The appeal
42 At this point, it is necessary to say something about the methodological approach adopted by the primary judge to determining infringement.
43 I am satisfied, respectfully, that the primary judge fell into error by adopting an approach characterised by Lindgren J in Eagle Homes v Austec as "artificial" (see [28] of these reasons) of almost entirely separately considering first, whether reproduction of the Tamawood plans in suit had been made out (by reason of whether a sufficient degree of objective similarity was evident as between the relevant plans) and then considering as an entirely independent question whether a causal connection had also been made out.
44 If there is any sequence as such to the inquiry to be made (recognising, however, that no answer to a particular question in the sequence forecloses asking the other questions as each question overlaps with the other) it is probably this. Logically, the first question (in the absence of an admission) is whether initially there appears to be a sufficient degree of resemblance between Tamawood's plans and those of Mondo. Taking into account the answer to that question, the next question is whether a causal connection has been made out informed by considerations such as Mondo's opportunity to secure access to and use of Tamawood's drawings and apparent similarities (particularly an apparent, high degree of objective similarity in the case of floor plans for low cost project homes) coupled with an assessment of any contended explanation of the similarities by the putative infringer: "probative similarity".
45 The next question, where actual copying is found to have occurred on whatever ground made out, is whether the Mondo plans exhibit a sufficient degree of objective similarity so as to constitute reproduction of the copyright work recognising that a finding of copying can add significance to objective similarity: see [24]-[28] of these reasons as to the overlapping nature of these questions.
46 Thus, it is necessary to consider whether the primary judge's error as described at [43] of these reasons leads to the result contended for by Tamawood on the appeal.
47 In the appeal, Tamawood says that the findings of the primary judge concerning the Torrington plan are relevant findings of fact bearing upon Mondo's conduct concerning copying and reproduction of the Dunkeld plan. At [173], the primary judge found "substantive duplication" of the Torrington plan by Mondo's Duplex 2 and Duplex A drawings ("D2/DA") and also found that, although there is some variation in the arrangement of the first floor rooms, the drawings have "very similar content". At [174], the primary judge found a sufficient degree of objective similarity to support a finding of substantial reproduction of the Torrington plan in Mondo's D2/DA drawings.
48 The primary judge then made observations concerning the question of substantial reproduction of the Dunkeld plan by Mondo's Duplex 1 plan. I will return to that matter later in these reasons.
49 The primary judge then considered the question of causal connection between Tamawood's copyright works in suit and Mondo's conduct so as to form a view about "copying". The primary judge made the following findings about the Tamawood and Mondo plans in a general sense before turning specifically to the Torrington and Dunkeld plans.
50 At [191], Habitare requested Mondo to prepare drawings for the Calamvale and Brackenridge sites. At [192], those Mondo plans needed to be generally in accordance with the plans the subject of the Brisbane City Council Development Approval for each site. At [193], Mr Sweeney (Mondo) met with Mr Speer and Mr Shane O'Mara (both of Habitare) on 21 June 2006. Mr Sweeney was told that Habitare would not be engaging Tamawood as builder and was asked whether Mondo could prepare construction drawings based on the Development Approval drawings in order to obtain building approvals. At [194], by June 2006, Habitare and Mondo were both concerned about "copyright issues" in Mondo preparing plans for Habitare generally in accordance with Tamawood's plans the subject of the Development Approvals. At [194], Mr Speer and Mr Shane O'Mara represented to Mr Sweeney that there were no outstanding issues between Habitare and Tamawood concerning use of Tamawood's plans. At [195], Mondo produced its plans for Habitare for each site with the intention that its plans be generally in accordance with the approved Tamawood drawings, after Mondo had been shown the Tamawood drawings. Thus, at [195], an inference arose that Mondo's plans were "copied" from the Tamawood plans.
