McCallum v Projector Films Pty Ltd

And it is correct, isn't it, that the core of the storytelling occurred prior to the Julian Hart cuts?---For episode 1, yes.

1. Mr Ngo also agreed that there were a "lot of sequences" that were similar as between Mr Hart's cut of Episode 1, the "Grace Eyre cuts" and the "David Ngo cuts", but added that there "was definitely some additional scenes that were different between my cut and what we refer to as Julian's first cut". As I return to below, there were certainly differences, but many of the sequences were the same or similar to the earlier versions. The point though is that Ms Maclaren did not consider any of these matters as she had not reviewed the iterative versions of the edits.
2. Further, Ms Maclaren's evidence did not take into account that (as Mr Ngo had himself foreshadowed much earlier when the Executive Producers insisted on bringing Mr Hart on board) there would be considerable time taken up with Mr Hart having to review all the materials. That was unsurprising. He was an international calibre editor who was being brought into edit materials that others had been working on for some time. There were also budgetary concerns. As Mr Hart worked through the materials and edits, he was in touch with Mr Ngo who worked him on those parts. At least one reason to remove Mr McCallum from this level of work was to manage time and cost, but it is unnecessary to make any findings about this. Ms Maclaren gave no consideration to these facts.
3. Ms Maclaren's opinions assumed that in providing notes on the parts he agreed or disagreed with in relation to each edit, Mr McCallum was not making creative contributions. Aside from being acontextual, her analysis assumed that by expressing agreement with parts of the evolving material Mr McCallum was not making a creative contribution. But he was. He could have disagreed and expressed those views. The fact that he agreed with the content of the evolving edits made them no less creative decisions. His exercise of such creative decision making was occurring as Mr de Heer indicated in a particular context where had been involved in the iterations over a significant period of time.
4. For all of the above reasons, I reject Ms Maclaren's opinions and criticisms of the editorial input that Mr McCallum made, and her conclusion that Mr McCallum's notes did not amount to "directorial input" because they were not detailed, involved accepting the order and format of the edit, and otherwise accepting the material that had been selected, which she considered amounted to no more than making suggestions as to superficial changes. Her reasoning was acontextual, it did not proceed on an assessment of the notes in the context of the iterative versions and cuts of the Documentary or Mr McCallum's significant involvement in the storytelling aspects of the Documentary up to each point in time, and it assumed that Mr McCallum's creative decision making had to conform to a particular standard by expressing differences as to format, content, style or sequence. Ms Maclaren's opinions also assumed a normative standard as to the way in which a director must be involved in the editing of a documentary, which for the reasons stated above I do not accept.

1. As noted in Part B 8, the question that arises for determination is not whether Mr McCallum is a principal director of the Documentary. The respondents conceded that point. The question that arises for determination is whether Mr Ngo is a principal director of the Documentary. As noted above, that question requires me to be satisfied that Mr Ngo was a chief or main person amongst others who had management, control, supervision, and/or responsibility over the creative process to translate the idea of the Documentary into the medium of a film.
2. Having regard to the whole of the evidence, I am satisfied that Mr Ngo did come to work as a director on the Documentary by reason of his involvement in the editing of the Second Rough Cut, the Further Offline Edit and the post-production work, but he was not a principal director. That is because I am not satisfied that he was the chief or main person who had management, control, supervision, and/or responsibility over the creative process to translate the idea of the Documentary into the medium of a film.
3. In coming to this conclusion, I have considered the making of the Documentary as a whole and, in doing so, I have closely examined the large volume of documentary material that was tendered (as set out above) and watched (on several occasions) every one of the various versions of the Documentary that the parties put into evidence (which I set out below).
4. Based on my review of the materials, I am satisfied that Mr Ngo conceived of the idea for the Documentary, together with Ms Williams-Weir, and also undertook the primary writing work for the Documentary via the Outlines, the Treatments, amended Treatments, papercuts and scripts for each of the Episodes. The fact that Mr Ngo (together with Ms Williams-Weir) created the idea of the Documentary and the further fact that he undertook the primary written work placed Mr Ngo in a unique position where he clearly had a sense of what the Documentary would involve and the story it would tell. It necessarily meant that Mr Ngo was able to convey to Mr McCallum his ideas for things such as the look and feel of the Documentary, its tone and style, its content, and the other practical matters such as the persons to be interviewed, the design of sets and the locations at which the interview shoots should take place. Mr Ngo was also a producer of the Documentary. This necessarily meant that he was also intimately involved in various practical aspects of the making of the Documentary, such as attending to the tasks that needed to occur for its financing and also the tasks involved in making it, including liaising with Mr Cooper and other interviewees, scouting for locations, arranging travel, dealing with the Executive Producers, and so on.
5. However, contrary to the respondents' submissions, I do not accept that in attending to these tasks, Mr Ngo was doing so as a director of the Documentary or that it meant that he had become a director of the Documentary. The fact that he had a creative vision for the Project and worked to secure that vision was consistent with him being the creator of the idea for the Documentary. The respondents' submissions conflated the separate roles of creator, writer, and producer, and failed to recognise that Mr Ngo had a unique role in the making of the Documentary because of those roles. Ms Maclaren and Mr de Heer in substance both agreed that Mr Ngo's involvement in the ideation of the Documentary and the pre-production phases of the Documentary did not make him a director of those phases. The fact is that Mr Ngo's ideas (and creative vision) had to be turned into the medium of a film. That is why Mr McCallum was engaged.
6. I am also satisfied that Mr Ngo was involved in the pre-production aspects of the making of the Documentary and also aspects of its filming and production. He gave ideas for the filming style, reviewed the research and archival materials, made contributions to the interview questions, liaised with interview subjects, and attended to other tasks associated with the filming. This is unsurprising given that Mr Ngo was a creator, writer, and producer of the Documentary. However, I am satisfied that it was Mr McCallum who was the director throughout all of the pre-production and production phases of the making of the Documentary.
7. Both Ms Maclaren and Mr de Heer agreed that Mr McCallum was clearly the director of the pre-production phases of the Documentary (with the exception of the Ideation and Research Stage) and all the critical filming stages. Those filming stages included but were not limited to the shoots with the interviewees, and extended to, as Mr de Heer pointed out, directing the location, production design, and shooting of all of the interviews, portraits, B-Roll, animation, title sequence and other footage (with the exception of archival footage).
8. However, more needs to be said about Mr McCallum's role and involvement in the pre-production and production phases of the Documentary because there was a tendency in the respondents' submissions to relegate the importance of these aspects of the production in order to emphasise the importance of the editing and post-production work. The idea that Mr McCallum only made contributions to the making of the Documentary by being the man behind the camera and doing essentially nothing on the editing work is a gross mischaracterisation of Mr McCallum's contributions to the making of the Documentary, including the importance of the work that he did.
9. Having watched each of the versions of the Documentary that were in evidence, I am satisfied that the Hero Interview and the interviews with the other interviewees who were involved in Mr Cooper's life are at the very core of the storytelling aspects of the Documentary. The Documentary does not have a narrator. The effective narration of the Documentary is essentially the voice of Mr Cooper, together with the voices of the other interview subjects. The driving narrative throughout the whole of the Documentary is the Hero Interview and the other interviews with Mr Cooper. As I return to below, the Hero Interview is the essential backbone that holds the whole Documentary together. The archival footage, photos, stock footage and other inserts, and animations all take their cue from the narrative of the Hero Interview and the other interviews.
10. It would also be a gross mischaracterisation of Mr McCallum's contribution to merely record that he was responsible for filming the interviews. The aesthetic of the filming, the visual look and feel, the camera angles, and the different focuses applied to the interview subjects (by zooming in and out) create a consistent theme throughout each version of the Documentary. My assessment is that the visual aesthetics were deftly employed to convey the emotion felt at the time of filming and to enhance that emotion to evoke a response in the viewer. For example, Mr Cooper's different emotions, and those of other interview subjects, have been captured, so as to convey to the viewer the excitement, fear, thrill, sadness and loss, and a range of other complex emotions that Mr Cooper and the other interviewees were conveying to Mr McCallum as their interviewer.
11. It is to be recalled that Mr McCallum was not only filming all the critical interviews, but he was the interlocutor. As far as I can discern, his voice is not heard on any of the versions of the Documentary (other than perhaps briefly towards the end of Episode 3), such that what is conveyed to the viewer is that each interviewee appears to narrate an aspect of the story as if it was an unfolding drama. What this conceals is that Mr McCallum had clearly mastered the subject matter. As is evident from the different interviews, Mr McCallum had to examine all the research materials, as well as all of the archival footage and other materials. This is plain from the fact that the archival footage and inserts that are interwoven in the final edits address the matters that are the subject matter of the interviews, which meant that Mr McCallum was sufficiently across that detail to elicit the key aspects of the story to be told. It is also evident that Mr McCallum established considerable rapport with all of the interviewees, who each had different personalities, to make them comfortable conveying their respective stories and capture their emotions, including as to matters that at times caused them distress and profound sadness.
12. Mr Ngo was not responsible for these critical creative parts of the making of the Documentary. To the extent that the respondents suggested that he was so responsible as a director (through his involvement in the pre-production stages and by being on set), I reject those contentions. They are not supported by either Mr de Heer or Ms Maclaren.
13. In relation to the editing and post-production phases of the Documentary, I am satisfied that Mr Ngo:

(a) contributed to the First Rough Cut and then performed the edit of the Second Rough Cut which led to the creation of the First Ngo Cut and the James Cude Cut;

(b) undertook the editing work, together with Mr Hart, on Episode 1, but in circumstances where much of the storytelling components for that Episode had been completed (as set out at [527] above);

(c) undertook the editing work, together with Mr Hart, on Episodes 2 and 3, and gave Mr Hart direction in the work that he performed;

(d) undertook the editing work, together with Mr Hill, on Episode 4, and gave Mr Hill direction in the work that he performed;

(e) undertook the editing work for the Sundance Version in circumstances where this version was, apart from minor changes, essentially the same as Episode 1;

(f) undertook the editing work for the Feature Version in circumstances where it was largely an edited version of Episodes 1, 2 and 3; and

(g) attended to other post-production activities, including in relation to the selection of the final music composition for the Documentary, sound and mixing, and colour grading.

1. The editing and post-production of the Documentary involved sorting through, editing and treating about 100 hours of interview footage and about 400 hours of archival footage. I accept that this was a significant task.
2. I accept that by being directly involved in the edit, especially in relation to the Second Rough Cut and in the work subsequently performed by Mr Hart and Mr Hill, Mr Ngo came to be involved in the directing of the Documentary because he was (through that work) managing or supervising the making of creative decisions. He had some management, control, supervision and/or responsibility during these phases over the creative process in a more direct way than Mr McCallum. I reject the contention advanced on Mr McCallum's behalf that Mr Ngo's involvement in the editing and post-production was him discharging his duties as a producer and exercising the right of control of a producer.
3. I am satisfied that Mr Ngo's contributions in the editing and post-production work went beyond the role of a producer and involved managing and supervising the edit and making contributions to the creative decisions as to the ultimate story to be conveyed by the Documentary. There was a body of materials that had been obtained, and these had to be cut down to the four episodes, and later a feature length version, which involved selection of the interview footage to be included and the interweaving of title sequences, archival footage, stock inserts, photographs, animations and other materials.
4. Irrespective of whether Mr Ngo was "cutting behind" Mr McCallum or not, the fact is that he attended to these duties and also provided guidance and direction to Mr Cude, Mr Hart, Mr Hill, and others in the post-production process (such as Mr Walbrook). In doing so, I am satisfied that Mr Ngo was acting as a director in discharging these duties.
5. However, it does not follow from these matters that Mr Ngo was the principal director, or a principal director of the Documentary.
6. The respondents' case (based on Ms Maclaren's evidence) was that Mr Ngo was a principal director of the Documentary because Mr Ngo "exercised greater creative control" due to his involvement in (a) the pre-production and shooting stages of the production (which Ms Maclaren considered to be half of the work of a director of a documentary), and (b) the post-production and editing stages of the (which she also considered to be about half of the work of a director of a documentary). There are a number of difficulties with these contentions.
7. First, as stated above, I do not accept that Mr Ngo's contributions to the ideation, pre-production and production states of the Documentary were ones that characterised him as having management, control, supervision and/or responsibility over the creative process to translate his ideas into the medium of a film. I am satisfied that it was Mr McCallum who was exercising overall creative control and responsibility for the critical aspects of the pre-production and production work. The effect of this was that I do not accept the respondents' contentions or Ms Maclaren's evidence to the effect that Mr Ngo had been involved in roughly the first half of the production of the Documentary as a director. Mr Ngo's involvement in that first half was not as a director.
8. Second, nor do I accept that it is appropriate to seek to equate or differentiate the respective or relative contributions made by Mr McCallum and Mr Ngo as between, on the one hand, the pre-production and production phases, and, on the other, the editing and post-production phases. Although Ms Maclaren expressed the view that the making of a documentary does not follow a linear path, her opinions and the respondents' submissions sought to compartmentalise the making of the Documentary into phases, with conclusions being expressed as to whether it was Mr McCallum or Mr Ngo who was the director in relation to each phase. The fallacy with this approach is that it assumes that each phase was able to be entirely separated from the other. I do not consider this to be appropriate here. Whilst the editing work was on foot, Mr McCallum was not only involved in it, he was also working on a range of other matters, including animations and, importantly, the pre-production and production of further interviews. He was also attending to other tasks as detailed above.
9. The compartmentalisation of the making of the Documentary also seeks to elevate and equate the editing and post-production work to the other parts, but in a way that in effect diminished Mr McCallum's work across all parts. As Ms Maclaren herself concluded, Mr McCallum acted as the director in the pre-production and production phases of the Documentary, which included the essential storytelling content of the Documentary and its aesthetic, style and feel. As noted above, Ms Maclaren's evidence did not engage with the significance of the storytelling aspects of this work, or the influence of the aesthetic, style and feel of the Documentary as established through the pre-production and filming stages. Whilst it was her view that the Documentary was made in the edit, the Documentary was only able to be made because of Mr McCallum's central work on the content. That work comprised a major part of the content and also set the tone, aesthetic, style and feel of the whole of the Documentary and its storytelling aspect.
10. Third, the respondents' submissions and Ms Maclaren's evidence in relation to Mr McCallum's contributions to the editing of the Documentary were acontextual and conclusory. As already explained, Ms Maclaren's evidence was given on the basis of the review of the notes alone, without examining the broader context. She had not viewed and reviewed the iterative versions of the edits over time. Mr de Heer expressed the contrary view that Mr McCallum's notes were appropriate, bearing in mind the broader context. Mr de Heer expressed his opinions after having viewed and reviewed iterative versions of the edits, and the Sundance and Feature Versions of the Documentary. I prefer Mr de Heer's opinions to Ms Maclaren's in this regard. Although he did not review every item of the documentary records or all of the respondents' evidence in reply, I have reviewed them and his opinions accord with my own assessment of the materials.
11. Ms Maclaren's evidence proceeded on the basis that all that Mr McCallum had done by way of editing work was a minimal level of supervision of Ms Eyre and the provision of time-coded notes. This is not an accurate assessment and does not accord with the objective facts and findings I have made. Ms Maclaren's evidence failed to have regard to the fact that by the time that Mr Hart came to work on the Documentary, Mr McCallum had been providing his directorial vision and creative input into the Project for approximately 18 months or more from December 2020 (when he was first told he would be engaged on the Documentary) through to mid-2022 (when Mr Hart became engaged). In that time, Mr McCallum had reviewed, commented on and settled the various Treatments, breakdowns, and scripts that had been prepared by Mr Ngo, had worked extensively on the pre-production and production of the Documentary in relation to the critical interviews, and had been involved in reviewing the archival footage.
12. Further, the respondents' submissions and Ms Maclaren's evidence do not address the fact that Mr McCallum had reviewed the many hours of interview footage and archival materials. They assume it was only Mr Ngo who had done so. The unchallenged evidence is that Mr McCallum had conducted his own research, as well as reviewing and considering research materials which Ms Williams-Weir provided him, and which she continued to provide him. As is apparent from the interviews which he conducted, Mr McCallum was clearly aware of the key elements of these materials as he was in a position to conduct the interviews and elicit the interviewees' responses to the key events to which those materials related.
13. The further unchallenged evidence is that prior to Ms Eyre being engaged, the interview footage and other materials were shared with Mr McCallum, and there was a schedule by which each of Mr McCallum, Mr Ngo and Ms Williams-Weir each reviewed the footage from different interviews for the purpose of selecting the footage to be included in the different segments of the assemble edit. Shortly after Ms Eyre was engaged, Mr McCallum moved all the interview footage into chronological order and subsequently prepared a story structure at the same time that Mr Ngo was also preparing amended Treatments and the "beat sheet". Mr McCallum also worked on interview inserts and room recreation images relating to the Hero Interview, which included selecting the interweaving of photos, archival footage and other materials. After Ms Eyre had made a first assemble edit, as noted above, Mr McCallum made notes and provided oral feedback. Mr McCallum formed the view that the first assemble edit needed significant streamlining. As part of that process, Mr McCallum rewatched the interviews with Mr Ngo and they made selections together from which Mr Ngo then prepared further scripts. Aspects of this process were repeated, as set out in detail in Mr McCallum's evidence. In light of the preponderance of evidence, I reject the assertion that Mr McCallum was not involved in the editing process or in guiding it. Ms Maclaren's evidence did not engage with the detailed evidence in this regard and instead appears to have relied on Mr Ngo's evidence that Mr McCallum did not do much more than provide hands-off guidance to Ms Eyre. I reject that evidence and prefer the evidence given by Mr McCallum.
14. Nor do I accept (for the reasons I have set out at length) that Mr McCallum did not have management, control, supervision and/or responsibility over the editing of the Documentary.
15. It follows that I am not satisfied that it has been established that it was Mr Ngo who had the chief or main or primary management, control, supervision and/or responsibility over the creative process in translating the idea of the Documentary into the medium of a film.
16. As noted above, in coming to these conclusions, I have watched the different versions of the Documentary that were tendered into evidence. The evidence discloses that numerous different versions, cuts and edits of the Documentary were produced in an iterative manner, including in relation the "assembly" of the first cuts of the four episodes and the Feature Version. The parties did not adduce every iterative cut or version that was produced, nor would it have been practicable to do so. Nevertheless, a significant number of distinct cuts of the Documentary were tendered by the parties. After the close of evidence, the parties provided an aide-mémoire that sought to identify the various cuts of the Documentary with evidentiary references. Not all of the cuts referred to in the aide-mémoire (or otherwise referred to in the evidentiary materials, including the documentary tender) were adduced.
17. As far as I can discern, having reviewed the aide-mémoire and the underlying evidentiary materials, it appears that:

(a) an initial "rough cut" of Episode 1 was provided by Mr Ngo to the Executive Producers on or about 25 October 2021: Ngo 1 [125];

(b) a further "rough cut" of Episode 1 was edited by Ms Eyre in December 2021 (the December 2021 Eyre Rough Cut): Ngo 3 [5]; Exhibit 25 (Tab 2);

(c) a further cut of Episode 1 that was edited by Mr Ngo on or about 24 March 2022 and sent to Mr McCallum on or about 26 March 2022 (the March Ngo Cut (Episode 1)): Exhibit 25 (Tab 3);

(d) a further cut of Episode 1 that was shown at a screening on 2 April 2022;

(e) a further cut of Episode 1 that was said to have been prepared by Mr Ngo in approximately the middle of 2022 (noting that Mr McCallum maintained that the cut tendered, which Mr Ngo contended was prepared in mid-2022, was actually the cut referred to in item (a) above): Ngo 1 [125]; Ngo 3 [4];

(f) a further cut of Episode 1 that was edited by Mr Cude and viewed by Mr McCallum at a viewing held on or about 16 May 2022: McCallum 1 [414]-[415];

(g) a further cut of Episode 1 that was edited by Mr Ngo on or about 22 May 2022, and was sent to Mr McCallum on or about 23 May 2022 and to the Executive Producers on or about 24 May 2022 (the May Ngo Cut (Ep 1)): Exhibit 25 (Tab 4); Ngo 1 [156]; Ngo 3 [7]; McCallum 1 [417];

(h) a further "rough cut" of Episode 1 that was edited on or about 5 June 2022 and was sent by Mr Ngo to Mr McCallum on or about 6 June 2022;

(i) a further "rough cut" of Episode 1 that was sent to the Executive Producers on or about 8 June 2022;

(j) an "assemble cut" of Episode 2 that was edited by Mr Ngo, Mr King (assistant editor) and Mr Banbury (assemble editor) in July 2022: Ngo 1 [163]-[165];

(k) a further cut of Episode 1 that was edited by Mr Hart and was sent to Mr McCallum on or about 19 October 2022: McCallum 1 [488];

(l) a further cut of Episode 1 that was edited by Mr Hart on or about 11 November 2022 and was sent to Mr McCallum and the Executive Producers on or about 11 November 2022 (the November Hart Cut (Ep 1), referred to in Mr de Heer's evidence as the "November 2022 Episode 1 Cut" (see [70] above)): Exhibit 25 (Tab 5); McCallum 1 [503];

(m) a further cut of Episode 1 that was edited by Mr Hart and sent to the Executive Producers on or about 27 November 2022;

(n) a further cut of Episode 1 that was edited by Mr Hart on or about 5 December 2022 (the December Hart Cut (Ep 1), referred to in Mr de Heer's evidence as the "December 2022 Episode 1 Cut" (see [70] above)): Exhibit 25 (Tab 6); McCallum 1 [651];

(o) a further cut of Episode 2 that was edited by Mr Hart and was provided to the Executive Producers on or about 29 April 2023 and to Mr McCallum on or about 1 May 2023: McCallum 1 [592]; Joyce 1 [77];

(p) an "assemble cut" of Episode 4 that was edited by Mr Hill on or about 29 May 2023 and provided to Mr McCallum on or about 2 June 2023: McCallum 1 [610];

(q) a further cut of Episode 2 that was edited by Mr Hart on or about 7 June 2023, and was provided to the Executive Producers on or about 8 June 2023 and to Mr McCallum on or about 12 June 2023 (the Hart Cut (Ep 2), referred to in Mr de Heer's evidence as the "June 2023 Episode 2 Cut" (see [70] above)): Exhibit 25 (Tab 7); McCallum 1 [618]; Joyce 1 [77];

(r) a further cut of Episode 2 that was edited by Mr Hart and provided to the Executive Producers on or about 19 July 2023: Joyce 1 [77];

(s) a cut of Episode 3 labelled "v2.6" that was edited by Mr Hart and was provided to the Executive Producers on or about 16 October 2023 (referred to in Mr de Heer's evidence as the "October 2023 Cut" (see [70] above)): Joyce 1 [77];

(t) a further cut of episode of Episode 3 labelled "v2.7" that was edited by Mr Hart and provided to Mr McCallum on or about 20 October 2023 (the Hart Cut (Ep 3)): Exhibit 25 (Tab 8); McCallum 1 [669];

(u) a further cut of Episode 4 that was provided to the Executive Producers on or about 5 December 2023: Joyce 1 [77];

(v) further cuts of Episodes 1, 2 and 3 that were sent to the Executive Producers on or about 5 February 2024: Joyce 1 [78];

(w) a "feature cut" that was sent to the Executive Producers on or about 1 October 2024: Joyce 1 [84];

(x) a version of the Documentary that was shown at Sundance on 28 January 2025 (the Sundance Version): Exhibit 27; McCallum 1 [709]; de Heer 1 [13]; Maclaren 1 [3(h)];

(y) a "feature cut" version that was shown at the MIFF in August 2025 (the Feature Version): Exhibit 27; McCallum 1 [709]; de Heer 1 [13]; Maclaren 1 [3(i)];

(z) a "Sizzle reel" or "Pitch reel" that was prepared on or about 5 June 2020: McCallum 1 [89]; and

(aa) a different "sizzle reel" that was prepared at a point in time unknown to the parties: Joyce [23]; Ngo 1 [83].

1. Of the cuts referred to in the list above, it appears that the parties have only adduced the cuts of the Documentary identified in items (b), (c), (e), (g), (l), (n), (q), (t), (x), (y), (z), (aa), and potentially (a).
2. The cut of the Documentary referred to at (a) above was received into evidence as an exhibit to Mr Ngo's First affidavit. However, the parties were in dispute about the provenance of this version. In Mr Ngo's First Affidavit, he deposed that the cut was prepared in October 2021. However, his position changed and in Mr Ngo's Third Affidavit, he deposed that, to the best of his recollection, the cut had been edited by him in mid-2022, and not in 2021. Mr McCallum contested this and argued that the version was in fact the first "rough cut" referred to in item (a) above, and had been edited by Ms Eyre. In cross-examination, Mr Ngo stated he could not be certain unless he viewed the cut again: T192.1-193.39. Given the lack of clarity and the absence of other matters from which an inference might be drawn (eg metadata as to authorship or date of creation/amendment), I am not able to conclude whether this cut was created in 2021 or 2022, nor whether it was edited by Ms Eyre or Mr Ngo. In any event, nothing turns on the resolution of this question.
3. I have closely examined the December 2021 Eyre Rough Cut, which appears to be the final version of the First Rough Cut prepared by Ms Eyre. This version is approximately 67 minutes in length. The essential structure of this version is that Mr Cooper's interview(s) forms the backbone from which other interviews and materials are interweaved. These other materials act as tributaries that flow from the essential driving narrative of Mr Cooper's interview(s). The general approach taken in this version is:

(a) a segment of Mr Cooper's interview is played addressing a particular topic, such as his childhood or his entry into the Texan police force;

(b) taking the cue from this topic, other materials such as photos, archival footage and stock inserts are interweaved;

(c) other interview subjects are introduced and address the relevant topic, with further materials such as photos, archival footage and stock inserts again being interweaved;

(d) next, the film returns to Mr Cooper's interview addressing the same topic or a further aspect of that topic, or an entirely new topic; and

(e) the process repeats itself.

1. This general structure or approach is replicated throughout every subsequent version of the Documentary. What changes is aspects of the content (with the removal of various aspects, the addition of others, and different footage being used either from the Hero Interview, other interviews or archival and other materials), the sequencing of Mr Cooper's story (such that it does not necessarily follow a strictly chronological path), and the music and other inserts.
2. The December 2021 Eyre Rough Cut loosely follows a chronological structure of Mr Cooper's life by progressing through the following areas:

(a) his family background and childhood growing up in modest circumstances in Texas, and then his school and teenage years;

(b) Mr Cooper's introduction to and entry into the Texan police force and his experiences as a police officer (including in an era popularised by the television show COPS);

(c) the influence of certain other police officers on Mr Cooper's approach to policing, including Mr Washington;

(d) Mr Cooper's selection and entry into a drug task force;

(e) Mr Cooper's exposure to particular police practices which are depicted as being coercive and unlawful;

(f) Mr Cooper's training of a dog to detect drugs;

(g) Mr Cooper's disenchantment with his assessment as to coercive and unlawful police practices;

(h) his first experience of taking drugs;

(i) his joining of an evangelical church, resignation from the police force and conversion into an evangelical preacher;

(j) his disenchantment with the church, the breakdown of his marriage and his divorce;

(k) a turning point in his life when he first met his new partner, Candi, and the impact of her on his family life and their eventual wedding;

(l) his introduction to the recreational use of marijuana by Candi and more generally his introduction to "drug culture";

(m) his creation of a DVD (Never Get Busted Again DVD) teaching drug users how to avoid detection by law enforcement; and

(n) his rise to fame and notoriety through the popularity of the Never Get Busted Again DVD, including his appearances on national television.

1. In respect of each topic, the clear driving force is Mr Cooper's interview and his voice. The visual impact of the interviews with Mr Cooper and the content of his story are interspersed with archival materials, photos, stock inserts, and the introduction to a range of colourful characters who extend and add to this story. At times, the interviews with the other interviewees become the voice of the Documentary, before the viewer is taken back to Mr Cooper. The visual aesthetic, look and feel is evocative and largely remains the same in subsequent versions.
2. Much of the storytelling and content remains in the March Ngo Cut (Episode 1) but in a restructured way. This includes the same or similar selections from Mr Cooper's interviews, and those of other interviewees, and the same use of archival materials, photos, and stock inserts. There are, however, changes:

(a) the March Ngo Cut (Episode 1) is 72 minutes in length;

(b) there is a new introductory sequence or montage of short clips of Mr Cooper's Hero Interview, the Never Get Busted Again DVD, other interviewees and other materials, which provide select grabs of what is to come in the story of Mr Cooper's life, acting as signposts;

(c) there is a title or credit sequence which introduces the interviewees as characters (such as the "Lover", the "Outlaw" and so on);

(d) the episode then starts with the making of the Never Get Busted Again DVD (which includes some different selections than the earlier cut) and the reactions to it;

(e) after a reference to a new title, "Chapter 1 Sex, Lies and Videotape", the episode moves to Mr Cooper's time in the police force, and follows much of the material on that topic from the December 2021 Eyre Rough Cut, albeit some new material is introduced;

(f) at the point in time that Mr Cooper addresses training a police drug detection dog, the episode moves back in chronological order to Mr Cooper's childhood, and introduces Mr Cooper's parents, which involves a change in structure and content to the December 2021 Eyre Rough Cut (involving different footage and content to that earlier Cut);

(g) the episode then moves back in chronological order to Mr Cooper's time in the police force and covers similar material, but introduces new content and interviewees who were not covered in the December 2021 Eyre Rough Cut; and

(h) following this part, the episode then follows the same structure as the December 2021 Eyre Rough Cut with largely the same material (though with some changes and additions) of Mr Cooper's move from police officer to evangelical churchgoer, to evangelical preacher, to the breakdown of his marriage, to meeting Candi and making the Never Get Busted Again DVD.

