Conclusion on Copying
534 In my opinion, the evidence given by a number of Dennis witnesses to the effect that Ms Wilson did not have access to the Barrett works prior to designing the Grange plans by 27 April 2003, and that Ms Wilson and Mr Rowley arrived at the relevant Dennis plans by independent design pathways rather than copying or making use of the Barrett works, was unpersuasive.
535 On seeing them give their testimony at trial, I concluded that Ms Wilson, Mr Rowley, Mr Hofmeyer and Mr Brigden were unreliable and defensive witnesses whose evidence was lacking in candour. Due to the time which has elapsed between the trial and the publication of these reasons, I record that I formed and maintained an unfavourable view of the credit of the above witnesses at the time of trial.
536 As appears from the detailed discussion of the evidence of individual witnesses above, their oral testimony was frequently evasive and reluctant. In many instances, the testimony of Mr Rowley, Ms Wilson and Mr Hofmeyer shifted as they made reluctant but significant concessions essentially necessitated by contemporaneous documents. The oral testimony of those witnesses was also, in many significant respects, inconsistent with their written evidence which, in turn, did not accord with the picture which clearly emerged from relevant contemporaneous documents.
537 Ms Wilson lived and worked in Shepparton where Porter Davis houses, including the Seattle and the Memphis, had not been constructed as at 27 April 2003, by which date she had designed the draft Grange 262 and Grange 292. Ms Wilson did not concede, and indeed denied any recollection of, having seen or being aware of the Barrett works, or any infringing work, plan, photograph or other depiction thereof prior to or at the time of designing the Grange plans.
538 Barrett was unable to establish any specific instance of Ms Wilson's access to the Barrett works prior to 27 April 2003. It is well established that in the absence of direct evidence of a respondent's access to or copying of the copyright works, the causal link may be inferred: S.W. Hart at 472; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 ("Clarendon Homes"); Inform Design & Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd (2008) 77 IPR 523 ("Inform Design") at [69]. Barrett submitted that in this case, the court should infer access from the surrounding circumstances, including the Dennis corporate context and goals prevailing at the time. Barrett submitted that it was probable that Ms Wilson had access in that context, whether by her direct inspection of the Barrett houses, infringing houses, plans, photographs or advertisements, or by instructions or materials transmitted to her by Dennis Metro division design or other staff who, prior to 27 April 2003, had the opportunity for, and, in some instances, proven access to, the Barrett works.
539 The above Dennis witnesses (including Mr Hofmeyer and Ms Wilson, who were independent in the sense that they were no longer employed by Dennis) professed a complete inability to remember many matters which were highly significant to the present dispute, but asserted a selective recollection of matters supportive of Dennis' case. Their evidence was to the effect that:
(a) Ms Wilson did not have any effective opportunity for direct access to the Barrett works prior to designing the Grange plans;
(b) Although Mr Rowley and other Melbourne based Dennis staff had the opportunity for and in some cases proven access to the Barrett works, they had little or no interest in or awareness of competitors' designs. Further, they had little opportunity to, and did not, transmit any relevant awareness, information, material or instructions concerning the Barrett works to Ms Wilson prior to or during her design of the Grange houses; while Mr Hofmeyer regularly travelled between Shepparton and Melbourne, initially on a monthly basis, he gave Ms Wilson only general instructions in relation to her design work; and
(c) Ms Wilson and Mr Rowley, in any event, produced their respective Dennis designs by pathways independent of the Barrett works.
540 Ms Wilson, while unable to recall the process of designing the Grange plans at all, was confident that at the time she was unaware and made no use of the Barrett works.
541 She did not mention her visits to Metricon houses with Ms Fraser in her written evidence and could not recall the dates or details of the visits in crossexamination, but recalled, implausibly in my view, that they were directed only at specification items such as taps, rather than design.
542 Ms Wilson's assertion that, although an experienced and skilled designer, she did not notice the similarities between the Memphis alfresco quadrant and that of the Grange 291 when she inspected the Memphis in August 2003 was also, in my opinion, improbable and unconvincing.
