, the defendants would need to make further factual investigations to prepare to meet it. Specifically, Mr Andronos submitted that the defendants would need to go to each of the suggested artistic works (which, as I have noted, may total 32 in all), and trace back through their history to see whether they possessed the necessary quality of originality, or whether they were derived, wholly or substantially, from material provided by others. Even if that task were confined to the e-Induct Induction Web Pages, Mr Andronos submitted, it would require at least several weeks, and probably more, to investigate each of the multiple versions of the numerous pages that constituted each version of the online induction system. 6. Mr Corsaro submitted, in reply, that this misconceived the nature of the amendment. In essence, that submission involved restating, in slightly different words, his submission that the claim to copyright as artistic works involved simply a different legal characterisation of the existing evidence. 7. I accept, at least at a level of some generality, that the claim sought to be introduced by the amendment could be dealt with on the existing evidence. That however is not the appropriate way to view the application. Consideration of the application requires that the position of the defendants be taken into account. 8. In effect, to permit the amendment on the basis that it involved no more than looking at the existing evidence in a different way would constrain the defendants to accepting whatever it was that the existing evidence showed. Since the evidence had not been compiled on the basis that copyright as artistic works was in issue [36] , it cannot be said, with any confidence, that the evidence available represents the totality of the evidence that, with appropriate investigation, could be assembled. 9. Putting the matter slightly differently, it does not follow, from the fact that EIFY is content to base its proposed claim on the existing evidence, that the defendants likewise should be constrained to do so. On the contrary, in my view, Mr Andronos' submissions as to the further investigations that the defendants, acting reasonably, would wish to undertake are correct. It need hardly be said that if those further investigations were carried out, the hearing would have to be adjourned for some considerable period of time. 10. I should add that Mr Corsaro did not accept that the amendment really introduced anything novel. His submission was, rather, that on a fair reading of the existing "pleading" (the quotation marks refer to the character of the document and not to the quality of its contents) and particulars, it was always apparent that EIFY was alleging copyright on the basis that the various works were, at least in the alternative, artistic works. Mr Corsaro submitted that the amendment sought to do no more than confirm what was already apparent. 11. I do not agree that the proposed amendment is no more than a confirmation of what was already apparent. The starting point is that the pleading in the Commercial List Statement has never suggested that copyright subsisted in any of the works on the basis that they were artistic works. Nor, on any proper reading, do the particulars do so. 12. In March 2015, EIFY's lawyers (PPL) provided the defendants' lawyers (HDY) with "a folder of comparison web pages to illustrate the alleged substantial reproduction". That folder, a reproduction of which is contained somewhere in the court book, comprised about 175 pages. 13. On 16 June 2016, HDY sought further and better particulars as to the images in that folder. Relevantly, they inquired whether "the images contained in [certain of] the screenshots were created by [EIFY] or its agent", and whether those images "are subject to a claim of copyright". 14. PPL replied on 5 August 2016. Relevantly, as to the two questions that I have extracted, they said that: 4 and 5 The plaintiff claims it was the author, and therefore claims copyright of the images as components on the eInduct Induction Web Pages which will be comprised in a schedule we are instructed is presently being collated by our client, and will be provided as soon as possible, and will be identified with the numbers in the Exhibit (the Images). The plaintiff does not claim authorship, and copyright of the images in the other web pages initialled the Exhibit, as components of the web pages. However, as the proposed amended List Statement makes plain, the plaintiff claims copyright in the eInduct Structure, the layout format and look of the eInduct Induction Web Pages, the eInduct Source Code and the eInduct Object Code in respect of the 2007 System and the Versions 1 – 7 Series, as separate literary works. Accordingly, the plaintiff claims copyright in the positioning, formatting, look and feel of the images, and in particular the images' relationship and positioning relative to the other symbols and text on all of the webpage, as well as copyright in the Images. 1. The "e-Induct Induction Web Pages" referred to in the first sentence are the 34 images to which I have referred earlier in these reasons [37] . The "Exhibit" referred to is the full collection of approximately 175 pages contained in the folder that was provided in March 2015, and the subject of HDY's request for particulars dated 16 June 2016. The defendants accept that EIFY has flagged that the 34 images are the subject of a claim for copyright as artistic works, despite the inadequacy of the pleading. 2. The key features of the answer, on which both Mr Corsaro and Mr Andronos laid stress, are found in the last two sentences. The penultimate sentence makes it clear that the claim of copyright that is the subject of para 33H as it then stood is a claim based on the proposition that the works referred to are literary works. Mr Corsaro accepted this. However, he submitted, the final sentence expanded that claim. I do not agree. 3. So far from expanding the claim, the last sentence of the particulars, commencing as it does with the word "[a]ccordingly", makes it clear that what is said follows on from, or is a consequence of, what had been said in the penultimate sentence. When one reads the answer as a whole, the last sentence is saying something more about the claim of copyright "as separate literary works" that is advanced in the preceding sentence. 4. In my view, so far from suggesting that the claim extended also to the suggested character of those works as artistic works, the particulars make it abundantly clear that the claim for copyright is based only on the proposition that they are literary works. 5. As I have said, I do not accept that the copyright claim with which this aspect of my reasons deals, as hitherto pleaded and particularised, included any assertion that the works in question were artistic works. 6. There was no explanation as to why the amendment had not been sought until the third week of the hearing. In circumstances where, for the reasons just given, the amendment sought to raise a distinct and hitherto unpleaded basis for the claim of copyright, it could only be permitted, consistent with the interests of justice, if the court were persuaded that it could be dealt with, fairly to all parties, on the basis of the existing evidence. For the reasons I have sought to explain, that is not the case. 7. Of course, the hearing could have been adjourned, to permit the defendants to undertake whatever investigation they were advised might be appropriate. No doubt, if the defendants had sought to adduce further evidence, EIFY would have sought to reply. Regardless, the inevitable outcome would have been that the hearing could not resume until some time in 2018. It does not seem to me that, absent any (let alone any satisfactory) explanation for the delay in seeking the adjournment, the just, quick and cheap resolution of the real issues in dispute would be accommodated by the inconvenience and very substantial expense that such an adjournment would occasion. 8. Accordingly, I refused the application for leave to amend para 33H. The witnesses; credibility 1. The principal witnesses of fact were Mr Culbert, Mr Conacher and Mr Morrow. Each was subjected to lengthy and searching cross-examination. The credibility – more bluntly, the honesty – of, in particular, Mr Culbert and Mr Conacher was very clearly put in issue. 2. In considering the question of credibility, I take into account the fact that Messrs Culbert, Conacher and Morrow are related. Messrs Culbert and Morrow are cousins, and Mr Conacher is an uncle of each of them. It is evident that, when Mr Culbert (or EIFY) began to deal with Messrs Conacher and Morrow (or 3D Safety), the relationship was close and familiar. For example, Mr Culbert was given to signing emails with his family nickname "Patch", and Messrs Conacher and Morrow were given to addressing their emails to him using the same nickname. 3. Unfortunately, the breakdown in the commercial relationship appears to have been accompanied by an estrangement in the family relationship. I had the very strong impression, listening to Mr Culbert's cross-examination, that he felt particularly embittered because those whom he has come to believe have done him wrong were close relatives whom he had respected and in whom he had reposed trust, as one might naturally expect to be the case. Revisiting his evidence through the medium of the transcript has done nothing to dispel that impression. 4. At a level of generality, it became increasingly clear to me, over the course of Mr Culbert's lengthy cross-examination, that his evidence of what, he said, had happened in 2011 and 2012 has been heavily influenced by hindsight analysis, illuminated by the penetrating glare of self-interest. I think that Mr Culbert, in his mind, has cast himself as the victim of people who were more worldly and less open than he saw himself to be, and that this perception has, to a very large extent, shaped his narrative of events. 5. Remaining at a level of generality, Mr Culbert was a witness who did not find it easy to give a direct answer to questions, where (it seemed) he perceived that to answer directly might not be helpful to his cause. This may have been a family characteristic; certainly, the same tendency manifested itself from time to time in Mr Conacher's evidence. Further, Mr Culbert was a person who found it very difficult to concede that his evidence had been incorrect, even when it became plainly apparent that it was. Again, if the evidence of Mr Conacher is any guide, this may be a family characteristic. 6. Moving from the general to the particular, there were specific aspects of Mr Culbert's evidence that caused me very great concern. I shall not refer to all those aspects, but the ones to which I propose to refer are of particular significance because they are relevant not merely to credibility but to fundamental issues in the litigation. 7. 3D Safety had had a commercial relationship with a construction company known as Laing O'Rourke Australia Constructions (LORAC) since at least 2009. LORAC gave Mr Conacher a copy of its induction material in about February 2009, and gave Mr Culbert a copy in February 2010. Mr Culbert had had nothing to do with the preparation of that material. Nonetheless, in his affidavit affirmed 21 December 2012, Mr Culbert said [38] that he "wrote the text for the original training material which made up the induction content" of the system supplied to LORAC "in conjunction with safety managers employed by [LORAC]". That evidence was plainly incorrect. When one compares the texts of the LORAC material given to Mr Conacher in 2009, the LORAC material given to Mr Culbert in 2010, and the LORAC material that Mr Culbert said he prepared (and that resided on EIFY's system), they are virtually identical. Specifically, comparing the version given to Mr Culbert with the version supposedly written by him, the differences are minimal, and almost without exception, stylistic only. 8. Mr Culbert was first of all asked whether the evidence on this topic given in his affidavit was correct. He said that it was. He was later taken in cross-examination to the relevant pages of induction content material. He maintained the fiction that he had written the material "with the safety managers of "LORAC"; that it was written "back and forth… side by side… every single page was discussed and confirmed" [39] . 9. Eventually, Mr Culbert was forced to accept that what he had said in his affidavit "may be misconstrued as an embellishment" [40] . That grudging concession was itself manifestly misleading. When Mr Culbert said that he "wrote the text" for the material in question, that evidence was untrue. 10. Whether this reflects deliberate falsehood, or is an illustration of the way in which hindsight analysis and perceived self-interest have affected Mr Culbert's purported recollection of events, may be open to question. It is not a question that must be answered. Even taking the more charitable view – that no deliberate falsehood is involved – it raises a very serious reason to question the quality of Mr Culbert's evidence dealing with important and contested issues of fact. 11. The next matter concerns Mirvac. In his affidavit of 21 December 2012, Mr Culbert gave evidence [41] that on 25 May 2011, "the plaintiff" sent a proposal to Mirvac "under the name 3D Safety Group". Mr Culbert was asked about that evidence, and confirmed that it was correct. 12. Later in his cross-examination, Mr Culbert was cross-examined about the proposal [42] for Mirvac. It was sent by email. On its face, the email was from Group, not from EIFY. The email carried the 3D Safety logo. Mr Culbert signed it in his capacity as a director of Group. He used his "3D Safety" email address, not his "e-Induct" email address. 13. When pressed on this, Mr Culbert accepted that what he said in his affidavit had been wrong. He could not have overlooked the point, because the affidavit referred to the email in question. It is plain that Mr Culbert was seeking to overstate the importance of EIFY, to bolster its claim of copyright in the Mirvac induction material, or that the material was confidential to it. 14. It was put to Mr Culbert that this was his motive in giving the evidence. He denied that suggestion. I do not accept that denial. 15. Again dealing with Mirvac, a question arose as to whether Mirvac, having paid for the development of specific online induction material, would be entitled to use it "on every Mirvac project or business unit". The quoted words come from an email that Mr Conacher sent to Mirvac on 21 March 2011. A draft of that email had been sent to Mr Culbert for his review and comment, a fortnight earlier. The draft included the quoted words. Mr Culbert made no comment about them. 16. Mr Culbert was cross-examined about the proposal [43] . He gave a variety of inconsistent and in my view intentionally misleading answers. The obvious inference from the email is that once Mirvac paid for the development of the material, it could use it as it saw fit. Mr Culbert would not accept that, and went so far as to give evidence of some alleged conversation that he had had with Mirvac, to the effect that its right to use the induction material was limited to sites where the EIFY system was in use. Not a word of any such conversation appeared in any of Mr Culbert's many (and in some cases extremely lengthy) affidavits. In my view, that evidence was fabricated on the spur of the moment, in an attempt to explain away the inconvenient inference that, otherwise, could be drawn from the terms of the proposal. 17. Again, this evidence relates to a central plank of EIFY's case. Again, the obvious inference is that Mr Culbert was prepared to tailor his evidence to suit what he saw as being the needs of that case. Again, in my view, it reflects adversely on Mr Culbert and his credibility. 18. I have come to the view that I should be very careful of accepting Mr Culbert's evidence on any important point of factual contest, unless that evidence is supported by some satisfactory corroboration (such as the documents that the parties prepared and exchanged at the relevant time). 19. There is one more matter to mention before I turn to the other witnesses. Part of EIFY's case is based on an alleged oral contract, and another part of its case is based on alleged oral misrepresentations. In each case, the evidence comes substantially from Mr Culbert. His evidence on these matters is not supported by contemporaneous notes or other documents (including emails). In addition to what I have said, I assess that evidence by reference to what McClelland CJ in Eq said in Watson v Foxman [44] . The relevant passage of his Honour's reasons [45] is too well-known to require setting out in full. 20. In general, I do not accept the uncorroborated evidence of Mr Culbert as capable of engendering a state of any, let alone reasonable, satisfaction or a feeling of actual persuasion, as to the occurrence or existence of the conversations in question, to the extent that they are disputed. That is not so much a consequence of having any great faith in the denials of Messrs Conacher and Morrow, as it is a consequence of my view of Mr Culbert's credibility and the unsupported nature of these aspects of his evidence. 21. I turn to Mr Conacher's evidence. 22. Mr Conacher accepted that from time to time he had been dishonest in his dealings with potential customers, for the purpose of advancing the business interests of 3D Safety [46] . That says little for his character. 23. There were aspects of Mr Conacher's evidence where he was driven to concede that what he had said must be incorrect: for example, in relation to a meeting at the Nepean Hospital Project [47] , and in relation to a demonstration of EIFY's system on 11 February 2001 [48] . 24. There were other aspects of Mr Conacher's evidence that, frankly, were difficult to understand, let alone accept. I refer specifically to his evidence as to registering on EIFY's system. Since that evidence is relevant to EIFY's case based on a contractual duty of confidence, I will consider it when I come to deal with that aspect of the case. 25. In assessing Mr Conacher's evidence, I take into account that he, like Mr Culbert, has a substantial economic stake in the outcome of litigation. Just as Mr Culbert is in practical terms the beneficiary of EIFY's activities, so too Mr Conacher is the principal beneficiary of 3D Safety's activities. 26. I turn to Mr Morrow. Although he gave lengthy and detailed evidence, his credibility was not assailed to the same extent as was Mr Conacher's. Nor can it be said that Mr Morrow has any significant financial stake (direct or indirect) in the outcome of the proceedings. 