51 As to the Torrington plan specifically, the primary judge made these findings.
52 At [198], Mondo's D2/DA drawings were the result of copying the Torrington drawings, intentional or otherwise. At [199], "precursor Mondo designs" (that is, Mondo's precursor plans to its D2/DA drawings) were "significantly different" in "many respects" from the Torrington plan yet Mondo's D2/DA plans "have very similar content" (at [173]) to the Torrington plan. Moreover at [199], Mondo's D2/DA plans represent "some departure" from Mondo's earlier versions of its plans for a two-storey duplex, with "no real explanation given" by Mondo for the changes. At [200], Mondo's D2/DA plans were created so as to satisfy Habitare's need for plans "generally in accordance with the Tamawood plans". At [201], having accepted Habitare's retainer, Mondo was under "some pressure" to "produce documents" which generally accorded with Tamawood's plans which had already received Development Approval.
53 The primary judge notes at [201], Mr Speer's evidence that a new Development Approval process would "take too long" and that the dilemma put by Mr Speer to Mr Sweeney was that new plans were needed substantially in accordance with the existing approvals yet the new plans must not give rise to "copyright problems" with Tamawood. At [203], Mr Keiler (an architect at Mondo) gave evidence that Mondo's plans would have to fit the "footprint" of the Development Approval. At [204], the "direct similarities" between the Torrington plan and Mondo's D2/DA plan are "significant", notwithstanding that "similarities" in plans for project houses "arise out of functional necessity" such that independently-created plans may well bear similar features.
54 As to the authorship of Mondo's D2/DA design, the primary judge at [204] observes that it is clear from Mr Keiler's evidence that the D2/DA plan was created by him "shortly after" Tamawood's brochure drawings were printed by Mondo from the Tamawood website and reviewed by Mr Keiler; Mr Keiler's work occurred either contemporaneously with or shortly after he received copies of the Development Approvals from Habitare; and his work occurred contemporaneously with his discussions with Habitare personnel in order to discuss Habitare's requirements.
55 Thus, at [205], the primary judge says this:
While the brief to Mondo was to produce plans "generally in accordance with" the Tamawood plans, this is a circumstance where the objective similarities between the Torrington and Duplex 2/Duplex A designs are sufficiently great, and the prior access by Mondo to Tamawood's work sufficiently clear, such that the Court should draw the inference of copying: [Pacific Gaming v Aristocrat at 454].
[emphasis added]
56 As to the question of objective similarities between Tamawood's Dunkeld plan and Mondo's Duplex 1, the primary judge at [182] observes that there are "important differences" between the two "designs". Six such differences are identified by the primary judge. They are these:
• In the [Dunkeld] the entry opens immediately into a living area. In Duplex 1 the entry opens into a hallway, which allows access to Bedrooms 2 and 3 and the bathroom, and leads to the kitchen.
• In the [Dunkeld], Bedroom 3 is at the back of the dwelling, accessed through the Dining room. In Duplex 1 Bedroom 3 is at the front of the dwelling, abutting the garage.
• In the [Dunkeld], the position of Bedroom 1 (with its ensuite) and Bedroom 2 are reversed compared with the positioning of those rooms in Duplex 1.
• In the [Dunkeld] access to Bedrooms 1 and 2 and the bathroom is from a hallway accessed from the kitchen. In the Duplex 1, access to Bedroom 1 is from the Dining room.
• In the [Dunkeld], the Living and Dining rooms are separated by the Kitchen. In Duplex 1, the Dining and Living rooms are one open space, at the rear of the dwelling.
• In Duplex 1 an outside patio is accessed from the Dining room. No such patio exists on the [Dunkeld] drawings.
57 Having regard to the evidence of Tamawood's expert, Mr Miller, the primary judge at [184] said this:
In my view, the quality of the differences between the [Dunkeld] and Duplex 1 means that, for all intents and purposes, the designs represent quite dissimilar dwellings.
[emphasis added]
58 At [185], the primary judge said this:
While the overall shape of the duplex building is very similar in all three designs (in particular the Dunkeld and Duplex B):
• The Conondale does not feature an ensuite to Bedroom 1, whereas the Duplex B has that feature.
• The Duplex B features Bedrooms 2 and 3 at the front of the dwelling, unlike the Conondale/Dunkeld.
• Bedroom 1 and the ensuite in Duplex B are at the back of the dwelling, unlike in the Conondale/Dunkeld drawings.
