(2) The merits of the copyright infringement cross-claim
92 As already noted, Dallas Gibson gave evidence that he wrote the 160 questions and answers the subject of his cross-claim in 2000. In one account, he said that Ms Jo-Anne Tyler, who operated the Drummond Street Business Centre, typed up some "notes" for him; that he copied the notes from his laptop to a grey floppy disk for safe keeping; and that he gave the grey floppy disk to his solicitors, Middletons, in response to a request by them in mid 2005 for relevant documents. He gave evidence that he did not discover the 160 questions and answers until he examined the contents of the grey floppy disk. His copyright infringement cross-claim as put by him is, of course, inconsistent with the applicants' infringement claim, which, as I have said, I would uphold. The following discussion proceeds against that background, although I discuss the respondents' evidence on this part of the case separately below.
93 As the cross-respondents have pointed out, there are numerous difficulties with Dallas Gibson's account. First, the 160 questions and answers were questions and answers organised into 8 practice exams. They are not properly described as "notes". Secondly, there was no adequate explanation of what happened to the laptop from which the files on the grey floppy disk were allegedly created. When asked about this in cross-examination, Dallas Gibson was evasive, saying the laptop was "discarded" though he could not recall when. Thirdly, there was the fact that the grey floppy disk was not discovered to the applicants until 6 April 2006. In cross-examination, Dallas Gibson was unable to explain why he did not make discovery earlier, especially as his solicitors had asked him to provide relevant documents in mid 2005. He was also unable to explain why the 160 questions and answers were not specifically identified when the cross-claim was first advanced. His explanation for not noticing earlier that these specific questions and answers were his was entirely unconvincing.
94 Dallas Gibson gave two different accounts of the relevant events. On one account, he said that the "notes" were stored on a grey floppy disk after they were copied from his laptop. On another account (in his affidavit of 25 July 2006) he stated that the practice exams on the floppy disk were typed up and saved to the disk directly by Ms Tyler. A letter from his solicitor, Stuart Gibson, to Craig Macaulay of PPB Forensics, which was exhibited to his second witness statement, also said the practice exams on the floppy disk were typed up and saved to the disk directly by Ms Tyler. When pressed about the differences in these accounts in cross-examination, Dallas Gibson claimed, for the first time, that there were two grey floppy disks. I reject this explanation, however, because there had been no suggestion until this point in the trial that there were two grey floppy disks and, in any event, Dallas Gibson proffered each explanations, when it was given, as an exhaustive account of how the relevant floppy disk had been created on the clear assumption that there was in fact only one grey floppy disk.
95 Ms Tyler gave evidence, which ultimately did not particularly assist the respondents' case. She stated that she did some work for Dallas Gibson in September 2000, although this was inconsistent with an account exhibited to her witness statement indicating that the work was done in May 2000. She said that she provided her work in both hard copy and on floppy disk. Ms Tyler could say no more than that the questions she typed up were of a "similar style" to those that Dallas Gibson's solicitors had given her for identification. Unsurprisingly, given the passage of time, she was unable to identify any particular questions as having been typed up by her. Thus, I accept that Ms Tyler did some typing for Dallas Gibson in 2000, although I do not accept that this was the cross-claim works in suit. Any UMAT-style or general aptitude question might be described as having a "similar style" to the exams provided to her for identification. Accordingly, her evidence did not advance the respondents' case to any significant extent.
96 The respondents relied on the report and evidence of Mr Macaulay, who prepared a report concerning the grey floppy disk. His report stated, amongst other things, that:
1. The metadata showed that the files were created and last saved during December 2000 (on 8, 9 and 19 December).
2. The metadata showed the files were authored and saved by the user "Dallas".
97 If Ms Tyler had typed the questions up and saved them to the floppy disk said to have been handed to Dallas Gibson, then presumably she would have been identified in the metadata as the author. The respondents did not suggest that Ms Tyler, although a free-lance typist, was using his computer to process the work. The creation date of the material on the disks as recorded in the metadata was, moreover, 8 to 10 December 2000, which was inconsistent with the possible dates of May or September 2000 given by Ms Tyler. The metadata were inconsistent with the possibility that Ms Tyler had typed up and saved the questions to the grey floppy disk.