543 Mr Rowley deposed that in December 2008, when he prepared his first affidavit, he had completely forgotten the formal programme of opposition display visits he personally instituted in early 2003, in which he participated and on which he both received and prepared written reports. His claimed recollection that the visits were directed only at specification items and presentation was, given his related memory loss, unpersuasive. Despite the passage of time between the events of 2003 and the preparation of his first affidavit in this matter, it was surprising that Mr Rowley would entirely forget a formalised programme of inspecting competitors' display houses that he personally devised, given its importance to the issues in dispute. Mr Rowley's explanation for his failure to make timely discovery of the relevant diary entries, review reports and reports to the board was also, in my opinion, unsatisfactory, as comprehensive inquiries should have been made for the purposes of discovery.
544 While, as Dennis submitted, Mr Rowley did not categorically deny his access to Barrett houses, his evidence about his familiarity with Porter Davis and access to Barrett works was, in my opinion, calculating and evasive, rather than frank.
545 Mr Hofmeyer's evidence did not disclose some significant realities of the prevailing context and his own role within it. His affidavit neither mentioned that he was appointed Acting Chief Executive Officer of Dennis in January 2003 nor acknowledged the concurrent important developments in the Dennis corporate structure, business environment and goals requiring, inter alia, nationalisation and renewal of design, against which backdrop Mr Hofmeyer instructed Ms Wilson to produce the series of new designs which included the Grange plans.
546 Although Mr Hofmeyer acknowledged those matters in crossexamination, he did not satisfactorily explain their omission from the written evidence. Mr Hofmeyer could not recall the 2003 Metro design team opposition visits, or a number of business objectives and problems noted as significant in contemporaneous board papers or reports. He nevertheless recalled that in 2003 he had no knowledge that alfrescos were used in Melbourne, or that Metricon and Porter Davis were selling large numbers of houses which included that feature. I considered it improbable that Mr Hofmeyer was unaware of such matters in 2003, given his total inability to recall other related matters, his central leadership position in the Dennis organisation at the time, the references to Porter Davis and associated features in board papers he received, and Mr Denison's evidence (supported by that of industry sales staff) that the success of the Barrett houses containing an alfresco was well known in the industry at the time.
547 Mr Brigden was an unimpressive and unresponsive witness, whose assertion of purpose for meetings he acknowledged that he could not recall was selfserving and unpersuasive. Mr Brigden's evidence related to a limited issue. His total lack of recall of any visits he participated in, and professed lack of any knowledge of a Porter Davis style alfresco or features, suggested, however, a lack of candour.
548 There was force in Barrett's submission that the affidavits of Ms Wilson, Mr Rowley, Mr Brigden and Mr Hofmeyer, taken together, presented a sanitised and selective version of the antecedents of and context in which the Dennis plans were produced.
549 Contrary to the contemporaneous documents, including those produced only shortly before or during the trial, the affidavits gave no indication that in early 2003, the Dennis business was undergoing a restructure in order to address urgent problems in meeting market demand for, inter alia, renewed or more innovative designs and to make up ground lost to competitors. Instead, the written evidence depicted a stable Dennis corporate organisation and culture which was essentially unchanged when Ms Wilson designed the Grange 262 and Grange 292 plans in late April 2003, and where the Regional and Melbourne design and other staff continued, in practice, to operate separately, with little or no interchange or crossfertilisation between either the design staff of the different divisions or between design and sales staff generally. The written evidence indicated that despite the acknowledged introduction in January 2003 (under Mr Rowley's leadership) of the National Design Team, which Ms Wilson joined at an unspecified point in 2003, divisions persisted until considerably later and Ms Wilson's effective participation in national design work did not begin until at least mid 2003.
550 The written evidence also maintained that Dennis designers, including Mr Rowley and Ms Wilson, were largely indifferent to the designs and market success of their competitors both prior to and during the creation of the Grange designs.
551 In crossexamination, Mr Rowley, consistently with that evidence, while conceding that he met Dennis sales staff, denied that he received feedback about designs from them. At one point, Mr Rowley asserted, most implausibly, in my opinion, that as head of Dennis he had no interest in, awareness or monitoring of, competitors' designs or commercial success, but "operated in a complete vacuum". Ms Wilson also maintained that although she met sales staff, she did not receive feedback on the popularity of designs from them. It is probable, however, on the evidence, that well before April 2003, interchange about, inter alia, successful house designs occurred between volume building industry competitors' display site staff, with a likelihood of resultant feedback from Dennis sales staff to designers and other Dennis staff.