• The Kitchen in Duplex B is not in the middle of the dwelling unlike the Conondale/Dunkeld design, but abutting the common wall, and the Laundry is accessed through the Kitchen.
• The middle of the dwelling in the Duplex B is dominated by a Family/Living space, unlike the Conondale/Dunkeld design.
[emphasis added]
59 Apart from reliance placed by the primary judge upon Mr Miller's evidence, the primary judge also said this at [186]:
Again, looking at the quality of the plans, in my view they represent significantly different dwellings.
[emphasis added]
60 At [187], the primary judge found in these terms:
Accordingly, not only is there no reproduction in whole of the Conondale/Dunkeld in the Duplex 1 or in Duplex B, but it cannot be said that there is reproduction of a substantial part of those designs.
[emphasis added]
61 The primary judge's ultimate conclusion at [188] is in these terms:
It follows that in my view Tamawood's claims involving infringement of its copyright in Conondale/Dunkeld drawings cannot be substantiated.
62 The primary judge then considered, in any event, whether a causal connection had been made out between Tamawood's Dunkeld plan and Mondo's Duplex 1 plan. As to that, the primary judge said this at [208]:
In the absence of reproduction, I am satisfied that there is no causal connectivity between those Tamawood drawings and the Mondo Duplex 1.
[emphasis added]
63 The primary judge also said this at [209] concerning a drawing produced by Mondo in February 2006 described as Drawing 3 to Exhibit RJS-13 to the affidavit of Mr Sweeney sworn 20 September 2011:
In relation to exhibit RJS13-3 produced by Mondo in February 2006, while in my view there are strong similarities between this design and the Dunkeld, this Mondo plan was not used by Mondo or Habitare as a design "generally in accordance" with the development approval. Duplex 1 was the design so used. I am not persuaded that any inference of relevance should be drawn from the existence of RJS13-3, other than the possibility of this design representing progressive internal experimentation in designs by Mondo including by reference to the work of competitors (but evidently, in relation to this design, not used).
[emphasis added]
64 Tamawood contests the finding of fact of no causal connection to the Dunkeld plan due to the primary judge's error in the approach to fact finding. Tamawood says these things.
65 First, having regard to the drawings and plans contained in a document described as "Mondo Architects Schedule of Additional Drawing References in the Evidence of Mr Sweeney" ("Schedule of Mondo Drawings") handed up to the Full Court (with copies to the parties) together with documents described as 12A, B, C, D, E, F, G, H, I, J and K (also handed up) based on Exhibits RJS-11, RJS-12 and RJS-13 to Mr Sweeney's affidavit of 20 September 2011, Tamawood contends that nothing in the work of Mondo prior to the early part of 2006 demonstrates drawings similar to the Dunkeld plan.
66 Second, in February 2006, Mondo produced the drawing in CAD form at RJS13-3. That plan exhibits "strong similarities" to the Dunkeld plan (see [63] of these reasons and the finding at [209] of the primary judge's reasons).
67 Third, the drawing of February 2006 emerged from Mondo at a time when Habitare was seeking to re-engage with Mondo and at this time Habitare requested Mondo to prepare architectural drawings and cost those drawings.
68 Fourth, the reason Mondo's February 2006 drawings exhibit, as found, "strong similarities" to the Dunkeld plan (and represent a departure from prior Mondo drawings) is explained by the circumstance that Habitare's Development Approvals (of 1 March 2006 and 7 July 2006; see [6] and [7] of these reasons) would be based upon Tamawood's plans and thus other architectural designs, having no approved application to each site and thus no utility for either site, would be of no interest or relevance to Habitare.
69 Fifth, Mr Keiler, for Mondo, played a central role in engaging with Habitare personnel in early 2006 and was largely responsible for creating the February 2006 drawing at RJS13-3 (which is a departure from Mondo's drawings prior to that time). Tamawood relies upon Mr Keiler's concessions in cross-examination that his engagement with Habitare involved some "toing and froing" consisting of either sending Habitare designs by email or engaging in face-to-face meetings with Habitare and receiving feedback from Habitare about the ideas presented by Mr Keiler to Habitare.
