Court of Appeal (Qld)|1993-10-21|Before: Pincus J, McPherson J

Trinity Point Hotel Pty Ltd v State of Queensland [1993] QCA 421 (21 October 1993)

This is an appeal from a judgment in the Trial Division in an action commenced by the respondent by a writ issued on 22 December 1989. On 5 and 23 February 1993 it was ordered that an agreement in writing between the respondent (plaintiff) and appellant (defendant) comprised in a letter dated 30 November 1989 from the appellant to the respondent and a letter in reply dated 1 December 1989 be specifically performed and carried into execution, and various ancillary orders were made.

The appellant's main ground of appeal is that it terminated the agreement for the respondent's repudiation on or about 13 December 1989. If that ground of appeal fails, other matters are raised concerning the construction of the parties' agreement and the form of the orders.

It was not disputed that the appellant wrote a letter to the respondent on 13 December 1989 which was effective to terminate the agreement between the parties if, by then, the agreement had been repudiated by the respondent. The sole issue in relation to the main ground of appeal was whether or not the respondent repudiated the agreement by its assertions, demands and threats on 7 and 13 December. It is necessary to refer to earlier events to place the respondent's conduct on those days in their proper perspective.

In 1982, the appellant called for expressions of interest in "The Development of a Boat Harbour and Tourist Resort Complex on Part of the Foreshore of Cairns". After a successful tender, the respondent was granted a Special Lease for three years from 1 July 1985 for an "Impact Assessment Study". In 1988, a further Special Lease in respect of a slightly reduced area was granted for one year from 1 April 1988 for "Investigation". One of the conditions of that Special lease envisaged that the respondent might, in due course, be granted a further lease to develop all or some of the subject land. Another condition required the respondent to carry out investigations and studies and to provide the results to the appellant, which it did by about 22 March 1989. However, on 12 October 1989, the then Premier informed the respondent that the appellant proposed to reject the respondent's proposal to develop the land. At that time, an election for the Queensland Parliament was in the offing and the respondent's proposed development had attracted considerable public interest and opposition.

Commencing on 16 October 1989, discussions were held and correspondence was exchanged concerning the respondent's request for "reimbursement for funds expended" and compensation.

On 15 November 1989, a Cabinet Submission was signed by the then Ministers for Land Management and for Water Resources and Maritime Services. The submission stated that "... the material contained in the study reports has significant value, particularly in respect of the management of Trinity Inlet and it is considered to be of importance that this material be retained in public ownership". A minute of a decision by Cabinet on 20 November 1989 contained the following:

"That an offer to purchase the material in the study reports, on the basis of reimbursement of actual costs and expenses (at 1989 prices) be made to the [respondent], subject to the amount of such offer not exceeding $5 million".

Shortly afterwards, on 22 November 1989, that decision was publicly criticised by the then Leader of the Opposition, who was shortly afterwards voted into office as Premier following the State election on 2 December 1989. In his statement, he described the acquisition of the reports as "a very thin smoke screen", and asserted that the respondent "should bear its own loss".

Meanwhile discussions had continued and further letters had been exchanged between representatives of the appellant and the respondent. A sufficient indication of the course of the negotiations can be obtained by reference to the correspondence.

On 22 November 1989, the following letter was sent from the Director-General of the Premier's Department to the appellant:

"I refer to your discussions with the Honourable the Premier in Cairns on 19th November, 1989.

You will recall that the Honourable the Premier indicated a preparedness for the Government to purchase the information collected for and generated through the studies undertaken by your Company in addressing the requirements of Special Leases Nos. 09/47886 and 09/49764.

That matter has been considered by the Government and it has been approved that an offer be made for the acquisition of the sole and exclusive rights to that information.

It will be appreciated that any such offer will have regard to the costs incurred by your Company in the collection and generation of that information from the date of issue of Special Lease No. 09/67886 to date.

In order that I may make an assessment for the purposes of making a special offer in written terms, please advise details of those costs, such costs to be calculated in October 1989 prices.

In addition, incidental costs arising from transfer to the State Government of data held by your Company and consultants but not fully documented in the study reports should be detailed.

