Consideration
105 Since Foxworth challenges the basis of the primary judge's findings in favour of Rampton that he did not set out to copy the PSU Mark II nor instruct Rapley to do so, it will be necessary to consider the findings of the primary judge and the evidence in a little detail.
106 The primary judge's findings are these.
107 As to the conduct of the parties in relation to the design, construction and installation of the PSU:
[82] My findings on this aspect of the matter are as follows. Kemp and Power decided to build a machine in the form of two tubes connected at right angles through which bark was to be moved by means of separate but synchronised augers in each tube after Kemp was told of this arrangement and its benefits by Connick and Rampton. Connick in Rampton's presence and/or Rampton told Kemp that such a steaming tube arrangement would permit a higher level of production and would confer benefits in terms of: increased temperature, water and heat retention and more consistent saturation of the bark.
[83] In the course of development of the prototypes and the PSU Rampton supplied information to Kemp and/or Power which was used for the purposes of design and construction. That information included advice as to the quantities of dolomite to be added, the desirable temperature range and length of boiling time required. Neither Connick nor Rampton, however, had any other material input into the engineering design of the PSU apart from the one matter referred to by Connick in his evidence. Kemp did not look to Rampton or Connick for any engineering design assistance as he went about designing and constructing the PSU based on the concept provided by Connick and Rampton and neither Connick nor Rampton volunteered any material assistance in relation to the engineering design of the PSU after being informed of Kemp's plans.
108 Having reviewed the evidence of Power, Kemp and Rampton on a range of matters, the primary judge expressed a 'lack of confidence in the reliability of Power's evidence' [104]; concluded that Kemp was a 'partisan witness, anxious to avoid making concessions' [105]; and as to Rampton, concluded:
[106] Rampton's evidence, to my mind, was general and more plausible than Power's. It tended to coincide more nearly with objective probability and received more corroboration in important respects from other witnesses than did Power's evidence. Rampton presented as much less sophisticated than Power. He was also less articulate and less able to handle the stress of cross‑examination. He is not a man given to precision of thought or expression. I gained the impression from his and other evidence, that, with a better understanding of the issues in the case, he could have given more detailed evidence of the precise information of a confidential nature disclosed during the licence period. Rampton's recollection was shown by skilful cross‑examination to be wrong in a number of significant respects and I have treated his evidence with caution.
109 As to Rampton's evidence concerning the development of the PSU Mark III and the further patent application, the primary judge noted these matters:
[99] He [Rampton] made some rough concept drawings, unassisted by measurements or images of the PSU. He then had a drafting service prepare some drawings. In the course of that process, he would sit with the person preparing the drawings by means of a computerised drawing system and advise alterations. That process led to the production of 'dimensional scale drawings' on 9 May 2002. In that month, Rampton instructed patent attorneys to prepare a provisional patent application in respect of the replica PSU and a provisional application was lodged on 22 July 2002. An international patent application was also made on 22 July 2002.
[100] In February 2003, Rampton engaged Robert Rapley, the proprietor of an engineering firm in Maryborough, to construct a replica PSU based on the drawings obtained in May 2002. Construction took about four months and, when completed, the replica PSU incorporated some features which Rampton devised in the course of its construction. One is a gravity feed drainage system. The replica, in Rampton's opinion, is superior to the PSU in a great many respects. The differences between the PSU and the replica are critical to the resolution of the plaintiff's copyright claim … .
[101] Rapley said that the drawings given to him by Rampton were not of much assistance in the manufacturing process as they lacked measurements and other necessary details. The necessary measurements and specifications were supplied by Rampton in the course of many visits to Rapley's premises and also over the telephone. When at Rapley's premises, Rampton often sketched designs on scraps of paper or on the floor with chalk. Often information of this nature was given from memory or after calculations made on the spot by Rampton.