70 Sixth, Tamawood says that by February 2006 Mondo had produced a drawing that, first, had emerged out of Mr Keiler's engagement with Habitare as described and, second, represented a significant departure from that which went before within Mondo. Thus, the so-called "toing and froing" between Mr Keiler and Habitare must, it is said, have resulted in the Habitare people examining Mr Keiler's sketches and designs and telling him the layout of the floor plan they wanted and where the rooms were to go on that floor plan. In doing so, Habitare was, it is said, "working directly" from Tamawood's Dunkeld plan and thus instructing Mr Keiler in the essential features of the Dunkeld plan it wanted to see adopted in the Mondo plans.
71 Seventh, Habitare had good commercial reasons for so instructing Mondo because it knew that each Development Approval was conditioned upon carrying out each development generally in accordance with the approved Tamawood drawings. Getting on with each project was important, it is said, because, as Mr Speer said in his evidence, Habitare had settled the purchase of the development sites and "interest was ticking away, [and] it was costing us a lot of money": see [202] of the primary judge's reasons.
72 Eighth, the constraints imposed by the Development Approvals meant that Habitare found it necessary to review and be familiar with Tamawood's plans; retain the same "footprint" for the duplex homes and ensure that any changes from the Tamawood drawings as might be reflected in the Mondo drawings for each site were small or largely inconsequential.
73 Finally, Tamawood says that the objective similarities between Tamawood's Dunkeld plan and Mondo's Duplex 1 are such that the Dunkeld plan can be seen embedded in Mondo's plan (to use the language of Lindgren J) and one can look through Mondo's plan and see the Dunkeld plan: see [32] of these reasons. Thus, there is said to be a sufficient degree of objective similarity between the two drawings having regard to Habitare's use of the Tamawood plan by instructing or, in effect, filling up Mondo with the essential features of the Dunkeld plan.
74 Mondo supports the finding of the primary judge at [184] that the floor plans for the Dunkeld and Duplex 1 project homes represent quite dissimilar dwellings and the finding at [186] that looking at the quality of the plans, they represent significantly different dwellings. Mondo also says that by 6 April 2006 it had produced its Duplex 1 plan (see the plan described as "Duplex Single Option 3", plan at p 17 (also marked p 261), Schedule of Mondo Drawings) well before it ever saw Tamawood's Dunkeld plan.
75 The case put against Mondo, however, is that by reason of the exchanges (which seem as to real particularity largely content free "toing and froing") between Mr Keiler and Habitare in the early part of 2006, Mondo produced by February 2006 (although apparently not specifically for the two project sites in issue in the proceedings) a drawing (RJS13-3) which represents a departure from Mondo's genetic footprint of floor plan designs to that time and one which, as found by the primary judge at [209], bears "strong similarities" to Tamawood's Dunkeld plan. That plan is at [207] of the primary judge's reasons.
76 I agree that the plan at [207] represents both a departure from Mondo's earlier work and that the arrangement of rooms and the "layout and traffic flows and the shapes, proportions and interrelationships of rooms and other spaces - elements which permeate the whole of the project home" (see [37] of these reasons) reflect strong similarities with Tamawood's Dunkeld plan, as the primary judge found. It also seems very likely that the Mondo plan at RJS13-3 produced in February 2006 (so close to the impending Development Approval for Gawler/Norris Road on 1 March 2006), emerged out of Mondo in circumstances where Habitare personnel were acting in their dealings with Mondo, by reference to the Dunkeld plan which Habitare had before it. It seems that Mr Keiler's authorship of the plan at RJS13-3 was as a result of Habitare pressing strongly for a plan generally as close as possible to Tamawood's Dunkeld plan that would be the subject of the upcoming Development Approvals and the blunt reality that undertaking a new Development Approval process would "take too long" and cause additional "interest costs" to run should a new process need to be undertaken. It seems very likely that Mr Speer instructed Mr Keiler in the features and content of RJS13-3 with some real precision drawn from Tamawood's Dunkeld plan.