98 As the applicants acknowledged, the metadata were consistent to some extent with the other version of events that Dallas Gibson advanced (in his second witness statement), namely, that he was properly identified in the metadata as the author by reason of his having copied the material from his laptop to the disk. It is, however, problematic as to why the metadata would identify Dallas Gibson, not Ms Tyler, as the author even in this case.
99 In the end, Mr Macaulay's evidence leads me to conclude that, in this case, the metadata cannot properly be regarded as reliable evidence supportive of either side's case. Mr Macaulay said that determining the authenticity of the files recovered from the floppy disk can be "quite complex" and that he did not do it due to "complexity, and budget and time constraints". He was unable to exclude the possibility that someone had altered the metadata. He agreed that it was not always possible to determine whether or not this had occurred and, for this reason, the utility of metadata for determining authenticity was limited.
100 In order to refute the cross-respondents' allegation that he had altered the metadata relating to the files on the grey floppy disk, Dallas Gibson denied in cross-examination that he knew what metadata were. This proposition was unbelievable. The expert report, which he commissioned, dealt expressly with the concept of metadata and his assertion that he had not read the report was, in view of his interest in the matter, unbelievable. It is worth recalling that Dallas Gibson was in the business of teaching high-achieving students reasoning skills. He was both a literate and fluent witness, with a clear interest in knowing the evidence to be adduced in his own interest.
101 In addition to the matters already mentioned, there were other occasions that confirmed my opinion that Dallas Gibson was a dishonest witness. When shown a letter from his own solicitors, Gibson Legal, to Mr Macaulay, dated 17 October 2006, he said "this is the first I have seen of this ever in my life" notwithstanding that the letter was an exhibit to his second witness statement. As already noted, this letter affirmed, amongst other things, that Ms Tyler had saved her typing to the grey floppy disk and given it to him in about mid December 2000. In summary, Dallas Gibson was not a credible witness. At times, as shown in the following discussion, he was evasive or deliberately sought to obfuscate the evidence. At other times, he gave dishonest answers.
102 There were further difficulties with the cross-claimants' copyright infringement cross-claim. The cross-claimants did not attempt to explain how the copying could have occurred. Ann Boyapati's evidence was that she had independently compiled the 160 questions and answers the subject of the cross-claim, without reference to Dallas Gibson. The materials that she said were given to her in 2003 when she did an Icarus College UMAT preparation course were exhibited to her witness statement and in evidence. These materials did not include the 160 questions and answers. Furthermore, David Wilson, solicitor for the Boyapatis, deposed that he had received the course materials that Dallas Gibson said he and RMC supplied to Ray and Ann Boyapati in 2001 and 2003 from the cross-claimants' solicitor pursuant to a notice to produce. The 160 questions and answers did not appear in this material either.
103 There were some specific similarities in the language used by the MedEntry questions and Dallas Gibson's questions, which, when contrasted with the pre-existing sources, indicated that Dallas Gibson's questions had been copied from the MedEntry questions. In cross-examination, Dallas Gibson accepted that at least some of the cross-respondents' questions were closer to what was probably the original source than his questions. He accepted ultimately that this made it more likely that they had worked from the original source and not his questions.