In providing details as to costs, please identify the actual materials which are the subject of those costs and which would be available and appropriate for purchase."

On 23 November, an employee of the respondent's engineer, Connell Wagner (Qld) Pty Ltd (formerly Macdonald Wagner Pty Ltd), sent the following letter to the appellant:

Further to your enquiry regarding reports and other information obtained by us during the Trinity Point research project, we advise the following:

All final versions of formal reports prepared either by us or our sub-consultants during the research project were included in either the Phase A submission to Cabinet (April 1987) or the development Lease Application (March 1989). Schedules 1 and 2 respectively provide details of these reports which were superseded by the final versions which were submitted as described above and which have been retained purely in the interests of maintaining complete records. These contain no information which is not included in the formal reports.

Regular reports detailing the progress of the study were submitted to Trinity Point Hotel Pty Ltd and copies were forwarded to Premier's Department for circulation to the relevant authorities. Schedule 3 includes details of these reports.

In addition to the above items, several reports have been produced for internal use. Details of these are set out in Schedule 4.

The coastal modelling work involved the use of three proprietry (sic) computer programs as listed below:

Of these programs, licences for (a) and (c) are owned by Connell Wagner while (b) was used on a bureau basis from CEANET.

Data files using the basic data contained in Coastal Processes Volumes 1 and 2 are archived in our Brisbane office and can be retrieved, collated and copied onto magnetic media if required.

In addition to this data we have obtained and collated records associated with wind and waves and can provide this if required.

As detailed in the Development Lease Application, a commitment was made to continue research into the following three areas:

Field work associated with all the above studies are now complete and a report has been received for Item 9(c). Reports for Items (a) and (b) are currently under preparation and are expected to be available by the end of the year. Details are given in Schedule 5.

We estimate the cost to process the outstanding reports [(a) and (b) under Item 5] and supply a copy of each report and other items detail with in Schedule 4 and Item 4 above will be of the order of $10,000.

As is the usual practice, originals of reports and drawings and other items will reside with Connell Wagner.

Reproducible drawings or prints and copies of other material can be supplied at commercial rates on request.

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MACDONALD WAGNER APR 1987 SUBMITTED TO PREMIER'S DEPT 3/4/87

PROJECT MANAGEMENT & STUDY MACDONALD WAGNER FEB 1987

incl ENVIRONMENTAL ASPECTS HOLLINGSWORTH SEP 1986 "

ENVIRONMENTAL ASPECTS NO 2 HOLLINGSWORTH SEP 1986 "

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COASTAL PROCESSES VOL 1 MACDONALD WAGNER SUBMITTED TO PREMIER'S DEPT

incl CURRENT AND WATER LEVEL MAPPING AND HYDROGRAPHIC "

incl GEOTECHNICAL DESIGN HOLLINGSWORTH CONSULTANTS "

incl GEOTECHNICAL REPORT HOLLINGSWORTH CONSULTANTS "

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PHASE B PROGRESS REPORT MACDONALD WAGNER NOV 1987 SUBMITTED TO PREMIER'S DEPT

PROGRESS REPORT - NOV 1987 MACDONALD WAGNER DEC 1987 "

PROGRESS REPORT - DEC 1987 MACDONALD WAGNER DEC 1987 "

PROGRESS REPORT - JAN 1988 MACDONALD WAGNER FEB 1988 "

PROGRESS REPORT - FEB 1988 MACDONALD WAGNER MAR 1988 "

PROGRESS REPORT - MAR 1988 MACDONALD WAGNER APR 1988 "

PROGRESS REPORT - APR 1988 MACDONALD WAGNER MAY 1988 "

PROGRESS REPORT - MAY 1988 MACDONALD WAGNER JUN 1988 "

PROGRESS REPORT - AUG 1988 MACDONALD WAGNER SEP 1988 "

PROGRESS REPORT - SEP 1988 MACDONALD WAGNER OCT 1988 "

PROGRESS REPORT - OCT 1988 MACDONALD WAGNER DEC 1988 "

PROGRESS REPORT - NOV 1988 MACDONALD WAGNER DEC 1988 "