77 I thus accept that an inference is open that the explanation for the emergence of CAD drawing RJS13-3 out of Mondo's office by February 2006 in a form that was strikingly similar to the Dunkeld plan is that Mr Keiler was giving effect to Habitare's instructions given with precise reference to the Dunkeld plan.
78 Tamawood, however, does not rely upon RJS13-3 as the contended infringing Mondo drawing. It relies upon RJS13-3 so as to demonstrate "copying" based on instructions to Mr Keiler from Habitare.
79 The question then is this: Once it is accepted (by drawing the inference) that Mondo's February 2006 drawing emerged out of access to and use by Habitare of Tamawood's Dunkeld plan resulting in precise instructions to Mondo about the essential features of that plan (and thus a causal connection to the Dunkeld plan), does the Mondo plan said to infringe in these proceedings depicted at [17] of these reasons (which is not RJS13-3) reveal a sufficient degree of objective similarity so as to constitute reproduction of Tamawood's Dunkeld plan recognising the significance copying adds to objective similarity?
80 Just as the drawing at RJS13-3 reveals a departure from Mondo's earlier drawings, Mondo's Duplex 1 said to infringe represents a departure from RJS13-3. The primary judge finds at [209] that RJS13-3 was not used by Mondo or Habitare. Mondo made changes to the floor plan to bring about Duplex 1. Is there a sufficient degree of objective similarity between Tamawood's Dunkeld plan and Mondo's Duplex 1 plan recognising the role Habitare had earlier played in instructing Mondo about the content of the Dunkeld plan so as to produce RJS13-3?
81 The important considerations in answering that question seem to me to be these.
82 First, although the Development Approval for each site required Mondo to retain the "footprint" for the duplex, the layout, traffic flows within the house and the proportions and inter-relationships of rooms and other spaces was not dictated by the footprint.
83 Second, as to the requirement that the Mondo plan be generally in accordance with the approved drawings, it does not seem to be asserted that that condition would necessarily bring about or require use of a drawing in the development on each site that would be characterised as a reproduction in a material form of the Tamawood drawings. There seems to be some latitude or flexibility to use a drawing generally in accordance with the approved drawings. Each drawing, generally, contained a number of elements: three bedrooms (and thus a structure and plan designed to accommodate a number of individuals who would normally populate three residential bedrooms in a low cost project home); an ensuite attached to one of those bedrooms (described as Bedroom 1); a bathroom immediately adjacent to a second bedroom and separated by a wall, immediately next to the ensuite so as to utilise, no doubt, plumbing connections to "wet areas"; two of the bedrooms and wet areas along an external side wall; a toilet; a living room; a dining room; a kitchen; a laundry and a garage.
84 Is a floor plan (other than Tamawood's Dunkeld plan), which incorporates these general features, one which might properly be described as generally in accordance with the approved plans without necessarily being a reproduction in a material form of the approved plans? No party seems to suggest that a plan generally in accordance with the Development Approval must necessarily be an infringement of the Dunkeld plan. Tamawood contends, however, that Mondo's particular plan is a reproduction of the Dunkeld plan recognising the two aspects of reproduction: see [28] of these reasons.
85 Third, the Dunkeld plan at [17] of these reasons shows an arrangement of rooms and spaces dictating shapes and traffic flows in the following way. The plan shows a porch entry into a living room. Thus, one immediately enters into a large living space. Across the diagonal space from the entry door, is a "false head" entry to the kitchen sited in the centre point of the house. The kitchen looks onto and serves the dining room. Thus, entry into the house engages the amenity of the living room which leads to the kitchen and across the kitchen space to the dining room. The left side wall of the living room divides off the main bedroom at the front of the house (described as Bedroom 1). That wall continues to the rear of the house dividing the dining room from Bedroom 2. That wall contains a "false head" entry and exit through a space in that wall from the kitchen into an area that provides spatial access to a number of rooms. The possibilities are, to the left, passage past the bathroom and entry through a door into Bedroom 1; passage to the toilet; passage to the bathroom or passage to an entry door to Bedroom 2. The laundry is located to the right of the kitchen behind the garage and is located between the kitchen on one side and the block common wall on the right hand side. To the right of the dining room and behind the laundry space is Bedroom 3. The single garage is represented by the space between the block common wall on the right hand side of the diagram and the living room wall on the left side. The footprint for the duplex has the dimensional characteristics reflected in the drawing at [17]. The dimensions of each room are also set out in the floor plan at [17]. In the Dunkeld, the main bedroom at the front of the house has an ensuite bathroom. Apart from the ensuite bathroom servicing the main bedroom, the plan provides for an entirely separate toilet and a separate bathroom.