[102] Before constructing the replica, Rapley had some familiarity with the modified PSU. In early 2002 when Rampton was carrying out extensive work on it he asked Rapley to examine the flights at the end of the augers with a view to re‑designing and strengthening them to avoid any further collapse. Rapley advised in that regard. He also visited the Maryborough property on two or three occasions during the construction of the replica. On one such occasion he inspected the modified PSU in the presence of Rampton and Rohan Hatfield, the sales representative for a supplier of motors and drive systems.
[103] Rapley swore in his affidavit, which became part of exhibit 17, that when Rampton first came to see him he said he wanted a direct drive system. The point of the inspection, according to his affidavit, was to look at the modified PSU 'to better understand how it was driven and what the requirements and specifications for a direct drive mechanism' would be. During this visit, also according to the affidavit evidence, Rampton explained that he wanted a different direct drive mechanism and that he left it to Hatfield and Rapley to devise such a system. He said that on that inspection, he did not take any measurements, photographs or other images of the replica PSU.
110 The primary judge further concluded at [103] that:
Despite a concession made by Rapley in cross‑examination, I consider it probable that when regard is had to all of his evidence that Rampton did not ask him at any time to copy the PSU's drive mechanism.
111 Having discussed other aspects of the development of the Kemp drawings and Rampton's development of the PSU Mark III (to be discussed shortly), his Honour made these findings:
[241] I find the evidence of Rampton and Rapley as to the way in which the replica PSU was designed and constructed to be broadly accurate. It shows that Rampton did not set out to copy, even though he was familiar with the modified PSU. He wanted to improve the design wherever possible and to incorporate in his design, features thought of by him.
[242] For the above reasons, I find that the plaintiffs [the Foxworth interests] have not succeeded in showing that Rampton copied the modified PSU (let alone the PSU) or that there is substantial similarity between the replica PSU and the plans on which the plaintiffs rely. I greatly doubt also whether there is substantial similarity between those plans and the PSU. The replica PSU is not a three‑dimensional reproduction of the Kemp plans or any of them.
112 As to Connick's evidence, the primary judge found that 'Connick is a person of integrity who took care to have included in his affidavits his best recollection of what had transpired' [66]. The primary judge found Connick's recollection to be generally supportive of the account given by Rampton. As to that, Rampton and Connick in the early 1980's discussed the concept of transporting bark through processing equipment by means of two augers positioned at right angles which Connick described as 'the steaming tube concept'. In 1996, after Rampton recognised the potential to use the waste product of orchid bark production as potting mix or peat substitute, Rampton and Connick again discussed the potential of the steaming tube concept. At that time the prospect that the movement of material by augers might further break up bark particles was not a concern in relation to those two products. After lengthy discussion of the method, Rampton chose, at that time, to adopt the 'big tub' process rather than the steaming tube concept on grounds of cost and convenience [59] and [60]. On those occasions when a need to increase production of peat substitute and potting mix were discussed, Connick told Kemp of the steaming tube concept and in particular the dual auger idea including Connick's opinion that it would permit a higher level of production and was the preferred design if orchid bark was not being produced [61]. Moreover, Connick produced drawings and in particular a drawing described as 'MLC1' which was the only drawing Connick had retained. The primary judge found that although Connick, a man aged 90, was unsure of certain things and in particular the specific occasion on which he produced Drawing 'MLC1', the primary judge accepted, consistent with his findings as to Connick's integrity, that Connick did drawings of the steaming tube and dual auger concept from time to time in Kemp's presence and had discussions with Kemp about them.
113 These findings underpin the conclusions at [82] and [83].
114 The findings of the primary judge as to the relationship between Polwood and Foxworth are central to the conclusion that Rampton did not set about a course of copying the PSU Mark II or instructing others to assist him in the copying of the PSU Mark II. Rampton and Connick had experienced a long engagement with the foundation concept and although Kemp was responsible for an inventive design and engineering of a working sterilising unit, Rampton was determined to continue to develop the ideas inherent in the apparatus and improve it. No inference ought to be drawn of an intention to copy simply by reason of Rampton's opportunity to copy the PSU Mark II or the entirely unsurprising consequence that the PSU Mark III contained an alignment of fluidly connected and synchronized augers in tubes connected at right angles through which bark would be moved taking account of optimised temperature ranges, water and heat retention and such matters.