1. Whilst the March Ngo Cut contains some different content and has a restructured order, it otherwise conveys the same story. The visual aesthetics, look and feel remain the same.
2. Pausing here, it is necessary to emphasise that by the time of the making of the March Ngo Cut (Episode 1), much of the structural and creative choices as to the telling of Mr Cooper's story had been made. It is to be recalled that at some point Mr McCallum provided notes and comments on Mr Ngo's "redux" script and his provision of time-coded notes on the March Ngo Cut need to be viewed in the context of the very substantial period of time Mr McCallum had already spent on the editing process involved in making the earlier cuts prepared by Ms Eyre.
3. None of the above is to undermine the editing work that was performed by Mr Ngo at the time. He was clearly wishing to prepare a revised version of Episode 1 which was better than that which had previously been prepared so that it would find favour with the Executive Producers. Rather, the point is that the objective facts establish that the editing work that was performed by Mr Ngo, and later Mr Hart, sought to refine and sharpen the content that had, to some extent, already been pieced together.
4. Much the same can be said about the November Hart Cut (Ep 1) and the December Hart Cut (Ep 1). It is significant that Mr Ngo accepted that before Mr Hart was engaged, the essential story telling components of Episode 1 were already completed. Taking the December Hart Cut (Ep 1) as an example, it follows the same essential storyline as the December 2021 Eyre Rough Cut and the March Ngo Cut (though again in a slightly re-fashioned order), uses much of the same selections from the interviews of Mr Cooper and others, and uses the same selections from archival and other materials. The visual aesthetic, look and feel of the November Hart Cut (Ep 1) and the December Hart Cut (Ep 1) are, in my view, the same as, or similar to, the two earlier cuts I have addressed above.
5. But there are changes, and there are different selections of footage, angles of the interviewees, archival materials and so on. There was undoubtedly work done by Mr Ngo and Mr Hart to improve the past version(s). The point is not that further work was not undertaken, but to contextualise Mr McCallum's involvement in the editing work in light of that which had gone before. Again, the criticism made by the respondents and Ms Maclaren of Mr McCallum's notes is unfounded when proper regard is had to this context. In this regard, I prefer Mr de Heer's evidence to the effect that Mr McCallum's notes and comments were to the point, respectful and took into account that he was not seeking that something radically different be done but was making those comments that he considered appropriate to guide Mr Ngo and Mr Hart. I reject the contention that by doing so he was not managing, controlling, supervising and/or being responsible for turning the idea of the Documentary into the medium of a film.
6. The above is critical to an assessment of the Sundance Version as it was essentially a shorter version of the December Hart Cut (Ep 1). The parties provided a schedule with the differences between the December Hart Cut (Ep 1) and the Sundance Version. Having watched the Sundance Version and compared it to the December Hart Cut (Ep 1), I am satisfied that the schedule accurately reflects the primary changes between the two versions. My own impression is that the Sundance Version has a brighter resolution that is of higher quality than each of the earlier cuts. The montage, title and concluding sequences are more refined and polished, and the Sundance Version is shorter, being approximately 49 minutes in length. However, I otherwise agree with Mr de Heer's assessment that the changes as between the Sundance Version and the "Hart Cuts" are minor and largely cosmetic.
7. I have also watched the Hart Cut (Ep 2), the Hart Cut (Ep 3), and the Feature Version. I have compared the Feature Version to the cuts of Episodes 1, 2 and 3 and the Sundance Version. I have not watched any version of Episode 4 as it was not tendered into evidence.
8. The Hart Cut (Ep 2), the Hart Cut (Ep 3) and the Feature Version are in a slightly different position to the cuts of Episode 1. They contain material that was not in the December 2021 Eyre Rough Cut. However, Mr McCallum had provided notes in relation to the scripts for these episodes and also his notes in relation to the Hart Cut (Ep 2) and the Hart Cut (Ep 3). I do not accept that the shortness of Mr McCallum's notes meant that he did not provide direction over the edit. Mr McCallum was not working on the edit in a hands-on way, but that did not mean that he did not provide direction in relation to it. Given that he had provided comments on the scripts for these two episodes (as well as Episode 4), he had made a creative contribution to the structure and sequence of these episodes.
9. I do not accept the respondent's contentions (relying upon Ms Maclaren's evidence) that Mr McCallum had exercised no creative control or decision-making in relation to the edits of the Hart Cut (Ep 2) and the Hart Cut (Ep 3), or the edits more generally. It is true that Mr Ngo and Mr Hart, and later Mr Hill, were at the coalface making those decisions, but Mr McCallum was agreeing with them, other than where he noted an area of disagreement. That in itself is an exercise of management, supervision and creative control and decision-making. That is so even though it may be accepted that Mr Ngo, Mr Hart and Mr Hill made the creative decisions in the virtual or actual editing room as to the selections of the footage and other materials to be included in these episodes.
10. Having watched the Feature Version, I agree with Mr de Heer's assessment that it appears to be a shortened version of Episodes 1 and 2, with some limited parts of Episode 3. The primary content does appear to me to be drawn from Episode 1. Its concluding parts also include other materials, which I infer are drawn from Episode 4, but that was not made clear by the parties. It is to be accepted (as the respondents broadly contended) that there was cutting from Episode 1, and more significant cutting from Episodes 2 and 3 to reduce the length of the Feature Version. I accept that Mr Ngo worked on editing the Documentary into its Feature Version. The fact that Mr McCallum did not work on this edit is explained by the fact that he was not aware of it. However, he had given his direction in relation to Episodes 1, 2 and 3, and they form a substantial part of the Feature Version (especially Episode 1).
11. The Respondents' Closing Submissions (RCS) annexed a comparison between the December 2021 Eyre Rough Cut and the Feature Version. Whilst that document was helpful, it had limited utility. There are clearly differences between the two versions, including as to the sequence of the story, the removal of parts of it, and the addition of new materials given that the Feature Version also included content from Episodes 2 and 3.
12. The respondents submitted that Mr McCallum's contributions overall to the edit were minimal to non-existent in respect of the most critical part of the making of the Documentary. They sought to explain his involvement by relying upon the following analogy (Respondent's Opening Submissions (ROS) [18]-[22]):

Begging the Court's patience with an analogy, the respondents say making a documentary is like baking a cake. Here, Mr McCallum was engaged as the baker, to do the whole job, from gathering the ingredients to icing and finishing.

Mr McCallum's work in directing on set to produce the interview footage was akin to gathering some of the raw ingredients. When it came time for him to mix the ingredients - ie, to cut the interview footage, together with archival footage, into the First Rough Cut - Mr Ngo realised that Mr McCallum was not doing his job properly. Mr Ngo prompted him several times to take a more active role, but with no success. So Mr Ngo started helping Mr McCallum. Together they managed to get a cake of sorts into the oven, but it was a failure.

Mr Ngo went back to the raw footage and started the edit largely from scratch again. This time, Mr McCallum just made occasional suggestions. The new cake - the Second Rough Cut - was a success. Mr Ngo iced it and finished it. By this time, Mr McCallum had left the kitchen.

Mr McCallum now seeks to say that he was the sole baker of the cake, because he was engaged as the baker. He says Mr Ngo's work could not have been baking work, because Mr Ngo was not contractually engaged as a baker. But that ignores the reality of who made the cake.

The respondents accept that analogies can only go so far - but they submit this can help the Court understand the unfairness of the situation to Mr Ngo. He took over the directing role halfway through this project, out of necessity. He worked full-time for three years to turn hundreds of hours of interview and archival footage into a compelling story. And now he finds that Mr McCallum, despite being happy to share the work, is not happy to share the credit.

1. The respondents are correct to point out that analogies can only go so far. The analogy does not reflect the facts and grossly undermines Mr McCallum's work. Mr McCallum did more than merely gather "some of the raw ingredients" and then leave the kitchen. It is unnecessary to say more.
2. I am comfortably satisfied that Mr McCallum was responsible for the critical components of the content of the Documentary due, in particular, to his involvement in the pre-production and production stages of its creation which formed the foundation of the editing and post-production work which followed. He was less involved in the editing and post-production work. However, for the reasons stated above, I consider that he was nevertheless the principal director of the Documentary, which the respondents conceded.
3. The relevant question is whether Mr Ngo was a principal director of the Documentary. I am not satisfied that he was. I am satisfied he was involved in the editing of the Documentary and the post-production work, and managed and supervised aspects of this work. I am also satisfied that due to his role as creator, writer and producer, he too had a creative vision for the project. As a result I am satisfied that Mr Ngo is a director of the Documentary, but I am not satisfied that he is the main or chief person.
4. While Mr Ngo's contributions as producer in the pre-production and production phases of the creation of the Documentary, and his contributions as a director in the post-production and editing phases of the Documentary demonstrate that he sufficiently managed or supervised the creative process of making the Documentary, including his own creative process and that of others, to be considered a director, I am not satisfied that he was the chief or main person who had management, control, supervision, and/or responsibility over the creative process to translate the script or idea for NGB, into the Documentary. That person was Mr McCallum. To regard Mr Ngo's work in the editing phase and post-production phase as rendering him a principal director would be to disregard the context, and to elevate his contributions to be equivalent to what I considered to be the more substantial parts of the overall process of the pre-production, production and post-production of the Documentary.
5. In coming to these conclusions, I have preferred to rely upon the objective facts as borne about by contemporaneous documents, and an examination of the iterative versions of the edits of the Documentary that were put into evidence. I have given no weight to evidence as to how Mr Ngo described himself or his role. Nor have I given weight to the assessment made by others as to the role they believe Mr McCallum or Mr Ngo were performing.

1. The next issue that arises is whether Mr McCallum has waived his moral rights under the Copyright Act and/or whether he has consented to the infringement of those rights within the meaning of s 195AW of the Copyright Act.
2. The questions of waiver and consent arise because the respondents have raised them in their Defence. First, in respect of the alleged infringements of the Copyright Act, the respondents plead that Mr McCallum consented to the relevant acts or omissions: Defence [21(c)], [26(f)], [28(c)] and [30(c)]. Second, further and in the alternative, the respondents plead that they have a "complete defence to the moral rights claims" because Mr McCallum is said to have "waived his moral rights in the Documentary and Development Materials": Defence [32A]. In both respects, the respondents rely upon cl 6.2 of the Director's Agreement.
3. The respondents' contentions lacked precision in various respects. In their written opening submissions, the respondents submitted that by cll 6.2 and 9.1 of the Director's Agreement, the parties agreed to "put aside the statutory regime" of attribution and credits, and "replace it with a credits regime they had negotiated between them".
4. After the conclusion of closing submissions, the respondents contended by way of written supplementary submissions that by cl 6.2 of the Director's Agreement, Mr McCallum had agreed to a waiver of his moral rights under the "general law". It was submitted that an individual with the benefit of a statutory right may agree to its voluntary abandonment: citing Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; 277 CLR 445 at [28] (Kiefel CJ, Edelman, Steward and Gleeson JJ). The respondents contended that such a general waiver was not prohibited by the Copyright Act and was not otherwise contrary to public policy: citing Price v Spoor [2021] HCA 20; 270 CLR 450 at [12] (Kiefel CJ and Edelman J); and Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 at 404 (Mason CJ).
5. Further or alternatively, the respondents contended that by cl 6.2, Mr McCallum had consented to the infringement of all his moral rights pursuant to s 195AW of the Copyright Act. It was submitted that the word "waive" encompassed the giving of a general consent for the purpose of s 195AW. It was submitted that this construction would be preferable than to not give effect to the clause at all.
6. Then, during the course of further argument on the point, the respondents submitted that, properly construed, the first sentence of cl 6.2 amounted to an agreement by Mr McCallum to forego a right to sue Projector Films in respect of any infringement of his moral rights.
7. For his part, Mr McCallum disputed the validity of cl 6.2 of the Director's Agreement. Although he did not file a reply alleging that the first sentence of cl 6.2 is invalid or unenforceable, Mr McCallum submitted that cl 6.2 had no effect and was not enforceable to give effect to a general waiver of his moral rights under the Copyright Act but might have effect and be enforceable in jurisdictions where he could do so (i.e. not Australia). Mr McCallum further submitted that the first sentence of cl 6.2 did not give rise to a consent to an infringement as this was dealt with in a limited way in the second sentence which expressly provided that he had consented to an infringement of his right of integrity of authorship. Mr McCallum submitted that the parties were alive to the fact that some jurisdictions around the world permitted waiver of moral rights and others did not. Mr McCallum contended that a general waiver of moral rights is inconsistent with the statutory scheme enacted under the Copyright Act. It was submitted that the legislative history reflected a Parliamentary intention that a general waiver of moral rights is not permitted.
8. As will be apparent from the above, the parties cast their arguments by reference to whether the first sentence of cl 6.2 gives rise to a "general waiver" of moral rights under the Copyright Act. I have emphasised the words "general waiver" because the parties did not address the question as to whether there could be some other form of waiver or estoppel arising from the conduct of Mr McCallum or whether waiver in that different sense, or an estoppel, could apply in relation to moral rights recognised under Part IX of the Copyright Act.
9. As Mr McCallum's submissions relied upon the history leading to the enactment of the Moral Rights Amendment Act, it is convenient to refer to that history before addressing the disputed issues.

1. What follows is a relatively uncontroversial examination of the extrinsic materials.
2. The question as to the protection of moral rights under Australian law was considered by the Spicer Committee. The Spicer Committee recognised the need for some protection for authors against false attribution and considered this to be consistent with Article 6bis of the Berne Convention: Copyright Law Review Committee (1959), op cit p 81 at [424]. However, it was acknowledged that such a protection did not come "within the strict ambit" of copyright, but (by a majority) the Committee formed the view that it was nevertheless necessary to afford some protection to authors in this regard. The Spicer Committee did not consider it necessary for there to be any other protection of "moral rights": Copyright Law Review Committee (1959), op cit p 90 at [487]-[490]. In so concluding, the Spicer Committee reasoned that, even if the Commonwealth had constitutional power to legislate for moral rights, the "artist is free to protect himself by inserting terms in his contract of sale" and "as the matters raised primarily concern the reputation of the artist, we consider that the action for defamation is more appropriate than any statutory cause of action which might be enacted in a Copyright Act": Copyright Law Review Committee (1959), op cit p 90 at [487]-[490].
3. Consistently with what had been recommended by the Spicer Committee, the Copyright Act came to include protections for authors as against false attribution. However, such protections were an extension of copyright and did not recognise any separate right outside copyright. In the period leading up to the enactment of the Moral Rights Amendment Act, the predecessor to the current Part IX of the Copyright Act was entitled "False Attribution of Authorship". It contained the following relevant provision:

190 Duty not to attribute falsely the authorship of a work

(1) A person (in this subsection referred to as the offender) is, by virtue of this section, under a duty to the author of a work not to:

(a) insert or affix another person's name in or on the work, or in or on a reproduction of the work, in such a way as to imply that the other person is the author of the work;

(b) publish, sell or let for hire, by way of trade offer or expose for sale or hire, or by way of trade exhibit in public, the work with another person's name so inserted or affixed, if the offender knows that the other person is not the author of the work;

(c) do any of the acts mentioned in the last preceding paragraph in relation to, or distribute, reproductions of the work, being reproductions in or on which another person's name has been so inserted or affixed, if the offender knows that the other person is not the author of the work; or

(d) perform in public or broadcast the work as being a work of which another person is the author, if the offender knows that the other person is not the author of the work.

(2) The last preceding subsection applies where, contrary to the fact, a work is represented as being an adaptation of the work of another person in like manner as it applies where a work is represented as being the work of another person.

(3) After the death of the author of a work, a person is, by virtue of this section, under a duty to the legal personal representative of the author not to do in relation to, or to a reproduction of, the work or an adaptation of the work any act that, but for the death of the author, the person would, by reason of either of the last two preceding subsections, have been under a duty to the author not to do.

(4) In this section, work means a work in which copyright subsists.

191 Duty not to attribute falsely the authorship of altered work

Where a work in which copyright subsists has been altered by a person other than the author of the work, a person is, by virtue of this section, under a duty to the author of the work not to:

(a) publish, sell or let for hire, or by way of trade offer or expose for sale or hire, the work as so altered, as being the unaltered work of the author; or

(b) publish, sell or let for hire, or by way of trade offer or expose for sale or hire, a reproduction of the work as so altered, as being a reproduction of the unaltered work of the author;

if, to the person's knowledge, it is not the unaltered work or a reproduction of the unaltered work, as the case may be, of the author.

1. Duty not to attribute falsely the authorship of reproduction of artistic work

A person is, by virtue of this section, under a duty to the author of an artistic work in which copyright subsists not to:

(a) publish, sell or let for hire, by way of trade offer or expose for sale or hire, or by way of trade exhibit in public, a reproduction of the work, as being a reproduction made by the author of the work; or

(b) distribute reproductions of the work as being reproductions made by the author of the work;

where the reproduction was, or the reproductions were, to the person's knowledge, not made by the author.

1. Breach of duty not committed if act done outside Australia or done with permission

The doing of an act by a person is not a breach of a duty owed by that person to another person by virtue of this Part if the act was done outside Australia or was done with the permission, whether express or implied, of that other person.

194 Action for breach of duty

(1) Where a person commits a breach of a duty owed by him or her to another person by virtue of this Part, the breach is not an offence against this Part but the other person may bring an action in respect of the breach.

(2) Subject to section 203, the relief that a court may grant in an action under the last preceding subsection includes an injunction (subject to such terms, if any, as the court thinks fit) and damages.

(3) Where, in respect of an act done in relation to, or to a reproduction of, a work or an adaptation of a work after the death of the author of the work, damages are recovered under this section by the legal personal representative of the author, those damages devolve as if they formed part of the estate of the author and as if the right of action in respect of the doing of that act had subsisted, and had been vested in the author, immediately before his or her death.

(Original emphasis retained in bold and additional emphasis added in underline.)

1. It will be necessary to return to these provisions but for present purposes it is to be observed that the relevant rights were tied to the "author" of a work in which copyright subsisted and thus were a function of the economic right of copyright. It is also relevant that an action would not lie for breach of the "duty" where there was express or implied consent by the person to whom the duty was owed.
2. The issue of moral rights was again considered in 1983 in the Martin and Bick Report (Martin S and Bick P, Moral Rights for Artists: A Report Prepared for the Australia Council (1983)) which concluded that there was inadequate protection for the moral rights of Australian artists. The (then) Attorney-General, the Hon. Gareth Evans, referred the issue to the Copyright Law Review Committee, which was ultimately divided (five members to four) on whether moral rights should be recognised in the Copyright Act: Copyright Law Review Committee (CLRC), Report on Moral Rights (AGPS, Canberra, 1988). The minority recommended the recognition of such rights but identified issues relating to alienability and waiver. Although the minority's views were not accepted, they came to inform the content of the subsequent Bills that were introduced. As to alienability, the minority stated that "[t]heoretically, because the rights are personal, they cannot be assigned": p 47. However, the minority recognised that even French Courts had recognised that the inalienability of the right had to bow to commercial pressures. It was stated that (at p 48):

Alienability is not a requirement of the Berne Convention which is silent on the matter. Of course, the fear is that rights which the legislation allows to be waived may be largely negated. The necessary alternative to alienable rights is a statutory scheme of inalienable rights which, buttressed by practical considerations and exceptions, in practice allows a sufficient degree of alienability.

The rights conferred should not be assignable but should be capable of waiver by the author or, in the event of death or mental illness, by legal personal representatives. Waiver, to be effective, should be in writing or made by conduct. It need not be supported by consideration. A waiver should be able to be made before or after use of a work, for a particular use or particular uses, or generally for all uses. It should be capable of being made for the benefit of a particular person or persons or to the world at large. It should bind the author's legal personal representatives.

1. Ultimately, the minority recommended as follows (p 105):

The minority recommends that moral rights should not be capable of assignment to another person but that they should be capable of waiver provided the waiver is in writing or the author engages in conduct by which an intention to waive the rights is evinced.

1. Thereafter, in June 1994, the Minister for Communications and the Arts, the Hon. Michael Lee, and the Minister for Justice, the Hon. Duncan Kerr, released a Discussion Paper: Attorney-General's Department, Proposed Moral Rights Legislation for Copyright Creators (Attorney-General's Department, 1994) (1994 Discussion Paper). The 1994 Discussion Paper proposed that moral rights should be recognised in the Copyright Act. In so concluding, the 1994 Discussion Paper reasoned that existing protections under (the then) Part IX of the Copyright Act, the common law actions of passing off and defamation, the Trade Practices Act 1974 (Cth) (TP Act) and under contract did not provide adequate safeguards. The authors stated that it is "apparent that the law does not provide comprehensive protection for moral rights, and further protection is desirable in some circumstances": 1994 Discussion paper at [1.18]. These limitations were said to been borne out by the decision in Crocker v Papunya Tula Artists Pty Ltd (1985) 5 IPR 426 (Morling J) and a series of anecdotal and reported examples specified in Appendix B to the 1994 Discussion Paper.
2. The 1994 Discussion Paper addressed the question of the "alienability" of moral rights as follows:

Alienability

3.68 The moral rights of the author of a work or the producer or director of a film shall not be assignable in whole or in part.

(Original emphasis.)

1. As I will return to, the question of inalienability of the work has remained a constant.
2. Next, the issue of waiver was considered. It was proposed that waiver should be permitted at [3.69]-[3.70]:

The moral rights of the author of a work or the producer or director of a film may be waived by instrument in writing signed by the author or producer/director forgoing the right. A waiver may relate to a specific work or film or to works (or films) generally and may relate to existing or future works (or films). The waiver may also be conditional or unconditional.

Where a waiver of a right is made in favour of an owner or licensee of copyright it may be invoked by any person authorised by the owner or licensees to use the work unless there is an indication to the contrary in the waiver. The legislation may also provide that the operation of the general law of contract or estoppel in relation to an implied waiver is not excluded.

1. In addition to waiver, it was contemplated that the holder of a moral right could consent to its infringement. It was stated at [3.74] that, "A person infringes the right of attribution of an author of a work or a producer/director of a film by any act or omission that is, in the absence of consent, contrary to the moral right as determined within the provision" (emphasis added).
2. In adopting this approach, the 1994 Discussion Paper considered but eschewed adopting the waiver and consent regimes that had been enacted in other jurisdictions.

(a) as to the United Kingdom, the Discussion Paper referred at [2.32] to the fact that the Australian Copyright Council had "submitted that the UK legislation not be used as a model for Australia", including because "the wide provisions allowed for a waiver of moral rights";

(b) as to the United States, the Discussion Paper pointed out at [2.36] that the protections in the United States arising out of the Visual Artists' Rights Act 1990 were narrow, stating that it does not "purport to cover all [rights] encompassed by the Berne Convention. It only addresses some of the moral rights concerns of visual artists, where many of the problems are more obvious";

(c) as to Canada, the Discussion Paper referred to the legislation and stated at [2.42]: "Canada, in some respects, can be seen as a bridge between the approach to moral rights in common law and civil law countries. Courts in Canada have apparently been willing to look to civil law jurisdictions when considering moral rights. However, it has been noted that the law also has its limitations in practice. As waiver can be express as well as implied, and need not be in writing, 'the reality is that moral rights protection is subject to the economic necessities of the market place and dependent upon the strength of the parties' negotiating positions'"; and

(d) as to France, the Discussion Paper stated at [2.47]: "It is apparent that the French recognition of moral rights of the author is comprehensive and goes well beyond the requirements of article 6 bis of the Berne Convention. The extent to which these rights are enforced in practice is difficult to establish. In any case, such a comprehensive code may be difficult to justify in the Australian context given our different legal system. If all these rights were legislated for and enforced to their maximum extent, producers and users of copyright materials and the community generally could find the law burdensome and unworkable".

1. In February 1996, the Labor Government released the 1996 Exposure Draft with proposed amendments to the Copyright Act. The 1996 Exposure Draft indicated that if Labor won the 1996 election, it would introduce legislation in the form set out in the document. The 1996 Exposure Draft contained provisions providing both for consent to infringing acts (s 195AV) and waiver (s 195AZG). Section 195AV provided as follows:

It is not an infringement of a moral right of an author in respect of a work to do, or omit to do, something if the author has consented to the act or omission.

1. Section 195AZG provided as follows:

(1) Subject to this section, a person may, by signed writing, waive all or any of his or her moral rights, either for the benefit of everyone or for the benefit of a particular person or persons or a particular class of persons.

(2) Subject to subsection (3), a waiver may relate only to a specific work or works that exist when the waiver takes place.

(3) A waiver may relate to future works that are made in the course of employment.

(4) A waiver may be unconditional or subject to conditions.

(5) A waiver that is made for the benefit of the owner or prospective owner of copyright in the works or works to which it relates is presumed, unless the contrary intention appears in the instrument of waiver, to extend to his or her licensees and successors in title and to any persons who are authorised by the owner or prospective owner, or such a licensee or successor in title, to do acts comprised in the copyright.

(6) An assignment of copyright in a work does not, by that act alone, constitute a waiver of a moral right in respect of the work.

1. As to waiver, the commentary to the 1996 Exposure Draft stated at [14] of Schedule 1 that:

It is the Government's view that a waiver is necessary in order to make the scheme workable in a contemporary context. To avoid the potential for blanket waivers in agreements to be entered into by creators who work in certain industries it has been decided that the waiver should relate to a specific work or film, or to specific works or films. The waiver may be conditional or unconditional. It will not apply to future works unless they are produced in the course of employment.

1. As to alienability, the commentary to the 1996 Exposure Draft stated at [33]-[34] of Schedule 1:

New ss.l95AL confirms that moral right in respect of a work continue until copyright ceases to subsist in the work. Therefore, moral rights will not apply to works or films in the public domain in circumstances where copyright has expired.

New s.195AM provides that an author's moral rights after his or her death or where his or her affairs are administered by another person, may be exercised and enforced by his or her legal personal representative or the person administering his or her affairs. Other than in these situations, moral rights are not transmissible by assignment, by will or by operation of law. This confirms the personal nature of moral rights and why they are different from the economic rights of a copyright owner.

(Emphasis added.)

1. The Liberal Government won the election and later introduced the Copyright Amendment Bill 1997 (the 1997 Bill). Schedule 1 to the 1997 Bill contained proposed amendments relating to moral rights which were largely in the form of the 1996 Exposure Draft. The 1997 Bill contained provisions which allowed for waiver, as well as a provision which allowed for consent:

(a) as with the 1996 Exposure Draft, the 1997 Bill proposed the insertion of s 195AV(1) which provided that, "[i]t is not an infringement of a moral right of an author in respect of a work to do, or omit to do, something if the author has consented in writing to the act or omission";

(b) however, the 1997 Bill proposed the insertion of s 195AV(2) which provided that, "[t]his section does not apply to a moral right that the author has waived under section 195AZG";

(c) the 1997 Bill proposed the insertion of s 195AZG relating to waiver as follows:

(1) Subject to this section, a person may, by writing, waive all or any of his or her moral rights, either for the benefit of everyone or for the benefit of a particular person or persons or a particular class of persons.

(2) Subject to subsection (3), a waiver can relate only to a specific work or works that exist when the waiver takes place.

(3) A waiver may relate to future works that are made in the course of employment.

(4) A waiver may be unconditional or subject to conditions.

(5) A waiver that is made for the benefit of the owner or prospective owner of copyright in the work or works to which it relates is presumed, unless the contrary intention appears in the instrument of waiver, to extend to his or her licensees and successors in title and to any persons who are authorised by the owner or prospective owner, or such a licensee or successor in title, to do acts comprised in the copyright.

(6) An assignment of copyright in a work does not, by that act alone, constitute a waiver of a moral right in respect of the work.