104 It became increasingly plain at the trial that Dallas Gibson was simply making up much of his evidence as he went along, in order to support his copyright infringement cross-claim. The materials that the cross-claimants gave Ray and Ann Boyapati as students in their course had five possible answers whilst the cross-claim works in suits had four possible answers. As previously noted, the "four possible answers" style more closely simulated the UMAT and, for this reason, the cross-respondents had adopted it. Dallas Gibson explained, both orally and in a witness statement, that he considered the five possible answers format to be useful because "it forces students to train to read faster and think faster than [for] the actual UMAT test itself". I do not, however, consider that this adequately answered the criticism that the cross-respondents' format was new when compared to Dallas Gibson's previous practice exams. In any event, Dallas Gibson also gave a different explanation, which was to the effect that he "created a new question without reference to the prior question" and the "questions evolved". When asked to explain the creation of new questions, he answered that it "augments my question bank". His evidence in this regard was unconvincing. Further, Dallas Gibson was unable to recall any third party source for his own alleged work in 2000. He was also unable to say whether or not he had written any questions from scratch.
105 The cross-claimants called Phillip Roumanos, Jennifer Macks, Frank Stitt and Kaitlyn Williams, all of whom had done the cross-claimants' UMAT preparation course. For the following reasons, I do not consider that their evidence assisted the cross-claimants' case.
106 Mr Roumanos stated that he was a medical student at the University of Newcastle and that, in 2001, he had attended a two-day UMAT preparation course that Dallas Gibson taught. He stated that, whilst attending the course, Dallas Gibson had given him two tests in hard copy, which he had subsequently studied. His evidence was that the certain questions and answers (in the cross-claim works in suit) "look[ed] to be of the same style to the questions [he] reviewed in … 2001" and that he recognised some four questions. In cross-examination, he said that he had subsequently attended UMAT courses presented by Dallas Gibson in 2003 and 2004, and had done Dallas Gibson's UMAT practice exams in 2003. He was unable to say what triggered his memory about any particular question, since he had seen "so many". He conceded that it was possible that he had confused the year in which he had seen a particular question or questions. Mr Roumanos was an honest witness and his concession was properly made.
107 Dr Macks stated that she was doing an internship at the Hunter New England Area Health Service. She stated that, in 2001, she had attended a two-day UMAT preparation course run by Dallas Gibson. She stated that she had looked at certain questions and answers (within the cross-claim works in suit) and that they were the "same or similar" as the documents she viewed during the course in 2001. She stated that she particularly recalled one question because it related "to real life experiences [she] had had while living and working in Malaysia". However, when the cross-examiner showed her another question dealing with the same subject matter (not being part of the cross claim works in suit), she was unable to say which question she had seen in 2001. She affirmed only that "[w]hat I remembered was the style of the question and the content of the question". I accept her evidence on this point, but it does not much advance the cross-claimants' case.
108 Dr Stitt, who was a physician educator, had consulted Dallas Gibson in or about late 2000 "to assist [him] in recruiting students for prospective entry into the new Samoan Medical School". In the course of so doing, Dr Stitt had reviewed some of Dallas Gibson's materials in depth in 2000. In his witness statement, he said that "[a]lthough [he] cannot exactly recall each and every question, [he is] able to say that the questions and answers generally look identical to the questions and answers [he] reviewed in … 2000". In cross-examination, Dr Stitt stated that his review was limited to "test one section two questions", which related to ethics and communication. He also stated that there was "no way" he could have a clear recollection of the questions. He could not say whether the questions given him by Dallas Gibson's solicitors were identical to the questions that he had considered in 2000. He could only say that they covered the same material. I accept Dr Stitt's evidence but, once again, it does not particularly advance the cross-claimants' case.
109 In summary, the evidence of these three witnesses, all of whom were credible, was that in 2000-2001 or thereafter, they had seen questions concerning the same or similar subject matter, or of the same style, as the 160 questions and answers that were the cross-claim works in suit. It was not in contest that, in 2000 and thereafter, Dallas Gibson was using these sorts of questions and answers in his UMAT preparation course. The evidence of these witnesses did not, however, show that what they saw in 2000 or 2001 were the 160 questions and answers that were identical to the cross-claim works in suit.