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PROJECT MANAGER'S TECHNICAL MACDONALD WAGNER - MARCH 1987 FOR INTERNAL USE

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MIGRATORY WADERS - ADDENDUM ENVIRONMENT SCIENCE AND DUE DECEMBER 1989

SEAGRASS TRANSPLANTS & DEPT PRIMARY INDUSTRIES DUE DECEMBER 1989

MANGROVE REVEGETATION - DEPT PRIMARY INDUSTRIES JUNE 1989

Further, on the same day the respondent's accountants, Shaw White and Associates, wrote to the appellant as follows:

_____________________________

We refer to your letter dated 22 November, 1989 addressed to Mr J.A. Dowson, a director of Trinity Point Hotel Pty Ltd, lessee named in the Special Leases granted by the Government of Queensland for the purpose of enabling studies to be made of the leased area. The purpose of such studies being principally to determine the physical, financial and ecological feasibility of undertaking commercial development of the leased area.

The lessee has instructed us to prepare a statement of costs incurred in the collection and generation of information through those studies and to submit same to you preparatory to the making of an offer by the Government for the purchase of that information.

We have accordingly reviewed the records submitted to us for consideration and calculate the costs incurred at a $3,390,359. The basis of calculation of this sum is set out on the attached schedules.

We understand that Connell Wagner Pty Ltd will be providing separately details of the actual material which will be available.

Should you require any further information from us in this regard, please do not hesitate to contact us."

[The schedules attached included details of accounts from Macdonald Wagner and Connell Wagner and payments thereof (both actual and indexed to 30 September 1989 C.P.I.) and details of "OTHER COSTS" (actual and similarly indexed).]

Both letters and associated documents were delivered by representatives of the respondent to employees of the appellant at a meeting on 24 November 1989. A file note of the events at that meeting indicates that the more senior of the appellant's employees who were present said that he would arrange for the material provided by the respondent to be examined and would advise the respondent or its accountant "if further material was required to substantiate costs". The respondent's accountant, Mr Shaw, who was also present, "... agreed to arrange for copies of all accounts not already provided for amounts over $10,000 to be faxed ..." that day.

On 30 November 1989, at its last meeting prior to the election, the Executive Council made a decision in accordance with the following minute:

"That approval be granted to expenditure of $3,280,000 for acquisition from Trinity Point Hotel Pty Ltd of technical data collected in relation to the Trinity Point Development Studies".

Later that day, the following letter was sent from the appellant to the respondent:

"I refer to my letter of 22nd November, 1989 and to information subsequently supplied to me in letters dated 23rd November, 1989 from Shaw White and Associates and Connell Wagner, and to additional information supplied by Shaw White and Associates in facsimiles dated 24th November, 1989 and 27th November, 1989.

On the basis of the information provided it is assessed that expenditures related to information collected for and generated through the studies undertaken by and for your Company in addressing the requirements of Special Leases No. 09/47886 and 09/49764 is $3,262,631 and it has been approved that an offer be made to your Company for that acquisition of the sole and exclusive rights to that information by the State for this amount.

This amount has been assessed on the basis of exclusion of some costs directly related to the public affairs programme undertaken by your Company.

Upon receipt of your written acceptance of this offer, I will arrange for a deed to be drawn up transferring the sole and exclusive rights in this information to the State Government.

The deed would be subject to the following conditions:

(a) a warranty by the Company that it is the lawful owner of all rights in the information and has the capacity to transfer the sole and exclusive rights in the information to the State;

(b) completion on a specified date some 30 days from the date of acceptance;

(c) that prior to completion, the Company must satisfy the State by such documentary or other evidence as the State may require, that it is the legal owner of all the information and in the event that the Company is shown to be not the legal owner of any item of information, the Company will obtain assignment of the rights in that information to it so that the Company is in a position to transfer all the rights in the information to the State at completion;

(d) where information in the custody of any third party is yet to be documented, the Company will, at the cost of the State, do all acts and execute all agreements necessary to bring the information into documented form so that the rights in the information are able to be transferred to the State on date of complete (sic) or such later date as the parties may agree;

(e) where data is held by third party in computer compatible form that data will be transferred to the State at date of completion and the Company will do all acts and enter into all agreements necessary for that purpose; and

(f) where the Company fails to obtain all rights in the information before date for completion or fails to fulfil its obligations under the agreement, the State may terminate and neither party will have any claim against the other in respect of any matter arising thereunder.