552 Dennis did not dispute that, for a considerable time prior to April 2003, Dennis Metro design and other staff had ready opportunity for access to the Barrett works or relevant infringing works through a variety of means, including their public exhibition in display villages situated at various locations throughout outer Melbourne, or related brochures, plans and advertisements published in The Herald Sun Property Guide (a publication taken by the Metro division) or elsewhere. Dennis did not dispute that from August 2002, photographs of the Memphis, including the alfresco quadrant, were stored on the Dennis computer network (although Mr Rowley deposed that they could not be directly accessed by Regional Division computers as at April 2003).
553 I am not persuaded that Mr Rowley and Dennis design staff generally were, prior to April 2003, largely indifferent to competitors' designs and products and consequently, despite the available opportunities for access, lacked detailed awareness of the Barrett works.
554 In my opinion, the evidence established that well prior to 2003, Dennis design staff, as the witnesses to some extent acknowledged, inspected, monitored and were aware of competing builders' products. They also maintained a degree of contact and communication about design between the different divisions. Further, the evidence established that prior to 2003, Ms Wilson had some opportunity for direct personal inspection of the Barrett works or infringing houses.
555 Prior to 2003, Mr Hofmeyer directed Ms Wilson to view Queensland Dennis houses with Mr Rowley and other staff in order to gain design inspiration. He made clear his admiration for the sala, which she promptly thereafter incorporated into a design. Mr Hofmeyer also, occasionally at least, brought back from his regular visits to Melbourne Metro designs for Ms Wilson to adapt and copies of The Herald Sun Property Guide.
556 Prior to 2003, Mr Rowley also occasionally met Ms Wilson in Melbourne, Shepparton. They thus had opportunities to discuss design during the period when the Barrett houses and third party builders' infringing houses were exhibited in the Melbourne area, sometimes adjacent to Dennis display sites, the opening of which Mr Rowley acknowledged he typically attended. The evidence established that Henley sales staff were highly aware of the nearby Barrett houses' strong customer appeal and considerable commercial success. The evidence also established the tendency of display village sales staff in the volume housing industry to meet and exchange information with their competitors. It is probable that Dennis sales staff were, like the Henley staff, aware of the success of the Seattle and Memphis houses on display near their own display sites.
557 Mr Denison agreed that "other players in the industry" would have noticed the very substantial success of the Seattle and Memphis in 2000, which created a "very noticeable market presence". He conceded that during 2003, he saw Metricon as a key competitor and that Porter Davis staff themselves informed him of their market success.
558 In August 2002, around the time of a Dennis national conference attended by a large contingent of Shepparton staff, there was sufficient interest in the Memphis within the Dennis organisation for a member of the Dennis design staff to take photographs of it, including shots of the alfresco quadrant, which were thereafter stored on and available from the Dennis computer network. The notes of the Dennis Design Team's inspection of the Cairnlea Porter Davis Memphis display house on 4 June 2003 compared a lack of progress with two years earlier, thereby indicating the author's awareness of the Barrett's display at Ferntree Gully as long ago as mid 2001.
559 Ms Wilson could not recall participating in the 2002 inspection of display houses in Melbourne or the meeting with Mr Rowley that preceded it, even when taken to a contemporary email exchange. Mr Rowley deposed that he arranged the trip so that the Shepparton designers could observe Dennis Melbourne display sites and, while conceding that the party may have visited Rowville, denied that they visited the adjacent Porter Davis Memphis display. He conceded, however, that he was not present for the entire trip. I was not persuaded that the offer in Mr Rowley's email to provide Ms Wilson with brochures established that the Dennis personnel viewed only Dennis houses.
560 Contemporaneous documents produced only at a late stage of the litigation established that by late 2002 to early 2003, Dennis had resolved to restructure its business organisation and policies to achieve an urgent turnaround in lost market and competitive ground. The business was experiencing significant problems. All divisions were performing below budget, Triline significantly so. There was a decline in sales, and the Dennis product was perceived as "not cutting the mustard" and the Executive Division as "bleeding to death". Ms Wilson conceded that at the time, she regarded the Dennis designs as plain, dated and boring.