110 Ms Williams' evidence was of a different kind. She described herself as "a second year distance education student at Southern Cross University, studying for a Bachelor of Health Science". She stated that, in 2001, she too attended a two-day UMAT preparation course run by Dallas Gibson and that she had been given two practice tests in hard copy at this time. She said that she had found one of them, test number 8, in her garage.
111 In cross-examination, she also said that she attended an UMAT preparation course conducted by Dallas Gibson in 2005, although she was not entirely certain of the year. She explained that she had not "really looked at it since". She stated that she found test number 8 "in the garage in the box", "along with a whole lot of other stuff". She was also unclear about when she went back and did the HSC for a second time. She stated that she did the HSC again because she did poorly the first time, although she apparently obtained sufficiently high marks the first time to undertake a science degree part-time at Sydney University. She was also very unclear about how she came to be identified as a witness in the proceeding, although she denied speaking with Dallas Gibson or his solicitors beforehand. She agreed that Dallas Gibson's solicitors had given her a test to look at, which happened to be test number 8. She was unable to remember whose markings appeared on her copy of test number 8.
112 Having regard to the forgoing, it is apparent that Ms Williams was a most unsatisfactory witness. I would not regard her evidence as at all reliable. I am not satisfied that the test that Ms Williams produced was given to her in 2001. It is more likely than not that, if indeed she found the test in her garage, she acquired it from Dallas Gibson at a later date when she undertook his UMAT preparation course for the second time.
113 The cross-claimants also relied on the expert evidence of John Olsson, a forensic linguist resident in the United Kingdom. Mr Olsson stated that he had been informed that Dallas Gibson alleged that "examination questions prepared by his college were plagiarized by a person or persons known to Mr Gibson".
114 On its face, Mr Olsson's report supported the cross-claimants' case, although, for the reasons set out below, its significance was greatly diminished in cross-examination. In his report, Mr Olsson stated that he had been sent "copies of a sample of questions … as two blind sets". As a result of his examination of the material, he concluded in his report that "it is highly likely that [MedEntry's questions] were plagiarised from [the cross-claim works in suit]"; "that the person who perpetrated this activity is not likely to be a native-speaker of English"; "that he or she has medical or other scientific knowledge or training"; and "that the possibility exists that there is more than one author, given the varying standard of diligence shown in the phrasing, punctuation and organisation of some of the questions".
115 In cross-examination, however, it became plain that Mr Olsson's report was based on incorrect assumptions. In some cases, Mr Olsson had not been provided with an accurate copy of the MedEntry questions, so that criticisms of them were plainly misplaced. Further, Mr Olsson had made his report on the erroneous assumption that there was no third party source for what he thought was the plagiarised material. This added, so Mr Olsson said, "a new dimension". Mr Olsson agreed, and indeed it was clear to see, that many of the MedEntry questions were closer to the pre-existing source questions than were the cross-claim works in suit and that it was therefore more likely that the MedEntry questions were based on the source questions than the cross-claim works in suit.
116 In cross-examination, Mr Olsson said that it was necessary to see "the whole thing in the round to get a fuller picture of the degree to which text has been borrowed from one source rather than another". He agreed that he would need to modify his conclusions. He concluded his evidence in cross-examination with the observation that he had only an "incomplete picture".
117 Mr Olsson's assertion that Dallas Gibson's questions displayed a more "teacherly" character than the MedEntry questions may reflect the fact that he had more experience in preparing students for the UMAT and other aptitude tests than the Boyapatis. I would not, however, accept that the more pedagogical version was the original version because this would disregard the fact that the MedEntry questions were most probably derived from pre-existing third-party sources.
118 The cross-claimants failed to discharge their onus of proof on the cross-claim. I reject the cross-claimants' submission that, on the balance of probabilities, the cross-claim works in suit were created in 2000. I accept that the 160 questions and answers saved to the grey floppy disk and given to PPB Forensics were created in or after 2004 by reference to the applicants' work in order to provide some basis for a cross-claim which did not otherwise exist.