Re Dixon Investments Pty Ltd v Kenneth Wayne Hall and Victoria Madeline Hall [1990] FCA 117; 18 IPR 481

Re Dixon Investments Pty Ltd v Kenneth Wayne Hall and Victoria Madeline Hall [1990] FCA 117; 18 IPR 481 - FCA 1990 case summary — Zoe

[6]

6. There are necessarily many features of the Halls' Robina house, as built, which cannot be said to reproduce any feature of the basic plan; the window heights just mentioned are an example. The applicant is entitled to succeed if it can show that the house is a reproduction of the basic plan or of a substantial part of it. Nevertheless, the simplicity of the basic plan said to have been infringed creates a difficulty for the applicant. The simpler and more commonplace the copyright drawing, the more closely must the alleged infringer adhere to it, in order for liability to exist: Kenrick and Co. v, Lawrence and Co. (1890) 25 QBD 99 at 102; Ownit Homes Pty Ltd v. D. and F. Mancuso Investments Pty Ltd (1988) AIPC 38,235 at 38,243. This accords with the view that in deciding whether there has been reproduction one must consider not only how close the allegedly infringing material is to the copyright drawing, but the quality of what is said to have been taken: Ladbroke (Football) Limited v. William Hill (Football) Limited (1964) 1 WLR 273 at 293. There are, of course, many houses of about the same size as those in issue here, and with similar facilities: a bathroom for general use and an "en-suite" intended to be used by the occupants of the main bedroom, as well as a family or general-purpose room. If one adheres to the idea of having a roughly rectangular shape with the rooms all on one level, there is only a limited number of ways in which the rooms can sensibly be arranged. Here, the bedrooms and bathrooms are along one long side of the rectangle, and the other rooms along the other. Starting from that basic layout, there are numerous possible variations, but the range of acceptable layouts is not unlimited. For example, as in the layout here in question, the lounge-dining area, rather than the kitchen, is likely to be close to the front door. But it is also possible to differentiate one's basic plan from other such plans by altering the geometry of the perimeter of the house: instead of four straight lines, indentations and protrusions may be created, as has been done with both the designs in question here.

[30]

16. In approaching this question, I have not overlooked that, as pointed out on behalf of the respondents, both houses are built using some components of standard size (such as windows) and that they are standard or commonplace in other respects; for example, the ceiling heights are the legal minimum. Nevertheless, I am satisfied that the design of the Hall house derived originally from the basic plan; I think Mrs Hall also took advantage of her inspection of the Mermaid Waters "display home", but it has to be kept in mind that copying of that is not alleged. I infer that Mrs Hall produced to the draftsman a plan which included certain features of the basic plan, which he then turned into Exhibit 11, which was then turned into Exhibit 14 and finally into Exhibit 2, which was submitted for Council approval. The first of these, Exhibit 11, differed from the basic plan in that (amongst other respects) the long wall on the bedroom side had only one projection and not two. In the final version of the Hall design (Exhibit 2), there is a projection in the same general area as in the basic plan. The draftsman's explanation of that circumstance had to do with the fact that the axis of the house was swung around in a way which necessitated some narrowing, and that was compensated for by the projection of bedroom 4, plus the adjoining laundry and bathroom. I accept this explanation and think that, in this respect, a feature which seems on the face of it to have been copied was in fact independently arrived at. It should be made clear, however, that the direct inspiration of the Hall design was the basic plan, and if this were sufficient in law to enable the applicant to succeed, then judgment must go in its favour. However, that is not enough, as the Ownit Homes case (above) illustrates. There the trial judge apparently thought "that the respondent had copied or 'produced by a direct or indirect use of' the plans of the appellants", but there was held to be no substantial reproduction ((1988) AIPC 38,239). The Hall house as constructed has sufficient differences, of a genuine character, from the basic plan, not to constitute an infringement.

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Judgment (32 paragraphs)

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Re Dixon Investments Pty Ltd v Kenneth Wayne Hall and Victoria Madeline Hall [1990] FCA 117; 18 IPR 481 (19 April 1990)