I note from the correspondence referred to in the first paragraph of this letter that your project managers, Connell Wagner, are the custodians of all project related information that has yet to be documented and also of some data held in computer compatible form.

The State will require an undertaking from Connell Wagner that all such information, save such proprietary computer programs as identified in paragraph 4 of that Company's letter to you of 23rd November, 1989 (Reference DDR:FH MCK20600) will be made available upon request to agencies nominated by this Department, subject only to the payment of that Company's current rates for copying and collation of information.

The deed will contain a schedule of the information the subject of the agreement between the parties and the schedule will include the information currently in the custody of Connell Wagner that has yet to be documented and also the data held in computer compatible form."

On the following day, the last day before the election, the offer contained in that letter was accepted by the following letter sent by the respondent to the appellant:

"We acknowledge receipt of your letter of the 30th November 1989.

The company accepts the offer and the conditions as set out therein.

We look forward to receiving the Deed reflecting the Agreement constituted by the correspondence and accordingly settlement will be on or before the 31st December 1989."

On the same day, there was considerable activity on the part of the respondent, encouraged by a senior officer in the Premier's Department, who told the respondent that Executive Council had approved payment and wanted to pay the respondent as quickly as possible. Steps taken that day, Friday 1 December 1989, included the following:

(i) a letter from the respondent to Connell Wagner in the following terms:

I advise that the Company has today entered into an Agreement with the State Government for the sale of its proprietary rights to the technical reports and information accumulated during the Trinity Point research project.

It will transfer its legal ownership to the information on or before the 31st December 1989.

As Project Manager and Principal Consultant we would request that you notify all sub-consultants of this agreed assignment . . . . . ."

(ii) Connell Wagner wrote the following letter to the sub-consultants listed below:

We wish to advise that, further to recent decisions regarding Trinity Point, Trinity Point Hotel has entered into an agreement with the Queensland Government to sell its proprietary rights to reports and information accumulated during the Trinity Point research project.

A copy of Trinity Point Hotel's letter of even date to us to that effect is attached for your information.

As from the date of completion of the assignment, the proprietary rights to that information will reside with the Queensland Government who will be deemed to be the Principal and be deemed to have all rights in respect of the subject reports and other information as if it had commissioned and paid for that material.

You will be further notified following completion of the assignment.

We wish to thank you for your efforts in contributing to this research project and advise you of Trinity Point Hotel's appreciation."

Professor C. Apelt Department of Civil Engineering,

Dr R. Dowling, Botany Branch, Department of Primary

B.R. Pollock, Fisheries Branch, Department of Primary Industries, Brisbane

T. Hardy, Department of Civil and Systems Engineering,

Dr R. Foott, Foott and Associates, San Francisco, U.S.A.

(iii) Connell Wagner sent the following letter to the respondent:

We acknowledge receipt of your facsimile letter dated 1 December advising of your intended sale of proprietary rights as Principal.

As requested we have advised all our subconsultants of the above and will forward a copy of the relevant letter and distribution list in due course.

(iv) Connell Wagner wrote to the respondent attaching copies of letters which it had sent to "all sub-consultants as requested".

(v) Connell Wagner wrote to the appellant as follows:

We attach a copy of a letter received from Trinity Point Hotel Pty Ltd notifying us of an agreement reached for the sale of that company's proprietary rights to information and reports prepared during the Trinity Point research project.

We acknowledge that as from the date of completion of the assignment, the proprietary rights to that information will reside with the Queensland Government who will be deemed to be the Principal and be deemed to have all rights in respect of those reports as if they had commissioned and paid for that material.

When the outstanding technical reports as set out in Schedule 5 of our letter dated 23 November 1989 are received, they will be processed and copies forwarded to Premier's Department as Principal. We understand that the cost for the above work will be met by the Queensland Government.