27. Mr Morrow is a chartered accountant, and has had significant experience both as an accountant and in the commercial world. No doubt as a result of his training and experience, he had a practice of making notes during significant meetings, which notes were kept with 3D Safety's records. From time to time, Mr Morrow said, his notes were typed up (or typed notes were prepared from them). It was not suggested to Mr Morrow that his notes were knowingly untrue or inaccurate at the time they were prepared. To the extent that his evidence is supported by his notes, it is in my view inherently credible. 28. There is another matter relevant to the credibility of Messrs Conacher and Morrow, and it is one on which Mr Corsaro placed some emphasis in his submissions. That is their evidence that, contrary to the case put for EIFY, they did not register or create accounts on the e-Induct system. The significance of that evidence is that according to Mr Culbert, the process of registering and setting up an account required the person who was performing those tasks to click on a box or icon accepting EIFY's terms of use. Mr Culbert identified accounts created in the name of Messrs Conacher and Morrow. EIFY's case was that they themselves had created those accounts and that of necessity, in the course of doing so, they had clicked to signify their acceptance of EIFY's terms of use. 29. Messrs Conacher and Morrow denied that they had registered, or created accounts. Their evidence was, in effect, that EIFY had done this for them. That factual dispute is central to EIFY's claim that Messrs Conacher and Morrow, and through them Systems and Services, owed contractual duties of confidence to EIFY based on the terms of use. 30. I deal with this evidence when considering the contractual duty of confidence. For the reasons that I give [49] , I conclude, on the balance of probabilities, that Messrs Conacher and Morrow did register, and that their evidence that they did not, and that somewhat else did so for them, should be rejected. 31. That conclusion depends on an examination of all the relevant evidence, including what is (and is not) contained in contemporaneous emails and the like, and what Messrs and Conacher and Morrow said about those emails. The conclusion that I reach is based on my assessment of the probabilities, viewing all that evidence objectively and I hope dispassionately. 32. It could be said that my conclusion, involving as necessarily it must a rejection of their evidence on this point, is adverse to their credibility. However, I have sought to exclude that consideration from my analysis of the evidence, to avoid what might be called a "bootstraps" exercise. 33. Of course, the proposition that it must follow from my conclusions that these aspects of the evidence of Messrs Conacher and Morrow are false cannot be put to one side. It directs attention to s 140(2)(c) of the Evidence Act, and thus to the so-called "Briginshaw" test [50] . That having been said, the conclusion that the denials are false must weigh heavily, and unfavourably, on my assessment of the credibility of Messrs Conacher and Morrow. 34. Taking all those matters into account, I am reluctant to act on the uncorroborated evidence of Messrs Conacher and Morrow, to the extent that there is any challenge to it. Of course, where Mr Morrow's evidence is supported by contemporaneous notes, I would accept it; and where I do, it may provide acceptable corroboration for Mr Conacher's evidence. Again of course, where their evidence is consistent with contemporaneous documents or the probabilities, viewed objectively, I would accept it. 35. With one exception, there was no challenge to the credibility of the remaining witnesses of fact: Mr Birmingham, Mr Robert Culbert and Mr Quicke for EIFY, and Mr Cook and Mr Malthus for 3D Safety. The exception is Mr Cook. There were aspects of his evidence that I thought were untrue. I have little faith in the reliability of his testimony on disputed events. I do not accept his evidence as, of itself, providing any acceptable corroboration for the impugned evidence of Mr Conacher. Background facts 1. I shall set out, in what I intend to be for the main part an uncontroversial way, the relevant background facts. 2. Mr Conacher founded the 3D Safety business in the late 1980s. The first of his companies to commence operations was Services. It was an importer and distributor of industrial products, and a provider of safety-related services. It focused in particular on risky activities in the mining, construction and infrastructure industries. 3. Systems commenced to operate in about 2002. Its business was and has since continued to be the provision of safety management systems. For about five years, it offered paper-based safety management systems. They were converted to online management systems in about 2007. 4. The 3D system (that is to say, the consolidated online safety management system) was developed by Wishbone, in conjunction with McGirr information technology (McGirr). The agreement between Wishbone and McGirr provided that Wishbone would own all intellectual property (including copyright) in McGirr's work product created for Wishbone. Wishbone licenses the technology to Systems, and Systems is the exclusive user of that technology. 5. The e-Induct system was first developed in about 2007, by a partnership called BCP Marketing. Mr Culbert was a partner in that partnership. On 6 May 2009, the partners assigned the intellectual property rights in the e-Induct system to EIFY (then known as e-Induct). 6. The e-Induct system has always delivered online induction training to workers. As I have noted, it includes other functionality as well. 7. The parties first explored joining their operations in about 2008. Mr Culbert demonstrated the e-Induct system to Mr Conacher. They tendered to prospective customers including Woolworths (an existing customer of EIFY) and Thiess. Ultimately, the proposals went nowhere. The parties continued on their separate ways. 8. Messrs Culbert, Conacher and Morrow returned to the idea of a joint venture in February 2011. They met on 11 February 2011, and thereafter promoted the two systems together to various potential users. The terms of the proposed joint venture were not defined (and were never defined). The parties did not agree on fundamental matters such as structure, contributions, distribution of profits and the like. 9. In April 2011, Messrs Culbert and Conacher met representatives of Thiess. Thiess was an existing user of the 3D system. Messrs Culbert and Conacher sought to show that the e-Induct induction system and plant management functions could be accessed through the 3D system, although the two systems had not been integrated (nor were they ever). 10. A written quotation was sent to Thiess, which included an amount of $18,000 for "induction development, and deployment…". Thiess accepted the offer. The induction program was prepared and tested, and Thiess used it on a project known as the "Liebherr" project. The invoiced amount was paid to Group, which by then had been incorporated as the joint venture vehicle. Nonetheless, at the time of the negotiations with Thiess, no formal joint venture structure had been agreed, let alone documented. 11. In May 2011, Mr Culbert prepared a document showing how he thought the two systems might be integrated, or could work together. Mr Morrow registered the domain name "3D Safety.net", and Mr Culbert caused Group to be incorporated. The parties arranged to see a lawyer, Mr Mansfield of Addisons Lawyers. 12. Messrs Culbert, Conacher and Morrow met Mr Mansfield on 20 May 2011. After the meeting, Mr Mansfield circulated an email raising a number of matters for their consideration. The matters to be considered included how the parties would conduct their operations so that Group would have its own business free of competition from EIFY and 3D Safety; royalties for intellectual property contributed by each of the joint venturers; and profit distributions. 13. Those matters were never resolved. Further, although Mr Mansfield's firm produced a suite of draft documents for the contemplated joint venture, those documents were never reduced to a final form or executed. 14. In late May 2011, Group made proposals to Mirvac in connection with projects known as Era and Pinnacle. For the reasons I have given above [51] , I conclude that each of those offers was one made by Group, not EIFY. The contracts resulting from acceptance of those offers were likewise contracts made between Group and the offerees. 15. Joint venture discussions continued, although as I have said the parties never finalised, let alone formalised, the terms of their arrangement. Nonetheless, they continued to work as though the joint venture were proceeding. They sought to integrate the 3D System into the e-Induct system. Initially, that involved rewriting the source code of the 3D System into the language in which the e-Induct system was written, and developing an "interim integration" that could be used until the two systems were fully integrated. 16. Integration (real or apparent) was essential, because the real selling-point of the joint venture was that customers would have access, through the one system, to induction, plant management, access control and site control services (features of the e-induct system) and the various functionality aspects of the 3D System. The parties perceived, I think correctly, that the ability of users to manage all those functions through the one system, which would store in one accessible place all relevant data relating to all aspects of the systems' operation, was very attractive. 17. The prime object of the parties' attention was the Lend Lease development at Barangaroo. For that, it was essential that the two systems should function seamlessly together. The parties had a number of meetings, and exchanged a number of documents, directed to ensuring that they could meet Lend Lease's deadline. The problem was that Lend Lease apparently required the system to be functional by the end of September 2011, because it was proposing to commence the project at the beginning of 2012. The parties agreed that it was "critical" to complete the rewrite of the 3D systems' source code to the language of the source code of the e-induct system. 18. On 20 July 2011, Messrs Culbert and Conacher met. They signed a document referred to as "Schedule Three". That document referred to the "critical" timeline, and noted that the parties might terminate their relationship if the rewrite were not complete by 30 September 2011. The document noted, further, that if the deadline were not met and the project was terminated, Systems might develop its own online induction system, and compete with EIFY. I should say that Mr Culbert gave evidence that the document was not signed on 20 July 2011. I do not accept that evidence. 19. Messrs Conacher and Morrow were concerned that EIFY might not be able to meet the timeline (more accurately, deadline) of 30 September 2011. They understood that EIFY's site access system, which as I have said is a component of the e-Induct system, was important. They therefore investigated whether a similar system could be obtained from a third party supplier. As part of that investigation, they spoke to Mr Nanayakara of McGirr, and the three of them met the representatives of the manufacturer or distributor of software called Inner Range. 20. The meeting with Inner Range took place on 28 July 2011. The representative of Inner Range said that there was an available off-the-shelf solution. Mr Culbert denied that there was such a product available commercially. Whether or not that is correct (and I regard Mr Culbert's denial as motivated more by self-interest than a concern for the truth), the simple fact is that this is what Messrs Conacher and Morrow were told. 21. On 29 July 2011, Messrs Culbert, Conacher and Morrow met. Mr Conacher handed Mr Culbert a letter which said, among other things, that in the view of 3D Safety, it and e-Induct did not "bring an equal and comparable offering to a joint venture". Accordingly, the letter said, it was 3D Safety's view "that the proposed joint venture cannot succeed in its present format". 3D Safety expressed a desire "to hold discussions on a different structure and relationship". 22. Mr Culbert denied that he was given this letter. I do not accept his denial. Surrounding circumstances, including that on 1 August 2011 Mr Conacher started to prepare what he called a "Memorandum of Understanding" proposing a different structure for the joint venture relationship, are consistent with the letter's having been handed over on 29 July. So, too, are further communications between the parties in August and early September 2011 seeking to redefine the basis on which the joint venture might proceed. 23. By 30 September 2011, the integration had not been completed. Neither side sought to terminate the joint venture. Work continued on the integration process. A meeting was arranged for 29 November 2011, to show what progress had been made on integration. The meeting was a failure, as was the demonstration of the integrated system. 24. A further meeting was held on 9 December 2011, so that the integrated system could be demonstrated. Again, the meeting and the demonstration failed. Mr Culbert accepted that he had said there would be a functioning integrated system available to demonstrate at the meeting, but that the integrated system was not then working. [52] 25. On the failure of the demonstration, Mr Conacher handed Mr Culbert a letter terminating the joint venture. Mr Culbert accepted that, given the history of the attempts to integrate the systems and the failures to achieve integration, that was decision was open to Mr Conacher (or 3D Safety) [53] . 26. On 15 December 2011, the directors of Group held the meeting to which I have referred already [54] . The principal matters of significance discussed at that meeting were the process of termination, or perhaps winding-up, of the joint venture, the rights of the parties to conduct their own businesses thereafter, and how the existing Thiess Liebherr project might be managed in the future. The parties also reached and signed a form of acknowledgment as to the intellectual property rights of Wishbone and EIFY. That acknowledgment is important for EIFY's case on confidential information, and that is the context in which I shall deal with it. 27. Thereafter, generally, the parties went their own ways. EIFY continued to pursue the opportunity to do work for Lend Lease on the Barangaroo Project. Systems continued to develop its own system which could deliver online inductions and other forms of training, and could operate together with Services' online safety management system. The work for that was done by Mr Malthus, as an employee first of McGirr and later of 3D Safety. Approach to resolution of the issues 1. I turn at last to the issues. I shall start with the confidential information case. For convenience, I propose to consider separately the contractual case (in the various ways in which it was formulated) and the claim for confidence in equity. Having done so, I will deal with the case of breach. 2. Next, I shall consider the claim in copyright, dealing first with the question of whether copyright subsists, and second, to the extent that the copyright does subsist, with the question of breach. 3. Next, I shall deal with the case based on misleading or deceptive conduct. 4. That leaves, from the issues set out at [8] above, the question of remedies. Since I have concluded that EIFY has not made good its case (however formulated), no question of remedy arises. 5. Before commencing to deal with the issues, I point out that their resolution has been made difficult both by the way the case was run and by the way that EIFY put its case in its final submissions. The matter was fixed for hearing on an estimate of 10 days. That estimate proved to be grossly inadequate. A further 10 hearing days were required. For reasons of convenience to Counsel, the further 10 days could not run consecutively. There was a week's break between the third and fourth weeks of the hearing. 6. That week's break, together with a shorter break in the last week of hearing, should have enabled the parties to prepare their final submissions in a way that analysed, issue by issue, the relevant evidence (referring to it where necessary), and put such arguments as were appropriate. 7. Unfortunately, EIFY's closing written submissions did not do so. For example, they started by referring retrospectively [55] to a number of propositions that were said to have been "developed in oral submissions". They did not attempt to canvass the evidence other than by way of what might be called line item references to some passages of it. To some extent, that deficiency was addressed in oral submissions. However, the oral submissions were not directed clearly to the issues as EIFY had stated them. 8. To compound the problem, EIFY's oral submissions did not fulfil the promise implicit in its written submissions. On the contrary, the oral submissions referred repeatedly to matters that they said would be fully developed in the written submissions. This the latter failed to do. 9. As a result, and because of the lack of focus and attention to the pleadings or the stated issues, chunks of EIFY's case fell, as it were, between the gaps. 10. Further, EIFY's closing submissions, both oral and written, paid little attention to the structure of the pleaded case. That was unfortunate, particularly where Mr Andronos had made it clear that the defendants proposed to hold EIFY to the limits of its pleaded case. 11. Again, on the question of breach of duties of confidence, the written submissions for EIFY asserted unhelpfully to the effect that it "will ultimately submit that the defendants breached duties of confidentiality"; and stated without elaboration baldly and conclusory submissions (for example, that it was "plain that [the defendants] have violated the… Terms of Use"). 12. Another problem with EIFY's submissions was their occasional reliance on evidence that had been rejected. For example, when dealing with the proposition that 3D Safety had copied EIFY's object code, the submissions referred to Professor Braun's report, as setting out "the argument". Leaving aside whether that is an appropriate exercise for an expert to undertake, the only paragraphs that could be said to have essayed this (and none went so far as the submissions suggested) had been rejected. 