561 From January 2003, the process of inspection and monitoring of competitors' products and the interchange between Dennis design staff was formalised in response to the pressing business problems which had emerged. Mr Hofmeyer was appointed Acting Chief Executive Officer, a position which placed him at the heart of the organisational response and involved him in more frequent travel between Melbourne, Shepparton and other locations.
562 As a part of the reorganisation, Mr Rowley was appointed head of a National Design Team. Documents which were not produced until shortly before trial revealed that Mr Rowley then instituted the structured program of design team visits to review competitors' display sites (including the Barrett works and infringing Metricon houses) which actively commenced in March 2003. The visits were recorded in detailed notes. The opposition display visit programme, which was not mentioned in Mr Rowley's first affidavit, rendered untenable the view that Dennis design and other staff were, immediately prior to and during the design of the Grange houses, generally indifferent to and largely unaware of competitors' designs and products. The reports of the visits documented extensive examination of the features of the relevant houses, including design. They indicated, as stated above, a previous inspection of the Ferntree Gully Barrett display up to two years prior to 2003.
563 The reports did not, on a fair reading, reflect an interest limited to specification items, presentation, outside areas or landscaping. A stated aim of the opposition display visits programme was to avoid designing in isolation and the reports reflected a sustained active interest in the products of the relevant competitors, extending to design. While there is no indication that the visits targeted any particular feature or of their length, the reports reflected a serious and detailed general examination which was clearly more than a fleeting survey.
564 Mr Rowley prepared corresponding reports on design to the board, conceded that he intended to disseminate the information gained from the visits and acknowledged his own participation in a visit to a Metricon display site containing an infringing Tyrell houses on 2 April 2003.
565 I am satisfied that by early 2003, Mr Rowley and various other members of the Dennis design team were aware of the Barrett designs and their commercial success.
566 Further, I am persuaded that Mr Hofmeyer, given the prevailing corporate context and his own central position, was, at the time, aware of the Barrett designs and their popularity, which, as Mr Denison acknowledged, would have been very noticeable to those in the industry.
567 Ms Wilson became a member of the National Design Team in 2003. The precise date of her formal membership was not established. Dennis contended that her active participation did not begin until at least mid 2003, well after Grange plans were essentially completed and after the first documented exchange about her designs with Mr Rowley on 1 May 2003. I am satisfied, however, that prior to 27 April 2003, interchange and communication between Ms Wilson and Melbourne Dennis design or other staff who had direct access to the Barrett works had already occurred.
568 By early April 2003 at the latest, Ms Fraser, who was obsessed with Metricon and pressed Dennis staff to visit Metricon display houses, had commenced her employment with Dennis. According to Ms Wilson, Ms Fraser accompanied Ms Wilson and perhaps Mr Rowley on an indefinite number of inspections (the precise dates of which Ms Wilson could not recall) of Metricon display houses (the precise identity of which Ms Wilson could not recall). I was not persuaded that such visits postdated the design of the Grange houses or that their purpose was limited to viewing specification features. Further, in crossexamination, Ms Wilson ultimately expressly conceded that she commonly liaised with Metro design staff about her designs and at the time she was designing the Grange houses, contrary to the impression created by her affidavit, she was also "definitely" in communication with Mr Rowley, Ms Rak (who took the notes of the opposition display site visits) and a committee of Metro staff. I do not accept that such communication was limited to specification or presentation issues. Mr Hofmeyer also, at the relevant time, travelled more frequently between Melbourne and Shepparton. Despite his lack of recall, I am persuaded that, at that time, Mr Hofmeyer read the design reports to the Dennis board, was conscious of the urgent business goals, including the need to introduce more innovative designs, and was aware of and approved the design team's competitor display site visits. There was thus opportunity, capacity and incentive for Mr Hofmeyer to transmit or communicate material or instructions to Ms Wilson prior to her completion of the Grange draft designs.
