copying
49 The genesis of the format that led to the production of The Block is given in detail in the affidavits filed by Barbour and Cress and the exhibits to these affidavits.
50 At all relevant times, Barbour and Cress were experienced television executives at Nine. From about June or July to September 2001, Barbour and Cress worked together on Rescue Me, a pilot that went to air as occasional segments on A Current Affair. From about January 2002, the pair worked together on a renovation infotainment program produced and broadcast by Nine entitled Changing Rooms. As the name indicates, "infotainment" programs convey information in a way designed to attract an audience by entertaining them. In the present case, I consider that the emphasis in The Block, when compared with Dream Home,is far more on entertainment than information.
51 Prior to the production of The Block in 2002 and 2003, Barbour and Cress, along with other members of the senior production staff at Nine, were involved in pitching new program proposals to the program executives at Nine. Cress says that the process of pitching a new program involves coming up with a concept for a new program and attending meetings to describe the program format and structure, the 'look and feel' of the program and the way in which it would develop over the course of the series in order to persuade the program executives to produce the program. This process requires the brainstorming of concepts and the shaping of a proposal into a form where it can be pitched to the executives at Nine.
52 Barbour said that as from 2000 onwards he did not think that Nine would make a second series of Dream Home. This was his continuing expectation thereafter. The first series did not suit its timeslot and it had not been an "outrageous success". In May/June 2002, Barbour did not consider that there was any urgency in relation to the production of Blockbuster as a consequence of anything concerning the Dream Home program or the production of a second series.
53 Barbour said that he did not set out to make an episodic show like Dream Home in May/June 2002. When asked in cross examination, Barbour strongly denied that his intention in May/June 2002 was, in any way, to dislodge the possibility of Nine broadcasting a second series of Australian Dream Home in the important 6.30 pm Sunday timeslot. He also denied in cross-examination that he had appropriated the best features of Dream Home but had failed to disclose this to Cress in their discussions regarding the development of the format for The Block.
54 There is nothing in the evidence to support the submission by counsel for Ninox that Barbour's denials should be rejected. I accept that Cress and Barbour wanted to quickly develop the format of the new program, then known as Blockbuster,as a consequence of concentrated brain-storming sessions in which they engaged, and I do not consider that the speed with which the program was formulated was due, so far as they were concerned, to any pressure caused by an impending possible further production of Australian Dream Home. I also accept that Blockbuster was not created to "fill a hole" in the television market caused by the decision of Nine not to produce a second series of Australian Dream Home, as renovation shows were both popular and fashionable at that time.
55 During their work together on Changing Rooms, Barbour and Cress also collaborated to develop and pitch new programs. On 24 May 2002, Barbour and Cress began to develop and formulate the concept for The Block. They exchanged ideas and discussed aspects of programs that they considered had been successful, such as Melrose Place, Big Brother, Sylvania Waters and Changing Rooms. Other programs taken into account on the evidence were Survivor, Renovation Rescue and Location, Location. The evidence of Barbour and Cress was that they considered that, along with other features, these programs involved attractive young characters and their interactions, human drama with arguments between protagonists and situations involving renovating and tensions arising from the imposition of time limits and a budget, together with game playing formulation of alliances such as in "Survivor" and tensions being created during auctions. The emphasis in these programs was seen to be on the interaction and dramatic tension between the individuals, including conflicts of personalities and positions, against a variety of backgrounds. In the case of The Block, the background was renovation.
56 A note relating to the discussions between Barbour and Cress on 24 May 2002 is in evidence and includes the following:
"Combination of 'Living with the Builders', 'Location, Location', 'Big Brother', 'Survivor' and 'Sylvania Waters'. What happens when you combine the best elements of each??"
57 In cross-examination, Barbour said that Dream Home only came up during his discussions with Cress on 24 May 2002 in terms of "things of what not to do". Barbour said that there were a lot of programs that he didn't consider and Dream Home didn't enter his thought process at the time as it wasn't a strong program to work off.