13. EIFY devoted considerable effort in both its written and its oral submissions in seeking to demonstrate that the defendants had gone into the joint venture as a sham, intending to use it to deprive EIFY of its confidential property. Acceptance of that submission would require, as Mr Andronos submitted, acceptance that much of the contemporaneous documentation was sham: created as a cloak to conceal the asserted true motive. No attempt was made to demonstrate that. Indeed, it was never put to Mr Conacher or Mr Morrow that back in 2011, they had set about creating false and misleading documents for the purpose of disguising their suggested true plan. 14. In the result, the oral submissions concluded on 4 August 2017, but neither side had replied in any significant way to the written (or oral) submissions of the other. Therefore, and with considerable reluctance, I permitted a further period of time for each to provide written submissions in reply. Again to suit the convenience of counsel, I fixed 14 days as the time within which those submissions should be provided. 15. Perhaps, the matter could have been dealt with on the basis of the submissions that had been put up until the end of the oral hearing. However, that would have created significant injustice for each party. The extent of that injustice, from the prospective of EIFY, can be assessed by the fact that it is really only EIFY's written submissions in reply that brings some coherence and structure to the way that it seeks to argue its case. 16. It is worth giving some content to the magnitude of the task: 1. EIFY's opening outline of submissions comprised 19 pages. 2. The defendants' comprised 25 pages. 3. EIFY's written closing submissions comprised 46 pages, and they were supported by many pages described as a "schedule of relevant passages" in the cross-examination of Mr Conacher. 4. The defendants' written closing submissions comprised 94 pages. They were supported by a schedule comparing various forms of the induction material, comprising 29 pages. 5. EIFY's written submissions in reply comprised 72 pages; and 6. The defendants' written submissions in reply comprised 31 pages. 1. All in all, the task of trying to work out what each party's case was, and what submissions it put on the various issues, required me to work back and forth between over 270 pages, comprised in six different documents, some of which had detailed supporting schedules, and in addition to have regard to the transcript of each side's closing oral submissions. 2. In the result, between the delays and the detail, I may have missed some important submission put for one party or the other. It is undesirable that litigation should be conducted in a way that makes this possible. 3. One consequence of the extraordinary length of the parties' submissions is that any attempt to summarise them would be both productive of enormous waste of time and paper and, quite possibly, unhelpful. Accordingly, in dealing with the issues, I shall refer to the submissions only to the extent that it is necessary to outline the essential disputes. Further, in an attempt to keep these reasons within some manageable limits, I propose to deal with the dispositive issues, and not to decide disputed questions of fact where, for reasons that I shall give, it is unnecessary to do so. 4. The court book was another source of extreme vexation and inefficiency. As originally propounded, it comprised 29 volumes. It was apparent that very little thought had gone into the selection of the material to be comprised in those 29 volumes. It was even more apparent that no thought whatsoever had gone into arranging the material in those volumes in any logical, structured or most importantly chronological fashion. 5. I said that I would not permit the tender of such an ill-disciplined monster. Thereafter, over some days, the bulk of the material was reduced to nine volumes. However, the organisational and chronological problems were not corrected. The result is that although the volume of material to be consulted has been considerably reduced, the difficulty of finding any particular document has been reduced only marginally. Further, because of the disorganisation of the remaining nine volumes, it is often necessary to consult two or even three volumes to put together a coherent chronological sequence of documents or events. EIFY's confidential information case: introduction 1. In broad outline, EIFY claims that Services, Systems, and Messrs Conacher and Morrow owed it duties of confidence. Those duties are said to have arisen either from contract or in equity. 2. The contractual claim is based on the proposition that Messrs Conacher and Morrow registered on the e-Induct system, and thereby created accounts for Services or Systems (or, perhaps, both). In doing so, EIFY says, they accepted its terms and conditions, which included specific provisions relating to confidentiality, both personally and so as to bind the companies. 3. Further, EIFY says, the acknowledgment as to intellectual property that was signed following the meeting of 15 December 2011 has contractual effect, and contains specific recognition of its intellectual property rights and as to its confidential information to which, in the course of the joint venture, representatives of 3D Safety were given access. 4. EIFY says that although the claim to confidence in equity is independent of its rights in contract, its contractual rights are important because they help to emphasise that the information imparted to 3D Safety was confidential. That information, EIFY says, was given to Messrs Conacher and Morrow (and, more generally, 3D Safety) in circumstances where they must have recognised that it was confidential, and that they were not at liberty to deal with it as they wished. Further, EIFY says, the information was of a kind which is inherently susceptible of protection in equity. 5. EIFY submits, further, that Messrs Conacher and Morrow, or 3D Safety, owed it fiduciary duties arising both from the position of "vulnerability" in which EIFY found itself vis à vis 3D Safety, and out of the joint venture relationship that had subsisted. The contract claims The claim based on acceptance of EIFY's terms of use The evidence as to registration 1. EIFY's computer records show, and it is not controversial, that Mr Conacher and Mr Morrow were registered as users on the e-Induct system. The sequence and detail of those registrations is as follows: 1. on 14 February 2011, Mr Morrow was registered with the email address and username "sm@3dss.com.au", and with reference to the company name "3D Safety Services Pty Ltd". 2. On 11 April 2011, Mr Conacher was registered with no email address, but with the username "aconacher" and with reference to the company name "3D Safety Services Pty Ltd". 3. On 31 August 2011, Mr Conacher was registered again with the email address and username "tc@3dss.com.au", and with reference to the company name "3D Safety Services Pty Ltd". 4. On 5 October 2011, Mr Morrow was registered again, with no email address but with the username "simon.morrow@3dss.com.au", and with reference to the company name "3D Safety Services Pty Ltd". 1. As to the first registration of Mr Morrow, EIFY's records show that the registration came from a computer or server having an IP (Internet Protocol) address which, it is uncontroversial, was associated with 3D Safety. 2. It is also uncontroversial that the simple fact that Messrs Conacher and Morrow were registered (or, indeed, that anyone else was registered) on the e-Induct system does not necessarily prove that they themselves did it. The evidence shows that from time to time Mr Culbert and others at EIFY created registrations for third parties for various purposes, including so that potential customers could test the site. 3. Finally (as to non-controversial matters), the defendants now accept that a registration could not be effected on the e-Induct system without clicking the box, or icon, against the words "I agree to the Terms and Conditions" ("the terms of use") which appears on the screen at one stage of the registration process. Mr Andronos criticised that evidence (which came from Mr Culbert) as "baldly conclusory", but it was unchallenged, and there was no evidence to the contrary. A screenshot of a page in the registration sequence shows that after details (name, address, username, password and the like) are given, there is provision for the intending registrant to click against the words in question; the choices thereafter are to "Continue Registration" or to "Cancel". 4. EIFY says that Messrs Conacher and Morrow created their own registrations, and thus that as part of that process, each of them clicked to signify acceptance of EIFY's terms of use as they stood at the time. Messrs Conacher and Morrow deny that they registered themselves. Mr Andronos submitted that it had not been shown that someone else had not created the registration for them. 5. Mr Corsaro relied on what he submitted was circumstantial evidence that supported the inference that Messrs Conacher and Morrow had registered themselves. He relied also on the evidence of those men in cross-examination. 6. Before I move to the detail of that evidence, I should note that EIFY's records show that many other people who were known to be employees of 3D Safety registered, in some cases at least from the IP address to which I have referred already. None of those people were called to give evidence. Mr Morrow 1. Mr Morrow's affidavit referred only to one registration which he said was effected on about 12 April 2011. That was done, he said, either by Mr Culbert or by someone else at EIFY [56] . It will be seen that the date, 12 April 2011, does not correspond to either of the dates when Mr Morrow was registered (14 February or 5 October 2011), but is a day after Mr Conacher was first registered (11 April 2011). 2. Mr Morrow referred to an email by which, he said, "access logins and passwords for e-Induct's system" were provided to him. That email is part of a chain of emails between Mr Conacher and Mr Culbert. Mr Morrow is not shown as an addressee of, or someone who was copied into, that email. The chain starts with an email from Mr Conacher to Mr Culbert on 11 April 2011 at 6:57pm stating: Patch I'm registered in 3D Safety Services. 1. EIFY's records show that the first registration of Mr Conacher had occurred about 30 minutes earlier, at 6:26pm. 2. Mr Culbert replied at 1:30am on the following day. His response is significant. It states, among other things: I have given 3D Safety access to LOR, Abigroup, Leighton and ResMed. I have also given your account access to the site manager… I have also assigned a token to your account… I checked out your photo too. Can you add one that is closer to your face please? Once you have done this, I will send you a card. The access details for the cameras are: Nepean Username: LOR Password: LOR Nepean1 Eastern Creek Username: LOR Password: LOR Nepean2 Let me know if you want me to take you through any of it to make sure you can present it all in the best light possible. 1. Mr Conacher replied at 9:03am on 12 April: Will do. I like that photo!! 1. I have omitted from Mr Culbert's email reference to the various functions to which "your account" had access, and details of the tokens that were assigned (the evidence is that users of the e-Induct system needed to purchase "tokens" so they could complete the induction process, or access any other of its functions). 2. Mr Conacher gave an explanation of the background to that exchange of emails in para 154 of his affidavit sworn 31 May 2017. That paragraph reads: I had another meeting with Alan Cook of Mirvac on 12 April 2011. Culbert did not attend this meeting. However, I wanted to show Cook the presentation I had given to Thiess which incorporated aspects of the online induction content. On 11 April 2011 I sent an email to Culbert asking for a login. Culbert responded on the morning of 12 April 2011. Copies of these emails are exhibited at tab 20 of Exhibit AC1. 1. The emails to which Mr Conacher referred are those that I have just summarised. 2. In para 155 of the same affidavit, Mr Conacher said: To the best of my knowledge, [Mr] Culbert or someone working for e-Induct registered me following my request on 11 April 2011. 1. I might note that Mr Corsaro objected to that passage; it was rejected; Mr Corsaro then cross-examined on it, with the result that it was reinstated as evidence, for whatever it might be worth. 2. Against that background, the last paragraph of Mr Culbert's email of 12 April 2011 [57] should be understood to be referring to the proposed presentation to Thiess. 3. The usernames and passwords set out in Mr Culbert's email bear no relationship to any of the usernames under which, and passwords with which, Messrs Conacher and Morrow were registered on the e-Induct system. For that reason and others, Mr Culbert's email cannot be referable to the registration of Mr Morrow that had occurred two months earlier, nor to the subsequent registrations of Messrs Morrow and Conacher later in 2011. 4. On 5 October 2011 (the date of Mr Morrow's second registration, which is shown as having occurred at 3:55pm on that day), Mr Morrow sent an email to Mr Culbert at 4:18pm. The email stated, among other things: I was trying to do the induction as a trial of the questions, and I registered, however it seems I already have registered as sm@3dss.com.au. When I tried to get my passwords sent, the process sent me an email (below) however the link kicked me out after two redirections as I didn't have a valid session. Are you able to reset it? 1. With that email, Mr Morrow forwarded an email from EIFY which stated: A password recovery request for your e-Induct account sm@3dss.com.au was requested. 1. The forwarded email gave instructions on how to proceed including, if there were a need to change the password, to access a particular link that was given. If there is somewhere in the evidence any reply from Mr Culbert to that email, I was not taken to it. 2. The "password recovery" email was sent to Mr Morrow at 3:55pm on 5 October 2011. Mr Morrow agreed in cross-examination that he was trying to register on that day, but that he could not complete the registration [58] . He said (perhaps inconsistently with his email) that he did not know how he had been registered earlier, but suggested "that either someone at the plaintiff set up those details as if I were a worker ready to go" [59] . He did not say what was the alternative that is implicit in his use of the word "either". 3. Mr Morrow then agreed that after someone "set [him] up as if [he] were a worker ready to go", that person sent him a username and password [60] . He identified the email in question as being that sent at 1:30am on 12 April 2011 from Mr Culbert to Mr Conacher [61] . 4. I should say that Mr Morrow suggested that he had been registered on the e-Induct system in 2008. That may be so. Mr Culbert's evidence, which on this point I accept, was that by 2011, all earlier registrations had been purged from the e-Induct system. 5. It is obvious that Mr Culbert's email of 12 April 2011 could have had nothing to do with the registration shown to have been effected in Mr Morrow's name some two months earlier. The usernames and passwords do not resemble those shown on either of Mr Morrow's registrations. And on analysis (as Mr Conacher ultimately accepted, but Mr Morrow would not), the access to which that email referred had nothing to do with the e-Induct system at all. It was, rather, concerned with access to some sort of security camera system at a LORAC project involving the extension of the Nepean District Hospital. 6. The defendants have not produced any other evidence showing a request by Mr Morrow to EIFY, to provide him with a registration on the e-Induct system, or with a username and password for that registration. They have not produced any record emanating from EIFY providing such registration or other details. The only contemporaneous evidence that either Mr Morrow or Mr Conacher can identify has nothing to do with the registrations that are shown to have been effected in their names. Neither Mr Morrow nor Mr Conacher suggests that he instructed someone at 3D Safety to register for him. 7. The proper inference on the whole of the evidence as it stands is that Mr Morrow registered on the e-Induct system on 14 February 2011, and did so from an IP address associated with 3D Safety. I so find. The very fact that EIFY's records show the registration as having emanated from that IP address tells against the suggestion that Mr Culbert, or someone else at EIFY, created the registration for Mr Morrow. So, although to a much lesser extent, does the lack of any curiosity (as to prior registration) in Mr Morrow's email of 5 October 2011. 8. Given what is now effectively the unchallenged evidence of Mr Culbert, to the effect that as part of completing the registration, the registrant must click to denote acceptance of EIFY's terms of use, I find that Mr Morrow did so. I accept, as Mr Andronos submitted, that it does not follow from this that he read the terms of use. Mr Conacher 1. I turn to the specific evidence as to Mr Conacher. Mr Andronos submitted that Mr Conacher's email to Mr Culbert of 11 April 2011, "Patch I'm registered in 3D Safety Services [62] ", should be read literally: namely, as saying no more than that Mr Conacher was registered on the 3D Safety Services system. I do not accept that. There is no reason why Mr Culbert would have wanted to know that (assuming that he did not already know it), and no reason why it was important for Mr Conacher to inform Mr Culbert of that. 2. The email was sent 31 minutes after the registration that is shown to have been effected in Mr Conacher's name on 11 April 2011. The obvious inferences available from this sequence are that: 1. Mr Conacher completed the registration, giving the company name as "3D Safety Services Pty Ltd"; and 2. sent the email to Mr Culbert to confirm this. 1. The statement "I'm registered in 3D Safety Services", read in context, must mean that Mr Conacher had registered in the name of, or giving the company name of, 3D Safety Services Pty Ltd. 2. The factual background in my view provides support for the drawing of the inferences set out at [300]. Mr Conacher had arranged a meeting with Thiess on 12 April 2011. He wanted to demonstrate the e-Induct system to Thiess. To do that, he needed to be registered. Mr Culbert knew that Mr Conacher was going to demonstrate the system to Thiess. Thus, he had an interest in knowing that registration had been completed. And Mr Culbert showed, in the last passage of his email from which I quoted at [281] above, that he was aware of the purpose of the registration. 3. Mr Culbert's email makes no sense if it is read as confirmation that he (or someone else at EIFY) had created a registration for Mr Conacher. The username and passwords that he notified do not correspond to those shown on the registration of 11 April 2015. Even leaving aside the fact that the username and passwords refer to security cameras on LORAC's Nepean Hospital project, the email simply could not be confirmation of the registration that was actually effected a few hours earlier. 