We undertake that all such information, save such proprietary computer programs as identified in paragraph 4 of our letter to Trinity Point Hotel of 23 November 1989 (reference DRR:FH MCK20600 - copy attached) will be made available upon request to agencies nominated by Premier's Department, subject only to the payment of our current rates for copying and collation of information.

We advise that letters have been sent to all subconsultants advising them of the above state of affairs. Copies of the Trinity Point Hotel's letter referred to above have also been forwarded to sub-consultants."

(vi) Although the appellant's offer to the respondent of 30 November 1989 stated that the appellant would arrange for a deed to be drawn up upon receipt of the respondent's written acceptance of the offer, an arrangement was made between a director of the respondent and an employee of the appellant for the respondent to prepare the deed to hasten the process.

(vii) The respondent prepared and executed a deed in the following terms:

BETWEEN THE GOVERNMENT OF THE STATE OF QUEENSLAND in right of the Crown ("the Government") of the first part

AND TRINITY POINT HOTEL PTY LIMITED of 107 The Esplanade, Cairns ("the Company") of the second part

1. The Government has agreed to purchase and acquire from the Company its proprietary rights to the technical information and the reports accumulated by or on behalf of the Company during the Trinity Point research project commencing from the issue of Special Lease No. 09/47886 and thereafter during Special lease No. 09/49764 (hereinafter collectively called "the information"); and whereas

2. The Company has agreed to assign to the Government all its proprietary right in and to that information and to those reports which are more particularly set out in the first schedule hereto for the price and subject to the terms, covenants and conditions as hereinafter set out.

1. The Company is the lawful owner of the information and reports more particularly set out in the first schedule hereto and warrants that it has the proprietary rights to the information and further that it has the unencumbered and unfettered rights to transfer the sole and exclusive rights to that information as it deems fit.

2. In consideration of these presents and in consideration of payment of the sum of $3,262,631.00 (being the cost to the Company of compiling the information) by the Government to the Company the Company shall assign and transfer to the Government the whole of its right title and interest in and to the information for the sole and exclusive use of the Government as the Government may in its absolute discretion deem fit so to use and it is acknowledged by the parties hereto that upon payment of the said sum all proprietary right to the information shall thereupon vest in the Crown absolutely.

3. The Company shall give notice or shall cause to be given notice of that assignment to all authors of any report and all consultants or sub-consultants associated with the preparation and compilation of any report, material or study herein referred to such notice to be given within seven (7) days of the date of completion.

4. Completion of this assignment shall be effected on or before 31st December 1989.

5. On or before the date of completion the Company shall satisfy the Government by such documentary or other evidence as the Government may require that it is the legal owner of the information and if it is not the owner of any such information then it will cause the proprietary rights of that information to be assigned ultimately to the Crown on the date of completion.

6. It is acknowledged by the parties that where information is in custody of any third party and that information is yet to be documented then the company shall do all such acts and execute any agreements which may be necessary to cause that information to be documented at the cost and expense of the Government so that the information is capable of being assigned to the Government on the date of completion or on such other date as the parties may agree and for that purpose notice of the assignment of the Companys proprietary rights to any documented information shall be given by the Company to that third party in writing and such notice shall be sufficient to evidence the assignment by the Company to the Government of the proprietary right to the information.

7. The parties acknowledge that certain computer data files exist and that the proprietary rights to those computer programs noted as (a) Longwave - 2 dimensional model and (b) Estry - 2 dimensional model are held by and are the property of Connell Wagner and the computer program known as Ribicon - 1 dimensional model is owned by and is the property of CEANET and it is acknowledged by the parties that the Company has no proprietary interest in these programs.

8. It is acknowledged by the parties that the Company has no proprietary rights to data files relating to collated records of wind and waves and contained in Coastal Processing Volumes 1 and 2 but the Government may in its discretion seek at its own cost the retrieval collation or copying of that data onto magnetic media from Connell Wagner.