569 I am satisfied on the balance of probabilities that, although it is not possible to identify the precise means, Ms Wilson, contrary to her denial, had access to and awareness of the Barrett works, or the infringing plans or houses of other volume builders which relevantly reproduced the Barrett works, prior to and during her production of the Grange 291, whether by her own visual inspection of the Barrett houses, infringing houses, brochures, advertisements, plans or photographs, or more indirectly, through instructions or descriptions transmitted or conveyed to her by others who had access to the works in Melbourne. Further, I am satisfied that Ms Wilson copied or made use of the Barrett works in designing the Grange plans. In this context, the questions of objective similarity and copying overlap. In summary, I infer Ms Wilson's access and copying from the totality of the facts and circumstances, including the following principal matters:
(a) The opportunities for and actual access by Dennis staff to Barrett works or intermediate versions of them prior to 2003, and the opportunities for transmission of materials and information to Regional staff;
(b) The Dennis corporate restructure and business context in early 2003, where the renewal of design to meet the market was one of a number of pressing business goals;
(c) The appointment in January 2003 of a National Design Manager and formation of a National Design Team, to which Ms Wilson belonged and with some members of which she frequently liaised by April 2003;
(d) The institution in early 2003 of the formal program of visits and detailed scrutiny of competitors' houses (including, on 2 April 2003, the Metricon Tyrell) by members of the Dennis Metro design team, including Mr Rowley, the reports on which reflected a past familiarity and present awareness of the Barrett alfresco area and other features;
(e) Ms Wilson conceded that she participated in visits to competitors' display houses which she could not recall, at dates she could not remember, with Ms Fraser, who commenced employment with Dennis by early April 2003, was obsessed with Metricon and urged staff to view Metricon houses;
(f) Ms Wilson conceded that she commonly liaised with Metro design staff and, at the time of designing the Grange houses, she was "definitely" in communication and interchange with Mr Rowley and other design team members, including Ms Rak, Mr Hofmeyer and a "committee" of Dennis staff;
(g) By the time Ms Wilson designed the Grange 291, photographs of the Memphis house and its alfresco quadrant were, and had been for months, stored and available on the Dennis computer network;
(h) Ms Wilson was, as she conceded, in possession of the brochures and plans of other builders, the identity of which she could not recall;
(i) Ms Wilson was an experienced and capable designer, with the ability to absorb the features of the Barrett works from a relatively transient inspection or indirect instructions;
(j) In March 2003, in the context of the restructuring, Ms Wilson was instructed by Mr Hofmeyer to inspect housing in Perth and to produce a considerable number of new designs to meet requirements and, by a facsimile dated 1 May 2003, submitted the plans on which she was working to Mr Rowley for approval, comment and circulation to the design teams;
(k) The strong objective similarity and visual resemblance between the alfresco quadrant of the Grange 291 and that of the Barrett works, in which the alfresco quadrant was arranged differently from any prior work, and which was the product of considerable skill and labour;
(l) Ms Wilson was completely unable to recall the process of designing the Grange houses and many circumstances leading up to or surrounding it, such as the identity of houses she visited with Ms Fraser or the relevant dates. I have referred above to the lack of candour, inconsistency and other unsatisfactory features of Ms Wilson's testimony. Despite the passage of time, her total absence of recollection was, in my view, surprising, particularly when contrasted with her certainty that she did not make use of Barrett works. Ms Wilson's total lack of memory of the design process further attenuated her disavowal of awareness or making use of, or receiving details or instructions related to, the Barrett works or intermediate or infringing versions thereof;
(m) Ms Wilson was unable to posit a credible alternative design path for the Grange plans, including the Grange 291. She did not strongly press and did not assert that she independently identified the Dennis designs to which she referred in her affidavit as constituents of "the furniture of her mind" in the genesis of the Grange designs;
(n) The Grange 291 included some features similar to those previously used by Ms Wilson in other Dennis designs or in houses she viewed in Perth, and senior counsel for Dennis submitted that, for example, the addition of a rumpus room to plans with which Ms Wilson was familiar indicated that relevant aspects of the Grange 291 were merely a logical progression. The inclusion of features which were not copied could not, however, negate the fundamental similarity of the alfresco quadrants of the Seattle and the Grange 291. Further, Ms Wilson, who was herself critical of existing Dennis designs, did not describe a design pathway from any particular plan or demonstrate the application of the furniture of her mind to the production of the Grange designs.
(o) In the expert opinion of Dr Cooke, the nominated Dennis designs were not links in the Grange design chain.