4. Likewise, Mr Culbert's repeated references to "your account" confirm that he understood that Mr Conacher had registered so as to create an account, presumably in the name of Services, on the e-Induct system. Mr Conacher's reply did not take issue with that. 5. Finally (before moving to Mr Conacher's cross-examination on this issue), the request for a better photograph made sense if Mr Conacher had registered on the e-Induct System (registrants were supposed to provide a photograph), and no sense whatsoever if all Mr Conacher were doing was confirm that he was registered in some system maintained by "3D Safety Services". 6. Mr Conacher accepted that the evidence based on EIFY's records showed that someone had registered under the name "Tony Conacher" on 11 April 2011, at the time and given the details to which I have referred already. However, he said, it was merely a coincidence that 31 minutes later, he sent the email "I'm registered in 3D Safety Services" [63] . He suggested, in the course of this passage of his evidence, that "Mr Culbert would have registered me in his system", and denied that he himself had registered [64] . 7. When Mr Conacher was taken to Mr Culbert's email of 12 April 2011, he accepted that the username and passwords contained in it had nothing to do with access to the e-Induct system [65] . He was asked, more than once, to identify the email or emails by which Mr Culbert sent the login details, and said "I don't know where to find them" and "I can't produce them" [66] . Mr Conacher was re-examined [67] at some length. He was not taken to any email (or other document) providing login details for the e-Induct system. Nor was any such document identified in the course of submissions. 8. As I have said, EIFY's records show a second registration in Mr Conacher's name, occurring on 31 August 2011. He denied that he had registered on that occasion [68] . 9. On 21 October 2011, Mr Conacher sent an email to Mr Sebastian Culbert (Mr Culbert's brother, who worked at EIFY). The email was copied to Mr Culbert and its subject was "Thiess Induction". The email stated: I part completed the induction at Thiess on Wednesday to demonstrate to them. I have now uploaded the correct images, photos, license and white card. My log in is tc@3dss.com.au password tony. If I want to do it again will I need a new token, if so can you send it to me?... Please note I am entered in the e-Induct system twice as 3D Safety System PL abn and 3D Safety Services abn. 1. It is clear from this email that Mr Conacher knew (as the fact was) that he was registered twice on the e-Induct system. His evidence in chief did not refer to this. Nor is there any evidence of any request for, or confirmation of, the second registration. There is only the non-contentious fact of two registrations. 2. I conclude that Mr Conacher did register on the e-Induct website, in particular on 11 April 2011, and thus that when he did so, he clicked to signify acceptance of the terms of use. Again, it does not follow that he had any actual knowledge of the content of those terms and conditions. 3. Before leaving the facts relevant to the question of acceptance of the terms and conditions, I should note that Mr Culbert's evidence could have been read as stating that a user of the e-Induct system was required to click, to indicate acceptance of the terms of use, each time he or she accessed the site. If it were intended to suggest that, it is not borne out by the evidence. On the evidence, acceptance of the terms is required only once, during the process of registration. Thus, if someone had set up an account for (for example) Mr Conacher, and in the course of doing so had clicked to indicate acceptance of the terms of use, Mr Conacher would not have been required to do the same each time he accessed the site under that registration. Construction and effect of the terms of use 1. There was considerable debate as to the proper construction and effect of EIFY's terms of use. The version that was proved was said to have been current from 5 March 2010 to 19 December 2011. I set out the principal parts of those terms of use to which reference was made in the course of submissions: The following describes the terms on which e-Induct offers you access to our services. Welcome to e-Induct's User Agreement. This Agreement describes the terms and conditions that govern your usage of our services at www.einduct.com and our other related websites (each a "Site"). Before you may utilise our Site you must read, agree with and accept all of the terms and conditions contained in this Agreement and e-Induct's policies, including its Privacy Policy (the "Policies"). Use of the Site constitutes your acceptance of the terms and conditions, which take effect immediately on your first use of the Site. The Policies change from time to time and you agree that they form part of this Agreement. Policies of particular importance are the policies relating to: Privacy; Fees and Services, and Fraud. Each time you use our services you confirm your agreement be bound and acknowledge any changes to the Agreement (including the Policies). You also undertake to familiarise yourself with and comply with the Policies relevant to your use of our Site and the services provided under this Agreement (as may be amended from time to time). As you read this Agreement, you should also access and read the information contained in the other pages and websites referred to in this Agreement. … 1. Usage Eligibility e-Induct enters into agreements with clients to develop and customise online induction systems for their businesses (each a "Client). Each Client can then direct each of its employees, officers, agents and contractors (each a "User") to complete a customised online induction course in respect of their business ("Induction"). In the case of a Client's contractors and their sub-contractors (each an "Authorised User"), the Authorised User car register on our Site and purchase Tokens (as defined below) for Inductions to be completed by themselves and/or their respective employees, officers and agents (also "Users"). For the sake of clarity, "Authorised User", in the context of this Agreement, only refers to a person that registers on the Site and purchases Tokens and "User" refers to a person that takes an Induction (who may or may not also be an "Authorised User"). Some parts of the Site require registration. You are solely responsible for the confidentiality and use of and access to the e-Induct content and Sites using your username, password or ID. … Our services are only available to, and may only be used by, individuals and corporate entities that can form legally binding contracts under applicable law. Each User or Authorised user that accesses the Site must be the individual whose Personal Information (as defined below) has been entered for the User or Authorised User, as the case may be. In the case of an Authorised User that is not a natural person, the individual that access the Site on behalf of the Authorised Use must be duly authorised by the Authorised User to do so. … 5. Access and Interference You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our web pages or the content contained herein without our prior written permission. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of our Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our Site is updated on a real time basis and is proprietary or is licensed to e-Induct® by our Clients or third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from our Site without the prior written permission of e-Induct or of the party authorised to grant such permission. 1. As might be expected, Mr Corsaro placed particular reliance on the introductory passage and on cl 5. As to the former, he noted that it stated that the terms of use were "the terms on which e-Induct offers you access to our services" and that users were required to accept those terms before they utilised the "Site". That applied, he submitted, to everyone who had access to the system. For the reasons indicated above, that cannot be correct, in respect of any users of the site who had not registered. Acceptance of the terms of use was required only on registration. 2. Mr Corsaro noted that some provisions in the terms of use referred to specific classes of user. For example, cl 2.2 (which I have not set out) deals with the purchase of tokens by "Users" or "Authorised Users". 3. Mr Corsaro pointed in his submission to the wide words of cl 5. He submitted, somewhat optimistically, that the clause "could not have been clearer", and that it prohibited any copying of the webpages or their content, and the creation of derivative works based on content taken from the website. 4. Mr Andronos submitted, based on the introductory words of the terms of use, that they regulated use of the website itself – the e-Induct system. A person who used the website was required to accept the terms of use, and use of the website was taken to constitute acceptance. In this context, he submitted, "use" referred to use by a "Client" for whom (as cl 1 states) e-Induct had agreed to develop and customise an online induction system. It followed, he submitted, that the terms of use did not regulate access by persons who did not have such a contractual relationship with EIFY. 5. Mr Andronos submitted that cl 5, properly construed, indicated that much of the information on the website was the property of, or licensed from, persons other than EIFY including, in particular, "Clients". Thus, he submitted, it was those third parties whose permission was required to perform any of the otherwise prohibited acts. In those circumstances, Mr Andronos submitted, if permission to copy (for example) were obtained from the relevant third party, it was not necessary to obtain as well permission from EIFY to do so. 6. Further, Mr Andronos submitted, where the prohibition in cl 5 applied, it was limited to the specific subjects that were stated. 7. In any event, Mr Andronos submitted, the terms of use could bind only Messrs Conacher and Morrow. It was they who registered, not Services or Systems. Mr Corsaro submitted in reply that the evidence showed that they had registered as "Managing Director" (Mr Conacher) and "Director" (Mr Morrow), and had done so in respect of "3D Safety Services Pty Ltd" in each case. 8. It is convenient to start by dealing with the last point. The evidence to which Mr Corsaro referred was a document created by Mr Culbert based on his interrogation of EIFY's records using Structured Query Language (SQL) commands. The data that he obtained corresponded to the queries that he entered. However, the only copy of the registration page that is in the evidence (at least, the only copy to which I was taken) does not appear to require the registrant to indicate a company name (in the sense that provision of a company name is not said to be a "mandatory field"). It does require the specification of the "Company ABN" and it may be accepted that this, if entered correctly, would enable the identification of the company. Likewise, it provides for a specification of the registrant's "Job Title", although that is not a required field (unlike the ABN). The strong impression that one gets from the registration page is that the process of registration is one undertaken by individuals, because after all it is individuals who will access the site. 9. The terms of use do not appear to say anything about the relationship between a registrant and the company denoted by specification of the ABN. They are directed to "you", and are said to govern "your use of our services". Usage of those services is said to constitute "your acceptance of the terms and conditions". 10. The strong impression conveyed by the terms of use overall is that they are directed to regulating the basis on which each person who has access to the website exercises that access. The terms of use appear to distinguish between those who access the website ("you") and those with whom EIFY "enters into agreements" ("Clients"). 11. In the absence of any express acknowledgment, either in the registration webpages or in the terms of use themselves, that an individual who registers and thereafter accesses the site accepts the terms of use not only in his or her own right but also on behalf of his or her employer, I think that Mr Andronos' submission on this point is correct. By clicking to acknowledge their acceptance of the terms of use, Messrs Conacher and Morrow indicated that they personally accepted those terms. That must mean that they agreed to accept those terms of use as regulating their personal access to the website. It does not follow, and I do not find, that by doing so they agreed to bind Services or Systems to those terms of use. 12. In short, Messrs Conacher and Morrow were bound by the terms of use. Services and Systems were not. 13. I turn to the proper construction of cl 5. The most relevant prohibitions are those contained in the first and last sentences. However, those sentences must be considered in the scheme of cl 5 as a whole. The terms of use bear some indications of careful drafting. There was no evidence as to who prepared them, or what (if anything) was used as a model or basis for their content. It may be a mistake to put over-much emphasis on the structure and sequence of cl 5. Nonetheless, I think, one should give some attention to the way that the prohibitions are developed, and should seek to find individual work for each of them to do. 14. Structurally, cl 5 comprises five sentences, four of which are prohibitory in terms. The prohibitory sentences, each of which presumably was intended to have separate work to do, are the first, second, third and fifth. The fourth sentence is not in terms prohibitory. It appears, both from its placement and its content, to be explanatory of or introductory to the fifth sentence. 15. The first sentence of cl 5 imposes a blanket prohibition on (among other things) copying, either by some automatic device or by some manual process, "our webpages or the content contained herein" unless "our written permission" is first obtained. 16. In context, the words "our … permission" must mean that it is the permission of EIFY that is required. That is made clear by the introductory paragraph of the terms of use, referring to "our services" in a way that makes it clear that those are services provided by EIFY via the website. Again, the second introductory paragraph (which I have not set out) says that "[w]e may amend the terms and conditions of this Agreement from time to time". It refers to "our Site". Clearly enough, the entity reserving the right to amend the terms of use is EIFY. There are similar provisions, referring to EIFY in the first person plural, throughout the terms of use. 17. Thus, the first sentence of cl 5 requires the prior written permission of EIFY to any copying (automated or manual) of any of the webpages on the Site or the content in the Site. That is structurally separate to the subjects and substance of the two following prohibitions. 18. The second sentence of cl 5 is directed to protecting the proper working of EIFY's "Site". So, too, is the third. Together, they seek to protect the integrity and efficient operation of the "Site" and the "infrastructure". 19. The last sentence seems to be concerned principally (although not exclusively) with third party material. That I think is made clear by the immediately preceding sentence, referring to "information" that "is proprietary or licensed to [EIFY] by our Clients or third parties". The word "proprietary" in that sentence presumably should be taken to mean that the information is the property of someone; is owned by someone. That information (at least, much of it) is apparently the information of Clients or other third parties, and is the subject of the prohibitions in the last sentence The Clients or third parties whose information it is are those whose prior written permission is required for the copying, reproduction etc of that information. 20. If one tries to read the components of cl 5 consistently, giving each work to do, the result would seem to be as follows. The first sentence prohibits the copying of the webpages themselves, without the consent of EIFY. The second and third sentences prohibit various actions relating to or affecting the operation of the Site or of EIFY's "infrastructure". 21. The last sentence prohibits the copying, reproduction etc of content taken "from our Site" without the prior written permission of the person whose "content" that is. Read in conjunction with the immediately preceding sentence, the last sentence would appear to prohibit the copying, reproduction etc of information taken from the web pages, as opposed to copying of those pages themselves or their content. Even so construed, there is some degree of overlap between the first and last prohibitions. But reading them that way seems to me to produce a scheme that is, within reason, workable and not totally repetitious. 22. The final point to make about the last sentence of cl 5 is that, when read in conjunction with the preceding sentence, it does not exclude the possibility that some of the information of the Site may be that of EIFY itself. That would seem to follow from the proposition that "much" of that information (but by inference, not all of it) is the property of Clients or third parties. Where information is the property of EIFY itself, as opposed to its Clients or third parties, then, so it seems to me, the last sentence would require the consent of EIFY before any of the otherwise prohibited acts could be undertaken. Again, that reading reinforces the proposition that there is an overlap between the first and last sentences of cl 5. Acknowledging the overlap seems to me to be preferable to reading one prohibition or the other down to the point where, in effect, it is meaningless. 23. So construed, the last sentence of cl 5 would refer (although not exclusively) to online inductions that EIFY hosted on its website for customers. That is what happened with the Thiess and Mirvac inductions. It may be said that the content of those inductions was "proprietary" to Thiess or Mirvac, as the case may be. They could be described as "Clients or third parties". The prohibition contained in the fifth sentence would prevent the copying, reproduction etc of the content of those inductions. Of course, the first sentence of cl 5 would be likely to have the same effect. 24. However, even if the material of "Clients or third parties" was copied, in breach of either or both of those prohibitions, it is difficult to see how EIFY would suffer loss. By hypothesis, the material copied would not be its. To the extent that the material was confidential, it would be confidential to the "Clients or third parties" whose material it was. To the extent that it was copyright, that copyright would subsist in the "Clients or third parties". 