1. The 1997 Bill passed the House of Representatives but was referred by the Senate to its Legal and Constitutional Legislation Committee to consider, amongst other things, the proposed waiver and consent provisions. The Senate Committee recorded that criticisms had been made in relation to these provisions by various interest groups: Legal and Constitutional Legislation Committee, Reports on the Consideration of Bills by the Senate Legislation Committees Tabled July - December 1997 (The Parliament of the Commonwealth of Australia, Canberra, 1988) p 17-18. The respondents pointed out that the Law Council said it was "extremely concerned" about the relationship between the consent and waiver provisions, including because "there does not appear to be any conceptual or practical difference in law between a "consent" and a "waiver": Legal and Constitutional Legislation Committee (1988), op cit p 26. The respondents relied on the responses of the Attorney-General's Department, as follows:

We have been aware of submissions that have queried the distinction between consent and waiver. Perhaps I can put it this way. Waiver applies to all acts, known or unknown, in the future in respect of all one's moral rights or a particular moral right. You might confine your waiver to the right of attribution; you may be able to reach agreement that you want to maintain your right of integrity but you are prepared to give up the exercise of your right of attribution. Consent relates to one particular thing - one isolated, particular act. It is to cover a one-off situation, whereas a waiver is a standing acceptance. A waiver is a standing indication in respect of anything that might happen in the future with regard to all, one or some of your rights. You will not assert them; you have bound yourself not to take action.

(Legal and Constitutional Legislation Committee (1988), op cit p 19)

1. The Senate Committee concluded that the waiver provisions in the 1997 Bill were fair and appropriate: Legal and Constitutional Legislation Committee (1988), op cit p 19.
2. Despite the conclusions of the Senate Committee, the waiver provision was removed in the Final Moral Rights Bill. In his 8 December 1999 Second Reading speech for the Final Moral Rights Bill, the Attorney-General, the Hon. Daryl Williams, explained the position as follows:

The bill incorporates provisions previously included in the Copyright Amendment Bill 1997. The moral rights provisions were withdrawn from that bill in 1998 when it became apparent that there was a need for further consultation on two or three specific issues of concern to industry...As recognised by the government when withdrawing the original legislation, the most controversial and divisive issue was whether it should be possible for authors, artists and film-makers to waive their moral rights. Understandably, creators saw the provision for waiver in the original legislation as a means by which economically powerful users of their works could force them to agree to give up these new rights completely. In response to these concerns, the concept of waiver has been dropped from this bill...

(Emphasis added.)

1. The Attorney-General further explained the abandonment of the waiver provisions in his 31 October 2000 Second Reading speech:

The original moral rights legislation was withdrawn in 1998 after disagreement amongst interests over a couple of important but narrow issues. Following that withdrawal, the film and television industry formed a negotiating group, which conveyed to the government an agreed approach to those and a few other issues as regards moral rights in films... Both the member for Fraser and the member for Barton criticised the provisions in the bill that make consent a defence to an action for moral rights infringement. I note that during debate on the 1997 bill, the member for Fraser acknowledged that "If such a bill were introduced by a Labor government, it would probably include a waiver provision." The government withdrew the original moral rights legislation because of lack of consensus on whether authors should be able to waive their moral rights.

Many in the arts community saw "waiver" as the complete relinquishment of moral rights, to which authors might have to agree under pressure from economically powerful users of their works. On the other hand, the negotiating group of representatives of writers, directors and producers in the film industry proposed retention and refinement of the provision on consent by authors as a defence to infringement of moral rights. In response to these concerns and submissions, the term "waiver" has been dropped from the bill and the provisions on consent retained and modified. The government amendments I will move shortly respond to further submissions on this issue.

For the moral rights scheme to be workable, the government considers - and, in a more lucid moment, the member for Fraser agrees - that it is necessary for there to be some provision allowing authors to consent to acts or omissions that would otherwise infringe their moral rights.

(Emphasis added.)

1. The applicants relied upon this history as being important context. The respondents, however, pointed out that though the concept of waiver had been "dropped", the legislature did not prohibit waiver or the general law in relation to it.
2. Although this history is informative, it will be necessary to return to how it may be brought to bear in the constructional questions before the Court.

10.2 Salient provisions of the Copyright Act

1. The moral rights recognised by and under the Copyright Act are not at large and are not inchoate. There are three relevant rights: the right of attribution, the right against false attribution, and the right of integrity: ss 193, 195ABA, 195AC, 195AHA, 195AI, and 195ALA.
2. Importantly, these rights differ from copyright. Unlike copyright, moral rights are personal to the right holder and are not transmissible. Division 5 of Part IX sets out the duration and exercise of moral rights. Relevantly, in relation to authors, ss 195AM and 195AN provide as follows:

(1) An author's right of integrity of authorship in respect of a cinematograph film continues in force until the author dies.

(2) An author's right of integrity of authorship in respect of a work other than a cinematograph film continues in force until copyright ceases to subsist in the work.

(3) An author's moral rights (other than the right of integrity of authorship) in respect of a work continue in force until copyright ceases to subsist in the work.

(1) If the author of a work dies, the author's moral rights (other than the right of integrity of authorship in respect of a cinematograph film) in respect of the work may be exercised and enforced by his or her legal personal representative.

(2) If the affairs of the author of a work are lawfully administered by another person (except under a law for the relief of bankrupt or insolvent debtors), the author's moral rights may be exercised and enforced by the person administering his or her affairs.

(3) Subject to this section, a moral right in respect of a work is not transmissible by assignment, by will, or by devolution by operation of law.

(4) If:

(a) a cinematograph film; or

(b) a literary, dramatic, musical or artistic work as included in a cinematograph film;

has 2 or more authors, the authors may enter into a written co-authorship agreement by which each of them agrees not to exercise his or her right of integrity of authorship in respect of the film or work, as the case may be, except jointly with the other author or authors.

(5) A co-authorship agreement has effect according to its terms.

(Original emphasis.)

1. These provisions are important in that they make it clear that in respect of a cinematograph film, an author's moral right of attribution is to endure during the life of the author until the copyright ceases to subsist in the work, and the right of integrity continues until the author dies. For other types of work, the right of integrity continues until the copyright ceases to subsist in the work. In respect of those rights that endure after the death of the author, the relevant rights remain to be exercised and enforced by the relevant legal representative.
2. The content of the rights depends on the nature of the right in question.
3. The right of attribution entitles the author or performer to be attributed as such in respect of specified attributable acts: ss 194 and 195ABB. The holder of the right is entitled to be identified as the author or performer in particular ways: ss 195, 195AA, 195AB, 195ABC, 195ABD, 195ABE. Each of these rights requires positive acts of attribution.
4. The right against false attribution is applicable to particular acts where the moral right holder is entitled to be protected against false attribution: ss 195AD-195AH and 195AHB-195AHC.
5. The right of integrity applies in respect of specified acts that give rise to derogatory treatment: ss 195AJ-195AL and s 195ALB.
6. Division 6 of Part IX sets out comprehensively the acts and omissions that give rise to infringements. Division 6 provides important context as to the content of the rights.
7. Section 195AO identifies when a person infringes the right of attribution, as follows:

Infringement of right of attribution of authorship

Subject to this Subdivision, a person infringes an author's right of attribution of authorship in respect of a work if the person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author in accordance with Division 2 as the author of the work.

(Original emphasis.)

1. Section 195AP identifies when a person infringes the right against false attribution, as follows:

Infringement of right not to have authorship falsely attributed

Subject to this Subdivision, a person infringes an author's right not to have authorship of a work falsely attributed if the person does an act of false attribution in respect of the work.

(Original emphasis.)

1. Section 195AQ identifies when a person infringes the right of integrity. The primary provision is 195AQ(2), which provides that:

Infringement of right of integrity of authorship

...

(2) A person infringes an author's right of integrity of authorship in respect of a work if the person subjects the work, or authorises the work to be subjected, to derogatory treatment.

1. The expression "derogatory treatment" is defined differently depending on whether the relevant work is a literary, dramatic or musical work, or an artistic work, or a cinematograph film: ss 195AJ-195AL. Sections 195AQ(3)-(5) sets out the circumstances in which a person infringes the right of integrity in respect of these different types of work:

(3) If a literary, dramatic or musical work has been subjected to derogatory treatment of a kind mentioned in paragraph (a) of the definition of derogatory treatment in section 195AJ that infringes the author's right of integrity of authorship in respect of the work, a person infringes the author's right of integrity of authorship in respect of the work if the person does any of the following in respect of the work as so derogatorily treated:

(a) reproduces it in a material form;

(b) publishes it;

(c) performs it in public;

(d) communicates it to the public;

(e) makes an adaptation of it.

(4) If an artistic work has been subjected to derogatory treatment of a kind mentioned in paragraph (a) of the definition of derogatory treatment in section 195AK that infringes the author's right of integrity of authorship in respect of the work, a person infringes the author's right of integrity of authorship in respect of the work if the person does any of the following in respect of the work as so derogatorily treated:

(a) reproduces it in a material form;

(b) publishes it;

(c) communicates it to the public.

(5) If a cinematograph film has been subjected to derogatory treatment of a kind mentioned in paragraph (a) of the definition of derogatory treatment in section 195AL that infringes the author's right of integrity of authorship in respect of the film, a person infringes the author's right of integrity of authorship in respect of the film if the person does any of the following in respect of the film as so derogatorily treated:

(a) makes a copy of it;

(b) exhibits it;

(c) communicates it to the public.

1. Section 195AR is important. It sets out the circumstances when there will be no infringement of the right of attribution:

No infringement of right of attribution of authorship if it was reasonable not to identify the author

(1) A person who does, or authorises the doing of, an attributable act in respect of a work does not, because the author of the work is not identified, infringe the author's right of attribution of authorship in respect of the work if the person establishes that it was reasonable in all the circumstances not to identify the author.

(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify the author of a literary, dramatic, musical or artistic work include the following:

(a) the nature of the work;

(b) the purpose for which the work is used;

(c) the manner in which the work is used;

(d) the context in which the work is used;

(e) any practice, in the industry in which the work is used, that is relevant to the work or the use of the work;

(f) any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work;

(g) any difficulty or expense that would have been incurred as a result of identifying the author;

(h) whether the work was made:

(i) in the course of the author's employment; or

(ii) under a contract for the performance by the author of services for another person;

(i) if the work has 2 or more authors-their views about the failure to identify them.

(3) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify the maker of a cinematograph film include the following:

(a) the nature of the film;

(b) whether the primary purpose for which the film was made was for exhibition at cinemas, for broadcasting by television or for some other purpose;

(c) the purpose for which the film is used;

(d) the manner in which the film is used;

(e) the context in which the film is used;

(f) any practice, in the industry in which the film is used, that is relevant to the film or the use of the film;

(g) any practice contained in a voluntary code of practice, in the industry in which the film is used, that is relevant to the film or the use of the film;

(h) any difficulty or expense that would have been incurred as a result of identifying the maker;

(i) whether the film was made in the course of the employment of the director, producer or screenwriter.

1. Section 195AS provides for similar circumstances when there will be no infringement of the right of integrity where the derogatory treatment or other action was reasonable.
2. Sections 195AT-195AV provide for other circumstances where there will be, and will not be, an infringement.
3. Section 195AVA sets out the matters that are to be taken into account in determining whether a person has authorised the doing of an act that gives rise to an infringement, as follows:

Matters to be taken into account

In determining whether a person has authorised the doing of an act that is an infringement of moral rights in respect of a work, the matters that must be taken into account include the following:

(a) the extent (if any) of the person's power to prevent the doing of the act concerned;

(b) the nature of any relationship existing between the person and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

1. It is relevant that the primary provisions of Division 6 of Part IX dealing with infringement apply in respect of a "person" doing an act or authorising the doing of an act of infringement.
2. Sections 195AW and 195AWA address the subject matter of an author's consent to infringements and s 195AXJ deals with a performer's consent to an infringement. It is instructive that these provisions are contained in Division 6 which deals with infringements of moral rights. These sections provide as follows:

195AW Author's consent to act or omission--films or works in films

(1A) This section applies to a work that is:

(a) a cinematograph film; or

(b) a literary, dramatic, musical or artistic work as included in a cinematograph film.

(1) It is not an infringement of a moral right of an author in respect of a work to do, or omit to do, something if the act or omission is within the scope of a written consent given by the author or a person representing the author.

(2) A consent may be given in relation to all or any acts or omissions occurring before or after the consent is given.

(3) A consent may be given in relation to:

(a) a specified work or specified works existing when the consent is given; or

(b) a work or works of a particular description:

(i) the making of which has not begun; or

(ii) that is or are in the course of being made.

(4) A consent may be given by an employee for the benefit of his or her employer in relation to all works made or to be made by the employee in the course of his or her employment.

(5) A consent given for the benefit of the owner or prospective owner of copyright in the work or works to which it relates is presumed, unless the contrary intention appears in the consent instrument, to extend to his or her licensees and successors in title, and to any persons who are authorised by the owner or prospective owner, or by such a licensee or successor in title, to do acts comprised in the copyright.

(6) Subsections (2) to (5), inclusive, do not limit the operation of subsection (1).

195AWA Author's consent to act or omission--work that is not a film or included in a film

(1) This section applies to a literary, dramatic, musical or artistic work other than such a work as included in a cinematograph film.

(2) It is not an infringement of a moral right of an author in respect of a work to do, or omit to do, something if the act or omission is within the scope of a written consent genuinely given by the author or a person representing the author.

(3) Subject to subsection (4), a consent does not have any effect unless it is given:

(a) in relation to specified acts or omissions, or specified classes or types of acts or omissions, whether occurring before or after the consent is given; and

(b) in relation to either of the following:

(i) a specified work or specified works existing when the consent is given; or

(ii) a specified work, or works of a particular description, the making of which has not begun or that is or are in the course of being made.

(4) A consent may be given by an employee for the benefit of his or her employer in relation to all or any acts or omissions (whether occurring before or after the consent is given) and in relation to all works made or to be made by the employee in the course of his or her employment.

(5) A consent given for the benefit of the owner or prospective owner of copyright in the work or works to which it relates is presumed, unless the contrary intention appears in the consent instrument, to extend to his or her licensees and successors in title, and to any persons who are authorised by the owner or prospective owner, or by such a licensee or successor in title, to do acts comprised in the copyright.

...

195AXJ Performer's consent to act or omission

(1) It is not an infringement of a performer's moral right in respect of a live performance or recorded performance to do, or omit to do, something if the act or omission is within the scope of a written consent given by the performer or a person representing the performer.

Note: The consent of one performer does not affect the moral rights of any other performer: see subsection 195AZQ(5).

(2) A consent may be given in relation to all or any acts or omissions occurring before or after the consent is given.

(3) A consent may be given in relation to:

(a) a specified performance or specified performances occurring before the consent is given; or

(b) a performance or performances of a particular description:

(i) that have not yet occurred; or

(ii) that are in the course of occurring.

(4) A consent may be given by an employee for the benefit of his or her employer in relation to all performances in which the employee is to be a performer in the course of his or her employment.

(5) A consent given for the benefit of the owner or prospective owner of copyright in the recorded performance or recorded performances to which the consent relates is presumed, unless the contrary intention appears in the consent instrument, to extend to his or her licensees and successors in title, and to any persons who are authorised by the owner or prospective owner, or by such a licensee or successor in title, to do acts comprised in the copyright.

(6) Subsections (2) to (5), inclusive, do not limit the operation of subsection (1).

1. The distinction between ss 195AW and 195AWA is an important one. Whereas the former contemplates the right holder giving a general consent in relation to all acts or omissions, the latter requires specification of the relevant acts or omissions. It is an important distinction when considering the effect of a general waiver.
2. Division 7 provides for the remedies for infringement. The remedies include the grant of an injunction, damages for loss, declarations as to infringement, orders for the making of an apology and other orders: s 195AZA.

1. The respondents' contentions relied on cl 6.2 and, to a lesser extent, on the interaction between cll 6.2 and 9.1.

1. An immediate question that arises is what the parties intended by cl 6.2. The first sentence of cl 6.2 provides that:

The Director waives all moral or other similar rights in respect of the Documentary or the Development Materials that the Director may be entitled to under the laws of any jurisdiction throughout the world in perpetuity.

1. It is to be contrasted to the second sentence, which provides:

To the extent that the foregoing waiver is not enforceable in any jurisdiction of the world the Director unconditionally and irrevocably consents, for the benefit of the Producer and all of its assignees, licensees and sublicensees to material alterations to the Documentary (including, without limitation, any copying, editing, adding to, taking from, adapting and / or translating the Documentary in any manner or context) for any purpose.

1. There was a considerable degree of imprecision in the respondents' contentions as to what was meant by the word "waiver" in the first sentence of cl 6.2 of the Director's Agreement.
2. It was not in dispute that the meaning of cl 6.2 is to be determined by reference to its text, read in light of its context and purpose, which are to be gleaned from the terms of the Director's Agreement: see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[52] (French CJ, Nettle and Gordon JJ); Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; 267 CLR 514 at [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ) and [83] (Edelman J); Elisha v Vision Australia Ltd [2024] HCA 50; 99 ALJR 171 at [38] (Gageler CJ, Gordon, Edelman, Gleeson And Beech-Jones JJ); HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; 104 NSWLR 634 at [22]-[24] and [27]-[28] (Meagher JA and Ball J). This involves ascertaining what "a reasonable person would have understood [the terms] to mean": Vision Australia at [38], quoting Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Where the contract is a commercial one, the meaning is to be determined by reference to "what a reasonable businessperson would have understood those terms to mean": Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35] (French CJ, Hayne, Crennan and Kiefel JJ).
3. The word "waiver" is an uncertain one as it is used in many different senses: Delor Vue at [28]. As referred to above, in the ROS, the respondents submitted that the word meant "consent", and there was "no need to enter into the question of what 'waiver' means in this context, and what the legislature meant to prevent by not using that word". However, the respondents also contended that cl 6.2 gave rise to either a general waiver or waiver of Mr McCallum's right to sue for an infringement of his moral rights.
4. The word "waiver" as used in the first sentence of cl 6.2 may mean different things. What the parties intended by that sentence needs to be resolved by reference to text and context. There are constructional choices. First, in its broadest sense, the first sentence of cl 6.2 may be interpreted as meaning Mr McCallum was declaring to the world (and not just to Projector Films) that he was renouncing all his moral rights in respect of the Documentary forever. Second, in a narrower sense, the first sentence may be interpreted as meaning Mr McCallum was agreeing to renounce all his moral rights in favour of Projector Films worldwide and forever. Third, in an even narrower sense, the clause may be interpreted as meaning that Mr McCallum was agreeing to waive any infringement of his moral rights without renouncing those rights. Fourth, in another sense altogether, the clause may be interpreted as meaning that Mr McCallum was renouncing his right to bring an action to seek remedies in respect of an infringement, again, without renouncing his underlying moral rights.
5. The respondents appeared to embrace each of these interpretations in cascading order of alternatives.
6. Each of the different senses in which the word waiver may apply focusses attention on what is being waived. The resolution of that question must turn on the text of the clause which refers to "all moral or other similar rights in the Documentary or the Development Materials" (emphasis added). The reference to "moral or other similar rights", together with the preposition "in", indicates that what the parties intended was that Mr McCallum would renounce his underlying moral rights in the Documentary and the Development Materials to which he is entitled under any laws throughout the world, as opposed to waiving an act of infringement or the right to bring an action for an infringement. The latter rights are not rights that Mr McCallum has "in" the Documentary but are rights he has by reason of holding the relevant moral rights.
7. Thus, in my view, on its proper construction, the first sentence of cl 6.2 is to be interpreted as meaning that Mr McCallum was seeking to renounce all his moral or other similar rights in the Documentary and the Development Materials to which he was entitled under any laws throughout the world forever. Properly construed, the first sentence of cl 6.2 is a general waiver of moral rights. At least in the Australian jurisdiction, the rights that Mr McCallum was seeking renounce were the rights of attribution, the right against false attribution and the right of integrity. That is the sensible, reasonable and business like reading of the first sentence. Read this way, the first sentence provides context and content for the second sentence. The second sentence is contingent on the waiver in the first sentence not being "enforceable in any jurisdiction" and, in that instance, provides for an unconditional and irrevocable "consent" to the Producer (and all its assignees, licensees and sublicensees). The deliberate use of the words "waiver" and "consent" indicate a contradistinction in legal concept which does not support the respondents' contention that "waiver" in the first sentence means "consent" to an act of infringement or a waiver of a right to sue for an act of infringement. That conclusion is also supported by the fact that the "consent" in the second sentence is limited in subject matter to "material alterations" to the Documentary (which is limited to an infringement of the right of integrity), whereas the waiver in the first sentence is the subject of no delimitation.
8. The parties paid little attention to whether the waiver in the first sentence operated in favour of Projector Films or the world at large. The respondents did not make clear whether such a waiver operated only in favour of Projector Films or in favour of all persons. If the former, the respondents did not address how such a waiver would operate to prevent infringement by a third party who was not a privy to the contract, such as Mr Ngo, Ms Williams-Weir, Mr Joyce, Mr Battsek or any other person. For example, would it prevent Mr Battsek, as an Executive Producer of the Film, or Madman Entertainment (as a distributor of the Documentary) from not affixing Mr McCallum's name on the Documentary altogether or communicating that message to the world at large through promotional and other materials contrary to ss 195AF and 195AH? If the latter, the respondents did not address how a waiver could be granted in favour of persons who were not privy to the Director's Agreement.
9. Read literally, the first sentence of cl 6.2 appears as if it were a declaration being made by Mr McCallum to the world at large, seeking to renounce all moral rights in the Documentary and Development Materials all over the world and into perpetuity. This is to be contrasted with the second sentence which involves a consent being granted in favour of the "Producer" (Projector Films). This suggests that the scope of the first sentence is broader than the second. However, cl 6.2 must be read sensibly. It is contained in a contract between two parties. In my view, properly construed, the waiver in the first sentence of cl 6.2 is granted in favour of Projector Films.
10. As a result of the above, the next question to be determined is whether the general waiver in cl 6.2 is inconsistent with the Copyright Act.

10.3.2 Is a general waiver of moral rights inconsistent with the Copyright Act?

1. It was common ground that the Copyright Act does not contain any express prohibition against a person generally waiving their moral rights. However, the absence of an express prohibition does not conclude the question as to the enforceability of such a waiver: eg see Westfield Management Ltd (as trustee for the Westart Trust) v AMP Capital Property Nominees Ltd (as nominee of Unisuper Ltd in its capacity as trustee of the complying Superannuation Fund known as Unisuper) [2012] HCA 54; 247 CLR 129 at [46] (French CJ, Crennan , Kiefel and Bell JJ). In Price, Gageler and Gordon JJ stated at [39]:

Whether a party may, by contract, forbear or renounce rights conferred by a statute directs attention to the proper construction of the statute in issue to identify whether there is "an express prohibition against 'contracting out'"; or whether "the provisions of the statute, read as a whole, are inconsistent with a power to forgo its benefits"; or whether "the policy and purpose of the statute may [show] that the rights which it confers on individuals are given not for their benefit alone, but also in the public interest, and are therefore not capable of being renounced".

(Citing Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; 121 CLR 432 at 456).

1. The respondents submitted that a prohibition against waiver could not be inferred or implied from the Copyright Act read as whole. Relying upon Mason CJ's judgment in Verwayen at 404, the respondents submitted that there was no element of public policy that would support such an inference or implication. It was submitted that moral rights are personal rights and did not give rise to any broader considerations of public policy (even if the legislature intended to give effect to a general public policy by recognising moral rights). The respondents further submitted that its position was supported by the fact that the legislature had, via ss 195AW and 195AWA, expressly contemplated that holders of moral rights could consent to their infringement. It was said that these provisions supported the respondents' contention that the there was no general or specific public policy precluding the general waiver of moral rights.
2. I do not agree with the respondents' contentions.
3. The task at hand is to construe the relevant rights conferred by the Copyright Act by reference to the context and purpose that they were intended to achieve. In this regard, it is well to bear in mind what Gageler J stated in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 271 CLR 495 at [66]- [67]:

The pronouncement of five members of the High Court in 2010 that "it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction" cannot be understood to have meant more than to stress that statements of legislative intention made in extrinsic materials do not "overcome the need to consider the text of a statute to ascertain its meaning". The "modern approach to statutory interpretation", which was well-established before the pronouncement and which has continued in practice afterwards, "(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which ... one may discern the statute was intended to remedy".

Applying the modern approach to statutory interpretation, consideration of context, including consideration of legislative history and extrinsic materials, "has utility if, and in so far as, it assists in fixing the meaning of the statutory text". The quality and extent of the assistance extrinsic materials provide in fixing the meaning of statutory text is not uniform. The quality and extent of the assistance varies in practice in ways unable to be fully appreciated without regard to the provenance and conditions of creation of the extrinsic materials.

1. It is equally well to bear in mind that the ascertainment of purpose and the intention of Parliament is a "construct" and the search is not for the subjective purpose of Parliament or particular members of Parliament: Unions NSW v New South Wales [2019] HCA 1; 264 CLR 595 at [169] (Edelman J). To this, it is to be added that, the "[t]he words of a Minister must not be substituted for the text of the law": Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514 at 518 (Mason CJ, Wilson and Dawson JJ).
2. I received little assistance from the parties as to the relevant use that could be made of the extrinsic materials that showed that Parliament considered enacting provisions relating to the waiver of moral rights but removed them, in essence, for policy reasons associated with striking a different balance between right holders and third parties. The present task involves construing the legislative scheme as enacted; not that which was not enacted. Whilst I accept that the extrinsic material pointing to the abandonment by Parliament of the express waiver provisions does not assist in construing the text of the statute as it stands, the extrinsic materials do assist in ascertaining the purpose of ss 195AW, 195AWA and 195AXJ, and the mischief that Parliament was seeking to address by the inclusion of those provisions.
3. In assessing the purpose of Part IX and, specifically, ss 195AW, 195AWA and 195AXJ, it is first necessary to consider the nature of the actual "rights" conferred by that Part and to situate them in the context of what had gone before. As earlier indicated, by the Moral Rights Amendment Act, Parliament repealed the then existing Part IX and inserted a replacement Part IX which came to be entitled "Moral rights of performers and authors of literary, dramatic, musical or artistic works and cinematograph films" (noting that rights for performers were added in 2004).
4. Three rights were conferred or recognised: the right of attribution (Division 2 of Part IX), the right against false attribution (Divisions 3 of Part IX) and the right of integrity (Divisions 4 of Part IX). (Divisions 2A, 3A and 4A were added later in 2004 in respect of the rights of performers.) These rights have content. The right of attribution requires positive acts to be done (i.e., attributable acts) whereas the other two rights guard against erosion of the right of attribution by false attribution or the degradation of the integrity of the work that is the subject of the right. The first right is sometimes referred to as the "right of paternity" (which is a concept to which I will later return) and it is associated with the second right. These two rights seek to recognise what is said to be the inalienable bond or relationship between an author and his or her work. The other right is one that relates to the integrity of the work itself.
5. Division 6 addresses infringements of the three rights. The infringements are the other side of the coin from the substantive content of each of the three rights. For example, in relation to the right of attribution, it is an act of infringement to not make the required attribution (s 195AO). In relation to the right against false attribution, it is an act of infringement to make false attribution (s 195AP) and in relation to the right of integrity, it is an act of infringement to subject the work to derogatory treatment (s 195AQ). Thus, the nature and content of the statutory right is inherently bound up in the protection against its infringement.
6. Division 7 provides remedies for infringement, including the right to bring an action for such remedies (s 195AZ).
7. Importantly, Division 6 also identifies the instances where no infringement arises, and, logically, where there would be no consequent action for a remedy. For example, there would be no infringement in the circumstances specified in ss 195AR, 195AS, 195AT or 195AX. There would also be no infringement if the author provided a consent to the relevant act or omission as set out in ss 195AW, 195AWA and 195AXJ.
8. It is notable that the text of ss 195AW, 195AWA and 195AXJ each provide that "[i]t is not an infringement..." of the relevant author's or performer's moral rights to do, or omit to do, something that is within the scope of a written consent. Thus, it may be said that the legislature was concerned with regulating when an act would not amount to an infringement, as opposed to seeking to regulate the holding of the right itself.
9. However, the legislature did in fact regulate the holding of the right. As noted above, the legislature provided that three moral rights would in substance endure for the period that copyright subsisted in the relevant work (or until the death of the author of the work in the case of an author's right of integrity of authorship in respect of a cinematograph film) but also made it clear that, unlike copyright, the relevant moral rights are not transmissible: ss 195AN(3) and 195ANB(3). They cannot be assigned or devolved by operation of law. The respondents paid insufficient attention to what the legislature was seeking to do by conferring rights where the right holder was not at liberty to assign or transmit those rights to another.
10. Important to the reason why the legislature conferred rights that could not be assigned was that the legislature recognised that "moral rights" are distinct to copyright and were to be treated differently. That requires examination of the context.
11. In the period immediately before the enactment of the Moral Rights Amendment Act, there was little, if any, protection of moral rights in Australia. There were a limited number of protections in the then Part IX of the Copyright Act and otherwise the remedies were those at law for passing off, defamation and breach of contract, together with any actions that could be brought under the TP Act.
12. The protections that existed in Part IX of the Copyright Act were recognised by the Spicer Committee as being consistent with the Berne Convention but also noted to be not strictly in the nature of "copyright". Thus, for example, s 190 of the Copyright Act (at the point in time before the passing of the Moral Rights Amendment Act) provided that a person was under a duty to the author of a work not to falsely attribute the authorship of a work. That right, and the associated rights in ss 191 and 192, were tied to the economic right of copyright, which was provided for in s 196 of the Copyright Act and which was, and remains, a right of "personal property" that is "transmissible by assignment, by will and by devolution by operation of law".
13. One of the essential purposes the Moral Rights Amendment Act was to recognise the non-economic rights of authors in works that are the subject of copyright. In doing so, the legislature embraced the "dualistic theory" of copyright, which "...views the protection of the moral rights of the author, on the one hand, and the protection of his economic rights, on the other, as representing two separate objectives, which are independent of each other and may be exploited separately": Davies and Garnett (2016), op cit p 25. That the legislature intended to recognise a bundle of rights distinct to copyright is manifest from the opening statement in the Explanatory Memorandum to the Final Moral Rights Bill that:

This Bill introduces comprehensive moral rights provisions for authors of copyright works and films. Moral rights differ from the bundle of rights that constitute copyright in a work in that they are personal and not economic rights.