9. The Company shall assign or cause to be assigned to the Crown all other computer data in a compatible form where proprietary right is held by the Company and the Company will upon receipt of a notice directed to it by the Government do all such things and sign all such agreements as may be necessary to effect such an assignment.

10. The parties acknowledge that certain information is in the custody of third parties in respect of completion of certain ongoing studies and reports relating to:-

AND further the parties agree that the Company will at the cost of the Government do all such acts and things and execute all or any such agreements as may be necessary to cause those studies and information to be documented and further the parties acknowledge that the proprietary rights in respect of such studies and information when completed shall be the Agreement vest in the Crown absolutely whether such reports are documented at the date of settlement or not.

11. The Company shall on or before the date of completion obtain a written undertaking from Connell Wagner that all the information shall be delivered or made available immediately upon request of any Government Department, Agency or any other person, company or association whatsoever as may be nominated by the Crown such delivery shall be unconditional save and accept for any payment to Connell Wagner of its then current rates for copying and collating the information.

12. If the Company should fail to obtain all proprietary rights to the information before the date of completion or should fail to comply and fulfil its obligations under the agreement then the Government may terminate this agreement by notice in writing and neither party shall have any claim against the other in respect of any matter arising thereunder.

(viii) The respondent transmitted by facsimile to the appellant a copy of that deed, copies of the letters referred to above in (i), (iii) and (v), and a further letter which concluded:

"We would refer to all the correspondence of Connell Wagner (Qld) Pty. Ltd., including the recent correspondence and the letter of 23 November 1989 in support of our warranty of proprietorship in the information and believe this constitutes satisfactory ownership and evidence of our entitlement to assign that information pursuant to the Agreement reached."

(ix) The respondent executed a second deed in the following terms:

"This Deed Poll is made this 1st day of December 1989 BY TRINITY POINT HOTEL PTY. LIMITED of 107 The Esplanade, Cairns ("the Company")

1. The Government of the State of Queensland ("the Government") has agreed to purchase and acquire from the Company its proprietary rights to the technical information and the reports accumulated by or on behalf of the Company during the Trinity Point research project commencing from the issue of Special Lease No.09/478886 and thereafter during Special Lease No. 09/49764 (hereinafter collectively called `the information'); and whereas

2. In consideration of payment of the sum of $3,262,631.00 (being the cost to the Company of compiling the information) by the Government to the Company the Company shall assign and transfer to the Government the whole of its right title and interest in and to the information for the sole and exclusive use of the Government as the Government may in its absolute discretion deem fit so to use and it is acknowledged by the parties hereto that upon payment of the said sum all proprietary right to the information shall thereupon vest in the Crown absolutely.

3. The Company shall give notice or shall cause to be given notice of that assignment to all author is of any report and all consultants or sub-consultants associated with the preparation and compilation of any report, material or study herein referred to such notice to be given within seven (7) days of the date of completion.

4. Completion of the assignment has been agreed to be effected on or before 31st December 1989.

5. On or before the date of completion the company shall satisfy the Government by such documentary or other evidence as the Government may require that it is the legal owner of the information and if it is not the owner of any such information then it will cause the proprietary rights of that information to be assigned ultimately to the Crown on the date of completion.

6. Where information is in custody of any third party and that information is yet to be documented then the company shall do all such acts and execute any agreements which may be necessary to cause that information to be documented at the cost and expense of the government so that the information is capable of being assigned to the Government on the date of completion or on such other date as the parties may agree and for that purpose notice of the assignment of the Companys proprietary rights to any documented information shall be given by the Company to that third party in writing and such notice shall be sufficient to evidence the assignment by the Company to the government of the proprietary right to the information.

7. Certain computer data files exist and that the proprietary rights to those computer programs noted as (a) Longwave - 2 dimensional model and (b) Estry - 2 dimensional model are held by and are the property of Connell Wagner and the computer program known as Ribicon - 1 dimensional model is owned by and is the property of CEANET and it is acknowledged by the parties that the Company has no proprietary interest in these programs.

8. The Company has no proprietary rights to data files relating to collated records of wind and waves and contained in Coastal Processing Volumes 1 and 2 but the government may in its discretion seek at its own cost the retrieval collation or copying of that data onto magnetic media from Connell Wagner.