25. It may be that EIFY had undertaken some contractual duty to keep the material of "Clients and third parties" confidential, and to prevent it from being copied. It may be that, if such material were copied, EIFY might suffer loss. But even if such loss were in principle recoverable by EIFY from the copier as damages for breach of contract, that is not among the heads of loss that EIFY asserts in this case. EIFY does not say that it has suffered because either Thiess or Mirvac has made a claim against it for permitting their supposedly confidential or copyright material to be copied by 3D Safety. Conclusions on the contractual duty of confidence based on the terms of use 1. I conclude that Messrs Conacher and Morrow owed a contractual duty of confidence in accordance with cl 5 of the terms of use, as I have construed that clause. I conclude that Services and Systems did not. The claim based on the asserted oral joint venture agreement 1. To this claim fails, for two reasons. The first is that although EIFY pleaded that an oral joint venture agreement was made, the only terms pleaded were said to be implied terms of good faith in the performance of the contract, and that each party should do what it could to give the other the benefit of the contract [69] . There was no pleading of any term as to confidentiality; and in consequence no pleading that any such term (of the alleged oral joint venture agreement) had been breached. 2. The other answer to this aspect of the case is that to the extent that it depends on acceptance of Mr Culbert as a witness of credit, it must fail in the absence of corroboration. There was nothing in the contemporaneous documents which suggests that Mr Culbert communicated to Messrs Conacher and Morrow, and they accepted, that EIFY's information as to its system was confidential. 3. In the course of submissions, Mr Corsaro referred to the suite of draft agreements prepared by Mr Mansfield's firm. He submitted that these were some evidence of the existence of the oral agreement that, he said, they were intended to formalise, and its terms. That submission cannot be accepted. The first and obvious point is that a draft agreement proves nothing more than the drafter's view of what was necessary to give effect to his instructions. There was no evidence from Mr Mansfield as to any instructions, either in general or on the topic of confidentiality. 4. The other, and equally fatal, point is that the documents in question were expressly prepared as discussion drafts, so that EIFY and 3D Safety could give instructions as to the terms of the agreement and the content of the documents in their final form. It is obvious from the surrounding emails that the details of the joint venture arrangement were extremely broad and imprecise. In the result, no one took the matter any further, and the documents were not redrafted (and a fortiori, were not executed). Mr Culbert accepted that no agreement was reached at the meeting, and that much work remained to be done before that happened [70] . The claim in contract based on the acknowledgment of 15 December 2011 1. It is convenient to set out Resolution 2 from the meeting of 15 December 2011, pursuant to which the acknowledgment was brought into existence: 2. Identifying and documenting the intellectual Property each party owns and brought to the Joint Venture. Agreed to prepare an agreement which outlines the confidentiality and Intellectual Property each party brought to the joint venture. Draft was tabled and agreed upon. Simon to "mirror" the undertakings for eInduct and 3D Safety and include with minutes (Refer Annexure). 1. The acknowledgment itself was prepared at the conclusion of the meeting and signed by Messrs Culbert, Conacher and Morrow on that day. It reads as follows: Intellectual Property owned by Wishbone Pty Limited ("Wishbone") and eInduct It is acknowledged that as a result of the Joint Venture with eInduct, officers and staff of eInduct Pty Limited were given access to confidential and privileged information on the workings, structure and content of the 3D Safety Management System ("3D SMS"). A strategic "Wish list" of modifications, features and improvements which forms the basis of future development and strategic direction of 3D SMS was provided to Patrick via email on 13 July 2011. This access and information was provided in good faith on the understanding that eInduct will not use the information, structure, content, layout, process, knowledge and strategic plans obtained as a result of the process to create a financial gain, advantage or benefit to eInduct which results in a financial loss, disadvantage or penalty to Wishbone or 3D SMS. It is acknowledged that as a result of the Joint Venture with 3D Safety, eInduct provided officers and staff of 3D Safety access to confidential and privileged information on the content of the eInduct System ("eInduct"). This access and information was provide in good faith on the understanding that 3D Safety will not use the information, content, layout, process, knowledge and strategic plans obtained as a result of the process to create a financial gain, advantage or benefit to 3D Safety which results in a financial loss, disadvantage or penalty to eInduct. 1. The first point to note is that the document is cast in terms of "acknowledgment", not in terms of "agreement". It refers to actions that had occurred at some time in the past, and seeks to record the bases (or a basis) on which those actions were performed. It does not contain any promise by one party to the other that, as a matter of contract, it will bind itself in accordance with those actions (even if they could be given sufficient content and certainty to be capable of having contractual force). 2. Further, the acknowledgment does not identify, except at the level of extreme generality, what it is that the parties might have regarded as confidential to EIFY on the one hand, or 3D Safety on the other. On one reading, as Mr Andronos submitted, the acknowledgment is circular. The confidential information is information "obtained as a result of the process": that is to say, the "process" by which EIFY made available confidential and privileged information about its system. 3. The acknowledgment does not indicate that all information made available by one side to the other was to be regarded as confidential. If it is legitimate to read the acknowledgment in conjunction with the resolutions which immediately preceded it, and which contemplated, its execution, it would appear that the parties considered that the Plant Module and the Procurement Portal were the confidential information of EIFY, but that the content of each of those modules was not. 4. Since no part of EIFY's case complained about infringement of the Plant Module or the Procurement Portal (whatever those things may be), this analysis does not assist in deriving, from the terms of the acknowledgment, any relevant agreement as to confidentiality. 5. Mr Morrow said in the course of cross-examination [71] that Mr Culbert never identified the information that he claimed to be confidential. That answer was not challenged (either then or at any time in the next two days of the cross-examination of Mr Morrow). I set out that portion of Mr Morrow's cross-examination: Q. The position was that you, as far as you were concerned, Mr Conacher and Mr Culbert, each agreed that you would make or give undertakings under the full acknowledgement that I took you to a moment ago and which was subsequently signed; is that correct? A. Yes. Q. And 3D would mirror the undertakings that e-Induct were going to give? A. Yes. We had a fairly - we tried to tease that out. There had always been a challenge in identifying what the plaintiff identified as confidential and privileged. I just couldn't seem to get anywhere to progress it and Mr Culbert eventually said, "Just do the same thing, just do whatever you're doing for you, do it for me". Q. The undertakings were going to be mirrored, in other words, is that right? A. Yes. 1. Notwithstanding my reservations as to Mr Morrow's credibility, I accept that portion of his evidence. As I have noted, it was not challenged, although there was more than ample opportunity to do so. Further, bearing in mind the broad and general terms of the acknowledgment, the evidence seems to me to be consistent with the probabilities, regarded objectively. 2. Accordingly, the claim in contract based on the acknowledgment of 15 December 2011 fails. The equitable duty of confidence 1. Mr Corsaro submitted that the equitable duty of confidence arose on two bases: 1. as to some of the information alleged to be confidential, because EIFY provided it to the defendants for the limited purpose of the proposed joint venture; and 2. as to all the information said to be confidential, because it was imparted to the defendants in circumstances imposing an obligation of confidence [72] . 1. It will be seen that those bases overlap; the former may perhaps be said to be a subset, or particular example, of circumstances falling within the latter. 2. Mr Corsaro accepted that it was necessary to identify with specificity the information said to be confidential [73] . In closing written submissions, Mr Corsaro identified the confidential information as follows: [54] In Corrs Pavey Whiting & Byrne v Collector of Customs for Vic (1987) 14 FCR 434, Gummow J imposed an additional element – that the information must be identified with specificity. The plaintiff submits that the following information obtained by the defendants satisfies the necessary criteria of being confidential information in the relevant sense: (a) the graphical and textual elements of each of the eInduct Induction Web Pages, being those elements as selected, arranged, modified and displayed on each Web Page (in short – the induction content or web pages); (b) the relationship existing between each of the Web Pages, being the order and arrangement of the pages which provided an important structural order for a worker proceeding through an online induction process for induction onto a construction site. In this regard, the sequential steps that the eInduct Online Induction System imposed on a person undertaking an online induction and the means by which the program directed a user through the following sequence, all features of the eInduct Online Induction System: (i) the display of a company's registers; (ii) the ABN of company and how that is checked against the ABN Register; (iii) the way an online induction user agrees to terms and conditions; (iv) how a user enters mobile phone number; (v) how a user purchases a token to make use of the system; (vi) how a user goes to a page which confirms their identity; (vii) how a user requests a secure code; (viii) how a user code is sent to the user's mobile phone; (ix) how a user enters code within 5 minutes; (x) how a user is granted access to system as described in detail in Confidential Affidavit of Mr PC Culbert dated 21 December 2012 at paragraphs 24-57); (xi) the process of the information management system, i.e. the sequential steps of the information management system as described in Confidential Affidavit of Patrick James Culbert dated 21 December 2012 at paragraphs 58-59); (xii) the process of the plant management module, i.e. the sequential steps of the plant management module, as described in Confidential Affidavit of Patrick James Culbert dated 21 December 2012 at paragraphs 60 – 65); (xiii) the process of the access control module, namely the sequential steps of the access control module, as set out in Confidential Affidavit of Patrick James Culbert dated 21 December 2012 at paragraphs 75 – 77); and (xiv) the eInduct source code; and (c) [The databases that formed part of the eInduct System and contained company, user and plant information and documents.] 1. Mr Corsaro submitted that the circumstances that could be taken into account in considering whether an equitable duty of confidence existed included the contractual relationship between the parties and the terms of that contract (specifically, the "contract" said to have existed in relation to the joint venture and the "contracts" said to have come into existence upon acceptance by Messrs Conacher and Morrow of the terms of use), and taking into account the representations said to have been made at the outset and during the course of the joint venture. 2. Mr Corsaro submitted, further, that the acknowledgment of 15 December 2011, following the termination of the meeting of directors of Group that took place on that date, recognised that a relationship of confidence existed. 3. Mr Andronos accepted that EIFY's source code for the e-Induct system was confidential (and, as will become apparent, that it was the subject of copyright). That does not take the matter much further because, as Mr Andronos submitted, it was common ground that the defendants had never had access to the source code. 4. As to the balance of the identified information, Mr Andronos submitted that: 1. the description of the allegedly confidential information did not show, nor did the evidence otherwise illuminate, why each piece of information (apart from source code) was confidential to EIFY; 2. the description of the allegedly confidential pieces of information was not sufficiently precise to enable any judgment to be made that it was confidential at all, let alone confidential to EIFY; 3. the way in which EIFY marketed the e-Induct system to potential customers deprived the system of the degree of relevant secrecy necessary to ensure protection [74] ; 4. following on from the previous submission, the question was not whether it had been disclosed to the public at large but, rather, whether it had been disclosed to what might be called "the relevant public" [75] ; 5. the "relevant public" consisted of users and potential users of the e-Induct system; and 6. neither the nature of the steps within or forming part of the systems themselves nor the restrictions on access to the system were such as to indicate the existence of any equitable duty of confidence. 1. As to para (c) – the databases – Mr Andronos submitted, correctly, that no claim in relation to the databases (also referred to as "relational databases" because of the way that one database could access and take information from another) had been pleaded. In those circumstances, he submitted, the claim should not be entertained. 2. As to induction programs that were created for Thiess and Mirvac, pursuant to a contract between Group and Thiess or Group and Mirvac, Mr Andronos submitted that if there were any confidentiality in the induction material, it was the confidence of Thiess or Mirvac, as the case might be. He submitted that the inductions were prepared for the relevant user pursuant to a contract between that user and Group, incorporated or were based on material supplied by the user, and were paid for by the user. 3. I start with the description of the confidential information given by Mr Corsaro, which I have set out at [355] above. On the face of it, that description might appear to convey some degree of particularity. However, when one reads it carefully, it is plain that EIFY is claiming that its confidential information comprises the whole of the e-Induct system. 4. First, para (a), although it starts off by referring to "the graphical and textual elements of each of the" webpages, concludes by stating "(in short – the induction content or webpages)". This appears to extend the ambit of the information said to be confidential from the purely graphic or textual elements to the whole of the content of the webpages that constitute the online induction system that in turn is part of the e-Induct system. 5. That impression is confirmed by paras (b)(i)-(x). The claim there made is for confidentiality in the sequence of steps that are described: again, steps that are integral parts of the e-Induct online induction system. 6. Paragraph (b)(xi)-(xiii) extend the claim, it seems, to the other functional elements of the e-Induct system: namely, the information management system, plant management module and access control module. 7. I pass over source code, as to which there is no dispute, and the claim in respect of the databases, which was not pleaded and which was referred to for the first time only in Mr Corsaro's opening. 8. To my mind, this is a very problematic way of advancing a claim for confidence in equity. To show why, I shall look at the evolution of the online induction system: specifically, those described in the list statement as the Version 5, Version 6 and Version 7 series (see para 33H, set out at [160] above). Version 5 was the online induction system that EIFY prepared for LORAC. It was based on information and instructions provided by LORAC. Version 6 was the online induction system prepared by Group for Thiess. It was based on the LORAC Version 5 induction, but incorporated specific information and instructions supplied by Thiess. Version 7 was prepared by Group for Mirvac. It was based on the Thiess Version 6, but incorporated specific information and instructions supplied by Mirvac. 9. Mr Culbert said, and I am prepared to assume, that the graphic design work for Versions 5, 6 and 7 was done to some extent by him but substantially by Mr Quicke, and that the coding work was done by himself or by Mr Birmingham. That may very well mean that such of the information comprised in Version 5 as is confidential, but not the confidential information of LORAC, is the confidential information of EIFY. That conclusion does not help, because it does not demonstrate: 1. what (if any) part of that information is truly confidential in the relevant sense; 2. of the information that is truly confidential in the relevant sense, what is confidential to LORAC; and 3. of the information that is truly confidential in the relevant sense, what is confidential to EIFY. 1. Those problems do not disappear with Versions 6 and 7 but, rather, are overlaid by a further and to my mind insurmountable problem. That further problem is that the contractual relationship for the preparation of the online inductions was between Group and Thiess, or Group and Mirvac, as the case may be. To the extent that the online induction system that Group prepared for Thiess or Mirvac contained information that was confidential, but was not the confidential information of the customer, it would be confidential information of Group rather than of EIFY. 2. To put the problem slightly differently, it does not follow, simply because (and to the extent that they did) Mr Quicke, Mr Culbert or Mr Birmingham worked on Version 6 or Version 7, that any information in those versions that is confidential in the relevant sense is the property of EIFY. 3. It is unnecessary to consider whether the coding that Messrs Culbert and Birmingham did was done for EIFY, or for Group, or for Thiess or Mirvac as the case may be. That is because, as I have said more than once, there is no evidence that the defendants had access to or copied the source code. 4. To the extent that Mr Culbert did graphic design work, he did it in his capacity as a director of Group. Group was the counter-party to the contracts with Thiess and Mirvac to develop Versions 6 and 7 respectively. If any of the images that Mr Culbert prepared were properly to be regarded as confidential information, they would be the property either of Group or of the customer (Thiess or Mirvac, as the case may be) for whom they were prepared. 