(Emphasis added.)

1. It is contestable whether moral rights have no economic value, but what is more to the point is that the legislature enacted provisions that distinguish the nature of moral rights from copyright. The most important of these distinctions is that moral rights are personal to the individual author in that only individuals are to hold the rights (s 190) and they are not "transmissible by assignment, by will, or by devolution by operation of law" (ss 195AN(3) and 195ANB(3)).
2. This is to be contrasted with copyright which is transmissible (s 196(1)). And, copyright is specifically identified as being a right of personal property (s 196(1)). Moral rights are not so recognised.
3. Although the language of ss 195AN(3) and 195ANB(3) do not speak in terms of the inalienability of the right, the legislature regarded them as such. That is obvious from the fact that these rights are not specified as being in the nature of personal property and are not transmissible. It also accords with the consideration given in the discussions that occurred over the decades leading to the enactment of the Moral Rights Amendment Act. In relation to the rights being non-transmissible, the Explanatory Memorandum to the Final Moral Rights Bill expressly stated at [50]:

Other than in these situations, new s.195AN(3) provides that moral rights are not transmissible by assignment, by will or by operation of law. This confirms the personal nature of moral rights and that they are different from the economic rights of a copyright owner, which are transferable.

(Emphasis added)

1. The idea of moral rights as being "inalienable" in the sense of them being non-transmissible and personal to the author coheres with the doctrinal justification for the recognition of rights distinct from the copyright. As has been observed:

The fundamental theoretical basis for moral rights provides scope for broader rights than those articulated in the Convention. The traditional theoretical foundation for moral rights is the principle that the personality of an author is inevitably linked to his or her creations. An artist's work is an extension of her of his self, and hence an inalienable personal right exists in the work they produce. These rights are separate to the economic rights of copyright, and their scope and content in a dualistic system of copyright may be distinct from each other and differ. For example, economic rights are held by the owner of the copyright in a work. The owner may or may not be the creator. In contrast, moral rights remain, unless they can be and are waived, with the creator even after copyright in a work has been assigned. The duration of the economic and moral rights may be for differing lengths of time. A strict theoretical application of these rights would not permit assigning or waiver of these rights because of their personal nexus with the creator.

(Cooper (1997), op cit p 169)

1. The theoretical foundation for the inalienability of the relationship between the author and his or her work may be illustrated by a simple example. Leonardo da Vinci painted the Mona Lisa. No one could deny that he is the artist and therefore the author of that work. It is a question of fact, and, in this example, one of unassailable fact. If he was alive and copyright subsisted in the work, under the Copyright Act he would be at liberty to assign his copyright but not his moral rights. It is the unassailable fact of authorship (as opposed to ownership) which is intended to be captured by referring to the right of attribution as a "right of paternity" - ie characterising the relationship between author and work as akin to a biological truth.
2. It is obvious that the legislature, recognising that moral rights were personal in nature and non-transmissible, confronted the problem of making provision for the legitimate infringement of those rights by third parties, including those in industry, and by employers in respect of the works created by employees during the course of their employment. The necessity for such a solution only arose because of the recognition of the bespoke nature of and theoretical foundation for moral rights. The CLRC recognised the conundrum in its report in 1988 (op cit p 37) (which other jurisdictions had grappled with long beforehand). The minority's views were recorded as follows:

As a matter of commercial reality, however, rights which cannot be waived create difficulties. For this reason the legislation of other European countries such as the Federal Republic of Germany and the Netherlands is silent on the question of waiver. in some cases a type of waiver is provided for by statute. Article 13 of the German copyright law provides for an author to determine whether the work is to bear an author's designation. Thus, the author can choose not to have his name attributed. Similarly, Article 56 of France's 1957 law provides that an author may, by express agreement, waive the right to have his or her name appear on published copies of his or her work. This could be seen as a right to remain anonymous rather than a waiver of the right of attribution but there is little practical difference.

The impracticality of a truly inalienable moral right is further recognised by the French courts, despite the general legislative statement to the contrary. The shifting standards by which the right of integrity is applied to adaptations or collaborative works may, for example, be explained on the basis of implied waivers. One seminal example is the case of Bernstein v. Matador et Pathe Cinema where it was held that a covenant allowing all changes necessary for adapting a play to a movie was valid, notwithstanding the author's inalienable moral right.

Lest it should be thought that the French do not take the inalienability of the moral right too seriously, the case of Guille c Colmant shows otherwise. A painter signed a 10 year contract to produce paintings to be signed by a pseudonym. The court held the entire contract to be void as it violated the artist s right of paternity. in this situation involving original works, the inalienability of the artist's right of paternity overruled the contract.

What all this illustrates is that the moral right must and does bow to the pressures of commercial practicality and must vary from situation to situation...

(Original emphasis retained and citations omitted.)

1. The solution that was recommended by the minority of the CLRC was to permit a written waiver of the rights, which was later taken up by both the Labour and Liberal Governments in their respective original drafts of the Bill.
2. However, a general or specific waiver of rights was not the solution that was ultimately enacted. The solution that the legislature arrived at was one involving the giving of written consents to acts or omissions involving an infringement of the rights in question. The purpose of ss 195AW, 195AWA and 195AXJ was explained in this way in the Explanatory Memorandum:

It is recognised that there may be occasions when an author will decide not to exercise and enforce some or all of his or her moral rights. In this case, the Bill provides that an author may give written consent to any or all acts or omissions that would otherwise constitute an infringement of their moral rights. Consequently the Bill allows a written consent to range from a specific consent to a comprehensive consent. It is not necessary to specify the actions or omissions to a work that are consented to under a comprehensive consent. This written consent may be in relation to works that are in existence, in progress or yet to be commenced. The Bill also allows written consent to be given to past acts or omissions that would otherwise constitute an infringement of the moral rights of the author.

(Emphasis added.)

1. This part of the Explanatory Memorandum confirms that the purpose of the ss 195AW, 195AWA and 195AXJ was to permit the holder of moral rights to decide not to exercise or enforce some or all his or her moral rights. Similarly, the Attorney-General's statements in the Second Reading Speeches (extracted above) indicate a desire on the part of the legislature to balance the interests of right holders and others who may wish to engage with those rights. Parliament intended to strike that balance through the mechanism of consent to acts or omissions of infringement.
2. Viewed by reference to this context, it is evident that Parliament intended to enact a specific regime by which the holder of a moral right could consent to an infringement of their rights. That regime is deliberate and calibrated to strike a balance between the rival interests at play. First, such consents must be in writing. Second, in relation to cinematograph films and artistic performances, such consents may be given in relation to all or any acts or omissions. Third, in relation to other works, such consents must be genuinely given in in respect of specified acts or omissions. Fourth, the consent may be given in relation to a specified work or specified works, or work or works meeting a particular description. The same applies in respect of a specified performance or performances. Fifth, the consent may be given by an employee for the benefit of his or her employer in relation to all works made or to be made by the employee in the course of his or her employment. Finally, and importantly, such a consent operates so that the relevant act or omission will not give rise to an infringement.
3. The respondents' contentions appeared to emphasise the difference between a waiver of the right and consent to an infringement of the right. This is a valid point. There is, of course, a distinction between waiving a right and waiving an infringement of that right. In emphasising the absence of any prohibition of waiver, the respondents assumed a starting point which contained suppressed premises as to the nature of the right in question. The contention assumes the premise that moral rights are like any other right (including any other statutory right) and are therefore able to be waived by the right holder absent any express or implied prohibition. On the respondent's contentions, it followed that absent any prohibition, the right holder has the decisional freedom to waive and forego his or her statutory right.
4. The flaw in the respondents' submissions is that they assume the a priori necessity for a prohibition on waiver without examining the distinct nature of a moral right as a right that is inalienable as between the author and the relevant artistic work, ie a right that by reason of its essential nature is incapable of waiver, as opposed to a right that is able to be waived absent an express prohibition. The conception of a moral right as being akin to any other right is wrong. It is not. The legislature has made that plain by contrasting moral rights with copyright in that moral rights are not rights of personal property and they are not rights that may be transmitted. In this sense moral rights are inalienable as between the author and the relevant work. And, once that standpoint is properly understood, the question of a prohibition on waiver is not one that arises because of the nature of the right. There is no need to prohibit waiver of these rights because they are not rights that may be waived absent an express power to do so.
5. Once that is understood, it is plain (as referred to above) why the legislature was seeking to enact a regime that struck a balance between right holders and third parties seeking to lawfully exploit relevant artistic works. The necessity for such a balance to be struck was borne by the nature of the right. The solution that the legislature chose in the end was a regime whereby the right holder could give a written consent to an infringement of moral rights (as opposed to waiving the rights, which was also a solution that the legislature considered).
6. The respondents appeared to appreciate the distinctive quality of moral rights during the course of argument. When questioned about whether the waiver here would involve an extinguishment of the right altogether as against all persons, the respondents submitted (T265.09-15):

So your Honour would not be finding that the moral right itself comes to an end by reason of a waiver. For example, here Mr McCallum was given a waiver as against Projector Films by which he agreed he wouldn't sue Projector Films. But that doesn't mean that his right - he ceases to have moral rights in the film; for example, if some other person were to publish the film without putting his name on it, his moral right continues such that he could still sue that other person in respect of an infringement.

1. The submission was wrapped up in inconsistent views as to what waiver meant in the sense it was being used. Precisely how a general waiver could operate in respect of some persons but not others was not explained. For example, if Projector Films could claim Mr Ngo was the director of the Documentary, why would a distributor, producer or executive producer not be able to do likewise? In the example posited by Counsel for the respondents, Projector Films will not have infringed Mr McCallum's rights but another person such as a distributor, producer or executive producer might. How would this work in the real world? As adverted to below, how would the waiver in favour of Projector Films operate to excuse Mr Ngo's alleged infringements of Mr McCallum's moral rights? None of this was considered or explained.
2. Nor did the respondents adequately explain how a general waiver of rights could be reconciled with the deliberate and carefully calibrated scheme enacted by Parliament for consents to be given to infringements. If a general waiver could be given (including orally and in favour of all persons), it would render otiose ss 195AW, 195AWA and 195AXJ. What need would there be for these provisions if an author or performer could readily waive such rights? If a waiver could be given orally, why would Parliament have insisted that a consent to an infringement be given in writing and, in respect of some artistic works other than cinematograph films, that such consent be required to be given in relation to specific acts or omission as required by s 195AWA? Taking up this last example, why did the Parliament specifically provide that consent in relation to such works could only be given in relation to specified acts or omissions if they could be cast aside by the right holder renouncing his or her rights?
3. The difficulties with applying the concept of general waiver to rights such as moral rights was identified by Ms Elizabeth Adeney in her learned article, "The Moral Right of Integrity of Authorship: A Comparative View of Australia's Proposals to Date" (1998) 9(4) AIPJ 179-199, 196, as follows:

Consent differs conceptually from waiver in that it is a statutorily permitted exercise of the author's jurisdiction (which in our case is also statute-given) over the work. Waiver, on the other hand, is a partial or total renunciation of that statute-given jurisdiction.

In the light of the principles which gave birth to moral rights, the possibility of any absolute renunciation of the rights is open to attack. Moral rights are built on the belief in an indissoluble bond between author and work; this is why the rights are in most jurisdictions inalienable in the sense of being unassignable and untransferable during the lifetime of the author. They have also come to be expressed and treated as akin to human rights. If this thinking is accepted, to what extent may the author make any binding dispositions with regard to the rights?

Different European jurisdictions have found different answers, most of which express a compromise between principles of inalienability and of freedom of choice.

1. Ms Michelle Cooper made a similar point that_,_ "[a] pure application of the theoretical basis for moral rights based on the link between a creator's personality and his or her own work would, however, negate the ability to waive these rights": Cooper (1997), op cit p 172.
2. Accepting the respondents' contentions would tend to make ss 195AW, 195AWA and 195AXJ redundant and be inconsistent with the maxim ut res magis valeat quam pereat which involves declining to interpret an Act in such a way that its operation will be negated if there is an alternative available that will carry out the purposes of the Act: see Nokes v Doncaster Amalgamated Colliers Ltd [1940] AC 1014 at 1022; Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burn [2018] HCA 15; 265 CLR 304 at [145] (Nettle J); Clubb v Edwards, Preston v Avery [2019] HCA 11; 267 CLR 171 at [416] (Edelman J).
3. When pressed about these matters, the respondents submitted that the legislature had set a different regime whereby the holder of the moral rights could either give consent or give a general waiver: T270.5-6. But the existence of the latter makes the former redundant in any case that a general waiver is given.
4. For the foregoing reasons, it is my view that the scheme of Part IX is inconsistent with a right holder being able to grant a general waiver of moral rights and such a waiver would be contrary to the public policy reflected in that scheme. Parliament intended to recognise moral rights. Parliament also foresaw a need for a regime to balance the rights of authors and performers as against those who may wish to lawfully infringe those rights. Parliament enacted a regime to strike such a balance. In light of that regime to specifically address when and how an author or performer may decide not to exercise and enforce their rights, I am not satisfied that the moral rights conferred by the Copyright Act may be waived in general terms.
5. It follows that I am satisfied that the first sentence of cl 6.2 is invalid to the extent that it seeks to give rise to a general waiver of moral rights under the Copyright Act. It may have force in other jurisdictions, but those matters were not argued. Further, as I mentioned at the outset of the analysis, I have not been called upon to consider whether some other form of waiver or estoppel as against the assertion of moral rights would be consistent with the Copyright Act. I have only been called upon to consider the issues that have been raised.

10.3.3 Is the first sentence of cl 6.2 a general consent?

1. It is next necessary to address the respondents' alternative argument relating to the construction of cl 6.2. The respondents submitted that, if the first sentence of cl 6.2 was invalid to the extent that it gave rise to a general waiver, it was nevertheless a provision by which Mr McCallum had given a general consent to Projector Films in respect of any and all acts or omissions giving rise to an infringement of his moral rights.
2. Yet again, there was a lack of clarity in the respondents' argument. The respondents did not submit that the word "waive" meant "consent". Rather, it was submitted that the effect of the proper construction of the first sentence of cl 6.2 was that it was a provision by which Mr McCallum was consenting to all acts or omissions that would otherwise give rise to an infringement. It is notable that commentators have suggested that a consent to all or any acts or omissions giving rise to an infringement within the meaning of s 195AW may in effect amount to something akin to a general waiver: Lindgren K, Rothnie W and Lahore J, Copyright and Designs (LexisNexis Butterworths, 2004) at [48,195]. It is unnecessary to decide that question because that is not what the first sentence of cl 6.2 does.
3. The difficulty with the respondent's contention is that the words of the clause do not say that Mr McCallum is consenting to all acts or omissions that would give rise to an infringement of his moral rights. Rather, in its terms, the first sentence of cl 6.2 is a blanket and general waiver by which the parties were agreeing that Mr McCallum would renounce all of his rights altogether. That conclusion is supported by the contradistinction drawn within the text of cl 6.2 itself. The second sentence makes plain that to the extent that the general "waiver" is not enforceable, Mr McCallum was providing his consent to a limited range of acts and omissions. Those internal textual markers within cl 6.2 do not support the respondents' contentions.
4. The respondents separately submitted that, if necessary, the Court should read cl 6.2 of the DA as follows:

"The Director waives consents to all or any acts or omissions that would otherwise infringe any moral or other similar rights in respect of the Documentary or the Development Materials that the Director may be entitled to under the laws of any jurisdiction throughout the world in perpetuity. To the extent that the foregoing waiver consent is not enforceable in any jurisdiction of the world the Director unconditionally and irrevocably consents, for the benefit of the Producer and all of its assignees, licensees and sublicensees to material alterations to the Documentary (including, without limitation, any copying, editing, adding to, taking from, adapting and/or translating the Documentary in any manner or context) for any purpose."

(Original emphasis.)

1. I reject this argument. It requires a reformulation of the words in the absence of a suit for rectification and does not cohere to the text of the second sentence of the clause.
2. It may be accepted that the literal meaning of words may on occasions give way by the application of the judicial technique that has been described as "rectification by construction": see Energy World Corporation Ltd v Maurice Hayes and Associates Pty Ltd [2007] FCAFC 34; (2007) 239 ALR 457 at [10]-[11] (Moore, Tamberlin and Gyles JJ); Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2019] NSWCA 11; (2019) 99 NSWLR 317 at [6]-[11] (Leeming JA, Payne and White JJA agreeing); HDI Global at [48]-[53]. However, as Leeming JA explained in Seymour Whyte at [8], there are two conditions that need to be satisfied for the process of rectification by construction, being "(a) that the literal meaning of the contractual words is an absurdity and (b) that it is self-evident what the objective intention is to be taken to have been". The Court must be satisfied of these matters "to a high level of conviction": Seymour White at [10]. I am not satisfied that these factors have been satisfied or that there is any reason to depart from the literal meaning of the words of cl 6.2.
3. It follows that I reject the respondent's arguments.

1. Before turning to address whether Mr McCallum's rights have been infringed, it is necessary to address the facts relevant to the infringement.

11.1 The emergence of the dispute about credits and Mr McCallum's exclusion from the Project

1. As noted above, the dispute about the credits for the Documentary had been bubbling since before Mr McCallum was engaged as the director of the Documentary. Mr Ngo had raised with Mr McCallum from the outset that he believed he should be credited as a co-director. There had been subsequent discussions about credits, and tensions looming about Mr Ngo overstepping his role and treading on Mr McCallum's turf as the director. It was inevitable that the dispute was bound to rise to the surface and boil over.
2. On 21 February 2023, Mr McCallum sent an email to Mr Ngo, noting that he had seen a recent cut which referred to the Documentary being 'created by' Mr Ngo and Ms Williams-Weir. He said:

Hey guys, just wanted to raise something that's been on my mind a bit.

I noticed that in the most recent cut you've added a 'created by' credit card with both your names on it. This is a great idea and absolutely well deserved for both of you. It's a fitting acknowledgement of you both going above and beyond in the role of producer and writer/producer.

However, I was pretty disappointed not to have my name included on the card as well. I feel my role, since NGB's inception, has definitely been one of creating, developing and shepherding alongside you both, beyond the ordinary scope of a director for hire.

I appreciate you both and I know you wouldn't have had any ill intent in excluding my name, but it does sting and makes me feel like my creative contribution isn't being recognised as it should. We've always said publicly that we've created this project together; the three of us as a team. If we have a 'created by' card, I'd appreciate if my name was included to reflect and acknowledge this.

Cheers, S

Hi Stephen,

Thanks for bringing it up - as stuff like this can be tricky to chat about.

We definitely value your contribution, and there is no ill intent at all from us, but it also needs to be acknowledged that we have had to go way above and beyond producer roles to keep this project from going under.

Erin and I did create this project in that we found the subject, got the rights, researched the story, put together the team and have been instrumental in creative decisions. At the moment our contribution is only reflected as a three-way shared producer credit, which is neither accurate nor fair.

So we do need to find the right way to recognise the immense amount of work - both creative and production that we have needed to put into this project over the last 3 years, which has been full time for us and often without pay.

Let's discuss once we're back in the swing of things and we've got our head around what's required to finish this project.

Hi Dave, thanks for the response mate.

Yeah it is tricky to chat about but worth discussing to ensure we're all on the same page.

Just to reiterate, I absolutely agree you and Erin deserve an extra credit to acknowledge you both going above and beyond in the roles of producers. It's crucial you're both recognised accordingly and I in no way want to minimise that credit. Like you said; you found the subject, researched the story, put the team together, plus financed the creation. You both absolutely deserve that recognition.

I guess where I'm coming from is that ideally it would be great to have some way to recognise the creative contribution the three of us have had collectively in bringing this story to life over the last three years. That's something I really value and love about this project. It's been an immense amount of work, time and financial sacrifice for all of us over the last 3 years, which comes with the territory of working on a project that we all deeply care and believe in.

However, the birth of this project is with you both. As such, you absolutely deserve extra recognition on top of your producer credits. Any other acknowledgement and credit for us as a creative team 'raising the child' would be a wonderful addition.

Hope that makes sense.

Happy to discuss at a further date once we're back in the swing of things.

1. The exchange is revealing in that Mr Ngo was not seeking recognition as a director at this time. Nor did he assert that Mr McCallum had not discharged the duties of director or that he had stepped away from those duties. The exchange is also revealing of Mr McCallum's recognition that both Mr Ngo and Ms Williams-Weir should be properly recognised for their contributions.
2. In March 2023, Mr McCallum executed the Deed of Variation, which varied the fee under the Director's Agreement_._ It is relevant that there was no other variation to the Director's Agreement or any issue raised to the effect that Mr McCallum had ceased being the director of the Documentary or that Mr Ngo was to receive such a credit.
3. Things took a markedly more acrimonious turn from mid-December 2023 at the instigation of Mr Ngo.
4. On 18 December 2023, Mr Ngo sent Mr McCallum an email in which he stated:

Hi Stephen,

Tried calling you a few times over the past weeks so thought best to email in case you're out of the country.

The good news is Never Get Busted has been accepted into Tribeca. Sundance were very excited about the project, but wanted to screen the entire series, which we couldn't do. We are also in discussions with SXSW, who have said it is in 'high consideration' and we will know by end of year.

In other updates, the edits for 1-3 have come along well and all had approval from the EPs to go to market. Ep 4 is ongoing. Very difficult episode to make it both have a driving plot, energy, like the rest of the series, but also the character revelation we're after. It's moving along, but is going to be a grind to get there. Will be able to send updated screeners soon.

The EPs are keen to take the entire series out just after Sundance so pushing to have the edits ready for market by then.

However, the EPs have said that the streamers will not accept a 'created by' credit on a documentary series as it's confusing and not recognised in factual. The Eps have also said I need to be taking a directing credit as that is the job I have done and that Erin's will also have to be revised to reflect her contribution.

To be super clear, this is not at all a reflection on the work you did. You did an incredible job on set. One of the best I've seen. However, that is only a portion of the work directing a documentary. I have been the driving force of the story telling in post, which is the lion's share of work in documentary series. It's been 4 years of full time grind for Erin and I to get the show where it is and that work is not at all reflected in the current credits, particularly as the 'created by' credit has now been removed.

I'm happy to discuss this on the phone. But having given it a lot of thought, a shared directing credit is a fair and accurate reflection of everyone's contribution to the final series.

1. Although Mr Ngo claimed that the Executive Producers had said that Mr Ngo needed to take a directing credit, I was not taken to any evidence that supports that assertion despite Mr Battsek having been called as a witness by the respondents_._
2. Further, notwithstanding that Mr Ngo claimed in the email sent to Mr McCallum on 18 December 2022 that streamers would not accept a "created by" credit, it is a credit that appears in favour of Mr Ngo and Ms Williams-Weir in both the Sundance and Feature Versions, both of which were tendered by the respondents: Exhibit 27 (these credits appear at 47:15 of the Sundance Version and at 1:47:00 of the Feature Version). Again, I was not taken to any evidence which supports the claim made by Mr Ngo in the email, and it does not appear that such a view was conveyed by Mr Battsek in the documentary material that was tendered.
3. Mr McCallum responded to Mr Ngo on 19 December 2023:

Hi David.

I'm still in Melbourne and don't have any missed calls from you. Next time just shoot me a text and I'll always get back to you promptly.

Great news about Tribeca and SXSW.

In regards to sharing a directing credit, I'm not sure why you think this is appropriate.

I've directed the entire series and my creative voice and aesthetic are over every frame we've shot. I've been in the hot seat whilst conducting every interview, written and asked every question, been involved in the capturing of every frame and been involved during the entire editing process. That's been the case since the project's inception nearly 4 years ago.

As far as I'm concerned, your work has been the work of a creative producer and while I'm sympathetic to you and Erin deserving more credit for all your hard work, it shouldn't come at the expense of my own, very well earned, directing credit.

With that said, my agent is strongly against your request and has advised the following responses:

1: I do not consent to the requested granting of an additional director credit.

2: If you go ahead and do this, it will be a breach of my Director's contract.

3: My agent is very, very insistent that it is considered EXTREMELY bad form in the local and international industry for a producer to attempt to encroach on a director's credit like this. If the EP's are suggesting you do this, then it would strike us as the wrong advice as there is no world in which this is considered ok and is almost unheard of. For me personally, it's a real kick in the guts considering all the hard work, passion and care I've poured into this project with you and Erin over the last four years.

4: If you wish to take this further, we 'll be taking it up with the ADG and SPA, and if need be and relevant in the US context, the DGA and PGA.

If you need any clarification please contact my agent Needeya, who is CC'd on this email.

Regards, Stephen

Hi Stephen,

To be clear, on a documentary the work of a director is much more than writing questions and conducting interviews. It involves conceptualising the story; gaining access to key subjects; planning shoots; shaping the narrative; directing the edit, sound, composition, grade, graphics, animation, finishing... Most of which you have had little to no involvement. In particular, much of the storytelling, and it's effective execution, is created in the edit through day in day out work with the editors and surrounding post teams.

While you did an exemplary job of conducting the interviews - that is less than half the job.

2 years ago you chose to quit on the edit, refusing to deliver the development materials unless you were paid more money. Despite this being additional and above what had been agreed in the contract, Erin and I then raised further investment so that you could continue in the new year until the development materials were delivered to the EPs. You refused. At which point the project was left at a stand still, so we were given no choice but to finish the pilot ourselves - both directing and editing myself, with Erin's support.

When I completed the first cut of the pilot, it was approved by the EPs, who then agreed to invest more money so we could bring on an editorial team for the rest of the episodes. Had I not done that, the whole show would have fallen over and none of this would matter.

Since then, I have been full time directing the edit, writing reams of notes and doing calls several times a week with the editors to shape the story, in addition to many other tasks that are purely a director's job and have nothing to do with producing.

Credits represent the actual work done on a show. As you have done less than half the directing work on this series, asking for sole directing credit is both unreasonable and an inaccurate reflection of the work done.

We're committed to the shared director credit and it's entirely fair and appropriate. It accurately reflects how the project has evolved and your decision to step back from directing the edit early on.

I truely believe you will get the best outcome by embracing how things have turned out and reap the rewards of the show as it's launched into the world, rather than further isolating yourself from the project. That's really up to you.

Dan will be in touch with your agent to discuss further as needed next year.

1. This email had been sent with input from Mr Joyce: Exhibit 10. About an hour after sending it, Mr Ngo sent an email to Mr Joyce setting out the ways in which it could be said that Mr McCallum had breached his obligations under the Director's Agreement.
2. On 22 December 2023, Ms Islam responded to Mr Ngo on Mr McCallum's behalf. The various assertions made by Mr Ngo were put in dispute:

Hi David

I'm sending you Stephen's response to your email.

Needless to say we do not agree with your version of events, particularly in relation to Stephen quitting the project and demanding more money.

Any genuine requests for additional payment would have occurred through me, and at no point did he ask that I negotiate this.

In addition, at no point was Stephen notified that the production considered his needing to earn more than $1,000 per week for an extended period in order to support his family, as a decision to step back. As his agent, I also would have expected to be advised that this was happening, particularly if it was to jeopardise his sole credit. I would also have been actively looking for work for Stephen, which I wasn't as I knew his priority was this documentary. The fact that all interactions after this with Stephen after this period were amicable and collegiate seems to suggest that you did not have a genuine problem with him fitting other work around this project.