58 Barbour and Cress prepared a glossy A3 pitch document, which outlined key elements of Blockbuster including a set of rules, and worked out a basic version of a format for presentation to Nine executives. Barbour and Cress presented the proposal to Meakin, who reacted positively to the proposal. They then prepared a budget and the program was approved for production by about mid-June. A property in Bondi was used for series one of The Block. This property was purchased in late June or July 2002 for $1.195 million. The second series involved a property in Manly.
59 The program concept that Barbour and Cress developed as Blockbuster was, according to them, inspired by a few highly successful programs of the past. Nine asserts that The Block was quite different from other programs that had gone before it. It was seen by Barbour to be a pioneering program in the sense that it was a cross-genre program combining elements of drama, reality television, and life-style or renovation programs, as well as elements of a game show format. Nine's case is that The Block was an original and pioneering concept and that this led to its enormous success, which was manifested in the form of unparalleled ratings, great public interest, and Nine's subsequent ability to license it overseas. Barbour and Cress deny any suggestion that, in developing the concept for The Block,they copied Dream Home in any way and they say that the production was the result of original creative efforts on their part.
60 In cross-examination, Cress said that he had not seen an episode of Dream Home at the time he created The Block and stated that he had never seen the "Dream Home Bible". The evidence of Cress was not diminished by cross-examination.
61 The contemporaneous working documents of Barbour and Cress are supportive of The Block being the result of independent creative efforts. As noted, there are references to several other programs being models for the format and production of a new program, comprising those that I have mentioned above. In their evidence, Barbour and Cress explain why and how those programs were used as reference points. The more detailed document created by Barbour and Cress after 24 May 2002, which came into existence on about 28 May 2002, contained references to the type of dramatic show that Barbour and Cress wanted to create and the rules and structure of the program then contemplated. Aside from references to the other dramatic sources that Barbour and Cress regarded as useful, such as Melrose Place, Big Brother and Survivor, there are references in that documents to fights, tantrums, joy and despair, competition, manipulation, deal-making and back-stabbing, four attractive and determined young couples who will watch the fireworks explode. These features reflect the emphasis on dramatic inter-couple tensions as the main theme rather than the detailed practical steps of the renovation process.
62 In the course of the cross-examination of Barbour and Cress, counsel for Ninox closely explored the reason why there was no reference in the development notes or pitch meetings for The Block to programs such as Dream Home,having regard to the fact that it was an obvious reference point because it was a competitive renovation program. This point assumed considerable significance in the case as presented for Ninox. Ninox saw a central question as being the Court's assessment of whether Barbour was consciously or unconsciously drawing on his unrivalled knowledge in Australia of Dream Home and all that it entailed, in the formulation and production of The Block.
63 Ninox accepts that Cress gave his evidence honestly but stresses the fact that Cress knew very little about Dream Home. Ninox refers to the evidence that when the 'pitch' document for Blockbuster was composed in late May 2002 for the purpose of presentation to Meakin, it was Cress who raised Dream Home as a suggestion, for comparative purposes, which was then immediately dismissed by Barbour. It is submitted for Ninox that this is highly significant because it indicates that the absence of any reference to Dream Home in the 'pitch' document was brought about by Barbour's refusal to continue the discussion in respect of Dream Home, which,in turn, evidences an intention on the part of Barbour to use Dream Home as a source and to conceal that fact. This line of argument attributes to Barbour a degree of foresight and deviousness that is not supported by the evidence. The handwritten notes taken by Cress on 24 May 2002, which do not refer to Dream Home, are, in my view, supportive of the conclusion that Dream Home was regarded as irrelevant by Barbour and Cress. The notes do not give rise to any reasonable inference that reference to Dream Home was deliberately suppressed by Barbour.
64 In cross-examination, Barbour agreed that, as at 24 May 2002, he thought that the structure of Blockbuster would include some introductions, some quotes, choice of builders and a series of episodes in which renovation would take place, culminating in the completion of the whole of the apartments and the commencement of the marketing of the apartments.