5. That leaves the graphic design work done by Mr Quicke. The evidence was that the work was done on Mr Culbert's instructions, on the basis that Clearsite would invoice Group for the work. In fact, Clearsite mistakenly invoiced EIFY for some work. At Mr Culbert's request, Clearsite cancelled the invoice to EIFY and invoiced Group instead. It was paid by Group. On that basis, the content of Mr Quicke's graphic design work on Versions 6 and 7 cannot be the confidential information of EIFY. Mr Culbert must be regarded as having acted in his capacity as a director of Group when he instructed Mr Quicke to undertake that work. 6. To my mind, the problem that faces EIFY is similar to that dealt with by Mason J (with whom Murphy, Aickin, Wilson and Brennan JJ agreed) in O'Brien v Komesaroff [76] . At 327, Mason J referred to the judgment of Brightman J in Amway Corporation v Eurway International Ltd [77] , where his Lordship distinguished [78] between confidential information that was protectable in equity (for example, by injunctive relief) and know-how, which was not. 7. At 328, Mason J said that the information in question represented the "accumulated knowledge, skill and experience in a particular field" of the respondent. His Honour said that this could not all be confidential information. Mason J then said [79] : Even so, if the respondent were able to identify some particular pieces of information and show that they were confidential or that an obligation of confidence had arisen with respect to them he would be entitled to protection of them. But this is just what the respondent has failed to do. He has persisted in making a global claim for protection that covers the entirety of the schemes that evolved and the entirety of the documentation by which they were implemented. He is not entitled to that protection and, accordingly, his claim must fail. My conclusion is that in the circumstances he is not entitled to any greater protection than that given to him in respect of his ownership of copyright. 1. That is the essential problem that EIFY faces in this case. By making a claim that, on analysis, extends to the whole of its online induction system, it is effectively combining a claim to protect know-how with a claim to protect information that may or may not be confidential. It has failed to separate out the information that is said to be confidential, and to demonstrate why it is. And it has failed to demonstrate (source code excepted) what information that is confidential is its own, and not that of someone else. 2. Because the claim is expressed in a global way, it is enough to point to particular aspects of the subject matter for the purpose of saying that, on the assumption that they are or embody confidential information, they or it cannot be the confidential information of EIFY. That must be so in respect of Version 6 and Version 7. To the extent that those versions of the online induction system embody confidential information, it must be confidential information either of the customer for whom it was prepared or, if not, of Group. 3. That is enough to dispose of the equitable confidential information claim in the online induction system. 4. I should mention that Mr Corsaro submitted that even if the information had been derived from other or publicly available sources, nonetheless the work done on it by EIFY was sufficient to invest the result with the appropriate degree of confidentiality. He referred to cases such as Exchange Telegraph v Central News [80] and Bates and Partners Pty Ltd v The Law Book Company [81] . That submission goes nowhere. Even if the analogy established by those cases was relevant for Version 5 of the online induction system, it can have no application to Versions 6 and 7, for the reasons I have indicated. 5. To the extent that Mr Corsaro called in aid either the contract case (in any of its manifestations) or the representation case, they do not help. As to the supposed contract relating to the formation of the joint venture (and this applies also to the representation case), I have concluded [82] , that I am not satisfied that the relevant promissory statements or representations were made. Equally, I have concluded [83] that no contract can be inferred because a suite of documents was prepared which, if executed, would have given rise to legal relations. 6. As to the contract that is said to have come into existence on acceptance of the terms of use, it is enough to say that nothing in those terms identified what was the confidential information of EIFY. Such contracts as were so brought into existence might protect whatever information might be held to be confidential. They do not, of themselves, describe or prescribe that any particular information is confidential. 7. Nor can the fact that the parties operated, in fact at least if not in law, as joint venturers for a period of time assist EIFY. The conclusion that joint venturers owe obligations of a fiduciary nature to each other must be one that follows from, and takes into account, the terms of the joint venture agreement: United Dominions Corporation Ltd v Brian [84] . 8. In this case, no terms have been proved. All that has been proved is that the parties tried for a time to work together to promote jointly a system that comprised and maximised the utility of their several products. There is nothing in that circumstance to justify the proposition that one party owed any obligations of a fiduciary nature to the other. 9. The key to the existence of a fiduciary relationship is the subordination of self-interest to joint interest (Grimaldi v Chameleon Mining NL (No 2) [85] ). In this case, the joint venture, to the extent that it went beyond some vague arrangement, was no more than an association for a commercial purpose, with the hope of gaining profit [86] . No doubt, the parties placed trust and confidence in each other, if only because of the familial relationship. But that is not enough, of itself, to create a fiduciary relationship [87] . 10. Equally, it may be said that EIFY was dependent on Group, in that Group invoiced customers for the total cost of work done, and received payment of the total amount. Group was required to pass on to EIFY the latter's share of, or entitlement to, payments made. EIFY depended on Group doing this, and doing it honestly. But it can hardly be said that EIFY was in any relevant sense [88] "vulnerable". 11. EIFY was not "a remote principal lacking the capacity to observe what was happening…". It was, instead, "in constant contact with" events, and "in an excellent position to … protect its interests …. There was no entrustment or custodianship to be abused". It knew what its share of revenues was. It knew when any particular project was delivered. It was in a position to see that its share of any payment was passed onto it. 12. Mr Corsaro did not submit that the arrangements in some way constituted Group as the agent of EIFY, for the purpose of receiving and accounting for payments. If it were, then it might be possible to argue that, at least for that limited purpose, there was a fiduciary relationship. But this was not put. 13. Finally, the acknowledgment signed on 15 December 2011 reflects the fact that some of the information given by each party to the other was confidential. It does not specify what, from either source, was confidential. Nor do the minutes of the directors' meeting (of Group) held immediately before that acknowledgment was signed shed any light on this subject, because "the framework for the Plant Module" and the "Framework for the Procurement Portal" (the only things identified as "the property of" EIFY) seem to have very little to do with the categories of confidential information that are the subject of the claim to protection in equity. 14. I conclude that EIFY has not made good its claim to protection in equity. Breach 1. This issue can be relevant only to the contractual claim against Messrs Conacher and Morrow [89] . The only evidence of suggested breach is: 1. that (as is uncontentious) 3D Safety used the online induction prepared by Group for Mirvac as the basis for an online system that 3D Safety itself proposed to provide to Mirvac, offering both online induction and online safety management functionality; and 2. Mr Culbert's assertions that on 4 September 2012, someone from an IP address associated with 3D Safety accessed the e-Induct system and during that time "visited 12,562 URLs within the system", in the course of doing so "viewing individual record details… of which there were many hundreds" [90] . 1. The first complaint goes nowhere, because it has not been shown that any of the information that was utilised was information of, let alone confidential to, EIFY. Further, the web pages or slides in question were based substantially on images and text provided by Mirvac for the purpose of preparing the online induction. To the extent that Mr Quicke added anything (apart from rearranging colours, positions on the page, format and the like), he used stock images that he obtained at little or no cost from external sources. 2. As to the second matter, the number of URLs visited does not seem to me to be significant. There may be many URLs embodied in any single webpage. A visit to that webpage will be recorded as a visit to each of those URLs. More substantively, there is no evidence to support that proposition, that such information as may have been gathered was put to any improper use. To put it another way, there is no evidence that the usage to which Mr Culbert referred was usage for anything other than the purposes of the joint venture, which had not been terminated at that time. Copyright 1. Resolution of the issues relating to copyright has not been assisted by the lack of correspondence between EIFY's pleaded case and the submissions (in particular, the closing submissions) that were put. Accordingly, I propose to start by setting out the way in which the case was pleaded. The pleaded case 1. In Part A of the list statement (setting out the nature of the dispute) something called EIFY's "personnel management, induction, access control and plant management system" was defined as "the e-Induct system". It was said to take the form of a website and other hardware and software elements. The website was said to include a series of web pages "primarily used for online inductions by construction companies to create a system whereby they can undertake an online worker induction process". 2. Paragraph 8 of Part C (the statement of contentions) "pleads" some features of the e-Induct System. Somewhat confusingly, those features are themselves described as the "e-Induct system". I set out para 8: 8. The eIniduct System provides users with a particular experience, which arises through a combination of: (a) the physical appearance of the user interface, chiefly comprising text, images and sounds, which allow users to enter, use, exit from and otherwise interact with the eInduct System; (b) the controls, underlying logic, business rules, structure, processes and user flow of the eInduct System; (c) the plaintiff's business model, including the way in which the plaintiff engages with customers and users and generates revenue from the eInduct System; and (d) the way in which the eInduct System incorporates and interacts with other technologies and hardware, such as mobile devices, scanning software and third party security systems. 1. The pleading of the copyright case commences with a statement of "the Concept" said to underly the e-Induct System or alternatively the e-Induct Online Induction System. That concept (which is pleaded in para 33AA) is said in para 33AB to be expressed by a structure which is referred to as "the e-Induct Structure". I set out para 33AB: 33AB The plaintiff's expression of the Concept is by means of the following structure (or sequence or organisation): (a) the preparation of a data base structure to cater to the requirements of the system; (b) the creation of a system of modules and elements written in computer code to produce object code which creates the user interface in the appropriate sequence for the logical process; (c) the inclusion in the user interface of digitized images to either provide information to the user for the particular stage of the induction process or to illustrate or enhance the induction procedure; (d) a user registration process by the user entering personal information into a web interface backended by a data base to store the information, to link the employeed to an employer; (e) the acquisition of an access code (token) by the user or their employer; (f) the collection of data and other information particular to the user as required for access to the workplace site to which the induction refers; (g) the validation of the user's ability to undertake the induction by verifying the existence of a pre-existing access code (token) and verification of the user's identity; (h) the commencement of the induction process once the token or access code is verified; (i) a two factor authentication to confirm the user's identity, via text message to a mobile phone or mobile device; (j) the inclusion of user selectable actions to permit the user to move through the induction process and voiceover with relevant controls; (k) the inclusion of safeguards at each stage of the induction process to ensure the user has correctly assessed the information, risks and requirements of each stage of the induction process, and to prohibit the user moving forward from one stage to the next without successfully completing a prior stage; and (l) a final result screen to illustrate the final result of the induction procedure undertaken by the user, and including an option such as printing out a certificate or induction card (the eInduct Structure) 1. The contentions then plead the way in which the "Concept" was conceived and the way in which the various iterations of it were created. That pleading culminates in para 33H, which I have set out already but for convenience repeat: 33H The structure (or sequence or organisation) of the eInduct System, layout, format and look of the eInduct Induction Web Pages and the eInduct Source Code and Object Code Associated with those eInduct Induction Web Pages of each of, or alternatively one or more of: (a) the 2007 System; (b) the Version 1 Series; (c) the Version 2 Series; (d) the Version 3 Series; (e) the Version 4 Series; (f) the Version 5 Series; (g) the Version 6 Series; (h) the Version 7 Series (collectively the "Works") are original literary works within the meaning of the Copyright Act, 1968 (Cth). 1. The response to para 33H reads: 33H. In answer to paragraph 33H: (a) Deny that the layout, format and look of any of the eInduct Induction Web Pages are original literary works within the meaning of the Copyright Act 1968 and deny that any copyright subsists in the layout, format and look of any of the eInduct Induction Web Pages; (b) Deny that the structure or sequence or organisation of the eInduct System is an original literary work within the meaning of the Copyright Act 1968 and deny that any copyright subsists in the structure or sequence of organisation of the eInduct System; (c) Admit that the eInduct Source Code associated with the eInduct Induction Web Pages of each of the 2007 System and the Version 1 through to the Version 7 Series is a literary work within the meaning of the Copyright Act 1968; (d) Deny that the Object Code associated with the eInduct Induction Web Pages of each of the 2007 Systems and the Version 1 through to the Version 7 Series is an original literary work within the meaning of the Copyright Act 1968; and (e) Otherwise deny the allegations in paragraphs 33H. 1. It is not necessary to set out the balance of the pleading. 2. The key paragraph is thus para 33H. It appears to describe some 32 "Works", which are said to be "original literary works". Those Works are, for each iteration of what for convenience I will call the e-Induct System: 1. its structure or sequence or organisation; 2. the layout, format and look of the e-Induct Induction Web Pages; 3. the e-Induct Source Code associated with those Web Pages; and 4. the e-Induct Object Code associated with those Web Pages. 1. If this is not the correct understanding of para 33H then EIFY can hardly complain. It alone is responsible for the opacity of its pleaded case. As I have said, EIFY's submissions did not trouble to cross-refer to the pleadings. 2. The pleadings makes no reference to any claim to copyright in an artistic work. Nonetheless, as I have indicated already, the defendants accept that, in respect of the 34 images [91] , the particulars effectively notified them of a claim for copyright in those images on the basis that they were artistic works. The Copyright Act 1968 (Cth) 1. The Copyright Act provides for copyright to subsist in "works" and in subject-matter other than works. The latter category may be put to one side for the purposes of this case. 2. It is necessary to pay attention to some of the definitions in s 10 of the Copyright Act. I set out the definitions of "work", "literary work", "artistic work", and "computer program": "work " means a literary, dramatic, musical or artistic work. "literary work" includes: (a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs. "artistic work" means: (a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b); but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989 . "computer program" means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 1. It is clear, in particular from s 21(5) of the Copyright Act, that a computer program may include both source code and object code. 2. Section 32 provides for copyright to subsist in original unpublished and published works. Section 35(2) provides that, subject to s 35, the author of a work is the owner of any copyright subsisting in that work. Section 35(6) provides that where a work has been made by its author in pursuance of the author's terms of employment, the employer owns any copyright in the work. 3. Section 196 of the Copyright Act deals with assignments and licences. By s 196(3), an assignment of copyright does not have effect unless it is in writing signed by or on behalf of the assignor. Source code and object code 1. There was a vigorous dispute as to whether EIFY was the owner, either as author or as employer for whom the work was created or by assignment, of any copyright that subsists in the source code or object code for any of the eight versions of the e-Induct System referred to in para 33H of the list statement. It is unnecessary to resolve that dispute, because there is no evidence whatsoever that any of the defendants had access to the source code or the object code, or that they copied it. Nor has there been any analysis of the source code and object code of any of those versions of the e-Induct System, comparing them to the source code and object code of any allegedly infringing work produced by 3D Safety. 