I have worked extensively with the ADG documentary committee, a group of very experienced professionals with numerous award winning credits. I will seek their advice on your statements below regarding documentary production practice and roles. It sounds to me as though you have done a terrific job as a creative producer and writer as Stephen states, but are not a director.

In my experience, it is rare for a producer to ever encroach on a director's credit because firstly, it undermines the unique skills that a director attains and brings to the role through study and practice. And secondly, because as the entity that has the control over the production, a producer could state anything to be true and action this, which is why we have industry guidelines and best practice around these things.

If it was another director who you were arguing should share the credit with Stephen because of work carried out, I would be more open to considering your point of view. But currently, your wish to instate yourself as a director after the fact, and without any prior notice or discussion, is problematic in and of itself. It would also seem to be a misrepresentation of events in order to retrospectively warrant an additional director credit.

It would be greatly appreciated if you would reconsider seeking the codirector credit. If not, and you wish to pursue it, I will be back in touch in the New Year after I have consulted with the ADG and other stakeholders.

(Emphasis added.)

1. Ms Islam had made it clear that she would communicate with the ADG and other stakeholders, which is relevant to subsequent communications in relation to the matter.
2. Shortly after receiving Ms Islam's email, Mr Ngo sent an email to Mr Joyce and Ms Williams-Weir in which he stated (Exhibit 11):

Not surprising. So much of that is incredibly untrue and easily provable. Im not sure if he's delusional or outright lying, but I guess we can deal with it in the NY.

As an aside to that, we need to update the Imdb and SXSW credits. In terms of 'director' headshot for them - we should just have showrunners for me and Erin so there's no confusion.

1. Mr Joyce was clearly surprised by Mr Ngo's grab for credits. He responded by stating (Exhibit 11):

Erin is also a writer now? Show runners are usually the writer also.

Yes can update IMDB, but Erin as a regular producer credit until we've discussed, can't just throw that in there without discussing with me.

(Emphasis added.)

1. Mr Joyce clearly communicated that he could update the IMDb website, which indicates that he was in a position to do so. Mr Joyce then sent a further email stating:

And you're taking a 'showrunner' designation in addition to writing and directing and producing and creating?

It starts to look like a credits grab to anyone outside of the team, and even knowing how much you've led the creative I even think it's OTT. Pick a credit. Don't go for them all.

1. Mr Ngo's eventual response on 1 January 2024 was that "showrunner" was not an on-screen credit but it was a "term that can be used in press to mitigate [Mr McCallum] trying to take credit for everything as a director".
2. On 8 January 2024, Mr McCallum discovered that the directing credits for the Documentary on the IMDb website had been changed such that Mr Ngo was listed as a director in the credits as follows:

1. Projector Films admit that it made this change: Defence [9].
2. During this period and thereafter, Mr McCallum was excluded from the balance of the post-production work that was being undertaken.

1. On 16 February 2024, Ms Islam wrote to Mr Rowan Woods at the ADG. Ms Islam noted that she was looking to get "the ADG and the documentary committee's thoughts" in relation to Mr Ngo seeking a co-director credit: Exhibit 26 (Tab 4). On 5 March 2024, Mr McCallum followed up with Ms Sophie Harper (Ms Harper), Executive Director of the ADG, on Ms Islam's request. Ms Harper responded stating that she had connected with an industrial relations specialist and was seeking advice.
2. In early May 2024, Mr McCallum sent a further email to Ms Harper expressing concern that he had not heard back. Ms Harper responded by apologising for the delay and stating that she was "...committed to ensuring directors are not left to fight alone and that their rights are staunchly defended...". She further stated, "I regret that you have not had the timely support you should have had from your union. We will make this right": Exhibit 26 (Tab 5). She then sent an email stating that she had received advice to send a "cease and desist" letter from the ADG. That letter was sent to Projector Films and was met with a response that Mr McCallum had breached the Director's Agreement.

11.3 Mr McCallum's exclusion from the Sundance Film Festival and other developments

1. In November 2024, Ms Williams-Weir was told that the Documentary had been accepted into the Sundance Film Festival. By that time, some preparatory activities in relation to music, sound, and animation had already taken place. The acceptance of the Documentary into the Sundance Film Festival meant that the work had to be intensified in order to meet the January 2025 deadline for submission.
2. On 18 November 2024, Mr McCallum received an email from Mr Adam Montgomery, Senior Manager, Festival Programming at the Sundance Film Festival which stated that the Documentary had been invited to world premiere Episode 1 at the 2025 Sundance Film Festival in its Episodic Pilot Showcase.
3. On 19 November 2024, Mr McCallum sent an email to Mr Joyce about the Sundance invitation, and asked to be included in all correspondence with the festival, to be informed about which cut of the Documentary would be screened at Sundance and to be supplied with the most recent cut. Mr McCallum asked what implications the Sundance screening had for the proposed Feature Version of the Documentary.
4. Remarkably, Mr McCallum received no response from Mr Joyce, Mr Ngo, Ms Williams-Weir, or anyone else from Projector Films.
5. Mr McCallum was stone walled.
6. On 20 November 2024, Mr McCallum received an email from Ms Kris Flemming (Ms Flemming), the Artist Relations Liaison at the Sundance Film Festival which requested that the Documentary team accept the invitation to screen the Documentary at the festival and provide a list of who would be attending.
7. After receiving no communication from Mr Ngo and others, Mr McCallum sent an email to Ms Flemming, stating that there was a dispute about the credits and he did not know whether he had been included in the confirmed attendees for the festival, but asked for his attendance to be confirmed so that he did not miss out on the opportunity to attend the festival. Ms Flemming replied by indicating that Ms Williams-Weir had been designated as the main contact and the festival would only take confirmation of attendees from her. Mr McCallum sought to further explain his position to Ms Flemming but received no response.
8. Mr McCallum then sent an email to Ms Williams-Weir stating that none of the producers had contacted him regarding the Sundance Film Festival and that he wished to confirm his attendance, and asked Ms Williams-Weir to ensure that his name had been included in the "Film Team In-Person Attendance and the Press Line Talent Attendance" list before the deadline.
9. Ms Williams-Weir did not respond to Mr McCallum. Nor did anyone else.
10. Despite some prevarication on the point, Mr Ngo ultimately conceded that he was part of a discussion in which it was decided that Mr McCallum should not attend the Sundance Film Festival as a representative of the Documentary: T220.28-46.
11. On 27 November 2024, Mr McCallum checked the credits on the page for the Documentary on the IMDb website and noted that his credit of "Directed by" had been removed and that Mr Ngo had the sole "Directed by" credit. He informed Ms Islam and Mr Harper about this development. Ms Harper then sent separate emails to representatives of Screen Australia, the SAFC, and Screen Producers Australia. As addressed further below, each email communicated that (a) there was a serious and ongoing credit dispute between Mr McCallum and Mr Ngo, (b) there was "an issue of false attribution" that the ADG had been working on for close to a year, (c) the producer had "falsely", in the ADG's view, claimed a directing credit, refusing to acknowledge Mr McCallum as sole director, and (d) the matter was being escalated as the Documentary had been selected for the Sundance Film Festival and Projector Films had removed Mr McCallum's director credit from the IMDb website "entirely this week": Exhibit 26 (Tab 8).
12. On the same day (27 November 2024), Ms Islam sent an email to Ms Ester Harding (Ms Harding) of Mind the Gap Film Finance, a financier of the Documentary, which I deal with below at [941].
13. On 5 December 2024, Mr McCallum checked the credits on the IMDb site for the Documentary and personally reinstated his "Directed by" credit, but noticed that it was underneath Mr Ngo's "Directed by" credit. The relevant section of the webpage appeared as follows:

1. On 12 December 2024, Mr McCallum checked the Sundance Film Festival website and noticed that the NGB episodic listing showed credits without a director credit and in a "Meet the artist" section, it included a biography of Mr Ngo which included the words "Never Get Busted! is his directorial debut" (see extract at [892] below). Mr Ngo was also listed as "Director" in the credits section of the Episodic Showcase page of the Sundance website. On the same day, Mr Ngo made a post on his Instagram feed announcing the Sundance premiere, but did not credit Mr McCallum. That post appeared as follows:

1. On 13 December 2024, the Australian film and television industry trade magazine called IF Magazine published an article entitled "'Together', 'Never Get Busted!', 'Jimpa' selected for Sundance" authored by Mr Sean Slatter which did not credit Mr McCallum or refer to him at all. Mr Ngo and Ms Williams-Weir were given "created by" credits.
2. On 18 December 2024, these proceedings were commenced.
3. On 20 December 2024, Screen Australia issued a press release arising from the Documentary's acceptance into Sundance. Ms Islam then wrote to Screen Australia noting that Mr McCallum had commenced these proceedings and the nature of Mr McCallum's claims. Ms Islam requested that the press release be amended so that the credits were corrected. Ms Islam sent an email in the same form to the SAFC.
4. On 20 December 2024, Mr McCallum checked the Sundance website and found a page called "Episodic Pilot Showcase 2025 of Never Get Busted" crediting Mr Ngo as Director.
5. On 23 December 2024, Mr McCallum checked the Sundance website and found an article called "Give me the Backstory" which was an interview with Mr Ngo and Ms Williams-Weir, and in which Mr Ngo was credited as "first time director" in the third paragraph. In a caption beneath a photo, both Mr Ngo and Ms Williams-Weir were credited as "directors" and in answer to a question posed in the article, Mr Ngo is reported to have stated "when I stepped into this role as director...". In response to the final question, Mr Ngo is reported to have said:

Since I was a kid watching Soderbergh, Tarantino, the Coen Brothers and Robert Rodriguez films, I've dreamed of playing at Sundance, as do many filmmakers. So, it's wild that my directorial debut [Never Get Busted!] is having its world premiere in Park City.

1. Mr McCallum was not mentioned at all.
2. On 22 January 2025, Mr McCallum checked the Documentary's "IMDb Pro" page which depicted the film status as "completed". Mr McCallum considered that as the Project was regarded as completed, he was entitled to be paid the remaining balance of $25,000 of his director's fee which he had not been paid.
3. On or about 27 January 2025, Mr Ngo and Ms Williams-Weir were in Utah at a function in advance of the screening of the Sundance Version at the Sundance Film Festival, which was scheduled to occur the following day. Ms Williams-Weir says she received a telephone call from a friend, Ms Katie Found (Ms Found), who is also the partner of the director Mr auf der Heide. Ms Williams-Weir said that Ms Found told her that Mr Ngo should speak urgently with Mr auf der Heide. When Mr Ngo spoke to Mr auf der Heide, he was told that another person, Mr Shane McNeil (Mr McNeil), had sent a message to Mr auf der Heide and then had a telephone conversation in which Mr McNeil stated that Mr McCallum would be attending the screening the following day, and would cause a disruption and "attack" Mr Ngo. This serious accusation was based on hearsay upon hearsay.
4. The message apparently sent by Mr McNeil to Mr auf der Heide was as follows:

1. After apparently seeing this message, Mr Ngo and Ms Williams-Weir spoke to their publicist, which then resulted in Ms Williams-Weir forwarding the screenshot of the above message to Ms Laura Ryan (Ms Ryan), the Chief Operating Officer of the Sundance Film Festival. In that email, Ms Williams-Weir stated:

Hi laura,

Thanks for speaking with us today. Below is attached the screenshot explaining Stephen McCallum plans to disrupt the screening.

It's important to note on top of this that we have a very credible source who was told over the phone that he plans to "attack" David at the premiere and cause further disruption. Considering his recent actions to disrupt the film in anyway possible by contacting financiers, publicists, journalist, filmmakers etc we would not be surprised if he chose to escalate this to violence.

Unfortunately our source is in Australia and by the time he wakes up the screening will be over however I can arrange a statement confirming more information from him after the screening if necessary for your office.

Please give us a call back when you can with the next steps.

(Emphasis added.)

1. Mr Ngo and Ms Williams-Weir had relied upon hearsay to convey a very serious accusation about Mr McCallum.
2. Ms Williams-Weir was informed that the Sundance Film Festival had investigated the matter and that Mr McCallum would not be permitted entry.
3. On 28 January 2025, Mr McCallum attended the Sundance Film Festival and was refused entry into the premiere screening of NGB by Ms Ryan. Ms Ryan asked if Mr McCallum was planning to disrupt the screening or had plans to get up on stage. Mr McCallum confirmed that he had no such intention and was only going to affirm his credit for the film he had directed during the Q&A. Ms Ryan told him that she could not let him do that, that she was denying him entry to the screening, and that his tickets had been cancelled and would be refunded. During the conversation, Mr McCallum says that two police officers were moving closer to him. He also says that Ms Ryan told him that there was information that he was planning to disrupt the screening, which Mr McCallum denied. Mr McCallum further stated that all he had done was talk about attending the screening of the film he had directed and that he had a right to attend.
4. Mr McCallum later corresponded with Ms Ryan who indicated that Sundance Film Festival organisers did not engage in or adjudicate disagreements by and among those involved in the films selected for screening, but that she had received "credible evidence" that Mr McCallum was going to confront crew at the Q&A.
5. On 14 January 2025, Mr McCallum checked the credits on the IMDb website for the Documentary and noticed that his "Directed by" credit had been removed again and that Mr Ngo was credited as the sole director. The website appeared as follows:

1. On 1 July 2025, Mr Ngo became alerted to the fact that NGB played at the "Dances With Films Festival" in Los Angeles, USA, where it was announced as its "world premiere". The film screened was a 110-minute feature cut. Mr Ngo was credited in the festival program with a "Written and Directed by" credit. Mr McCallum was credited as a "Director". The Documentary went on to win the Grand Jury Prize for Best Documentary at the festival.
2. On 10 July 2025, the solicitor for Projector Films sent an email to Mr McCallum's solicitor stating that NGB would have its Australian premiere at the MIFF for 2025, which was due to commence on 7 August 2025. The program was released later that day. Mr Ngo was listed as the sole director of the Documentary. Mr McCallum was not mentioned or credited at all. All other main crew were credited.
3. Later, on 16 July 2025, after Mr McCallum's solicitor indicated that urgent interlocutory relief would be sought, the MIFF program was changed to identify the "Director" as "David Anthony Ngo, Stephen McCallum" alongside a description that "David Anthony Ngo helms this Australian Production". At the same time, Independent Film published an article about NGB playing at MIFF which stated that "[t]he documentary was written and directed by Australia's David Anthony Ngo, who worked with director Stephen McCallum, producers Erin Williams-Weir and Daniel Joyce, and EPs John Battsek and Chris Smith". The entry for the Documentary in the MIFF program relevantly appeared as follows:

1. The Sundance and Feature Versions relevantly contain the following credits in the opening sequence:

PRODUCERS

LOUISE SCHULTZE

CODY GREENWOOD

EXECUTIVE PRODUCERS

MICHAEL AGAR

SHERARD KINGSTON

MARK FENNESSEY

LILLA HURST

ANDREW DEVLIN

DOUGLAS CHOI

MARTINA BASSENGER

EXECUTIVE PRODUCED BY

JOHN BATTSEK

CHRIS SMITH

PRODUCED BY

ERIN WILLIAMS-WEIR

DANIEL JOYCE

DAVID ANTHONY NGO

DIRECTOR

STEPHEN MCCALLUM

WRITTEN & DIRECTED BY

DAVID ANTHONY NGO

NEVER GET BUSTED!

CREATED BY

DAVID ANTHONY NGO & ERIN WILLIAMS-WEIR

(Original emphasis.)

1. The Sundance and Feature Versions relevantly contain the following credits in the closing sequence:

CREATED BY .................. DAVID ANTHONY NGO

ERIN WILLIAMS-WEIR

WRITTEN AND DIRECTED BY .................. DAVID ANTHONY NGO

DIRECTOR .................. STEPHEN MCCALLUM

PRODUCED BY .................. ERIN WILLIAMS-WEIR

DANIEL JOYCE

DAVID ANTHONY NGO

EXECUTIVE PRODUCED BY .................. JOHN BATTSEK

CHRIS SMITH

PRODUCER .................. LOUISE SCHULTZE

CODY GREENWOOD

EXECUTIVE PRODUCERS .................. MICHAEL AGAR

SHERARD KINGSTON

ANDREW DEVLIN

MARK FENNESSEY

LILLA HURST

DOUGLAS CHOI

MARTINA BASSENGER

1. Mr McCallum's case was that neither the Sundance Version nor the Feature Version attributed him as the "principal director" because the credits as affixed and published in those versions did not use the credit "Directed by". He said that the corollary of this was that Mr Ngo was attributed as the "principal director" to his exclusion as the "principal director" and that this was an act of false attribution.
2. Mr McCallum says that there is threat of ongoing infringement because the respondents intend to maintain these credits including in future versions. The respondents admit that this is the case.
3. The resolution of the question requires an examination of the difference in the credit "Directed by" and the credit "Director" when there is more than one director.

11.5 The difference between the credit "Directed by" and the credit "Director" where there is more than one director

1. Mr McCallum submitted that to those within the Australian film and television industry, the credit "directed by" means that the credited person "actually undertook the principal directing work on the film or television project" and further that the credit "director" (as opposed to "directed by") conveys that the credited person was not the principal director if another person was credited as "Directed by": FASOC [8].
2. The respondents' answer to the case was perplexing. The respondents submitted that the Copyright Act did not prescribe any particular form of credit to be used in the attribution of a person as a director or principal director of a cinematograph film. It was further said that the Copyright Act does not require an attribution as "the main principal director" but rather "requires an attribution as principal director": T196.2-3.
3. However, as set out above, the respondents admitted that both Mr Ngo and Mr McCallum are principal directors of the Documentary. They also admitted that where there is more than one director, the person credited with the credit "Directed by" is "the main person who exercised creative control and oversight over the filmmaking process from concept through to delivery, including with regards to the storytelling, the visual style, the pacing, the music and the overall artistic direction" (original emphasis): Defence [8(a)(ii)].
4. In making this admission, the respondents accepted that there is a meaningful distinction between a "directed by" credit and a "director" credit but only in circumstances where both forms of credit are used within a single film. In addressing the distinction between these two forms of credit, the respondents submitted that, when used separately, "director" and "directed by" are "interchangeable ways to nominate the principal director of a film", and whether one or the other is chosen is "purely for grammatical purposes": RCS [167]. When used together, it was submitted that the credits "indicate that both people were principal directors, but the person with the 'directed by' credit is the main person who exercised creative control over the film": RCS [167].
5. The respondents next submitted that the credit "[d]irector" is "a marginally lesser credit" than "[d]irected by" (RCS [165]) and contended that "although one is lesser than the other, they're both above the line of what's sufficient to identify a principal director": T195.10-11. It was submitted, by way of contrast, that "the industry uses very different language to indicate that a director was not in creative control over a film", such as "assistant director", "second unit director", "associate director" and "line director": ROS [10]; Maclaren 2 [71].
6. The respondents' position was distilled in the following way (RCS [169]):

The respondents say the credits properly attribute both men as principal directors for the purpose of the moral rights regime, but the credits do convey that Mr Ngo had a marginally more substantial role, which is correct on the facts.

1. Further to this, the respondents submitted that (T195.20-31):

...The Copyright Act doesn't require any particular way of identifying a director. That's the first point. And the second point is it doesn't require that two directors, co-directors, be given the same credit. So, the Act acknowledges they can be co-directors. It doesn't say both must get the same credit. The evidence was clear that the title that is used to identify someone who did directing work but was not a principal director is named such as second unit director, assistant director, etcetera, and that the terms "director" and "directed by" do indicate a person who's in creative control of the film. So, we say when those credits are used together, although there's some daylight between them, they are both on the principal director side of the line as opposed to the other side of the line, which is assistant director second unit director, etcetera, which does not indicate a principal director.

1. Putting to one side whether there can be two principal directors in circumstances where one of the directors can be characterised on the facts as the "main" director, or whether it is tautologous to speak of a "main principal director", I am not satisfied that the evidence establishes the respondents' argument.
2. It is correct that Ms Maclaren considered that both grammatical forms of credit ("director" / "directed by") could be used to credit the principal director of a film. However, Ms Maclaren's evidence was that in a given film, the grammatical form of credits would normally be consistent and that "it is unusual for a single film to include two separate grammatical forms, especially in respect of the same credit": Maclaren 1 [37]. Consistent with this, where two individuals both directed a film, Ms Maclaren considered that one "would normally expect to see their two names under a 'directed by' or 'director'" credit: T403.12-13. In her view, using both grammatical forms of credit in a single film "just looks a bit odd": T403.21.
3. While Ms Maclaren considered that there was a "very fine line" between the two forms of credit (T401.45), and although she did not consider the difference to be "substantial" (T402.01), her opinion was more nuanced than as characterised by the respondents. Notably, Ms Maclaren acknowledged in cross-examination that there had been a trend of using the "directed by" form of credit and gave evidence that "it seems to be more fashionable at the moment" to use "directed by" rather than "director": T402.08-12. This evidence is consistent with Mr de Heer's evidence that he has "found a shift over the past decade or so" with the "by" form of credit being preferred: T402.24-29.
4. In addition to this, Ms Maclaren expressed the view that the "by" form of credit may carry an implication of "ownership": T402.36. Importantly, she also accepted that different grammatical forms of credits could be used to convey inequality as between directors. In this regard, it was put to Ms Maclaren, and accepted, that a "written & directed by" credit given to three people indicated equality between directors, whereas a "co-directed by" credit and "directed by" credit (when used together) indicated inequality between directors: T 408.04-26; Exhibit 17; Exhibit 22. This evidence given by Ms Maclaren generally accorded with Mr de Heer's opinion that where a "directed by" credit and "director" credit both appear in a film, the "directed by" credit conveys that the credited person was the principal director and the "director" credit conveys that the credited person was a subsidiary director: de Heer 1 [96]; de Heer 2 [16]. Although Mr de Heer did not refer to a particular example to substantiate his evidence, I do not accept the respondents' submission that his opinion had no basis as he (like Ms Maclaren) was relying upon his experience in the industry over a long period of time.
5. Ultimately, it is my view that it is not helpful in the present case to fixate on the grammatical form of credit in insolation. The central question is whether Mr McCallum has been attributed as the principal director of the Documentary and will be so credited, whether there has been false attribution and whether that position will continue. In answering that question, it is necessary to look at the credits as a whole, including in relation to structure and placement of credits. It is also necessary to consider these issues in light of the respondents' acceptance that, where there is more than one director, the credit "director" is marginally lesser and the credit "directed by" indicated the "main person" who exercised creative control and oversight over the filmmaking process.
6. In reviewing the evidence, it is apparent that the use of alternate forms of credit was a deliberate technique deployed by the makers of the Documentary. This can readily be seen by examining the closing credits that appeared in both the Sundance and Feature Versions of the Documentary: see Exhibit 25 at 0:47:24; Exhibit 25 at 1:47:07). Those credits are extracted above at paragraph [756].
7. As can be seen from these credits, it is not only the director credits that have been attributed in two forms - the producers and executive producers of the film have also been separated into distinct line entries with "produced by" and "producer" credits, and "executive produced by" and "executive producers" credits. It is noteworthy that the "directed by", "produced by", and "executive produced by" credits appear higher up than their respective counterparts (ie "director", "producer", and "executive producers"). I accept Mr McCallum's submission (Applicant's Closing Submissions (ACS) [215]), consistent with Mr de Heer and Ms Maclaren's evidence, that by the order of the credits and the attribution of a "directed by" credit, Mr Ngo is given the most prestigious position and is recognised as the "driving force" or principal director of the Documentary: see de Heer 1 [94]; Maclaren 1 [39]-[40]; T402.4-6.
8. I am satisfied that the evident intention of delineating between individuals within role categories in this way is to distinguish between those who made a more substantial contribution in a particular role from others who made a less substantial contribution within that same role. This is consistent with the respondents' submission that "Mr Ngo had a marginally more substantial role" than Mr McCallum as director: RCS [169]. I do not accept, however, that the division only reflects a marginal difference in substantive contribution. There is no evidentiary basis to support such a conclusion.
9. It follows that I reject the respondents' submission that the credits convey that both Mr Ngo and Mr McCallum are principal directors but with "some daylight between them": T195.28. Rather, I accept that there is presently "daylight" between how the two men have been attributed, such that Mr McCallum has not been attributed as the principal director (or for that matter, a principal director) and Mr Ngo has been falsely attributed as the principal director (and the only such principal director).

11.6 Infringement of the right of attribution and against false attribution

1. I am satisfied that Projector Films has infringed and continues to threaten to infringe Mr McCallum's right of attribution. Projector Films admits that it intends to exhibit or communicate the Documentary to the public in Australia (Defence [22(a)]) and that it intends to do so by including the credit "Director" for Mr McCallum, while using the credit "Directed by" for Mr Ngo: Defence [26] and [30(b)]. For the reasons stated above, I am satisfied that this amounts to a failure to attribute Mr McCallum as the principal director of the Documentary and also amounts to false attribution.
2. It follows that Projector Films has infringed Mr McCallum's rights and should be enjoined from doing so.

1. Separate from but related to his claims against Projector Films, Mr McCallum claims that Mr Ngo infringed his moral rights. As with other claims, little attention was given to this claim.
2. At the outset, it is to be noted that neither Mr McCallum nor the respondents addressed whether Mr Ngo himself was a beneficiary of the "general waiver" in the first sentence of cl 6.2. If that waiver was granted in favour of Projector Films, it did not operate in favour of Mr Ngo. The parties did not address this issue and, as a result, it has been unnecessary to decide it.

12.1 The pleaded case and the parties' submissions

1. The allegations advanced in the FASOC were two-fold. First, it was claimed that Mr Ngo "authorised" Projector Films to engage in the acts said to have infringed Mr McCallum's right of attribution for the purposes of s 195AO of the Copyright Act: FASOC [32(a)]. Second, it was claimed that Mr Ngo "directed or procured" Projector Films to engage in the contraventions of ss 195AO and 195AP of the Copyright Act pursuant to a common design with Projector Films: FASOC [31(b)] and [32(b)].
2. These allegations relied on several other allegations pleaded in the FASOC at [31]. It was asserted that Mr McCallum engaged in the abovementioned acts (a) "knowing" the Documentary was directed by Mr McCallum and not himself, (b) in "deliberate or reckless disregard" of Mr McCallum's rights and express wish to be credited in the manner "Directed by Stephen McCallum" and (c) "intending" that any copies of complete and final versions of the Documentary would attribute Mr Ngo as the director of the Documentary and, conversely, would not attribute Mr McCallum as the director within the meaning of ss 189 and 191 of the Copyright Act: FASOC [31]. The particulars to the claim were articulated as follows in the FASOC at [31]:

Particulars

1. The Second Respondent is and was at all material times a director of the First Respondent, and responsible for undertaking work as a producer of the Documentary.

2. The Second Respondent was, from in or about January 2020, responsible for working and corresponding with the Applicant in relation to the Documentary, and accordingly was aware that he, the Second Respondent, did not direct the Documentary, and that the Applicant did.

3. The Second Respondent negotiated and signed the Director's Agreement, and accordingly was aware of the Applicant's engagement as director of the Documentary, and of his wishes and entitlements concerning attribution expressed therein.

4. The Second Respondent asserted in correspondence with the Applicant that he, the Second Respondent, was entitled to a director's credit and that the Applicant was only entitled to a shared director's credit, for example in emails dated 18 and 20 December 2023 and 31 May 2024, and accordingly it may properly be inferred that he caused the First Respondent to engage in the acts set out in paragraphs 9, 10, 11, 13 and13A hereof.

5. Further particulars may be provided.

(Original emphasis.)

1. The allegations that Mr McCallum had authorised, or had directed or procured, Projector Films' infringements were necessarily tied back to the acts in respect of which it was claimed that there had been an infringement of Mr McCallum's right of attribution and right against false attribution. These were relevantly pleaded in relation to:

(a) the Sundance Version as being those acts by which the opening and end credits to that Version of the Documentary were said to have failed to attribute Mr McCallum as principal director and falsely attributed Mr Ngo as a director (FASOC [13A], [16]-[21] and [27]-[28]); and

(b) the Further Versions of the Documentary, including the Feature Version, as being those acts by which the opening and end credits to that Version of the Documentary were said to have failed to attribute Mr McCallum as principal director and falsely attributed Mr Ngo as a director (FASOC [22]-[26] and [29]-[30]).