(p) While Ms Wilson's failure to preserve any record at all of her design process and workup was in great contrast to the practices of the Barrett designers, Barrett did not challenge the evidence that she created designs without making any handdrawn sketches, instead using CAD software and successively deleting the penultimate electronic drawing of each design when amending it. There was no evidence of a uniform industry practice of preserving records of the design process or work-up. Therefore, in itself, the absence of any documentary record of the design record did not reflect adversely on Ms Wilson's credit. Nevertheless, as Weinberg J observed in Inform Design, both the credibility of the respondent designers in that case, and the contemporaneous documentation showing the development and evolution of their plans, persuaded him to accept their assertions of independent creation. In the present case, when Ms Wilson's total lack of memory of the design process was combined with a complete absence of a documentary record of her design work up and other relevant circumstances, including credit, it rendered her assertion of an independent design pathway for the Grange untenable.
570 In my opinion, it is highly improbable that Ms Wilson independently produced, within a short space of time, without any specific genesis, identified lineage or demonstrated workup, a house plan incorporating an alfresco quadrant strongly resembling that of the distinctive and successful Barrett works (the creation of which, on unchallenged evidence, involved a prolonged and laborious design process).
571 I therefore conclude that Ms Wilson had access, either direct or indirect, to the Barrett works through one or more of the opportunities presented by the corporate context and activities described above, and did in fact make use of or copy them to produce the Grange 291, which therefore infringed Barrett's copyright in the Barrett works.
572 Barrett invited me to find that Ms Wilson may have made unconscious use of the Barrett works, while Dennis asserted that I should find that she copied them deliberately or not at all.
573 The authorities recognise the possibility of unconscious copying: Francis Day & Hunter Ltd v Bron [1963] Ch 587; Clarendon Homes at [24]. Infringement of copyright does not require deliberate copying or a consciousness of wrongdoing. I have expressed an unfavourable view of Ms Wilson's testimony and there is, due to her absolute inability to recall designing the Grange plans, a vacuum in the evidence on her accompanying state of mind. The cases recognise that the subconscious copying of architectural plans is likely to be unusual. In the circumstances, I consider it improbable that Ms Wilson's use of the Barrett works was unconscious.
574 It follows that, as the Grange 322 and Thornton 310 were created largely by Mr Rowley through adapting the Grange 291, and given the strong visual similarity of their alfresco quadrants (from which the addition of a projecting sala in the Grange 322 did not, in my opinion, fundamentally detract), the Grange 322 and Thornton 310 were likewise derived from the Barrett works rather than independently created, and thus infringed Barrett's copyright.
575 It was established that Mr Rowley, in contrast to Ms Wilson, prior to designing the relevant Dennis works, had direct access to a Grange draft and the Metricon Tyrell by late April 2003, in addition to the many other opportunities for access to the Barrett works, whether in display sites or by other more indirect means available in the corporate and industry milieu described above.
576 In my opinion, for the reasons set out above, Mr Rowley was not a credible witness. His evidence generally was unreliable and inconsistent. In particular, his explanation of his creation of the Esperance, from which the Flinders series of house plans was derived, was not plausible.
577 The Lexton B3, which Mr Rowley identified as the genesis of the Esperance (from which the Flinders series of houses was derived), did not have an alfresco quadrant. Although Mr Rowley maintained a design file, it contained only several concept sketches in relation to the creation of the Esperance. The sketch Mr Rowley identified as the very first sketch of the Esperance already included an alfresco quadrant, which Mr Rowley testified he had already worked out. Dr Cooke observed no evidence of tracing, and although Mr Rowley was familiar with the Lexton B3, Dr Cooke stated that tracing is common when a new plan is created by modifying an existing plan. There was nothing in the sketches to demonstrate either that the Lexton B3 was the starting point of the Esperance or how the Esperance sketches developed from the Lexton B3. Dr Cooke considered, and I accept, that that the Esperance was not derived from the Lexton B3, but was probably produced with reference to the Grange 291, as it shared the distinctive alfresco quadrant fundamentally similar to that of the Barrett works.
578 I therefore conclude that Mr Rowley made use of or copied the Barrett works, directly or indirectly, to produce the Esperance, Thornton 310 and Flinders plans.