2. The high point of the evidence is an assertion by Professor Braun that "[i]n cases where the screens are very similar, the underlying Object Code in the Video RAM is also very similar" [92] . Even assuming the requisite degree of similarity (and Professor Braun's evidence, to the extent it was admitted, does not prove this), it does not follow that the object code underlying the screens in the 3D Safety online induction system (or any other functional part of that system) results from any act that could constitute an infringement of any copyright that subsists in the object code underlying the screens in any versions of the e-Induct System. Structure, sequence or organisation 1. Those words in para 33H were presumably intended to refer back to, so as to pick up, the defined term "e-Induct Structure" found in para 33AB. I say that because the reference in para 33H to "[t]he structure (or sequence or organisation) of the e-Induct System" picks up the chapeau to para 33AB, read in conjunction with the defined term at the end of that paragraph. 2. It may be accepted, at least for the purposes of argument, that the structure, sequence or organisation of a computer program may be the subject of copyright. Arnold J said as much in SAS Institute Inc v World Programming Ltd [93] . His Lordship said [94] : [232] Even leaving aside the decision of the Court of Appeal in Nova, I am not persuaded that Pumfrey J was wrong to hold that it is not without more an infringement of the copyright in a computer program to create another computer program which has the same functionality. I accept that copyright protection is not limited to the text of the source code of the program, but extends to protecting the design of the program, that is, what has been referred to in some cases as its "structure, sequence and organisation". If there were any doubt about this, then the conferring of protection on "preparatory design material" confirms it. But there is a distinction between protecting the design of the program and protecting its functionality. It is perfectly possible to create a computer program which replicates the functionality of an existing program, yet whose design is quite different. 1. The distinction that his Lordship drew between the design of the program on the one hand and its functionality on the other is critical. Mr Andronos submitted that EIFY's case appeared to confuse the two concepts. I agree. 2. The significance of the distinction is shown by the decision of Pumfrey J in Navitaire Inc v Easyjet Airline Co [95] . In that case, Easyjet commissioned an online booking system specifically to replicate the functionality and ease of use of the Navitaire "OpenRes" system. Pumfrey J stated Navitaire's contention at [2], [3] and set out the issue at [5]. I set out those paragraphs: [2] The case is factually and technically complex and has taken a considerable amount of time in court. It raises starkly an issue of considerable importance in the law of copyright. While there are comparatively minor allegations of infringement by copying of certain code and an allegation in relation to the databases that I summarise below the striking feature of this action is that Navitaire does not suggest that easyJet or BulletProof ever had access to the source code of the OpenRes system. What is alleged, and not disputed, is that easyJet wanted a new system that was substantially indistinguishable from the OpenRes system, as easyJet used it, in respect of its "user interface". This term is used to denote the appearance the running software presents to the user, who may be an agent in a call centre or a private individual seeking to make a booking by use of the World Wide Web. It substantially achieved this far from simple goal. It is not in dispute that none of the underlying software in any way resembles that of OpenRes, save that it acts upon identical or very similar inputs and produces very similar results, but it is said that the copyright in OpenRes is infringed by what was called "non-textual copying". [3] In its context in this action, "non-textual copying" had three aspects. The first was the adoption of the "look and feel" of the running OpenRes software. The second, not always clearly distinguished from the first during the trial, was a detailed copying of many of the individual commands entered by the user to achieve particular results. The third was the copying of certain of the results, in the form of screen displays and of "reports" displayed on the screen in response to prescribed instructions. In other words, as used by easyJet the systems are very similar in use. Internally, it is correct to say that they are completely different, subject to a point on the names used to identify certain data in the databases in eRes. Given that near-identity in appearance and function could not have been achieved without a close analysis of the OpenRes system in action, Navitaire say that there is here "non-textual" reproduction of either the whole of the OpenRes software considered as a single copyright work or alternatively of the various copyrights subsisting in "modules" going to make up the system. … [5] There is here an issue of general importance. To emulate the action of a piece of software by the writing of other software that has no internal similarity to the first but is deliberately designed to "look" the same and achieve the same results is far from uncommon. If Navitaire are right in their most far-reaching submission, much of such work may amount to the infringement of copyright in the original computer program, even if the alleged infringer had no access to the source code for it and did not investigate or decompile the executable program. 1. Navitaire contended that the case was analogous to taking the plot of a book. As Pumfrey J said [96] , "an author who takes the plot of another work and copies nothing else will still infringe copyright if a substantial part of the earlier author's work is represented by the plot". Navitaire submitted "and the same goes for computer programs" [97] 2. Pumfrey J rejected the analogy, saying [98] : [125] This does not answer the question with which I am confronted, which is peculiar, I believe, to computer programs. The reason it is a new problem is that two completely different computer programs can produce an identical result: not a result identical at some level of abstraction but identical at any level of abstraction. This is so even if the author of one has no access at all to the other but only to its results. The analogy with a plot is for this reason a poor one. It is a poor one for other reasons as well. To say these programs possess a plot is precisely like saying that the book of instructions for a booking clerk acting manually has a plot: but a book of instructions has no theme, no events, and does not have a narrative flow. Nor does a computer program, particularly one whose behaviour depends upon the history of its inputs in any given transaction. It does not have a plot, merely a series of pre-defined operations intended to achieve the desired result in response to the requests of the customer. 1. Pumfrey J then referred to the settled (although difficult to identify) distinction between an idea and its expression. He referred to observations in the speech of Lord Hoffman in Designers Guild Ltd v Russell Williams (Textiles) [99] . Lord Hoffman said [100] : My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399 . The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 is a well known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection. Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law protects foxes better than hedgehogs. In this case, however, the elements which the judge found to have been copied went well beyond the banal and I think that the judge was amply justified in deciding that they formed a substantial part of the originality of the work. 1. Applying those principles, Pumfrey J concluded that Navitaire's claim failed. His Lordship said [101] : … Navitaire's computer program invites input in a manner excluded from copyright protection, outputs its results in a form excluded from copyright protection and creates a records of a reservation in the name of a particular passenger on a particular flight. What is left when the interface aspects of the case are disregarded is the business function of carrying the transaction and creating the record, because none of the code was read or copied by the defendants. It is right that those responsible for devising OpenRes envisaged this as the end result for their program: but that is not relevant skill and labour. 1. The reasoning of Pumfrey J in Navitaire was considered in Nova Productions Ltd v Mazooma Games Ltd [102] . In the Court of Appeal, Jacob LJ (with whom Sir Andrew Morritt Ch and Lloyd LJ agreed) said that: … Pumfrey J was quite right to say that merely making a program which will emulate another but which in no way involves copying the program code or any of the program's graphics is legitimate. [103] 1. In StatusCard Australia Pty Ltd v Rotondo [104] , the defendant created a computer program to replicate many of the functions of the plaintiff's program and the manner in which the plaintiff's program displayed information. The defendant did not copy the plaintiff's source or object codes in doing so. Chesterman J held that the defendant had not breached the plaintiff's copyright. His Honour identified the plaintiff's argument as follows [105] : [82] The plaintiff does not allege that the first defendant has copied its computer codes, source or object codes, or the sequence or patterns of bits which cause the plaintiff's computer program to function. The plaintiff's case is that the first defendant set out to replicate the functions of the plaintiff's program and did so by means of a different computer program. In doing so the plaintiff alleges that the first defendant's program reproduced the computer screen display I have described. That screen display is said to be a literary or artistic work, copyright in which subsists in the plaintiff. [83] The source codes and object codes (machine language) of the two programs are not the same. The programs, Delphi and Visual Basic, are different. The plaintiff's case is that the first defendant set out to replicate the operation and functionalities of its program, utilising commercial software for the purpose. The plaintiff's case is not that Mr Rotondo engaged in reverse engineering to work back from the functions of the program to its codes, but that, using different codes and software, it duplicated the manner in which the plaintiff's program processes the BettorData and displays it. I have no doubt that this is what the first defendant did with some success. The evidence of Mr Weber and Mr Braidotti point inexorably to that conclusion. [84] The plaintiff's case is that the visual depiction of the data produced by its program is original, artistic or literary work as defined by the Act and that the first defendant's program produces a copy of the same visual depiction thereby infringing its copyright in the work. 1. Chesterman J pointed out [106] that "the functionality of a computer program, its behaviour, is not the subject of copyright protection". He referred [107] first to the decision of the High Court in Autodesk Inc v Dyason (No.2) [108] , and then (with apparent approval) to the decision of Pumfrey J in Navitaire. 2. Chesterman J noted [109] that the case was one not of copying but of replication. He said that it was common ground, and rightly so, that there is no copyright in the functionality, or the "look and feel" of a computer program. In my respectful view, that is correct. His Honour then turned to the question, whether the plaintiff's screen display was a table or a compilation, so as to fit within the definition of literary work. It is not necessary to go to that aspect of his Honour's reasons. 3. Returning to the distinction that Arnold J drew in SAS Institute at [232] [110] , 3D Safety's online induction programs for Thiess and Mirvac may well have replicated the functionality of EIFY's existing online induction program. It does not follow that 3D Safety has thereby copied the design of EIFY's program, and such other evidence as there is does not prove copying of design as opposed to replication of functionality. 4. The case based on structure, sequence or organisation fails. Layout, format and look 1. As I understand EIFY's case, these words refer to the "look and feel" of EIFY's online induction program. EIFY's case, on that understanding, is that because (EIFY says) the online induction programs prepared by 3D Safety for Thiess and Mirvac have the same look and feel as EIFY's existing online induction program, copyright in that existing program has been breached. For the reasons that follow, I do not agree. 2. I have referred already [111] to Australian authority that holds there is no copyright in the "look and feel" of a computer program. Mr Corsaro contended, however, that there was American authority to support that proposition. He referred to Whelan Associates Inc v Jaslow Dental Laboratory, Inc [112] . Mr Andronos submitted that the American authorities must be considered with some care, for two reasons. The first was that the structure of the American legislation is substantially different to the Australian legislation, because it does not limit copyright protection to (relevantly) works. The other reason was that the American authorities do not speak with one voice. Those submissions are correct. 3. As to the first submission, the relevant statute is the Copyright Act of 1976, 17 USC §§ 101 – 810 (2016). Section 102 provides: §102 Subject matter of copyright: In general Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 1. The obvious point is that it is not necessary for a work to be categorised as "literary", "artistic", etc before copyright can subsist. Copyright will subsist in an "original work of authorship fixed in any tangible medium of expression". In contrast to the position in this country, the statutory examples of "works of authorship" are illustrative, not exhaustive. 2. The American authorities make it clear that the concept of "tangible medium of expression" may range well beyond "works" as that expression is used in this country. See for example, Tetris Holding LLC v Xio Interactive Inc [113] , a case dealing with video games. 3. As to the second submission, the court in Tetris made it clear at 401-403 that the reasoning, although not the result, of the decision in Whelan has been criticised by other courts and in standard texts. Further, the decision in Media.net advertising FZ – LLC v Netseer Inc [114] at 1062 holds that copyright protection does not extend to "look and feel". 4. When one turns to the structure of the e-Induct System, as it is described in para 33AB of the list statement, it is apparent immediately that what is described is not the expression of any idea but the functionality, or output, or result, of the ideas that are embodied in the source code and converted into object code. There is no literary work in the conventional sense: nothing in writing (whether having a "literary" character or not). Nor is there a "computer program": a set of statements or instructions that are used, directly or indirectly, by a computer to bring about a result. The structure is the result (or part of it), not the means – the program – whereby that result is achieved. 5. EIFY's case conflates the structure, sequence or organisation of the e-Induct System with the structure, sequence or organisation of the underlying computer program. It is the latter, not the former, in which copyright may subsist. Source code and object code 1. I have already dealt with this topic to some extent. [115] As I have said more than once, there is no evidence comparing the source or object codes of EIFY's online induction system with the source or object codes of 3D safety's allegedly infringing online induction systems. Thus, the case of breach of copyright based on source or object code must depend on inferences drawn from other evidence. That was made clear in EIFY's closing submissions in reply at para 230: The plaintiff's case in relation to infringement of the copyright in the source code is put on the basis that the "look and feel" and/or the structure, sequence or organisation may be subject to copyright. A further or alternative way of putting this is to say that the defendants have copied the object code of the eInduct system. That argument is set out in detail by the expert appointed by the plaintiff, Professor Braun. In short, the argument is this: whenever a computer generates an image in the screen, regardless of which source code language is employed, if the image is the same the same object code will be generated to produce that image. 1. For the reasons I have given, insofar as the submission depends on structure, sequence or organisation, or on look and feel, it is not made good. And to the extent that the submission depends on some inferences that are said to have been available from Professor Braun's evidence, the relevant paragraphs were objected to and rejected [116] . 2. EIFY has not made good its case for breach of such copyright as may subsist in the source or object codes of its online induction program. The 34 images 1. EIFY's case, as to copyright in these images, is as follows: 1. it contracted with Clearsite for Mr Quicke, in his capacity as an employee of Clearsite, to produce the images; 2. there was an oral agreement or arrangement between Clearsite and EIFY that for all images so produced, Clearsite would (and did) assign copyright to EIFY; 3. that oral assignment was confirmed, with retrospective effect, by deed made on 14 May 2015; 4. each of the 34 images comprises an original artistic work in which copyright subsists; and 5. accordingly, EIFY holds the copyright in each of those images. 