86 Fourth, Mondo's Duplex 1 has a footprint which reflects different dimensions as to the footprint itself and other dimensional differences. For example, Tamawood's Dunkeld is 11.125 metres wide and 11.460 metres deep. Mondo's Duplex 1 is 10.800 metres wide and 11.800 metres deep. In the Mondo plan, entry is from a porch through the front door into an entry corridor. The three bedrooms making up the duplex are clustered together in the sense that they are all positioned away from the block common wall where the mirror image duplex sets out the living space for the immediate neighbour. In the Mondo plan, one enters by the entry corridor which has a bedroom to the left and a bedroom to the right. On the right hand front side is Bedroom 3 and on the left hand front side is Bedroom 2. Having entered the dwelling, the passageway continues between Bedrooms 2 and 3 to the end of Bedroom 3 and into the kitchen which is sited in the centre of the dwelling. The kitchen engages with the amenity of a combined dining and living room which in turn provides access and entry to a large patio area immediately adjacent to the dining room. The patio area is a quite substantial space.
87 The amenity of the house involves an L shape cluster of bedrooms and wet areas to the left of the structure along the external wall and the third bedroom at the front of the house. It involves another L shaped cluster of what might be described as the societal amenity of the house of food preparation, cooking, dining, entertaining and living consisting of the kitchen and the combined open space of a living and dining room to the back of the structure inter-relating with a patio and pergola.
88 The traffic flows draw a person down the entry hallway into the bedroom cluster or alternatively into the integrated kitchen, dining, living and patio areas. Access into the wet areas involves a different spatial arrangement to that of the Dunkeld. Rather than moving through a false head entry from what otherwise amounts to the mid-point of the kitchen wall into a space serving access to Bedroom 1, the bathroom, the toilet and Bedroom 2, a person moves from the kitchen into the end of the entry corridor so as to gain access to either the separate bathroom or the separate toilet or Bedroom 2. Access to Bedroom 1 is by a doorway directly into that bedroom from the dining room.
89 For my part, having regard to the layout and traffic flows and the shapes, proportions and inter-relationships of rooms and other spaces being the elements which permeate the whole of Mondo's Duplex 1 project home, I am not satisfied that there is a sufficient degree of objective similarity between Tamawood's Dunkeld plan and Mondo's Duplex 1 plan so as to constitute reproduction of the Dunkeld plan in a material form. Nor am I satisfied that Mondo's plan reproduces a substantial part of the Dunkeld plan. There is no doubt that both plans show an arrangement of two bedrooms and wet areas in conjunction with one another on the external wall of the duplex (that is, in the plans at [17]) on the left hand external wall of the dwelling. In that sense, both plans reflect the idea of an arrangement of rooms as far away as possible from the common block wall between the two dwellings which share that common block wall. There would be no rational point in the notion of locating Bedrooms 1 and 2 and the wet areas along the common block wall immediately next to Bedrooms 1 and 2 and the wet areas of the mirror image duplex.
90 The idea in each plan is to place the two principal bedrooms and wet areas on the exterior walls of each duplex for the obvious reason. The particular arrangement of those rooms and wet areas is not, however, in the same terms and for my part I do not regard the location and inter-relationship of those bedrooms and wet areas as a reproduction of a substantial part of the Dunkeld plan. In any event, during the course of oral submissions before the Full Court emphasis was placed by Tamawood upon the notion that reproduction had occurred independently of any question of reproduction of a substantial part. Both limbs remained alive recognising, however, the nature of reproduction as discussed at [29] of these reasons.
91 For my part, I would dismiss Tamawood's appeal from the orders of the primary judge dismissing its claim of copyright infringement of the Dunkeld plan.