115 At [82], the primary judge found that the apparatus Kemp and Power decided to build in the form of two tubes connected 'at right angles' occurred 'after Kemp was told of this arrangement and its benefits' by Connick and Rampton. That is not to say that Kemp and Power's contribution was not inventive. Plainly, it was. The contribution ultimately of Kemp was to conceive, design, build and implement through the expenditure of 'much time, energy and inventive skill' in an inventive way, the assembly of features which produced an operational apparatus deploying the method disclosed by Rampton and Connick [215]. That apparatus was subsequently modified by Rampton.
116 As to the elements of the copyright claim itself, there is no challenge to the authorship of drawings by Kemp; the subsistence of copyright in particular drawings (and notably Workshop Drawing 15); the ownership of the copyright in Peachester Thoroughbreds Pty Ltd; the formulation by the primary judge of the qualitative test for determining substantiality in assessing reproduction of the work (S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1995) 159 CLR 466 at 474 per Gibbs CJ) or the adoption of the non‑expert test for determining whether the PSU Mark III is a three‑dimensional version of the relevant two‑dimensional drawing(s). Rather, Foxworth says the application of these tests has miscarried having regard to the evidence of substantial similarities coupled with the notion that the information conveyed by Power enabled 'a competent engineer to produce a machine very similar if not identical to the PSU and replica' (Dr Grigg's commentary upon Dr Gilmore's report).
117 As to the similarities, the position is this.
118 Kemp produced a series of drawings numbered 1 to 26 (para 92, affidavit Robert Charles Kemp sworn 1 November 2005; drawings at Item 61, AB Volume 3). Kemp was anxious not to disclose meaningful coherent detail of the PSU in most of these drawings so as to avoid any possibility of copying of the PSU by those who might see any particular drawing. A number of the drawings were prepared to enable quotes for components to be given and the drawing reflects a part or sectional view of parts of the PSU. As to these matters, the primary judge said this:
[233] Kemp produced some 20 drawings on which the plaintiffs relied. Many of them were quite rudimentary and conceptual in form. Some of them depicted features which did not appear in the PSU as constructed or as modified. Six of the drawings were prepared after the installation of the PSU on the Maryborough property. They are irrelevant. There is a further difficulty in that the evidence does not establish that the PSU was constructed by reference to many of Kemp's drawings. Kemp gave evidence to the effect that he was at pains to ensure that the drawings produced by him were not such as to enable the PSU to be copied by a person who had gained access to them.
[234] According to him his drawings were prepared on 'a need to know basis' to enable him to get quotes on materials for use in the PSU. It is only drawing 15 which , according to Kemp, shows all the PSU's features. It was his 'shop drawing' which, on his evidence, he 'basically followed' when he started building the PSU. That drawing was to scale and contained some measurements but has very little in the way of detail and substantial parts of it differ in appearance from the PSU as constructed or modified. The plaintiff's position is not greatly improved when regard is had to all of the plans or drawings.
119 In August 2000, Kemp authored Drawings 4, 8, 10, 11 and 25. The schedule at para 92 of Kemp's affidavit cross references each of those drawings to the comment for Drawing 25 which is in these terms:
This was one of the earlier drawings I did after I finished the final prototype but before I started building the actual PSU. This drawing was done at this stage so we could cost out the project and find out the availability of the larger pipes. Drawings 4, 8, 10 and 11 are different versions of this drawing.