1. The defendants contest almost every step of that argument, save that they accept that a deed of assignment was made between Clearsite and EIFY on 14 May 2015. The defendants do not however accept that the deed had the full effect that EIFY attributes to it. 2. There was a considerable amount of evidence devoted to the disputed steps; much ink was spilled in setting out the respective positions of the parties in writing; and considerable breath was expended in elaborating those submissions orally. There does not seem to me to be any point in resolving many of the disputed questions. There are two reasons. 3. First, it is clear that, whatever the deed did, it did not assign to EIFY any causes of action that Clearsite might have had for any breach of copyright up until 14 May 2015. As Besanko J pointed out in Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) [117] , an assignee can only sue for breaches of the assigned copyright prior to the date of assignment if those rights of action, as well as the copyright, were assigned to it. Although an appeal from his Honour's decision succeeded, it did not disturb the essential point (and with respect, the point must be correct in any event). 4. EIFY has not proved any breach of copyright occurring after 14 May 2015 (or if there is any evidence of such a breach, I was not taken to it in the course of submissions). It follows, in the absence of breach since the assignment was perfected, that there is no entitlement to damages vested in EIFY. Any compensable breach prior to 14 May 2015 remains vested in Clearsite, and Clearsite is not a party to these proceedings. 5. The second reason (for restricting consideration of the construction and effect of the deed of assignment) relates to the nature of the breach that EIFY asserts. EIFY's case, as to the 34 images, is that 3D Safety infringed EIFY's copyright by utilising those images for the purpose of preparing its own version of the Mirvac online induction program in 2012. 6. As an aside, I note that this cannot involve any allegation of breach of copyright in the source code of EIFY's online induction program, because the evidence of Mr Malthus, which was essentially unchallenged and which I accept, was to the effect that he himself developed the source code, on the instructions of Mr Morrow. He did so either in his capacity as an employee of McGirr (which in turn had a contractual relationship with 3D Safety, the effect of which was to give the latter the benefit of copyright in code written by McGirr), or in his capacity as an employee of 3D Safety. 7. Returning to the 34 images: it may be accepted that 3D Safety used them in the preparation of its online induction program for Mirvac. However, the images that it used were taken from the Mirvac online induction program that Group prepared for Mirvac, which in turn was based on the Thiess online induction program that Group prepared for Thiess. 8. To the extent that Mr Culbert played any part in the production of those images, he did so in his capacity as a director of Group. It follows that, to the extent Mr Culbert was an "author" for the purposes of copyright, any copyright arising from his efforts was held by him on trust for Group. That was common ground between the parties, and rightly so. See A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd & King [118] . 9. To the extent that the work was done by Mr Quicke, the position is a little more complicated. I have referred earlier to the way in which and the basis on which (as he understood it) Mr Quicke did that work [119] . If Mr Quicke did the work in his capacity as an employee of Clearsite, any copyright may subsist in Clearsite. If he did it in his capacity as a director of Clearsite, any copyright might subsist in him but would be held in trust for Clearsite, for the reasons I have given earlier. Clearsite is not a party to these parties and does not assert any claim of breach. 10. EIFY relies on the deed of assignment between it and Clearsite made on 14 May 2015, to which I have referred already. The subject of that deed, as both the recitals and the operative provisions make clear, is "Intellectual Property Rights", including copyright, created by Clearsite pursuant to or in the course of providing "Consultancy Services" to EIFY. The expression "Consultancy Services" is not defined but, by reference to the recitals, is apparently intended to denote "intellectual property services and other services" provided by Clearsite to EIFY from time to time. 11. Such services as Clearsite provided for the Thiess and Mirvac inductions were provided, as directed by Mr Culbert, to Group. I repeat that Clearsite invoiced Group (after an initial mistaken invoice to EIFY, which was cancelled at Mr Culbert's direction) and was paid by Group. Mr Culbert must have been acting as a director of Group when he instructed Clearsite to provide those services, and directed it to invoice Group. 12. In those circumstances, the work done by Mr Quicke on the Thiess and Mirvac inductions cannot be regarded as falling within the scope of the "Consultancy Services" from time to time provided by Clearsite to EIFY. Thus, to the extent that there is any copyright in those works (that is to say, in so much of the 34 images as were the subject of Mr Quicke's creative labours), it is not vested in EIFY by virtue of the deed of assignment. 13. In those circumstances, there is no point seeking to disentangle further the confusing and inconsistent evidence, and the submissions based upon it. Text 1. EIFY's particulars asserted that the text [120] on one page taken from an induction prepared by 3D Safety for Thiess breached EIFY's copyright in the text of two or three slides forming part of the induction that EIFY prepared for LORAC. It is not clear whether this claim was pressed. It does not appear to have been addressed separately in EIFY's closing submissions (written or oral, or in reply). Perhaps it is a chunk of EIFY's case that fell between the gaps [121] . 2. The short answer (if answer be required) is that although the text of the allegedly offending slide expresses the same idea as did the allegedly copyright text in the LORAC slides, the language is not the same. In the absence of submissions from EIFY on this aspect of its case, I do not propose to say anything more. Conclusion on copyright case 1. However it is put, EIFY's case based on breach of copyright must fail. Misleading or deceptive conduct 1. EIFY's case to misleading or deceptive conduct appears to be another chunk that has fallen between the gaps. I address it only because it is pleaded (and included in the stated issues) and has not been expressly withdrawn. The pleaded case 1. The pleaded case as to misleading or deceptive conduct is stated at paras 14 to 19 of the list statement. I set out those paragraphs: 14. Between February 2011 and May 2011, the first and/or fourth defendants made representations to the plaintiff that it would not develop software having the same or similar functionality to the software or systems of the plaintiff ("Pre-commencement Representations"). Particulars The Pre-commencement Representations were made during discussions between Mr Culbert of the plaintiff and the second defendant on behalf of the first and fourth defendants which occurred in the first half of 2011. 15. The Pre-commencement Representations were made in trade and commerce. 16. The Pre-commencement Representations were made in connection with the supply or possible supply of goods or services to others. 17. The Pre-commencement Representations were misleading and deceptive within the meaning of section 18 of the Australian Consumer Law. Particulars The Pre-commencement Representations were made either knowing them to be false or were not made on reasonable grounds, and the plaintiff in this respect relies upon section 4 of the Australian Consumer Law. The representations were promissory in quality and were unqualified, and the true position was that the first and/or fourth defendants might develop software having the same or similar functionality to the software or systems of the plaintiff. 18. The plaintiff relied upon the Pre-commencement Representations. Particulars But for the Pre-commencement Representations, the plaintiff would not have: (a) proceeded with the joint venture or, alternatively, have allowed it to continue; or (b) given the defendants the level of access they were given (they already had access, just to the level that the plaintiff subsequently provided) to the eInduct System and confidential information. 19. Further or in the alternative, it was misleading and deceptive for the first and fourth defendants to proceed with the joint venture in circumstances where they knew that the plaintiff believed that the defendants would not develop software having the same or similar functionality to the software or systems of the plaintiff, notwithstanding the first and/or fourth defendant's intention to do so. The parties' submissions 1. The topic was not addressed (in terms, at least) in the closing oral submissions for EIFY. It was referred to briefly in EIFY's closing written submissions, and in EIFY's closing written submissions in reply. Those submissions stated, at paras 75 and 68 respectively: MISLEADING & DECEPTIVE CONDUCT [75] The evidence shows that prior to the commencement of the joint venture, Mr Anthony Conacher, on behalf of the first and fourth defendants, represented to the plaintiff that the defendants would not develop software having the same or similar functionality to the software or systems of the plaintiff. The plaintiff relied upon those representations in proceeding with the joint venture and giving the defendants a level of access to its software or systems. The plaintiff will assert that the representations were made either knowing them to be false, or were not made on reasonable grounds, and that they were accordingly misleading and deceptive within the meaning of section 18 of the Australian Consumer Law. Misleading or deceptive conduct [68] The defendants' assertion in relation to the plaintiff's case for misleading or deceptive conduct is that it depends on an oral representation which Mr Culbert asserts Mr Conacher made and which Mr Conacher denies. The plaintiff asserts that if there is any contest between the truthfulness of Mr Conacher and Mr Culbert, the Court would comfortably accept Mr Culbert's evidence. 1. The defendants' submissions were that: 1. there was no evidence at all of any representation made (as the pleading asserted) between February and May 2011; 2. although Mr Culbert gave evidence of a representation said to have been made in July 2011, that evidence was uncorroborated and should be rejected; and 3. there was ample evidence that Mr Culbert had been told from time to time during the life of the joint venture that if the two systems could not be integrated, 3D Safety would develop its own online induction system. Decision 1. The first submission put for the defendants is correct. There is no evidence of any representation made between February and May 2011. On that basis, the pleaded case based on misleading or deceptive conduct must fail. 2. As to the conversation that Mr Culbert alleged took place on 25 July 2011, there is no corroboration. Mr Conacher denies that the conversation took place. Although I put no more weight on Mr Conacher's denial than I do on Mr Culbert's assertion, the inevitable outcome, bearing in mind my view as to Mr Culbert's credibility and the absence of corroboration, is that I am not satisfied, let alone actually persuaded, on the balance of probabilities that the alleged representation was made. 3. Even if the alleged representation were made, it is difficult to see how Mr Culbert could have placed any reliance on it. He had been told 20 days earlier, in an email of 5 July 2011, that if the integrated system could not be completed in time, 3D Safety might implement its own online induction system. The point was essentially repeated in an email from Mr Conacher to Culbert dated 13 July 2011, and again in the "Schedule Three" document signed by Messrs Conacher and Culbert on 20 July 2011. 4. As to this last document (signed five days before the date of the alleged representation), Mr Culbert accepted that it suggested to him that Mr Conacher might be intending or desiring to develop a competing product [122] . 5. The case based on misleading or deceptive conduct is not made out on the evidence. Remedies 1. EIFY has failed. It has not made good any claim to relief. I see no point in assessing what remedies (whether by way of damages, account of profits, equitable compensation or otherwise) might have been available. Any attempt to decide the question of remedies would require very different factual findings from those I have made. In effect, the exercise would require alternative hypothetical factual findings, and consideration of the results that, based on those hypothetical findings, might follow. 2. I add that even with the extended time allowed for the hearing, there was not enough time to consider the expert evidence on question of damages and other monetary relief. For those reasons, upon the defendants' accepting (as they did) that if the plaintiff succeeded, it had suffered some loss (to the extent necessary to perfect its cause of action), I directed that all questions of quantification of loss and other monetary remedies be dealt with separately from and after the determination of all other issues in the proceedings. Conclusion and orders 1. However it is put, EIFY's case fails. The result is that there should be judgment for the defendants. 1. Since there will no doubt be an argument as to the costs orders that should be made, I propose to direct that the parties provide written submissions (and with them any evidence on which they intend to rely as to costs), and written submissions in reply. Unless the parties persuade me otherwise, I propose to deal with the questions of costs on the papers once submissions are complete. 1. I make the following orders: 1. direct entry of judgment for the defendants on the plaintiff's claim. 2. Direct the parties, by 19 October 2017, to serve on each other and deliver to my Associate a draft of the costs orders that each seeks, any evidence in support of those orders, and written submissions not exceeding 10 pages in length in support of such orders. 3. Direct the parties, by 16 November 2017, to serve on each other and deliver to my Associate any evidence in reply on costs, and written submissions in reply not exceeding ten pages in length. 4. Unless the court otherwise orders, direct that the question of costs be dealt with on the papers. 5. Direct that the exhibits be handed out. ********** Endnotes 1. Report dated 4 November 2016, para 72. 2. Report dated 4 November 2016, para 61. 3. Paras 64 to 69 and Figure 6. 4. (2014) 253 CLR 122. 5. At [16] above. 6. (2011) 243 CLR 588. 7. At [37]. 8. (2001) 52 NSWLR 705 at [85]. 9. At [42]. 10. [2017] NSWCA 168 at [34]. 11. See at [26] and following above. 12. Honeysett at [43]. 13. Compare Honeysett at [45]. 14. Compare Rolleston at [36]. 15. At para 11. 16. At para 72. 17. At [24], [25] above. 18. At [102] and following below. 19. Affidavit made on 2 July 2015, para 2. 20. That reading appears at T617-619, and is summarised at [97] below. 21. I accept that, at the linguistic and philosophical levels, a "text" may include (although it need not be limited to) both images and words. For convenience, and reflecting the usage commonly adopted in the course of the evidence in this case, I shall use the word "images" to denote pictorial material and the word "text" to denote written language. 22. T604.18-.38. 23. T604.40-.44. 24. T605.6-.37. 25. T607.19-.42. 26. T618.7-.9. 27. See at [129] below. 28. At [71] above. 29. At [123], [124] above. 30. T952.9-.20. 31. Referring to the second of the three questions set out in the extract above. 32. See T1498.30-.40. 33. T1123.33-.41. 34. Expressed in the course of submissions at T1497.19-.29. 35. See also at [401] below. 36. As I shall explain at [173] and following below, there is a limited exception as to the 34 images. 37. At [92] to [98] above, and elsewhere. 38. At [14]. 39. See generally T444-449. 40. T445.38. 41. At para 78. 42. See generally T239-240. 43. See generally T213-220, 242-244. 44. (1995) 49 NSWLR 315. 45. At 318-319. 46. See for example T1020-1021 in conjunction with exhibit PX15. 47. See generally T923-924, T934. 48. See generally T1058-1060. 49. At [271] to [313] below. 50. Briginshaw v Briginshaw (1938) 60 CLR 336. 51. At [193] to [196]. 52. See generally T390-392. 53. See generally T397-400. 54. See at [145] and following above. 55. The written submissions were provided only after the oral submissions had been delivered. 56. Affidavit sworn 31 May 2017, para 116, corrected in part at T1217.44-.45. 57. At [281] above. 58. T1237.35-.43. 59. T1238.32-.34. 60. T123.36-.37. 61. See at [281] above. 62. See at [279] above. 63. See T905.35-906.19 64. T906.14-.26. 65. T906.41-907.7. 66. T908.6, 909.3. 67. After an opportunity to take instructions. 68. T910.39-911.5. 69. Fourth further amended commercial list statement at para 13. 70. T255.31-256.36. 71. T1281.1-.19. 72. See Megarry J in Coco v AN Clarke (Engineers) Ltd [1969] RPC 41 at 47. 73. See Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs for Victoria (1987) 14 FCR 434. 74. He referred to Artedomus (Aust) Pty Ltd v Del Casale 68 ISR 577 at [25]-[28] and Brand v Monks [2009] NSWSC 1454 at [184]. 75. He referred to (although the phrase in quotation marks does not come from) the judgment of Megarry J in Coco at 47. 76. (1982) 150 CLR 310. 77. [1974] RPC 82. 78. At 86-87. 79. Again at 328. 80. [1897] 2 Ch 48. 81. (1994) 29 IPR 11. 82. At [342]. 83. At [343], [344]. 84. (1985) 157 CLR 1 at 11. 85. (2012) 200 FCR 296 at [177] (Finn, Stone and Perram JJ). 86. Compare Brian, 157 CLR 1 at 10. 87. Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569. 88. See John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [93]. 89. See at [340] above. 90. Affidavit affirmed 21 December 2012, para 174. 91. See at [175] above. 92. Report dated 4 November 2016, para 61. 93. [2010] EWHC 1829 (Ch). 94. At [232]. 95. [2004] EWHC 1725 (Ch). 96. At [73]. 97. Ibid. 98. At [125]. 99. [2000] 1 WLR 2416. 100. At 2423. 101. At [129]. 102. [2007] EWCA Civ 219. 103. At [52]. 104. [2009] 1 Qd R 559. 105. At [82] – [84]. 106. At [85]. 107. At [86]. 108. (1993) 176 CLR 300. 109. At [87]. 110. See at [412] above. 111. At [422]. 112. 797 F 2d 1222 (1986). 113. 863 F Supp 2d 394 (2012). 114. 156 F Supp 3d 1052 (2016). 115. See at [409], [410] above. 116. See at [256] above. 117. (2012) 211 FCR 563 at [105]. 118. (1996) 65 FCR 478. 119. See at [374] above. 120. Meaning words. 121. See at [253] above. 122. Affidavit affirmed 21 December 2012, para 114. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2017