65 In written submissions, counsel for Ninox refers to the evidence of Barbour and stresses the apparent haste with which the 'pitch' document was prepared for presentation to Meakin after 24 May 2002. The evidence indicates that Barbour and Cress began formulating the format of Blockbuster on 24 May 2002 and then prepared a 'pitch' document, which they provided to Meakin on 28 May 2002. Ninox says that the most likely explanation for this haste was that Barbour knew that Nine was considering running a second series of Australian Dream Home at 6:30 pm on Sunday, which is a timeslot of prime importance, and wanted to formulate a program based on Dream Home which would have the effect of undermining the Ninox's efforts to negotiate a further series of Australian Dream Home with Nine.
66 Counsel for Ninox submits that the explanation of Barbour for not referring to Dream Home as a source of inspiration in the notes and documents relating to the development of The Block was not credible, especially as Barbour was the person at Nine who knew the most about Dream Home. Counsel says that absence of any reference to Dream Home strongly indicates that Barbour wanted to disguise the reality that Dream Home was, in fact, a major source of inspiration and the 'pitch' document was calculated to conceal Barbour's true intention, namely, to make a program which was a thinly veiled copy of Dream Home with all that program's central characteristics, from Cress and Meakin. It is said by Ninox that Barbour accepted, after initial evasion, that Dream Home was the only series that, prior to the development of Blockbuster,had followed the efforts of contestants to renovate a complete property with a winner at the end of the series. However, in my view, this evidence, having regard to its generality, does not provide any basis for a finding of concealment by Barbour or a finding that he derived his inspiration from Dream Home in any way.
67 In addition, it is said by counsel for Ninox that, with the exception of the requirement that the contestants should live on the premises throughout the renovations, The Block reproduced the structure of Dream Home as it was understood by Barbour in May 2002. Ninox submits that the evidence of Barbour in cross-examination in seeking to draw a number of distinctions between the two programs was unconvincing. The submission was made that I should reject the evidence of Barbour as to whether any use was made of the Dream Home format in preparing the format and production of The Block. I do not accept that submission.
68 When Barbour was asked in cross-examination to explain why Dream Home was not included as one of the stated programs for consideration when he and Cress formulated The Block, the following exchange occurred:
"Q: How could you conceivably have not included Dream Home which was a renovation show with the closest structure to what you were proposing.
A: Well, there's a lot of shows that I didn't consider for the same - you know, for whatever reason, and that being that - you know, it didn't enter my thought process at the time. It wasn't a strong program to work off.
…
As I've stated in my affidavit, the only conversation I had with Jules [Cress] about Dream Home was that the idea of a clear winner/loser was not attractive; the idea of having experts was not attractive; and the idea of having team colours to depict teams was not attractive.
….
Q: And it's no surprise, I would suggest to you, that you did not mention to Mr Cress Dream Home in this meeting, because anything that was linked with Dream Home could not succeed in outflanking it for the 6.30 timeslot that was open.
…
A: That's complete rubbish."
69 Both Cress and Barbour impressed me as frank and reliable witnesses and I accept their evidence in all material respects. In particular, I accept the statement of Cress in cross-examination that he had not watched any episodes of Dream Home by early 2002 and knew only a little about the program, and also the evidence of Barbour that he did not raise Dream Home as a source of comparison or inspiration for Blockbuster with Cress because he believed that it was not a strong program to work off. I also accept Barbour's evidence in chief and in cross-examination as to the differences that he perceived in May 2002 between the formats of Dream Home and The Block, which placed particular emphasis on the fact that participants in The Block were required to live on the premises throughout the course of the renovations, thereby strengthening the tensions and dramatic interactions between the couples. Barbour saw these tensions and interactions as a key feature of The Block, which would enable the audience to relate to the participants as a realistic portrayal of living in a site under renovation, with all the traumas and drama that situation generates.
70 I reject the submission that there was any copying, conscious or unconscious, of any substantial part of the Dream Home format, Bible, broadcast or production.