120 Those drawings depict two tubes related at right angles one to the other with a shorter tube depicting a conical entry at the top of the tube and a much longer tube. The drawings contain some dimensions. In August 2000, Kemp authored Drawings 13, 14, 15 and 16. Drawings 13 and 14 are sectional drawings of elevations of a tube. Drawing 15 is the primary drawing relied upon by Foxworth. Unlike the other drawings, it is described as a 'workshop drawing'. The drawing depicts two tubes aligned at right angles. The cross hatching on each tube depicts the internal augers and shows where each auger sits within each tube. The drawing contains some measurements such as the length of each tube; the orientation of the longer tube to the horizontal plane, the height of the longer tube relative to the foundation or platform on which the apparatus sits, and some other measurements. The drawing is said to depict a 'de‑watering section' at the end of the long tube. The drawing shows a support frame for the apparatus. The drawing also shows a four‑sided box described as a 'header tank' located in the right angle section between the two tubes. Beside the header tank is a triangular shaped holding tank. The drawing shows a line with crosses above it which indicates a water line. That line extends across the header tank and triangular tank and each auger at the relevant level.
121 Drawing 15 does not depict a conical shaped section located at the top of the short tube. Nor does the drawing depict a box‑like feature at the end of the longer tube. Both of these features appear in photographs (AB 1152) of the PSU Mark II. No doubt, this led the primary judge, in part, to conclude that the PSU Mark II is not, in any event, built in accordance with Drawing 15. Foxworth says that the Court can turn to Drawings 4, 8, 10, 11 and 25 as a series of drawings which depict the conical shape at the top of the shorter auger. Those drawings assist the Court in understanding the three‑dimensional configuration of the object depicted in Drawing 15. Whilst the Court is entitled to have regard to drawings in a series of drawings for this purpose, none of these drawings (4, 8, 10, 11 and 25) are detailed precision drawings. They simply reflect a conical shape in very simple terms. Drawing 15 is more precise but fails to show the conical feature. The conical shape depicted in these other drawings is not reflected in the precise shape of the section shown in the photograph of the PSU Mark II. Moreover, the drawings do not depict the box‑like section at the end of the longer auger. The photograph of the PSU Mark III shows a quite different section at the top of the shorter tube and an entirely different configuration to the end of the longer tube. Foxworth says the shape of the section at the top of the shorter auger in the PSU Mark III is simply dictated by the 'direct drive mechanism' adopted for feeding material into the shorter tube. Nevertheless, this explanation of the difference does not diminish the significance of the difference as a feature of the three‑dimensional PSU Mark III. The primary judge was entitled to regard these differences as significant (that is, the shape of the entry component at the top of the shorter auger and the shape of the de‑watering section at the end of the longer auger).
122 Rampton had previously conceived of two tubes aligned at right angles and the use of augers within the tubes. It is not surprising that the immediate appearance of the alignment of the tubes would bear a striking resemblance to the PSU Mark II quite independently of any question of copying the PSU Mark II. Further, Rampton had sought to introduce a direct drive mechanism that made the configuration of the top of the smaller auger different in appearance and function as an improvement upon the indirect drive mechanism. The box‑like de‑watering configuration at the end of the longer tube in the PSU Mark II is quite different in shape to the PSU Mark III. Although each apparatus contains similar features, those features, having regard to all the evidence, are not sufficient to infer indirect copying by Rampton. Further, the differential features properly form a basis upon which the trial judge was entitled to form a view, as a non‑expert comparing the plan with the PSU Mark III that the PSU Mark III does not substantially re‑produce the PSU Mark II as an indirect copy of Drawing 15 (informed by the features of the other drawings in the sequence upon which Foxworth relies).
123 That leaves to one side the additional matter that the PSU Mark II was not built strictly in accordance with Drawing 15 (relevantly informed) in any event. The drawings are basic in nature and not all the features in the PSU Mark II are present. Further, the contentions of Foxworth do not give proper weight to the contribution by Rampton of the concept itself and the continuing implementation of improvements to that concept in a working environment.