1. The moral rights claims against Mr Ngo were given fleeting attention by Mr McCallum in written and oral submissions. Other than a passing reference, the moral rights claims against Mr Ngo were not engaged with at all in Mr McCallum's written opening submissions. That passing reference itself was limited to a conclusory submission that Mr Ngo "had authorised the breach" of Mr McCallum's right not to have authorship falsely attributed. The submission was expressed as follows:
   1. By means of the distribution agreements the Respondent has entered into, Projector Films, and David Ngo have also either themselves breached, threatened to breach, or authorised the breach of s 195AF(2)(b) and (c) of the Copyright Act, which should also be permanently enjoined.
2. Mr McCallum's case against Mr Ngo went entirely undeveloped until closing submissions. Even then, scarce attention was given to these claims in Mr McCallum's written submissions. In sum, there are only four paragraphs which squarely addressed the claims. Those submissions were as follows:
   1. ...where a person authorises the doing of an act which infringes the right of attribution, that is also an infringement of that right. A will authorise B where A has the power to prevent the acts of infringement, and/or there is a close relationship between A and B: s 195AVA of the Act. See also, Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; (2012) 248 CLR 42 at [63], [121]-[122], and also authorities about tortious liability of company directors: for example Truong Giang Corp v Quach [2015] FCA 1097; (2015) 114 IPR 498 at [76]- [80].
   2. Both are made out here. As is plain from the factual chronology in Section 3, Mr Ngo was the person with control of the entire project as producer. He was the person who provided the title credits to Mr Hart when he was cutting the Documentary (see paragraph 140). Further, he personally cut the Feature Version (V1T27 Ngo 1 [216]). The credits of the Sundance Version and Feature Version looked as they did because Mr Ngo wanted them to. Mr Ngo caused Projector Films to create those credits in a manner calculated to benefit him personally by crediting him as the principal director.
   3. The Court should accordingly also grant Mr McCallum a declaration that Mr Ngo has infringed his right of attribution, by authorising Projector Film's infringement referred to above, and grant Mr McCallum an injunction restraining threatened further infringement.

...

1. Mr Ngo not being a principal director of the Documentary, the following conduct constitutes infringement. First, by means of producing the Sundance Version and the Feature Version referred (see paragraphs 176 and 181 above), Projector Films inserted or affixed Mr Ngo's name on the Documentary in such a way as to imply falsely that he was a principal director of the Documentary, infringing s 195AF(2)(a) of the Act. Second, for the same reasons as in paragraph 220, Mr Ngo authorised that infringement thus himself infringed s 195AF(2)(a) of the Act. Again, there does not seem to be any dispute that the affixing occurred in Australia, see paragraph 215 above.

(Original emphasis.)

1. It was not until the closing address that Senior Counsel for Mr McCallum sought to engage with the claims against Mr Ngo in a meaningful way. At that point in time, I expressed my concern with the manner in which allegations of a serious nature had been dealt with and Senior Counsel for Mr McCallum sought an opportunity to provide a further written submission on the point: T84.35 -T86.35.
2. Unsurprisingly, Counsel for the respondents contended that Mr McCallum had already had an opportunity to address the case against Mr Ngo but had chosen not to do so in any detail and should not now be given a second "bite of the cherry about Mr Ngo's liability": T188.32. Accordingly, the respondents submitted that Mr McCallum should not be permitted at such a late stage of the trial to be allowed to provide the Court with supplementary written submissions that properly enunciated the case against Mr Ngo: T189.01-02. The respondents further said that allowing Mr McCallum to have a second go at the case against Mr Ngo would not only result in a denial of fairness but would also be contrary to the principles of finality and proportionality: T189.05-08.
3. I accepted the respondents' submissions. As the respondents submitted, the written submissions Mr McCallum provided to the Court were of considerable length. Whether, and to what extent, Mr McCallum chose to address his pleaded claims was ultimately a forensic matter for him and his legal representatives. In the circumstances, and as a matter of procedural fairness, I was not prepared to receive the written note that Mr McCallum sought to provide to the Court on the final day of the trial. I made it clear that I would consider the claims against Mr Ngo as pleaded and addressed during the trial.
4. It was submitted on behalf of Mr McCallum that "the question of Mr Ngo's personal liability" was put "on the basis of joint tortfeasorship principles, and authorisation liability": T84.12-14. It was further said that "these principles have applied in case where you have a company director - as Mr Ngo is - or some other ... relevant person connected to it" and that there "has been a goodly amount of law in relation to the joint tortfeasorship principles": T84.45-47; T85.18-19.
5. The respondents submitted that Mr McCallum's submissions did not explain how Mr Ngo is said to have authorised Projector Films' alleged infringement of his moral rights by reference to the matters that must be taken into account by the Court by virtue of s 195AVA of the Copyright Act. It was submitted that the question of whether a person's involvement in an infringement was sufficient to amount to authorisation requires close focus upon all the facts: citing Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd [2023] HCA 38; 278 CLR 240 at [64], [79] (Gageler CJ, Gordon, Edelman, Steward and Jagot JJ). The respondents further submitted that Mr Ngo was not a "joint tortfeasor" in any moral rights infringement as there was no suggestion that he was acting in any capacity other than as a director of Projector Films: citing Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc [2020] FCAFC 235; 159 IPR 186 at [138]- [140] (Nicholas, Yates and Burley JJ).
6. The respondents submitted that there was "no evidence to indicate that Mr Ngo was solely responsible for the alleged attributable acts committed" by Projector Films and that "the evidence indicates that other members of the production team, including the executive producers, had influence over the credits of NGB": RCS [201].

1. To determine whether Mr Ngo has himself infringed Mr McCallum's moral rights, it is necessary to have close regard to the relevant infringement provisions of the Copyright Act, being ss 195AO and 195AP (which have been set out above).
2. It is necessary to observe that the liability under ss 195AO and 195AP is not tortious. The liability has its source in statute. The cause of action for such an infringement is also statutory and is found in s 195AZ. In light of this, it is perplexing that Mr McCallum relied upon the principles of "joint tortfeasorship" and that the respondents engaged with those submissions. The decisions upon which the parties relied were both ones which applied joint tortfeasorship principles in respect of the tort of passing off: see Truong Giang Corp v Quach [2015] FCA 1097; 114 IPR 498 at [76]- [80] (Wigney J); and Hashtag Burgers Pty Ltd v In-N-Out Burgers, Inc [2020] FCAFC 235; 159 IPR 186 at [138]- [141] (Nicholas, Yates and Burley JJ). The parties did not explain how these principles have any application to liability that is exclusively statutory.
3. Section 195AO appears to differ from s 195AP in its terms. For s 195AO, a person infringes an author's right of attribution if the person does or authorises the doing of an attributable act without identifying the author. For s 195AP, however, a person only infringes an author's right not to have authorship falsely attributed if the person does an act of false attribution. When s 195AP is read together with the provisions in Part IX, Div 3 (which deal with the right not to have authorship of a work falsely attributed), it becomes apparent however that this difference between ss 195AO and 195AP may not be material. In particular, s 195AF(2)(a) provides that it is an act of false attribution "to insert or affix, or to authorise the inserting or affixing of, a person's name on the film or on a copy of the film in such a way as to imply falsely that the person is the director, producer or screenwriter, as the case may be, of the film". This provision, together with s 195AC(2), has the effect that the authorisation of an act of false attribution is itself an act of false attribution. As such, despite the different paths, the end point of ss 195AO and 195AP is the same: a person can infringe an author's moral rights either by doing or by authorising an attributable act or an act of false attribution.
4. The terminological differences between ss 195AO and 195AP may explain why Mr McCallum considered it necessary to advance his first claim, which focusses on s 195AO alone, rather than simply relying on his further and alternate claim that Mr Ngo is a joint tortfeasor with Projector Films in respect of the alleged infringements of both kinds of Mr McCallum's moral rights.
5. In respect of the analogue provision applicable to copyright infringements in s 36 of the Copyright Act, it has been said that that there are two causes of action: "'primary infringement', namely direct infringement by the 'doing [of] ... any act comprised in the copyright'; and 'secondary infringement', namely the authorisation of the doing of the act or acts comprised in the copyright constituting the primary infringement": Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2021] FCA 809 at [268] (Thawley J) (this aspect not disturbed in subsequent appeals) citing Roadshow Films Pty Ltd v iiNet Ltd (No 2) [2012] HCA 16; 248 CLR 42 at [93] (Gummow and Hayne JJ).
6. The delineation between the "primary infringement" and "secondary infringement" is a useful way to conceptualise the claims made against Mr Ngo. Here, the claim against him in respect of s 195AO was as a secondary infringer (ie a person who authorised the infringement) but the case against him under s 195AP was as a primary infringer (ie he did the act of infringement, but that act was one of authorisation).
7. Where a claim is made that a person has authorised the doing of an act that infringes another person's moral rights, the Court is required to have regard to the mandatory considerations specified in s 195AVA (as set out above). Those considerations require attention to be given to the infringing persons power to prevent to the doing of the act, the nature of the relationship between the relevant infringers, and whether the infringing person took any reasonable steps to prevent the or avoid the doing of the act. The first two considerations were adverted to by Mr McCallum in ACS at [220] and addressed in ACS at [221] (referring to and relying on earlier factual submissions). In their submissions, the respondents took issue with the inadequate articulation of the foundation of Mr McCallum's claims against Mr Ngo.
8. Although the articulation of the case against Mr Ngo was less than satisfactory, I am satisfied that Mr Ngo authorised the infringement of Mr McCallum's right of attribution within the meaning of s 195AO by authorising an "attributable act" without identifying Mr McCallum as the author of the Documentary by failing to attribute him as the principal director.
9. The word "authorise" has its ordinary meaning of "sanction, approve, countenance": University of New South Wales v Moorhouse [1975] HCA 26; 133 CLR 1 at 12 (Gibbs J) and 20 (Jacobs J); Roadshow Films at [48]-[51] (French CJ, Crennan and Kiefel JJ) and [125] (Gummow and Hayne JJ). However, authorisation is not to be identified by deconstructing the dictionary definitions of notions such as "sanction", "approve" and "countenance": Real Estate Tool Box at [64]. Authorisation includes "circumstances in which one person is so involved in the infringement that the infringer can be said to act with the "permission" of the authorising person": Real Estate Tool Box at [64]. The sufficiency of involvement in the infringement so as to amount to authorisation requires "close focus upon all the facts"; it is essentially a "question of fact": Real Estate Tool Box at [64]-[65].
10. I am satisfied that the particulars to the FASOC at [31] adequately articulated the evidentiary basis of the claim. A credit dispute surfaced at the end of December 2023. The correspondence from that time discloses that Mr Ngo was the chief correspondent on behalf of Projector Films. He articulated the position that he should receive a co-directing credit and was aware of Mr McCallum's countervailing position based on the Director's Agreement that the Documentary should include the credit, "Directed by Stephen McCallum". On his own account, Mr Ngo was the person who was managing the edit of the Sundance Version and the Feature Version of the Documentary. Mr Ngo had been zealous to ensure that he received credits as a writer, producer and director of the Documentary. Although there is no direct evidence that Mr Ngo was the person who affixed the opening and ending credits to the Sundance and Feature Versions of the Documentary, I am satisfied that it can be inferred that he was in a position to "sanction", "approve" and "countenance" that act and that he did so. In coming to this conclusion and drawing this inference, I have taken into account the factors specified in s 195AVA. In particular, I am satisfied that as a producer, Mr Ngo was in a position to both do the infringing act or to prevent it from occurring and failed to take reasonable steps to avoid the infringement. In fact the evidence indicates that he was a chief protagonist and had a vested interest in authorising and ensuring that the opening and end credits to be presented and situated in a way that conveyed that he was the principal director, and that Mr McCallum was not.
11. The respondents' contention that there is "no evidence to indicate that Mr Ngo was solely responsible for the alleged attributable acts committed" (RCS [201]) misses the point. Mr Ngo need not have been the sole person responsible. The question is whether he was a person who authorised the attributable act. On all the evidence, I am satisfied that he was.
12. In respect of s 195AP, slightly different issues are raised. The question here is whether Mr Ngo himself engaged in the attributable act, which by reason of s 195AF(2)(a) requires it to be shown that he engaged in an act "to insert or affix, or to authorise the inserting or affixing of, a person's name on the film or on a copy of the film in such a way as to imply falsely that the person is the director, producer or screenwriter, as the case may be, of the film". That act here was the authorisation of the affixation of credits in the opening and end credits to the Sundance and Feature Versions that attributed Mr Ngo as, in effect, the principal director of the Documentary and not Mr McCallum. The factual basis for Mr Ngo's liability is the same as that under s 195AO. I am satisfied that Mr Ngo engaged in an attributable act by authorising the inserting or affixing of his own name so as to convey he was the principal director of the Documentary and that Mr McCallum was not, which was an act of infringement of Mr McCallum's right against false attribution.
13. Accordingly, I am satisfied that Mr Ngo is liable under ss 195AO and 195AP in respect of the infringements of Mr McCallum's right of attribution and right against false attribution.

PART C: THE BREACH OF CONTRACT CLAIMS

1. Mr McCallum alleges that Projector Films breached the Director's Agreement by:

(a) failing to provide Mr McCallum with a director's credit as agreed under cl 9.1;

(b) adding a director to the credit line without his agreement as required under cl 9.2;

(c) failing to pay his fees as agreed under cl 3 and Sch 2; and

(d) failing to provide cuts of the Documentary for his notes and approval under cl 5(b).

1. The first of Mr McCallum's contractual claims concerns his rights arising under cl 9.1 of the Director's Agreement. Clause 9.1 of the Director's Agreement is as follows:

Provided the Director substantially fulfils and completes all of his obligations under this document, the Producer shall provide the Director with a credit on all positive prints of the Documentary and all paid advertising and paid publicity issued by the Producer or under its control in connection therewith. Such credits shall read substantially as follows:

1. Mr McCallum's case is that, irrespective of his moral rights and irrespective of whether he is the sole principal director, Projector Films agreed that he would receive the credit as the director of the Documentary and that such credit would read "Directed by Stephen McCallum". Mr McCallum contends that he has discharged the obligations that were required of him, but that in breach of cl 9.1, he has not been given the credit "Directed by Stephen McCallum" in the credits for the Documentary and in other promotional materials.

13.1.1 The respondents' defence and the Cross-Claim

1. The respondents' answer to the case overlaps with the first aspect of Projector Films' Cross-Claim. The respondents contend that Projector Films' obligation to provide Mr McCallum a director's credit in substantially the form "Directed by Stepehen McCallum" is conditioned by the opening words of cl 9.2, "Provided [Mr McCallum] substantially fulfils and completes all of his obligations under this document...".
2. As part of the Cross-Claim, Projector Films contend that cl 2.1(a) of the Director's Agreement required Mr McCallum to "direct the Documentary" as that term is "generally understood and commonly used in the Australian film and television industry". Relying upon Ms Maclaren's evidence, Projector Films set out a long list of duties that were said to be required of a director in the Australian film and television industry: see Amended Statement of Cross-Claim (ASOCC) at [6]-[17], repeating [2]-[12] of Annexure A of the Defence. The claim was framed as follows.
3. Projector Films alleges that by entering into the Director's Agreement, it engaged Mr McCallum to "direct" the Documentary as that term is generally understood in the Australian film and television industry: Annexure A [2]. It is alleged that in this context, "directing" a documentary is generally understood to involve at least: (i) taking an active role in crafting the story, (ii) driving the overall creative vision from inception to completion, and (iii) exercising creative control and oversight over each of the many phases including, for example, pre-production, shoot, post-production, edit, assembly edit, rough cut, further cut, and final cut: Annexure A [4].
4. In addition to this, Projector Films asserts that the Director's Agreement contained an express term defining the scope of the "Services" Mr McCallum agreed to perform. These are relevantly said to include, among other things, developing, writing and revising Development Materials, overseeing and approving other creative elements, and directing the various "creative stage[s]" of the Documentary: Annexure A [3(a)]. Projector Films further alleges that, pursuant to cl 7.1 of the Director's Agreement, Mr McCallum covenanted and warranted that he was available to provides the "Services" for the term of and pursuant to the terms of the Director's Agreement, and also warranted to take direction from and cooperate with Projector Films, to conduct his duties in a professional manner and in good faith, and to do all things necessary and required by Projector Films in a timely manner: Annexure A [3(e)]-[3(f)].
5. Projector Films then pleads the work that it asserts Mr McCallum in fact performed and alleges that his work was limited to:

(a) conducting shoots in collaboration with Mr Ngo and Ms Williams-Weir, and based on their story Outlines and independent research, respectively;

(b) undertaking preparatory work related to the shoots, including the preparation of interview questions and interviewing subjects on the day;

(c) interviewing certain creative heads of departments in collaboration with Mr Ngo, Ms Williams-Weir, and Mr Joyce;

(d) directing the assembly editor, Grace Eyre, to a very limited extent, upon being prompted to do so by Mr Ngo;

(e) providing feedback on work done by others on the Documentary;

(f) preparing various pitch materials and the "Look Book" (being a collection of reference images that focusses on visual aspects of the film);

(g) preparing initial illustrations and preliminary storyboards to be used as a basis for animation;

(h) exercising partial creative oversight over illustration, location choices, and camera choices; and

(i) collaborating with Mr Ngo with respect to about half of the insert photography

1. Projector Films then alleges that in or about January 2022, Mr McCallum, in effect, ceased cooperating. Specifically, it is alleged that Mr McCallum refused to deliver certain development materials unless he was paid more than what was provided for under the Director's Agreement, indicated that he would be unable to work on the Documentary full time or on a first priority or an exclusive basis, and refused to direct the edit such that it was left to Projector Films and Mr Ngo to do so and to complete the Documentary in a director's capacity: Annexure A [7].
2. Further or alternatively, Projector Films alleges that Mr McCallum indicated on 25 July 2023 that his work was done and he would only be available on a minimal basis: Annexure A [8]. Projector Films also alleges that his work was overall of poor quality and could not be used or used easily, including in particular his work on the assembly edit, his feedback on others' work, and his initial illustrations and storyboards: Annexure A [9]-[10].
3. Projector Films alleges that Mr McCallum failed to direct the Documentary and provide the Services, and thereby breached cll 2.1, 2.2(a)-(b), 2.2(d), 7.1(a)(i) and 7.1(c)(i)-(iii) of the Director's Agreement: Annexure A [11]-[12]. It is also alleged that Mr Ngo attended to each of the matters to which Mr McCallum failed to attend: Annexure A [13].
4. The respondents submitted that contrary to cl 2.1(a) and (b)(iii), Mr McCallum did not direct the editing of NGB in that his contribution to the First Rough Cut was insufficient, which resulted in a lacklustre first cut which failed to impress the Executive Producers. The respondents submitted that thereafter, Mr McCallum "fully stepped back from NGB" because "he needed to take on other work to make money". It is claimed that "the result was that Mr McCallum stopped doing the work that would be expected of a director in the editing stage of a documentary" and Mr Ngo stepped into the role: RCS [205]-[206].
5. In addition, the respondents submit that Mr McCallum did not direct any of the post-production work, including the sound design, composition, grade, or finishing of NGB: RCS [209]. It was also submitted that Mr McCallum failed in his duty under cl 2.1(b)(v) to make all reasonable efforts to ensure the timely and on-budget completion and delivery of NGB: RCS [210]. It was further submitted that Mr McCallum failed in his duty to establish rapport with interviewees and the respondents rely upon Mr Cooper's evidence that he did not remember speaking to Mr McCallum before shooting began: RCS [211]-[212]. Finally, it is claimed that Mr McCallum failed in his duty to exert creative control over the documentary: RCS [213].

1. I reject the respondents' contentions.
2. The respondents made no attempt to explain how their Defence and Projector Films' Cross-Claim could be maintained in light of the admission made in the Defence as follows:

In answer to paragraph 4 of the SOC, the Respondents:

(a) admit that Mr McCallum undertook work as a director on the Documentary;

(b) admit that Projector Films and Mr Ngo undertook work as producers of the Documentary;

(c) otherwise deny the allegations in the paragraph;

(d) say further that Mr Ngo undertook directing work on the Documentary;

(e) say further that Mr Ngo was a director of the Documentary;

(f) say that both Mr Ngo and Mr McCallum were principal directors of the Documentary.

1. Having made admissions not only that Mr McCallum undertook work as a director on the Documentary and also that Mr McCallum was a principal director of the Documentary (together with Mr Ngo), the position advanced by the respondents in their Defence and in the Cross-Claim are, on their face, irreconcilable. No effort was made by the respondents to explain their inconsistent position, other than perhaps to contend that Mr McCallum was not entitled to the credit, "Directed by Stephen McCallum". These claims should be rejected.
2. First, the respondents' contentions paid little attention to the words of cl 2.1(a). The words of cl 2.1(a) provide that the "Producer engages the Director to direct the Documentary (Services), as those terms are generally understood and commonly used in the Australian film and television industry". The respondents focused their attention on what was "generally understood" in relation to the tasks required to "direct the Documentary" but did not consider that the text of the claim also requires attention to be given to the role of a producer.
3. Second, the respondents' contentions proceeded on the basis that Ms Maclaren's evidence provided unqualified support for the tasks and duties involved in "directing" a documentary in Australia. That was not in fact the effect of her evidence. As set out above, in her first affidavit, Ms Maclaren stated that she was asked to express an opinion about the "typical phases and elements" involved in the production of a documentary. She then stated that in her experience, "the process of making a documentary film varies depending on" a number of "Core Elements". She further explained that these elements "influence the order and manner" in which the different stages of the production are undertaken. Next, she explained that she was asked to opine on "the role of a director" in the production of a documentary in Australia and said that this "varies depending on the Core Elements" and thereafter set out her views as to what in her experience the role "generally" involves. Next, she set out her opinions, based on her experience, as to what she would "expect" the role of a director of a documentary such as NGB would involve.
4. As I have already addressed, Ms Maclaren's opinions were qualified. Despite this, the respondents relied upon her general views and expectations to determine a list of tasks which they claimed were required to be discharged by Mr McCallum in whole and without variation.
5. Third, as already addressed, I do not accept that there is any singular way to "direct" a documentary as that term might generally be understood in the Australian film and television industry. Whilst I accept that the making of a documentary may involve particular phases in the production process, I do not accept that there is a conventional way that a director would attend to the direction of a documentary. The direction of a documentary will depend on the context of the production, and the style, method and manner of the director. This conclusion accords with the opinions of Mr de Heer. It also accords with the subtlety of Ms Maclaren's opinions as referred to above.
6. Fourth, relatedly, the fact that a director's role may vary depending on the exigencies and context of the production is reinforced by the text of cll 2.1(b)(i)-(vi). Although cl 2.1(b) does not limit the generality of cl 2.1(a), the words "as necessary" and "as required", which appear at the conclusion of cll 2.1(b)(i), (ii), (iii) and (iv), and the words "if required" in cl 2.1(b)(vi) make it clear that the director is to attend to those matters subject to the direction and control of the producer and as necessary for the context of the production.
7. The respondents submitted that the words "as necessary" and "as required" do not mean that Mr McCallum was not required to perform those tasks unless a specific request is made by Projector Films. The respondents submitted that Mr McCallum was required to carry out those tasks insofar as those tasks were necessary or required on the Project. The respondents' argument was circular and missed the point. On some projects, no request or direction may be required to be given, and on others, the producer may direct a different course to be taken. What is necessary or required to be done will depend on the context and the arrangements made for the production overall. This is not inconsistent with cl 2.1(a) and does not limit its generality because precisely what is required to be done in the direction of a documentary will depend on the context.
8. The respondents submitted that such a construction could not sit conformably with cl 2.1(b)(iv) which required Mr McCallum to "[d]irect any crew, service provider or subject of the Documentary as required". It was said that it was contrary to common sense that Mr McCallum would not be required to direct crew unless a request is made. It may be that with respect to a documentary such as NGB, the director would be required to direct on set but not be required to direct service providers. That only serves to highlight the point that this is what was, or is, required in the making of NGB. These contentions ignore a more telling matter. The respondents admitted that Mr McCallum is a principal director. In view of that admission, it is frankly incomprehensible that Projector Films maintains that Mr McCallum did not perform his duties "as necessary" or "as required".
9. The balance of the respondents' contentions do not accord with the facts as I have found them. I reject the contention that Mr McCallum did not direct the Documentary. Nor do I accept that in January 2022, Mr McCallum stepped away from the edit altogether or abandoned his role.
10. After this time, Projector Films did not ask or require Mr McCallum to work on the edit in a hands-on way. Mr Ngo took that upon himself and did not seek to involve Mr McCallum. That is reflected by the fact that the extent of Mr Ngo's involvement with Mr Hart was concealed from Mr McCallum. So too were the steps that Mr Ngo took to engage in the post-production steps himself without involving Mr McCallum. It is difficult to characterise the position that Mr Ngo and Projector Films took as anything other than opportunistic. Mr McCallum continued to perform extensive work on the Project, including performing critical work on interviews after January 2022. The parties affirmed the contract by way of the Deed of Variation. The complaint that Mr McCallum had not been discharging his duties was belatedly raised and propounded only after Mr McCallum objected to Mr Ngo gifting himself a co-director's credit.
11. The respondents submitted that even if the obligation under cl 9.1 was enlivened, it only requires that Mr McCallum's credit "read substantially as follows: 'Directed by Stephen McCallum'". The respondents submitted that the credit "Director Stephen McCallum" is substantially the same as "Directed by Stephen McCallum". However, in light of the findings I have already made, I do not accept that the two types of credit are the same in the context of the present production.
12. As a result, I am satisfied that Projector Films breached cl 9.1.

1. Clause 9.2 provides that, "[a]dditional directors may be added to the Director's credit line in a position to be mutually agreed between the Director and the Producer upon completion of the Documentary".
2. Mr McCallum submitted that he had not agreed to Mr Ngo being added as an additional director to the credit line. The respondents submitted that cl 9.2 does not require Mr McCallum's agreement to an additional director being retained but requires his agreement to the positioning of an additional director on the credit line. In other words, the respondents submitted that cl 9.2 only deals with the positioning of credits. Mr McCallum submitted that, even if that construction is accepted, Projector Films still breached because Mr McCallum's consent was not sought, or obtained, to put Mr Ngo's credit in the position it was placed, namely, in a position superior to Mr McCallum's next to the main title, and at the start of the rolling credits.
3. Mr McCallum's alternative submission should be accepted. The unassailable facts are that Mr McCallum did not give his agreement to the placement and positioning of Mr Ngo's credit as a director in the Sundance or Feature Versions. It follows that Projector Films breached cl 9.2.

13.3 Clause 3 (Failure to pay invoices for Mr McCallum's fees as director)

1. Mr McCallum's next claim concerns the non-payment of two invoices for $20,000 and $5,000 respectively, which he contends are payable under cl 3 and Sch 2 of the Director's Agreement as varied by the Deed of Variation.
2. Clause 3 of the Director's Agreement provides that:

Subject to the Director's due compliance with his obligations under this document, the Producer agrees to pay the Director the Fee.

Fee has the meaning given in Schedule 2, which the parties acknowledge and agree may be varied or amended by the Producer, pending the finalisation of the budget for the Film.

(Original emphasis.)

1. In March 2023, after the budget had been finalised, the parties entered into the Deed of Variation which amended Schedule 2 to provide as follows:

AU$100,000 ("Fee", which is inclusive of any superannuation and holiday pay), to be paid by the Producer upon receipt of a valid invoice on the following terms:-

(a) 60% on or before commencement of shoot period scheduled 23 January 2023;

(b) 15% on or before commencement of shoot period scheduled 20 March 2023;

(c) 20% on or before conclusion of all shoot periods/pick up periods, or on delivery of rough cut of the Documentary, whichever is earlier;

(d) 5% on delivery of the Documentary.

Contingent Compensation

The Producer agrees to pay the Director ten percent (10%) of the Producer's Net Profit, which shall be defined as all monies remitted to the Producer, or any entity for or on behalf of the Producer, by all third party sales agents, distributors and other assigns or licensees in connection with the acquisition and/or exploitation of any rights in the Documentary: less that amount of the budget of the Documentary; any hard, out-of-pocket production costs of the Documentary (including interest paid to the Producer's third party investors in the Documentary at the rate set out in the principal financing agreements for the Documentary and reasonable direct out-of pocket marketing costs actually paid by the Producer to unaffiliated third parties and approved by the principal investors in the Documentary); and the amount paid by the Producer to investors in the Documentary (including the Producer's share of any investment in the Documentary) as a percentage of the Documentary' profit. The Contingent Compensation shall be payable within sixty (60) days of any money being distributed to the Producer.

(Original emphasis.)