10. Certain information is in the custody of third parties in respect of completion of certain ongoing studies and reports relating to:-

AND further it has been agreed that the Company will at the cost of the Government do all such acts and things and execute all or any such agreements as may be necessary to cause those studies and information to be documented and further the parties acknowledge that the proprietary rights in respect of such studies and information when completed shall by the agreement vest in the Crown absolutely whether such reports are documented at the date of settlement or not.

On the following Monday, 4 December 1989, the first business day after the election, a further meeting took place in circumstances in which it was apparent that the election had resulted in a change of government. Those present at the meeting were the two senior employees of the appellant who had had most to do with the matter and a director of the respondent supported by a member of the defeated Government. The originals of both deeds, signed by the respondent, were provided to the appellant at that meeting, as were copies of the letters which Connell Wagner had sent to the sub-consultants on 1 December 1989. A perceived need for urgency was accepted by all present at that meeting. The senior employee of the appellant who was there said that advice would be sought from the Crown Solicitor and that, although the documentation prepared by the respondent provided for completion on 31 December 1989, the appellant wanted to make payment before then. The respondent's representatives said that they would remain in Brisbane until payment was made and advised where they could be contacted.

Later that day, the appellant provided copies of the deeds which had been signed by the respondent to the Crown Solicitor and sought advice which was received on that and the next day.

On the second of those days, 5 December 1989, an employee of the appellant telephoned an employee of Connell Wagner and they discussed requirements of the appellant following advice which had been received from the Crown Solicitor. It was agreed that additional information would be obtained and provided by Connell Wagner and that discussions would be held in Cairns on 7 December. Further, a letter would be sent setting out the appellant's requirements, as was done that day.

On 5 December, letters were also exchanged between the appellant and the respondent. The latter, which was probably the earlier in point of time but not by much, sought confirmation of a number of matters, including that "an offer and acceptance constituting an agreement exists between us". Its second last and last paragraphs were as follows:

"The Government should also be aware that consultants or sub-consultants have no power to assign material or information which we had paid for and is our property. Could you confirm that this is your understanding?

We have by notice delivered the consultant (and subconsultants by our consultant) of the agreed assignment which will have the effect of making the Government the Principal in our place."

The letter from the appellant dated 5 December 1989 was as follows:

"I refer to your letters of 1st and 4th December, 1989 forwarding draft Deeds relating to the proposed purchase by the Government of proprietary information from Trinity Point Hotel Pty. Ltd.

It is advised that these documents have been reviewed and it is considered that, in a number of respects, the Crown interests are not adequately protected in the drafts as proposed.

(1) the Company's undertaking to transfer its rights in the information (whereas the Crown requires transfer of sole and exclusive rights whether the Company presently holds these rights or otherwise)

(2) the adequacy of the schedule in respect of its identification of all the information as provided for in the letter of offer.

A revised draft Deed has been prepared and is attached for your consideration.

The schedule as drafted identifies only that information which is contained in formal reports prepared for the Company. The Crown's offer to purchase included all information collected for or generated during the studies and it is anticipated that information other than that included in the study reports would lie within the scope of that offer. It will, therefore, be necessary to develop a schedule which more comprehensively describes the information being acquired by the Crown and I seek your assistance in the preparation of such a schedule. Officers of my Department will be in Cairns on Thursday, 7th December, 1989 and would be available to consult with representatives of Connell Wagner to develop the appropriate schedule.

Further, my advice is that it is more appropriate to have a bilateral Deed than a Deed Poll because the bilateral Deed more properly and accurately reflects the arrangements constituted by the letter of offer and the Company's acceptance.

I have also been advised that the Crown should request a Deed of Assignment from each of the various consultants and sub-consultants. Such assignment would amount to adequate documentary evidence capable of satisfying the State that the Company is the legal owner of the relevant information and that no rights still remain with the originating authors of any of the material. A suggested form of Deed for this purpose is also attached.

Could you please provide me with any comments you have on the revised Deed and certified copies of the necessary Deeds of Assignment at your convenience."