124 Foxworth expresses criticism of the reliance by the primary judge on the report of Dr Gilmore who did not have regard to Drawing 15. However, Dr Gilmore has considered the extent of the similarities and dissimilarities between the PSU Mark II and the PSU Mark III. In undertaking that comparison, Dr Gilmore, favourably to Foxworth, has, in effect, proceeded on the footing that the comparison between each apparatus is the relevant comparison as the PSU Mark II embodies all of the features of the foundation artistic work upon which it is constructed. The primary judge considered the report of Dr Gilmore and that of Dr Grigg, the expert called by Foxworth. The conclusions reached by his Honour in part aided by Dr Gilmore were open to him. In particular, his Honour reached this conclusion.
[240] Dr Gilmore, in comparing the replica PSU with the modified PSU, noted the following points of difference:
(a) The different shapes of the intake and of the shorter tubular member;
(b) The different appearances of the discharge end of the long tubular member;
(c) The detailed shape of the pivot flanges is different on the two machines. In the case of the replica PSU the flange welded to the longer tubular member sits inside a flange welded to a base frame;
(d) The drive system for the augers is 'dramatically different';
(e) The tank systems are different. The replica PSU has no external tank although both machines have two tanks mounted above the longer tube. The tank arrangement on the replica PSU is 'much simpler'; and
(f) The main connecting pipes 'emanate from quite different positions in the water storage tanks to those' on the modified PSU. The pipe and outlet arrangements constitute a development of the initial concept and produce different results in terms of water flow. Their functions are different as is the performance capabilities.
125 As to the comparison between the PSU Mark III and the modified PSU as a foundation for the assessment of indirect copying, no error has been demonstrated on the part of the primary judge. The finding that no substantial reproduction of the drawing has occurred is made clearer when it is recognised that the modified PSU incorporates features which are, in any event, not reflected in Drawing 15. The reliance upon the report of Dr Gilmore reflecting dissimilarities is entirely consistent with the sequence noted by his Honour at [99] and [100] that Rampton brought into existence 'rough concept drawings' [Drawings 220 and 221] unassisted by measurements or images of the PSU; Rampton retained a drafting service to prepare drawings which led to dimensional scale drawings in May 2002; and Rampton retained Robert Rapley, an engineer, to construct a replica PSU incorporating features which Rampton devised in the course of its construction. All of these matters are consistent with use of ideas comprised in the apparatus some of which were historically within the thinking of Rampton and Connick, rather than a substantial reproduction of Kemp's expression of the apparatus by his drawing(s), through indirect copying.
126 Foxworth invites the Court to overlay the transparency for the PSU Mark II with a drawing of the PSU Mark III. Plainly, there are similarities but those similarities are explained by reason of the matters previously discussed and the dissimilarities remain properly within the assessment of the primary judge as substantial differences leading to the conclusion that there has been no substantial reproduction of the artistic work by reason of the construction of the PSU Mark III.
127 Foxworth says that Rapley was given by Rampton the drawings produced by Whittred which depict an apparatus that exhibits differences to the PSU Mark III. Foxworth says that Rampton must have elected to adopt in the PSU Mark III the features of the shape of the PSU Mark II and in aid of that conclusion, Foxworth says that Rapley was provided with dimensions by Rampton compounded by Rapley's inspection of the PSU Mark II.
128 However, the primary judge considered all of these matters in properly and carefully weighing the evidence and in reaching the findings previously mentioned. Those findings were open on the evidence. The similarities, the communication of measurements by Rampton and the visit by Rapley to the Maryborough premises do not, by themselves, lead to a conclusion that Rampton and Rapley set about a course of copying the PSU Mark II. The similarity of features is otherwise explained as previously indicated.
129 Accordingly, there is no demonstrated error on the part of the trial judge and the cross‑claim of copyright infringement by three‑dimensional reproduction of Kemp's drawings must be dismissed.
130 There is therefore no need to consider further the question of the intersection between the Patents Act and the Copyright Act in terms of whether Foxworth as co‑inventor is entitled to rely upon the copyright in a drawing forming a part of its contribution to the invention to prevent its co‑inventor from exploiting the invention in a way which would involve a three‑dimensional reproduction of the two‑dimensional drawing. Further, the question of the inter‑relationship between the Patents Act and the Copyright Act was not the subject of argument.