1. In relation to the first invoice of $20,000, Mr McCallum says that he issued this invoice on or about 14 August 2024 and that all shoot periods and pick up periods have concluded and/or the first rough cut of the Documentary has been delivered: FASOC [39]-[40], [43]. He has not been paid.
2. In response, the respondents say that the obligation to make payment under cl 3 of the Director's Agreement is contingent on "...the Director's due compliance with his obligations under this document". The respondents repeated their assertion that Mr McCallum had not complied with his obligations, and accepted Mr McCallum's claim that the breach of cl 3 in relation to the first invoice "rises and falls" on whether Mr McCallum had fulfilled his obligations. As I have rejected the argument that Mr McCallum failed to comply with his obligations, I am satisfied that Projector Films has breached cl 3 and is indebted to Mr McCallum for the amount of $20,000 in respect of the first invoice.
3. As for the second invoice, Mr McCallum says that he issued this invoice on 29 January 2025 and that Projector Films has failed to make payment: FASOC [43C]-[43D]. He alleges that in so failing, Projector Films again breached cl 3, which required it to pay Mr McCallum $5,000 on "delivery of the Documentary": FASOC [43A]-[43B], [43E]. Mr McCallum claims that the documentary has been delivered because (i) the Documentary had its Australian premiere at the MIFF, (ii) Projector Films entered into Australian distribution agreements with a distributor (Pinnacle Films Pty Ltd) on 17 April 2023 as varied on 1 July 2025, (iii) Projector Films entered into an international distribution agreement with a different distributor (Blue Ant International Limited) on 21 March 2025 (Distribution Agreement), and (iv) Projector Films uploaded the master of the Documentary to Blue Ant for distribution.
4. The Director's Agreement as varied by the Deed of Variation does not define what "delivery" means. The word also appears in cll 2.1(b)(v) and 2.2(b) of the Director's Agreement in respect of an obligation on the part of Mr McCallum to make all reasonable efforts to ensure timely completion and delivery of the Documentary.
5. It was submitted on behalf of Mr McCallum that the use of the word in cll 2.1(b)(v) and 2.2(b) tied the concept of "delivery" to what the director can do to ensure the outcome: ACS [258]. It was submitted that, therefore, on a commercial and business-like interpretation, the word "delivery" meant the provision of a product which Mr McCallum as a director could have a hand in, namely, the film itself: ACS [258]. It was said that the contrary construction advanced by the respondents focussed on "delivery" to a third-party, Blue Ant, under an agreement to which Mr McCallum is not privy and which was entered into in 2025: ACS [259].
6. The respondents deny that the Documentary has been delivered. The respondents submitted that the concept of "delivery" is not tied to any action required of the director because delivery is a stage in the process whereby Projector Films itself gets paid, so that it has the funds to pay the director. In their Defence (at [43B(a)(i)], the respondents claimed that in the Australian film and television industry, "delivery" of the Documentary means "acceptance of the Documentary and all materials related to the Documentary by an international sales agent and distributor". It was further submitted that this has not occurred. The respondents relied upon Mr Ngo's evidence, as follows:

Projector Films has a distribution agreement with Blue Ant International Limited. Delivery under that agreement has not yet completed. Delivery is not completed until Projector Films provides a final legal opinion and chain of title opinion, which are unlikely to be able to be provided until after judgment in these proceedings.

1. As with many aspects of the arguments advanced by the parties, they were bound up in conclusory assertions and evidence, and I received little assistance from them. For example, the respondents made assertions as to what was meant by "delivery" in the Australian film and television industry, but there was no direct evidence as to that point. Rather, in her second affidavit, Ms Maclaren claimed that Mr McCallum had not made all reasonable efforts to ensure the timely and on-budget completion and "delivery" of the film, which "was completed and delivered only after the editing and post-production stages with which he had little to do with." Nor is there any evidence to support the contention advanced by the respondents that delivery had not occurred despite the fact that Executive Producers had clearly approved the documentary for distribution and screening at the Sundance and other festivals, including at the MIFF.
2. The parties tendered the Distribution Agreement between Projector Films and Blue Ant, which makes provision for Blue Ant to distribute the Documentary worldwide "excluding Australia and New Zealand". The Distribution Agreement makes provision for the payment of a "Distribution Advance" of USD175,000 in tranches subject to conditions precedent, including, for the final tranche, "Delivery and Acceptance". The "Delivery Date" is defined to mean "[n]o later than 12 May 20205, provided Producer shall deliver earlier if possible" and the "Delivery Method" is defined as being via a platform known as "Signiant. The word "Delivery" is defined to mean "the delivery to and receipt by Distributor of the Delivery Materials" and the word "Acceptance" is defined to mean "following Delivery, the acceptance by Distributor at its discretion of the Delivery Materials". Schedule B sets out the "Delivery Materials". One of those materials includes the requirement for "[a] signed statement from Producer listing any contractual obligations or restrictions with respect to key creatives and other individuals providing services in connection with the Program (such as editing, dubbing, language, paid and non-paid advertising and publicity, etc.) and, if no restrictions are applicable, a statement stating the same." It may be that it is this clause that was said to support Mr Ngo's conclusory evidence that the Documentary had not been delivered to Blue Ant, or it may be some other clause buried somewhere within the Distribution Agreement. I received no assistance as the matter. In any event, it does not matter.
3. I reject the contention that the word "delivery" for the purpose of Schedule 2 of the Director's Agreement (as varied) means "acceptance of the Documentary and all materials related to the Documentary by an international sales agent and distributor". The word "delivery" is to be viewed in the context in which it appears. Schedule 2 sets out the payment of the Fee by the Producer (Projector Films) to the Director (Mr McCallum) upon certain events occurring. The first tranche of 60% was payable on or before the shoot period scheduled for 23 January 2023, the second tranche of 15% was payable on or before the commencement of the shoot period scheduled for 20 March 2023, the third tranche of 20% was payable on or before the conclusion of all short periods or on delivery of the rough cut, and the final 5% on delivery of the Documentary. Each of these events on its face relates to conduct as between Projector Films and Mr McCallum, not as between Projector Films and a third party, and not as contingent upon Projector Films itself being paid. That position is to be contrasted with the "Contingent Compensation" which is an amount payable to Mr McCallum that is contingent on Projector Films' net profit, which is determined by reference to, amongst other things, the money it receives less costs.
4. For the above reasons, I reject the respondents' contention as to the proper construction of the word "delivery". Rather, the proper meaning of the word "delivery" for the purpose of Schedule 2, when read in the context of cll 2.1(b)(v) and 2.2(b) of the Director's Agreement, means the completion of the steps required of Mr McCallum and within his control to enable Projector Films to screen or distribute the Documentary. I am satisfied that Mr McCallum had done what was required of him and within his control to ensure that outcome. That is reinforced by the fact that Projector Films entered into Australian distribution agreements and thereafter the Documentary has in fact been screened in Australia.
5. Accordingly, I am satisfied that Projector Films has breached cl 3 and is indebted to Mr McCallum for the amount of $5,000 in respect of the second invoice.

13.4 Clause 5 (Failure to provide cuts of the Documentary for approval)

1. The final aspect of Mr McCallum's contractual claims concerns Projector Film's alleged failures to provide various cuts of the Documentary. Mr McCallum contends that cl 5(b) of the Director's Agreement gave him an express right of approval of the "papercut, assembly, rough cut, fine cut, and final cut". He contends that from about December 2023, Projector Films failed to provide any of these for his approval, including in relation to the Sundance Version and the Feature Version.
2. The respondents accepted that cl 5(b) requires Projector Films to provide copies of the papercut, assembly, rough cut, fine cut and final cut. They also accept that they did not send the fine cut or the final cut to Mr McCallum for his approval at the time they were completed. However, they claim that "any breach" of cl 5(b) has to be viewed in the context of the disputes that had arisen between the parties. It is also claimed that any relief flowing from a breach of the clause would be futile as Projector Films had the right of final approval.
3. I am not presently dealing with questions of relief. I am satisfied that Projector Films breached cl 5(b) by failing to provide all papercuts, assemblies, rough cuts, fine cuts and the final cuts of the versions of the Documentary for Mr McCallum's approval.

1. Mr McCallum alleges that Projector Films engaged in misleading and deceptive conduct in contravention of s 18 of the ACL by making representations that Mr Ngo was the principal director or a principal director of the Documentary, and by failing to identify Mr McCallum as the director or the principal director: FASOC [33]-[35] (incorporating FASOC [9], [10], [11], [13], [13A], and [13B]). It is further alleged that Mr Ngo was involved in these contraventions within the meaning of s 236 of the ACL: FASOC [36]. Mr McCallum's claims may be categorised into five broad instances of alleged misleading and deceptive conduct relating to:

(a) the webpage or database known as IMDb (the IMDb Representations);

(b) the video platform, Vimeo (the Sizzle Reel Representation);

(c) the Sundance Film Festival (the Sundance Representations);

(d) the Melbourne International Film Festival (the MIFF Representations); and

(e) the body, Screen Australia (the Screen Australia Representations).

1. Mr McCallum's case in relation to the IMDb Representations involve three distinct allegations:

(a) first, that in late 2023 or early 2024, Projector Films caused or authorised the directing credits displayed on the entry for the Documentary accessible via the URL "imdb.com" (the Documentary's IMDb Page) to be changed from "directed by Stephen McCallum" to "directed by Stephen McCallum and David Ngo" (the First IMDb Representation): FASOC [9(a)];

(b) second, that in or about November 2024, Projector Films caused or authorised the directing credits displayed on the Documentary's IMDb Page to be changed from "directed by Stephen McCallum and David Ngo" to "directed by David Ngo" (the Second IMDb Representation): FASOC [10]; and

(c) third, that in or about November 2024, Projector Films caused a poster to be displayed on the Documentary's IMDb Page which contained the text "Written and directed by David Ngo" and "Director Stephen McCallum" (the Third IMDb Representation): FASOC [11].

1. In relation to each of these allegations, the respondents:

(a) admitted the First IMDb Representation in that they accept that Projector Films caused or authorised the directing credits displayed on the Documentary's IMDb Page to be changed from "directed by Stephen McCallum" to "directed by Stephen McCallum and David Ngo", and further admitted that in doing so they represented that Mr Ngo is the principal director of the Documentary and did not identify Mr McCallum as the sole principal director of the Documentary, but otherwise denied the allegations: Defence [9(a)] and [33]-[36];

(b) denied that they made the Second IMDb Representation and otherwise deny the allegations: Defence [10] and [33]-[36];

(c) admitted that they made the Third IMDb Representation in that they accept that Projector Films caused a poster to be displayed on the Documentary's IMDb Page which contained the text "Written and directed by David Ngo" and "Director Stephen McCallum" which remained in place at least as at 22 August 2025, and further admit that in doing so they represented that Mr Ngo is a principal director of the Documentary and did not identify Mr McCallum as the sole principal director of the Documentary, but otherwise deny the allegations: Defence [11] and [33]-[36].

1. More generally, the respondents disputed that their admitted conduct in relation to the IMDb website was "in" trade or commerce.
2. As a result, in relation to the IMDb Representations the following issues arise for determination:

(a) were the admitted and alleged representations made in trade or commerce;

(b) did Projector Films cause or authorise the Second IMDb representation to be made;

(c) was the conduct misleading and deceptive in contravention of s 18 of the ACL; and

(d) if so, was Mr Ngo involved in the contraventions?

14.1.1 Were the IMDb representations made in trade or commerce

1. The reach of s 18 of the ACL is limited by the use of the preposition "in". In relation to its predecessor (s 52 of the Trade Practices Act 1974 (Cth)), Mason CJ, Deane, Dawson and Gaudron JJ stated in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594 at 604 that:

What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public.

1. It was submitted on behalf of Mr McCallum that the IMDb website or database is used for promotional purposes and, whilst accepting that any member of the public is free to provide contributions to the website, it did not change the fact that contributions are made to the website for the purposes of the commercial promotion of films and the crew involved in the production of such films, particularly in the context of films which are yet to be released. Reliance was placed on the decision of Thawley J in JWR Productions Australia Pty Ltd v Duncan-Watt (No 2) [2020] FCA 236; 149 IPR 400 where his Honour held at [623]-[625] that representations made by a writer on his promotional webpage was conduct that was in trade or commerce.
2. The respondents submitted that the IMDb website is no more than an "informational page" and operated like Wikipedia as any member of the public could make entries. It was said that IMDb does not promote professional services in the way that a professional might do so on his or her own dedicated webpage, as in JWR Productions, because "the IMDb page does nothing more than set out basic information about NGB". It was submitted that "there is no ability to actually advertise or promote the services of the people mentioned on the page": RCS [181].
3. I reject the respondents' contentions.
4. The IMDb website is operated in a way to permit those who have an account to make contributions to the database maintained by the operators of that website: T213.36-42. Mr Ngo admitted that those in the industry "regularly use IMDb" as a means to check on other's credits, and to "promote themselves by means of their credits": T214.1-2. Although the information maintained on that website may seek to be informational, that does not exclude it from being promotional. Here, there is evidence consistent with Projector Films and Mr Ngo seeking to use the entries on the website for promotional purposes. It will be recalled that after the credit dispute surfaced in late December 2023, Mr Ngo wrote to Mr Joyce asking him to update the IMDb credits in relation to "'director' headshot" and to have "showrunners [credits] for [Mr Ngo] and [Ms Williams-Weir] so there's no confusion". When Mr Joyce baulked at the idea and assessed Mr Ngo's request as a "credits grab", Mr Ngo responded that "Showrunner is not an onscreen credit - it's a term that can be used in press to mitigate Stephen trying to take credit for everything as a director".
5. Although the website may promote the individuals in respect of whom credits are attributed, in doing so, it also necessarily promotes the film. That is apparent from the face of the IMDb website. For example, the IMDb entries for the Documentary over time included the following:

1. The fact that a film has a particular director, actor, editor, or producer, is likely to be of significance to consumers and influence their decision to watch or not watch the relevant film. It may not be the only means of promoting a film and may be of lesser reach than advertising in mainstream or social media channels, but it is nevertheless a platform for promotion.
2. In view of the evidence, I have no doubt that Projector Films used IMDb to promote the Documentary, which is quintessentially an activity that is of a commercial and trading character.
3. I am satisfied that the IMDb Representations were made in trade or commerce.

14.1.2 Did Projector Films cause or authorise the Second IMDb Representation to be made?

1. The objective factual context to the Second IMDb Representation is that the respondents admit that in or about late 2023 to early 2024, they caused or authorised the directing credits for the Documentary to be displayed on the IMDb website to be changed from "directed by Stephen McCallum" to "directed by Stephen McCallum and David Ngo": FASOC [9(a)] and Defence [9]. Then, from sometime in November 2024 to on or about 5 December 2024, the credits displayed on the website were changed to remove a reference to Mr McCallum altogether and the only credit for director was "directed by David Ngo".
2. Mr McCallum came to notice this change because on 20 November 2024, he had been informed that the Documentary had been accepted into the Sundance Film Festival and on 27 November 2024, he had been informed that the Sundance Film Festival would only accept confirmations of attendance at the festival from Ms Williams-Weir. He then sent an email to Mr Ngo, Ms Williams-Weir and Mr Joyce, stating that he expected to be invited to the premiere at that Festival. He then looked at the IMDb website and noticed the removal of his name, and that Mr Ngo was the only person credited as a director. Mr McCallum submits that no one else had any interest in removing his name from the credits, other than the respondents and Ms Williams-Weir.
3. Mr Ngo denied being involved in the conduct. He produced his IMDb records and history of entries. Mr McCallum submitted that there were irregularities in these documents in that there was a large gap between 2020 and 2025, being the period during which Mr Ngo worked on the Documentary. Further, it was submitted that one of the relevant documents was "cropped", meaning that it had been manipulated to remove a "delete" button that should have appeared on the printed page and which would have disclosed any entries that he had entered and later deleted. I reject the contention that Mr Ngo manipulated the document. He was an unsatisfactory witness, but I do not accept that he fabricated a document. It is a serious allegation, which I do not accept.
4. Ms Williams-Weir also denied being involved in the conduct. She produced her IMDb records as well but said that she "didn't use the IMDb page much" and only admitted to making a change to it in May 2025: T256.9-37. She said that she had no idea as to who could have been editing the IMDb page for the Documentary.
5. Mr Joyce also denied being involved in the conduct. He also produced his IMDb records.
6. There are several aspects of the evidence called by the respondents that are unsatisfactory. Whilst each of Mr Ngo, Ms Williams-Weir and Mr Joyce produced records of the submissions and entries they had respectively made to the IMDb site, there were no records produced for Projector Films. None of the records produced by the respondents pointed to who had made the entries that were admitted. As a result, the documentary record appears to be incomplete or at least there is an unexplained lacuna.
7. The evidentiary lacuna is troubling in circumstances where the objective and contemporaneous documentary records establish that when Mr Ngo asked Mr Joyce to update the IMDb credits, Mr Joyce's response included the statement, "Yes can update IMDB...". Despite this statement, Mr Joyce said that he had nothing to do with the IMDb credits and was not responsible for that: T302.35-47. When pressed about who was responsible for updating the IMDb credits, Mr Joyce stated he was not responsible and surmised that it may have been Mr Cooper: T303.1-6. He then said that Projector Films did not have its own account for IMDb and did know who was updating its entries in relation to the Documentary, as Mr Ngo, Ms Williams-Weir and Mr Joyce only had their own individual accounts: T303.27-28.
8. When confronted with the admissions made by the respondents in relation to other entries made on IMDb, Mr Ngo was not aware of the basis for the admission: T217.35-47. He said that he had nothing to do with the IMDb credits or admissions and suggested it may have come from Mr Joyce: T217.38-40. Mr Ngo suggested that there were other people making submissions to IMDb including financiers such as Ms Louise Schultz, but stopped short of saying that the updates were made by her or her "team of interns" who were "doing stuff online": T219.13-14.
9. I was not invited by Mr McCallum to draw an inference in accordance with the maxim enunciated in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969. Clearly it was within Projector Films' power to have produced or adduced evidence as to who was making entries on IMDb on its behalf. However, as the parties did not address me on the drawing of such an inference, it is not appropriate I do so.
10. The applicants submitted that the irresistible conclusion is that Projector Films made the impugned IMDb changes that constituted the second IMDB Representation. It was submitted that it was most likely undertaken by Mr Ngo, having regard to the above matters. Although I have regarded him as unsatisfactory witness, I do not consider that it was Mr Ngo who made the changes. The other contemporaneous evidence is that Mr Ngo had asked Mr Joyce to make changes to IMDb in relation to the Documentary, which is consistent with him only attending to his own credits and not those for the Documentary.
11. Although Mr Joyce was in a position to make changes to the IMDb website entries for the Documentary, I regarded him as an honest witness and do not believe he was untruthful in his denial that he had not removed Mr McCallum's name as a director from the IMDb website. I also accept that Ms Willams-Weir was not being untruthful in this respect.
12. The civil standard of proof is not one of mathematical scales. The resolution of a controversy depends on reaching a state of satisfaction: see Hodgson DH, "The Scales of Justice: Probability and Proof in Legal Fact-finding" (1995) 69 ALJ 731. When the law requires proof of any fact, the tribunal of fact must feel actual persuasion as to its occurrence or existence before it can be found and the party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue: Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873; (2021) 308 IR 244 at [284]- [288] (Lee J) citing Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 403 (Dixon J).
13. In the present case, I am not satisfied that Projector Films made the Second IMDb Representation or caused it to be made.

14.1.3 Was the conduct misleading and deceptive in contravention of s 18 of the ACL?

1. The next question that arises is whether Projector Films' conduct in making the First and Third IMDb Representations was misleading and deceptive. This issue can be dealt with in brief terms. As noted above, the respondents admitted in their Defence that the First and Third IMDb Representations represented that Mr Ngo is a principal director of the Documentary and did not identify Mr McCallum as the sole principal director of the Documentary: Defence [33(a)].
2. In the result, I have concluded that Mr McCallum was the sole principal director. It follows that the First and Third IMDb Representations misleadingly conveyed that Mr Ngo was the principal director or a principal director.
3. The respondents submitted that the First and Third IMDb Representations conveyed no more than that it was Projector Film's and Mr Ngo's opinion that Mr Ngo was a director of NGB: relying upon Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 167; 2 FCR 82 at 88 (Bowen CJ, Lockhart and Fitzgerald JJ). It was submitted that any reader of the representations would understand that they were statements of opinion rather than fact.
4. I do not agree. The representations on the IMDb are not couched in the terms of an expression of an opinion and I do not accept that they would be so regarded by readers. Rather, they convey a fact as to who is the director, producer, writer, etc, of a film.
5. I am satisfied that Projector Films contravened s 18 of the ACL by making the First and Third IMDb Representations.

1. Mr McCallum's case in relation to the Sizzle Reel Representation is that Projector Films caused or authorised the credits displayed on a sizzle reel for the Documentary hosted on the internet platform Vimeo to be changed from "directed by Stephen McCallum" to "directed by David Ngo and Stephen McCallum": FASOC [9(b)].
2. The respondents said that the sizzle reel was accessible only via a password protected link to Vimeo, and was never shown to, or made available for viewing by, any third party: Defence [9(b)] and [33(d)].
3. Mr McCallum did not address these matters in his submissions and did not direct me to any evidence in support of this claim. In those circumstances, I cannot be satisfied that this claim has been established.

1. Mr McCallum's case in relation to the Sundance Representations involves two distinct allegations:

(a) first, Projector Films caused the entry for the Documentary on the website for the Sundance Film Festival:

(i) not to include any directing credits under the list of credits;

(ii) to state under the heading "Meet the Artist / David Anthony Ngo" that "Never Get Busted! is his directorial debut"; and

(iii) to include under the heading "Director(s)" the name "David Ngo",

(the Sundance Website Representations): FASOC [13]; and

(b) second, Projector Films caused the Sundance Version to contain the following credits:

(i) in the opening credits, Mr McCallum is credited with "Director" on a sole card and Mr Ngo is credited with "Written and Directed By" on the final card before the Documentary begins; and

(ii) in the end credit roll, Mr Ngo is credited first with "Written and Directed by", and Mr McCallum is credited as "Director" below Mr Ngo's credit,

(the Sundance Version Director Representations): FASOC [13A].

1. In relation to each of these allegations, the respondents:

(a) admitted that Projector Films requested there be an entry for the Documentary on the website for the Sundance Film Festival which did not include any directing credit under the list of credits, further admitted that it was requested that there be an entry under the heading "Meet the Artist / David Anthony Ngo" that "Never Get Busted! is his directorial debut", further admitted that in doing these acts, they represented that Mr Ngo is a principal director of the Documentary and did not identify Mr McCallum as the sole principal director of the Documentary, but otherwise denied the allegations: Defence [13] and [33]-[36]; and

(b) admitted the Sundance Version Director Representations, further admitted that in making those Representations they represented that Mr Ngo is a principal director of the Documentary and did not identify Mr McCallum as the sole principal director of the Documentary, further admit that this conduct was engaged in trade or commerce, but otherwise denied the allegations: Defence [13A] and [33]-[36].

1. The respondents took no issue with the extraterritoriality of the representations. As the matter was not put in issue, I have not dealt with it and proceeded on the basis that the respondents accepted that the relevant conducted occurred in Australia (though aspects of it also occurred in the United States).
2. It is convenient to deal each of the Sundance Representations in turn.

1. It was common ground that in advance of the screening of the Documentary at the Sundance Film Festival, the Festival's website contained the following information on a single webpage:

1. It will be apparent from the above that there were no credits listed for a director or directors. However, under the heading "Meet the Artist", it was identified that the Documentary was Mr Ngo's "directorial debut". Although not admitted in the Defence, the respondents seem to agree with Mr McCallum's assertion that there is no dispute that the above conduct was conduct in trade or commerce: ACS [264]; RCS [181]. I accept that it was. The respondents admitted that they caused these representations to be made but denied that they were misleading or deceptive: Defence [13] and [33]-[36].
2. The respondents submitted the wording that Mr Ngo was making his "directorial debut" was true. As I have found that Mr Ngo was a director of the Documentary, I accept that this statement is literally true.
3. However, there was no mention of Mr McCallum at all, as a principal director or as a director. That was intentional. Mr Ngo, Ms Williams-Weir and Mr Joyce had decided that in light of the dispute about credits, they would ask the organisers of the Sundance Film Festival to remove the directing credits on its website all together. That step may have been well-intentioned. However, the fact is that Projector Films nevertheless asked the Sundance Film Festival organisers to include information promoting Mr Ngo as making his directorial debut. The result was that Projector Films caused information to be published that would only identify Mr Ngo as a director of the Documentary and say nothing about Mr McCallum.
4. By removing all listing credits for the director of the Documentary but then seeking to have Mr Ngo referred to as making his "directorial debut" the position that was conveyed was that he was the sole and/or principal director of the Documentary.
5. I am satisfied that Projector Films engaged in conduct that caused the making of the Sundance Website Representation and thereby contravened s 18 of the ACL.

14.3.2 The Sundance Version Director Representations

1. As noted above, the respondents admitted that they made the Sundance Version Director Representations and, in doing so, represented that Mr Ngo was a principal director of the Documentary and that Mr McCallum was not identified as the sole principal director (the Sundance Version Credits): Defence [13A] and [33]-[36]. The respondents also admitted that this conduct was in trade or commerce.
2. Despite making these admissions, the respondents submitted that merely "preparing" a version which included certain credits "is not making a representation to anybody (or in any other way engaging in conduct that could mislead or deceive anyone)". I reject this contention.
3. The FASOC at [13A] pleaded that Projector Films caused the Sundance Version to contain the credits that appear in that version and the respondents admitted that allegation in the Defence at [13A]. The FASOC at [33] then pleaded that by engaging in that conduct (amongst others), Projector Films had represented that Mr Ngo was the principal director and failed to identify Mr McCallum as such, which allegation was substantially admitted in the Defence at [33(a)]. The FASOC at [34]-[35] asserted that by engaging in this conduct, Projector Films had engaged in misleading and deceptive conduct.
4. It is plain that Mr McCallum was propounding a case that the misleading and deceptive conduct was not merely the affixing of the credits to the Sundance Version, but the making of the representations that would be conveyed by those credits in the screening of that Version. It is undoubtedly why the respondents admitted that the conduct was in trade or commerce: FASOC [33(b)]. The respondents did not explain why they had much an admission if they had perceived the case against them as being limited to the preparation of a version of the Documentary which was not screened to members of the public. The argument was a form of pedantic point taking, which did not accord with the way the respondents themselves had accepted the case was being put.
5. I am satisfied that by preparing the Sundance Version containing the Sundance Version Credits, which was to be screened at the Festival, Projector Films made the representation that Mr Ngo was a principal director of the Documentary and that Mr McCallum was not. In light of the findings I have made, this conduct was misleading and deceptive and, accordingly, Projector Films contravened s 18 of the ACL.

1. Mr McCallum's case in relation to the MIFF Representations involve three distinct allegations:

(a) first, on or about July 2025, Projector Films caused the credits for the Documentary in the MIFF promotional materials to state "Directed By" David Ngo with no reference to Mr McCallum (the First MIFF Representation): FASOC [33, particular (ii)(A)];

(b) second, on 10 and 11 July 2025, Projector Films sought to cause the credits for the Documentary in the MIFF promotional materials to state "Directed By" David Ngo and "Director" Stephen McCallum (the Second MIFF Representation): FASOC [33, particular (ii)(B)]; and

(c) third, on or about July 2025, Projector Films caused promotional material for the Documentary at MIFF to refer to Mr Ngo having "helmed" the production of the Documentary: (the Third MIFF Representation): FASOC [33, particular (ii)(C)].

1. The respondents denied these allegations. However, the respondents did not appear to take any issue as to whether these representations were made in trade or commerce: ACS [264]; RCS [181]. The representations were clearly contained in promotional materials and in the version of the Documentary that was to be filmed to the public. I am satisfied that the relevant conduct was in trade or commerce.

1. It was common ground that Ms Williams-Weir was responsible on behalf of Projector Films for submitting information to the MIFF in respect of the Documentary. Ms Williams-Weir submitted information to the MIFF using the "FilmFreeway" website, which is a site that allows filmmakers to upload information about a film and then apply to film festivals using that saved information.
2. Ms Williams-Weir says that she submitted information relating to NGB to FilmFreeway, which information included both Mr Ngo and Mr McCallum as directors but did not include Mr McCallum's name and contact details. Ms Williams-Weir later took a screenshot of the information she had submitted and said that this information reflected what she had earlier submitted. That information has Mr Ngo and Mr McCallum both listed as directors.
3. However, the first information released by MIFF on its website contained the following information:

1. As will be apparent, it was only Mr Ngo that was listed as the director. Mr McCallum was not mentioned.
2. After Mr McCallum's solicitor raised a complaint about the abovementioned information, on 10 July 2025, at 3:47 pm, Ms Williams-Weir sent an email to MIFF as follows:

Hi MIFF team,

Just wanted to check in when plan to release the program for MIFF? As we've had some adjustments since submission wanted to make sure in its announcement that the project will be following the current FilmFreeway information in terms of credits, specifications and distribution. Here's the official lead credits below for reference.

a documentary by DAVID ANTHONY NGO and ERIN WILLIAMS-WEIR

written and directed by DAVID ANTHONY NGO

director STEPHEN MCCALLUM

produced by ERIN WILLIAMS-WEIR, DANIEL JOYCE and DAVID ANTHONY NGO

executive produced by JOHN BATTSEK and CHRIS SMITH

Best.

Erin Williams-Weir

1. Ms Williams-Weir denied that she had caused the earlier information to be published on the website and maintained that she had referred to Mr McCallum as a director: T263.11-36. Mr McCallum submitted that her evidence in this respect should be rejected as it is improbable that the MIFF would have prepared and published credits other than what they were told by Projector Films.
2. The respondents submitted that there was no good reason to reject Ms Williams-Weir's evidence.
3. It is inconceivable that the MIFF published information as to Mr Ngo being the sole director of the Documentary without receiving information to that effect. I am satisfied that this information had to be communicated by Projector Films or on its behalf by Ms Williams-Weir. The only basis on which she seemed confident that her original submission to MIFF had included a reference to Mr McCallum was based on a record she retrieved much later. However, the document she later retrieved did not indicate when that information was uploaded.
4. Further, in her subsequent email dated 10 July 2025, Ms Williams-Weir told the organisers of the MIFF that "[a]s we've had some adjustments since submission [we] wanted to make sure in its announcement that the project will be following the current FilmFreeway information in terms of credits". That contemporaneous record makes it plain that Ms Williams-Weir was seeking to change the information that had earlier been provided, which now included reference to Mr McCallum as a "director".
5. As earlier stated, a finding of fact is to be made not based on mathematical scales but an actual persuasion as to the existence of the fact in question including by reference to the preponderance of probabilities. Based on the totality of the evidence, I am satisfied that in or about early July 2025, Projector Films caused the MIFF to publish on its website that Mr Ngo was the sole director of the Documentary. For the reasons I have already addressed, that representation was misleading and deceptive and, accordingly, Projector Films contravened s 18 of the ACL.

1. The effect of the Second MIFF Representation is that Projector Films sought to cause the credits for the Documentary in the MIFF promotional materials to state "Directed By" David Ngo and "Director" Stephen McCallum.
2. In the result, this version of the Documentary was not screened by reason of the orders made by the Court on 6 August 2025. The respondents again submitted that the mere preparation of a version of a film which affixed credits did not amount to misleading and deceptive conduct. I reject that argument for the same reasons I have stated above. What was sought to be done was to convey a misleading impression as to who was the principal director of the Documentary in the screening at the MIFF. However, as this version of the Documentary was not ultimately screened, the alleged representation was not in fact conveyed. In those circumstances, I am not satisfied Projector Films in fact engaged in any misleading and deceptive conduct, as opposed to threatening to do so. I am satisfied that there was a threatened contravention of s 18 of the ACL. However, the applicants did not address me on what should flow from the threat alone and that is a matter that can be addressed in the further hearing as to remedies.

1. By the Third MIFF Representation, it was alleged that Projector Films caused promotional material to be published by the MIFF that referred to Mr Ngo having "helmed" the production of the Documentary. The parties did not address this allegation in any detail in their submissions. In any event, I am not satisfied that the word "helmed" conveyed that Mr Ngo was the principal director of the Documentary and that Mr McCallum was not. The word is equally consistent with the true position that Mr Ngo was the creator, producer, writer and likely showrunner of the Documentary. In those circumstances, I am not satisfied that Mr McCallum's case in relation the Third MIFF Representation has been established.

1. Mr McCallum's case in relation to the Screen Australia Representations is that Projector Films caused Mr Ngo to be identified as the director of the Documentary in agreements with Screen Australia dated 17 October 2023 and 23 January 2025.
2. The respondents denied these allegations and submitted that the contracts with Screen Australia were not made in trade or commerce as they were made in the course of dealing with a government body.
3. The facts are as follows.
4. On 17 October 2023, Projector Films entered into a Production Grant Agreement with Screen Australia (executed by Mr Ngo and Mr Joyce) in which Mr McCallum was described as the "Director", while Mr Ngo was described as the "Creator/ Writer/ Director/ Physical Producer". The relevant part of the document contains the following information:

1. However, the Agreement also contained a budget, which only included a director's fee for Mr McCallum and identified Mr Ngo as receiving a fee as a producer.
2. Putting to one side whether the conduct arose in trade or commerce, I am not satisfied that it was conveyed that Mr Ngo was the principal director or that Mr McCallum was not. In fact, a fair reading of the whole document suggests that Mr McCallum was identified as the principal director given that only he was recorded in the budget as the person to receive a director's fee.
3. Then, on 23 January 2025, Projector Films appear to have sought and obtained an "Activity Grant" of $20,000 for the purpose of funding the trip to attend the Sundance Film Festival. The "Activity" was identified as:

The Key People will attend the 2025 Sundance Film Festival to screen and market the Project.

1. It was submitted on behalf of Mr McCallum that he was not mentioned as one of the "Key People" and this was misleading. However, I do not accept that this is what was being conveyed. Rather, Projector Films was seeking a grant of $20,000 to enable the persons identified as the "Key People" to attend the Sundance Film Festival. That application had to be viewed in the context of the earlier documentation that had identified Mr McCallum as a director, and, indeed, the only person to receive a director's fee. To the extent that Mr Ngo was identified as a director, he was not identified as the principal director or the sole director. In those circumstances, I am not satisfied that any misleading or deceptive representation was conveyed.
2. It follows that I reject Mr McCallum's case in relation to the Screen Australia Representations. In light of the conclusion I have reached, it is unnecessary to determine whether the alleged conduct arose in trade or commerce.

1. Mr McCallum claimed that Mr Ngo was involved in Projector Film's contraventions within the meaning of 236 of the ACL. The particulars to the claim merely stated that Mr Ngo was a director of Projector Films and then repeated the same allegations of fact and law as made against that entity. The claim as framed in this way was entirely conclusory.
2. Neither Mr McCallum's written or oral submissions addressed how accessorial liability could be established against Mr Ngo in accordance with the principles enunciated in Yorke v Lucas [1985] HCA 65; 158 CLR 661 at 670 (Mason CJ, Wilson, Deane and Dawson JJ) and Productivity Partners Pty Ltd v Australian Competition and Consumer Commission; Wills v Australian Competition and Consumer Commission [2024] HCA 27; 281 CLR 338 at [82] (Gageler CJ and Jagot J), at [270] (Edelman J), and at [339] (Beech-Jones J).
3. The applicants made no effort to address how Mr Ngo had knowledge of essential elements of the contraventions. The position is unsatisfactory. In circumstances where the case was not addressed, I do not intend to do so. I reject the claim.

1. As set out above, the first aspect of Projector Films' Cross-Claim related to asserted breaches by Mr McCallum of cll 2.1(a) and (b) of the Director's Agreement, which overlapped with its defence to Mr McCallum's claimed breach of cl 9.1 of the Director's Agreement. For the reasons addressed above, I reject Projector Film's claims and accordingly, this aspect of its Cross-Claim should be dismissed.

1. Projector Films brought two claims against Mr McCallum in respect of alleged breaches of cl 7.1(c)(iv) of the Director's Agreement, which it described as a "non-disparagement clause". Clause 7.1(c)(iv) provides that:

7.1 [Mr McCallum]:

...

(c) Further warrants to [Projector Films] that he shall:

...

(iv) not act in any way as to bring the Documentary or the Producer adverse publicity or notoriety at any time during the currency of this document

1. Although the clause itself does not refer to "non-disparagement", Projector Films claimed that Mr McCallum had engaged in disparaging conduct towards the Documentary, Projector Films and Mr Ngo (as a company director of Projector Films) in two respects, which it claims had the effect of bringing "adverse publicity or notoriety" to Projector Films and the Documentary.
2. The first respect in which it is claimed that Mr McCallum disparaged the Documentary, Projector Films and Mr Ngo was by making, what it described as, the "IMDb Representation". It is claimed that in or about November 2024 and January 2025, Mr McCallum sent correspondence, or caused correspondence to be sent, to various third parties in which he stated that Projector Films and/or Mr Ngo had removed Mr McCallum's directing credit for the Documentary from the IMDb database.
3. The second respect in which it is claimed that Mr McCallum disparaged the Documentary, Projector Films and Mr Ngo was by making, what it describes as, the "Attribution Representation". It is claimed that in or about March 2024 to in or about June 2024 and then in or about November 2024 to in or about January 2025, Mr McCallum sent correspondence, or caused correspondence to be sent, to various third parties, in which he stated that Projector Films and Mr Ngo had, without justification, refused to attribute him as the sole director of the Documentary (or at all), and instead had falsely attributed Mr Ngo as a director of the Documentary.
4. As will become apparent, Mr McCallum was not himself the author of the communications that were sent to third parties. They were sent by either Ms Harper (Executive Director of the ADG) or Ms Islam (Mr McCallum's agent). There was a dispute between the parties as to whether the communications sent by Ms Harper were sent as Mr McCallum's agent. It was accepted that the communications sent by Ms Islam were sent as Mr McCallum's agent.
5. Before turning to address Projector Films' case, it is necessary to set out the relevant evidence.

1. On 27 November 2024, Ms Harper sent an email to Ms Deirdre Brennan (Ms Brennan) and Ms Grainne Brunsdon (Ms Brunsdon) at Screen Australia, and stated as follows:

Dear Deirdre and Grainne,

(cc Needeya Islam, Stephen McCallum's agent)

I wanted to make you aware of a of a serious and ongoing credit dispute between director Stephen McCallum and David Ngo (Projector Films), on the Screen Australia-funded documentary series Never Get Busted.

There is an issue of false attribution we've been working on for close to a year. The producer has (falsely in our view, and in conflict with the contract) claimed a directing credit, refusing to acknowledge Stephen as sole director. Greg Duffy of Frankel Lawyers is engaged for Stephen.

Following the project's selection for Sundance we are escalating the matter, given Projector Films' removal of Stephen's director credit from IMDB entirely this week.

I will be writing to SPA and the DGA today, as well as SAFC who also funded the production.

I am available should you wish to discuss.

1. Later that same day, Ms Harper then sent a similar email to Ms Kate Croser (Ms Croser) at the SAFC. Ms Leanne Saunders (Ms Saunders) from the SAFC responded on 5 December 2024, stating:

Thank you for making us aware of the situation, which we had no prior knowledge of.

We have been in touch with Screen Australia as well as the producer Daniel Joyce of Projector Film. We have let the producers know that you have been in touch with us, and that we await an update from them on resolving this dispute.

1. It was alleged that Ms Haper also sent an email to Mr Matthew Deaner and Mr Andy Barclay at Screen Producers Australia on similar terms to that which she had sent to Screen Australia and the SAFC. The fact that she had sent such an email was in a subsequent email she sent to Mr McCallum and his lawyer, copied to Ms Islam.
2. On 27 November 2024, Ms Islam sent an email to Ms Harding at Mind the Gap Film Finance, a financier of the Documentary, which stated:

I wanted to let you know that Projector Films have now removed Steve McCallum's name as director for NEVER GET BUSTED on IMDb pro.

The credit dispute has been a legal dispute for some months now and the producers have been refusing to acknowledge Stephen as sole director.

We are now escalating this, given Projector Films removal of Stephen's director credit entirely since the film has been selected for Sundance. The issue is one of false attribution so it's quite serious.

ADG is aware and very concerned about a producer falsely attributing themselves as the director of a project after the fact. Sophie Harper the Executive Director will be speaking with both Screen Australia and the DGA about this.

If there is anything Mind the Gap can do to help us sort out this very unfortunate situation, it would be greatly appreciated.

1. On 20 December 2024, Ms Islam sent an email to Ms Brennan and Ms Brunsdon at Screen Australia:

Dear Deirdre and Grainne,

I refer to the press release from Screen Australia below today regarding titles selected for Sundance.

https://www.screenaustralia.gov.au/sa/screen-news/2024/12-19-australian-titlessundance-2025

Please be aware that my client Stephen McCallum has filed a Statement of Claim in the Federal Court of Australia against Projector Films and David Ngo for:

- Failure to attribute (credit) Stephen McCallum as the Director in relation to the Documentary Never Get Busted including the version going to Sundance;

- Falsely attributing David Ngo as the sole Director of the Documentary; and

- Breaching the Director's Agreement by failing to give Stephen McCallum a 'Directed By' credit on the film and all publicity.

Stephen has directed every aspect of the Film and wishes to be credited fairly as per his statutory, moral and contractual rights as Director, as currently he is being deliberately omitted.

Could you please amend the press release and any other publicity so it accurately reflects Stephen's statutory, moral and contractual rights as Director?

1. Ms Brennan responded indicating that Screen Australia was aware of the matter and would consider its position when its office re-opened following the holiday break.
2. On 8 January 2025, Ms Islam sent an email to Ms Croser and Ms Saunders at the SAFC which was largely similar to the email she had sent to Screen Australia on 20 December 2024. Ms Saunders responded by thanking Ms Islam for the email and copied the Head of Marketing and Communications.

1. The first issue that requires determination is whether in relation to the communications Ms Harper sent, she was acting as Mr McCallum's agent.
2. An agency ordinarily means "an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties": International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16; 100 CLR 644 at 652 (Dixon CJ, McTiernan, Williams, Fullagar and Taylor JJ). In Scott v Davis [2000] HCA 52; 204 CLR 333, Gummow J (with whom Gleeson CJ relevantly agreed on this point) stated at [227] that there was "considerable terminological confusion" as to "agency" and repeated that "'agency' is best used ... 'to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties'". In NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558; 107 FCR 270, Lindgren J stated at [512]-[513]:

Terminological difficulties beset discussions of agency. Lord Herschell said, "No word is more commonly and constantly abused than the word 'agent'": Kennedy v De Trafford [1897] AC 180 at 188. Strictly speaking, apparent authority is no authority at all, but only an appearance of authority. Accordingly, a statement that "agency" necessarily involves "authority" immediately prompts the question whether the speaker means to refer to apparent authority as well as to actual authority. One could say that apparent authority, in the absence of any actual authority at all, gives rise only to an "apparent agency", reserving the notion of a "true" or "actual" agency for cases where at least some actual authority is present. On the other hand, one could use the word "agency" to refer to a legal construct that is brought into play whenever actual authority or apparent authority or both exist "in the real world". According to this approach, one could say that agency exists where A has "power" to affect P's legal relations with TP, as A will, so long as actual authority or apparent authority is present.

There is a distinction between commercial and legal usages of the term "agent". A manufacturer's distributor may be referred to commercially as the manufacturer's "agent", but if all the distributor does is to sell in its own right goods that it has bought from the manufacturer, in law it will not be an agent of the manufacturer and will not bring the manufacturer into legal relations with the end-purchaser: International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16; (1958) 100 CLR 644 (see at [584] below).

(Original emphasis.)

1. The respondents' contentions were beset with the terminological conundrum. The respondents' contentions did not involve seeking to establish a "true" agency but sought to propound a form commercial usage of the term to establish that Ms Harper was either acting on Mr McCallum's behalf on the basis of an express or implied agency when she sent the relevant communications.
2. It was common ground that the ADG is a union and that Mr McCallum is one of its members. There have been historically a series of limitations identified with the application of the principles of agency when addressing whether a union has the authority to enter into or affect the legal rights and obligations of its members, especially in the context of collective bargaining: eg see Ryan v Textile, Clothing & Footwear Union of Australia [1996] VicRp 67; [1996] 2 VR 235; 66 IR 258 (Brooking, Tadgell and Hayne JJA).
3. However, putting to one side all the many legal issues that create significant obstacles to the respondents' case, the facts do not bear out that Mr McCallum either expressly or impliedly authorised Ms Harper to make the representations that she did in November 2024.
4. Much earlier in the year, Mr McCallum had sought out the ADG's assistance in the credits dispute that had emerged. On 5 March 2024, Mr McCallum emailed Ms Harper asking for an update regarding whether the ADG's legal advisors had looked into his case. There is nothing in that email chain suggesting that Mr McCallum was giving the ADG any general authority to communicate on his behalf with third parties. Then, on 2 May 2024, Mr McCallum followed up Ms Harper again asking for an update as he had not heard from her for "nearly two months". He asked for some "reassurance and clarity about the ADG's promise and dedication to help defend [his] rightfully earned directors credit going forward". Ms Harper promptly responded, apologising for the delay and stating that a specialist advisor was reviewing Mr McCallum's case. She then stated that, "Please be assured that your case is a priority for us. I am committed to ensuring directors are not left to fight alone and that their rights are staunchly defended". She responded a few days later stating that the advice she had received was for a "cease and desist letter" to be sent from the ADG in the first instance.
5. On 5 June 2024, Ms Harper sent an email to Mr McCallum and Ms Islam in which she said, "I think we all agree that it would be preferable to lean on the producer to behave in a way that is respectful to directors...". That was a position she conveyed at this time.
6. The impugned letters to Screen Australia, the SAFC and Screen Producers Australia were sent months later at the end of November 2024. There is no evidence of any communication from Mr McCallum to Ms Harper in November 2024 which authorised these communications or that he had given Ms Harper a general authority (either express or implied) to communicate on his behalf, let alone that that Mr McCallum approved their content. There is evidence that Ms Harper informed Mr McCallum that those communications had been sent after the fact, but not that he had authorised them before the fact.
7. On one view of the evidence, Ms Harper's communications to Screen Australia, the SAFC and Screen Producers Australia were advocating the rights of a director, Mr McCallum. The respondents have not established that such advocacy was done as an agent of Mr McCallum, even if it was supportive of his interests.
8. I reject the contention that there was an actual or implied agency that arose by which Ms Harper had a general standing authority (including ostensible authority) to send communications on Mr McCallum's behalf. The communications in May 2024 were seeking the ADG's support and legal assistance. Those communications resulted in the ADG agreeing to send a cease and desist letter to Projector Films. The subsequent communication in June 2024 was one in which Ms Harper expressed concurrence that it would be preferable to lean on the producer but stopped well short of establishing that there was thereby a general implied authority to send communications on Mr McCallum's behalf to other third parties. The respondents have failed to discharge their onus of establishing an agency in respect of these later communications.

1. It is next necessary to consider the communications sent by Ms Islam. It was accepted that these communications were sent by Ms Islam as an agent of Mr McCallum.
2. The first of those communications was dated 27 November 2024 from Ms Islam to Ms Harding at Mind the Gap Film Finance. In that email, Ms Islam stated that Projector Films had "removed Steve McCallum's name" from the IMDb website as being associated with the Documentary. The email further informed Ms Harding that the dispute had been ongoing for some months and that the producers had been refusing to acknowledge Mr McCallum as "sole director". She asserted that the issue was one of "false attribution" and was serious, and stated that "[i]f there is anything Mind the Gap can do to help us sort out this very unfortunate situation, it would be greatly appreciated".
3. I am satisfied that by this email, Mr McCallum caused it to be communicated to a third party that Projector Films had been responsible for removing his name altogether from the IMDb website and were refusing to give him attribution as sole director.
4. The question that arises is whether by doing so, Mr McCallum acted in a way to "bring" the Documentary and Projector films "adverse publicity or notoriety". The respondents did not address what those words meant. It is important to bear in mind that despite the respondents' characterisation of cl 7.1(c)(iv) of the Director's Agreement as a "non-disparagement" clause, it does not in fact use those words. Despite this, the respondents assumed that so long as it could be shown that the relevant communications disparaged the Documentary, Projector Films or Mr Ngo, it led to a breach of cl 7.1(c)(iv). If that was correct, then Mr McCallum would be in breach of the clause if he disparaged Mr Ngo or Projector Films to his family. In the context of the present dispute, that would be a patent absurdity.
5. Clause 7.1(c)(iv) requires something other or more than disparagement. In a different context, McDougall J in Fermiscan v James [2009] NSWSC 546 considered the meaning of a clause contained in a deed of release by which one party agreed not to "disparage, or make statements that might tend to injure or damage, [the other party's] reputation or standing, their businesses, or their diagnostic tests, or the reputation, standing, ability or capability of any of their directors, officers or employees". His Honour observed at [105] that the dictionary meaning of "disparage" is to "to speak slightingly of; deprecate" or to "bring discredit on". His Honour further held at [108] that, "as a matter of language, one would not ordinarily be said to disparage the business, reputation or products of another unless one used language intended or calculated to achieve that result".
6. Turning to the words actually used in cl 7.1(c)(iv), what they seek to proscribe is Mr McCallum acting in any way so as to "bring" about a particular result. The result is "adverse publicity or notoriety". Projector Films further submitted that it did not need to prove that adverse publicity or notoriety did in fact result from the representations, but that the Court could readily infer that the communications must have brought adverse publicity and notoriety to Projector Films. It was said that the communications did "hit home" given that some of the recipients responded and may have also repeated the allegations to many others. It was also submitted that it was not strictly necessary to establish that the representations were untrue, but that they were nevertheless untrue. I do not accept these submissions. The word "bring" as used in the clause indicates the necessity for a causal relationship between the act and the result (i.e adverse publicity or notoriety). Whilst I accept the proscription applies to Mr McCallum "acting" in a way that has that effect, there needs to be some evidence as to the connection between the act and the effect.
7. The word "adverse" generally means "antagonistic in purpose or effect", "opposing one's interest or desire" or "opposite; confronting" (Macquarie Dictionary Online). In context, I consider that the word adverse means "negative"; that is, negative publicity or negative notoriety. The Macquarie Dictionary Online defines the word "publicity" as follows:

1. the state of being public, or open to general observation or knowledge.

2. public notice as the result of advertising or other special measures.

1. the state of being brought to public notice by mention in the mass media, or by any other means serving to effect the purpose.

4. the measures, process, or business of securing public notice.

5. advertising matter, as leaflets, films, etc., intended to attract public notice.

1. Each of these different meanings emphasises a "public" element.
2. The word "notoriety" means:

1. the state or character of being notorious or widely known: a craze for notoriety.

2. a widely known or well-known person.

(Original emphasis.)

1. This suggests that the focus of the word is on the character or standing of a person.
2. However, as with the process of statutory construction, the process of construing a contract does not turn on dictionary meanings. The question is one of context and one which does not require each word to be parsed, but to be read as a whole.
3. The obligation imposed on Mr McCallum is found in an agreement between a producer and director for the making of a documentary that it is hoped will be screened to audiences locally and worldwide. That context is important. It is also important that the obligation applies "during the currency of this document"; in other words, it applies whilst the director is engaged as a director in the making of the Documentary. That context supports a conclusion that what the clause imposes is an obligation that prevents Mr McCallum from, during the currency of his appointment as a director, acting in a way that draws or creates negative publicity to the Documentary or Projector Films, or casting them negatively so as to diminish their standing.
4. It is necessary to consider the conduct by reference to its effect on the Documentary separately to its effect on Projector Films.
5. Turning to the Documentary, I am not satisfied that Ms Islam's email had the effect of bringing negative publicity to or diminishing the standing of the Documentary. Nothing was said about the Documentary itself or its quality so as to have that effect. Further, I do not accept that the single communication to Ms Harding had the effect of bringing negative publicity to the Documentary, especially given that Mind the Gap Film Finance was a financier. I am not satisfied that the identification of a credit dispute to one of the financiers was an act that bought negative publicity to the Documentary.
6. The position is different in relation to the effect on Projector Films. Ms Islam's communication to Ms Harding at Mind the Gap Film Finance stated that Projector Films had "removed" Mr McCallum's name as a director for the Documentary from the IMDb website and it also stated that Projector Films was refusing to acknowledge Mr McCallum as the "sole director", which had given rise to an issue of "false attribution". These statements were not being made in the context of legal letters articulating a legal position but were sent by Mr McCallum's agent to a financier of the Documentary. The content of the communications conveyed that Projector Films was a company that had engaged in conduct that did not recognise the creative contribution of Mr McCallum. Even if the allegations were true (noting that I am not satisfied that Projector Films had removed Mr McCallum's name from the IMDb website), the making of those statements were acts that were bound to diminish the standing of Projector Films in the eyes of its financier. That is because the communication conveyed that Projector Films was an organisation that had taken a positive step to remove any reference to Mr McCallum from being recognised as a director on a public website. It was suggestive of the fact that Projector Films was being dishonourable. I am satisfied that by acting in this way (through his agent) Mr McCallum brought adverse notoriety to Projector Films in breach of cl 7.1(c)(iv) of the Director's Agreement.
7. The next email sent by Ms Islam was on 20 December 2024, addressed to Ms Brennan and Ms Brunsdon at Screen Australia. In that email, Ms Islam drew attention to the fact that Screen Australia had published a press release on its website relating to the Documentary and that Mr McCallum had that day commenced proceedings in this Court. Ms Islam's email requested that the press release be amended to reflect Mr McCallum's statutory, moral and contractual rights as a director. The email asserted a legal position in the context of legal proceedings that had been commenced and sought a correction to a press release having regard to that position. The final email sent by Ms Islam on 8 January 2025 was addressed to Ms Croser and Ms Saunders at the SAFC was similarly worded. It requested that any press releases or other publicity issued by the SAFC reflect Mr McCallum's statutory, moral and contractual rights as a director. Again, the email asserted a legal position. I reject the respondents' contention that these emails drew adverse publicity to the Documentary or Projector Films, or diminished their standing. Rather, the communications were clearly sent in the context of extant legal proceedings to assert and maintain a legal position.
8. It follows that I have upheld one part of Projector Films' Cross-Claim asserting a breach of cl 7.1(c)(iv) of the Director's Agreement but rejected the rest.

1. Projector Films also brought claims under State-based consumer laws in respect of the IMDb and Attribution Representations. It claimed that Mr McCallum made or caused the representations to be made, in trade or commerce, and that his conduct was misleading or deceptive, or likely to mislead or deceive, because both representations were false: ASOCC [29]-[31] and [34]-[36]. Projector Films claimed that, as a result, Mr McCallum contravened s 18 of the ACL as applied by the Fair Trading Act 1987 (NSW) (ACL (NSW)), the Fair Trading Act 1987 (SA) (ACL (SA)), and/or the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACL (Vic)).
2. These claims relied on the same evidentiary basis as the non-disparagement claims, being the communications sent to third parties by Ms Harper and Ms Islam.
3. In so far as the claims relied on the communications sent by Ms Harper, I reject them. The respondents have not established that Mr McCallum engaged in that conduct. The respondents submitted that Mr McCallum had nevertheless been "involved" in making the representations. However, that is not what is pleaded in the ASOCC at [29] and [34], where it is claimed that Mr McCallum made the representations or caused them to be made. The Cross-Claim advanced no case of accessorial liability and I reject the contentions to the contrary.
4. In so far as the claims relied on the communications sent by Ms Islam, these fail as the respondents have failed to establish that they were made in trade or commerce. The emails were sent by Ms Islam, as Mr McCallum's agent, to Screen Australia, the SAFC and Mind the Gap Finance. As noted above, the reach of s 18 of the ACL as applied by the ACL (NSW), ACL (SA) and ACL (Vic) is limited by the use of the preposition "in": Concrete Constructions at 604.
5. Mr McCallum is not a corporation, but the question remains the same: were the communications made in the course of his trading or commercial activities?
6. The respondents relied on the decisions in Seafolly Pty Ltd v Madden [2012] FCA 1346; 297 ALR 337 at [81]- [83] (Tracey J) and Infa-secure Pty Ltd v Crocker (No 3) [2018] FCA 605 at [47], [58], [59] (Reeves J). However, neither of those cases is on point. As Reeves J pointed out in Infa-secure at [47], [58] and [59], both that case and Seafolly were instances of a corporation making communications with third parties seeking to injure the interests of a trade competitor.
7. The communications here may have related to Projector Film's trading and commercial activities, but it was not explained how they related to Mr McCallum's trading and commercial activities. Met with this contention, the respondents submitted "There is no reason that a misrepresentation needs to give rise to a trading or commercial relationship between a person involved in the conduct and the recipient of the misrepresentation". The submission misses the point. It needs to be established that in engaging in the conduct, the representor is doing so in the course of his or her trading or commercial activities. The respondents may have been able to better articulate the point, but they did not do so. They have not satisfied me that the relevant conduct occurred in trade or commerce.
8. Accordingly, I reject this aspect of the Cross-Claim.

1. In addition to the above claims, Projector Films alleged that it is entitled to be indemnified under the Director's Agreement in respect of Mr McCallum's breaches of that Agreement. However, I have only found one aspect of its claim to be upheld. Projector Films did not articulate what indemnity it would be entitled to in respect of the different claims it had advanced. As the claim has not been properly articulated at this stage, I will invite the parties to address it as part of their respective submissions on remedies.

1. In light of the findings I have made as to liability, I will invite the parties to confer and provide me with consent or competing short minutes of order as to what orders should be made at this stage of the proceedings, and to otherwise progress the matter to a hearing on the question of relief, remedies and other orders.

I certify that the preceding nine hundred and eighty-one (981) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.