The copies of the deeds referred to (apart from an incomplete heading on that first mentioned due to a photocopier malfunction) were as follows:

"1. The Government has agreed to purchase and acquire from the Company the information collected for and generated through the studies undertaken by and for the Company in addressing the requirements of Special Leases No.09/47886 and 09/49764.

2. The Company has agreed to transfer and assign to the Government the sole and exclusive proprietary rights in the information referred to in paragraph 1 for the price and subject to the terms covenants and conditions as hereinafter set out.

1. In this Deed - `the information' means the information collected for and generated through the studies undertaken by and for the Company in addressing the requirements of Special Leases No.09/47886 and 09/49764 and as more particularly set out in the First Schedule hereto.

2. The Company is the lawful owner of the information and warrants that it has the sole and exclusive proprietary rights in the information and further that it has the unencumbered and unfettered right to transfer the sole and exclusive rights in the information to the State.

3. In consideration of these presents and in consideration of the payment of the sum of $3,262,631.00 (being the cost to the Company of compiling the information) by the Government to the Company the Company shall and hereby does assign and transfer to the government the sole and exclusive right title and interest in the information for the sole and exclusive use and benefit of the Government and the Company hereby acknowledges that upon payment of the said sum all proprietary rights to the information shall thereupon vest in the Crown absolutely.

4. The Company shall ensure that every author of any part of the information or any consultant or sub-consultant associated with the preparation or creation of any original material forming part of the information who enjoys any proprietary right (including but not limited to copyright) in the information or any part of the information does all things and executes all agreements necessary to assign and transfer all rights in that information to the Company prior to completion.

5. Completion of this agreement shall be effected on or before 31 December 1989.

6. On or before the date of completion the Company shall satisfy the Government by such documentary or other evidence as the Government may require that it is the legal owner of the information and has complied with its obligations pursuant to clause 4 hereof.

7. The parties acknowledge that certain computer data files exist and that the proprietary rights to those computer programs noted as (a) Longwave - 2 dimensional model and (b) Estry - 2 dimensional model are held by and are the property of Connell Wagner and the computer program known as Rubicon - 1 dimensional model is owned by and is the property of CEANET and it is acknowledged by the parties that the Company has no proprietary interest in these programs.

8. It is acknowledged by the parties that the Company has no proprietary rights to data files relating to collated records of wind and waves and contained in Coastal Processes Volumes 1 and 2 but the Government may in its discretion seek at its own cost the retrieval collation or copying of that data onto magnetic media from Connell Wagner.

9. The Company shall deliver up to the Crown all data in computer compatible form which is identified in the First Schedule hereto and shall do all things and sign all such agreements as may be necessary to effect such delivery.

10. The parties acknowledge that certain information is in the custody of third parties in respect of completion of certain ongoing studies and reports relating to:-

11. AND further the parties agreed that the Company will at the cost of the Government do all such acts and things and execute all or any such agreements as may be necessary to cause those studies and information to be documented and further the parties acknowledge that the proprietary rights in respect of such studies and information when completed shall vest ion the Crown absolutely whether such reports are documented at the date of settlement or not.

1. Trinity Point Hotel Pty. Ltd. (the Company) has transferred to the Crown in right of the State of Queensland (the Crown) sole and exclusive rights in the information described in the Schedule hereto (the information).

2. The Crown requires that the Company obtain from the Assignor an assignment to the Company of all proprietary rights which the Assignor may have in the information.

That in consideration of these presents the Assignor assigns and transfers to the Company all proprietary rights (including but not limited to copyright) which the Assignor holds in the information absolutely for the benefit of the Company and that upon execution of this deed all proprietary rights of the Assignor in the information shall vest absolutely in the Company.

A copy of the Deed of Assignment was provided that day by the respondent to Connell Wagner, which was to sign a copy and have copies executed by the sub-consultants. The schedule was left blank because it was to be prepared by Connell Wagner and discussed with the appellant in Cairns on 7 December.

That evening, a director of the respondent (Sciacca) telephoned the senior employee of the appellant who was directly dealing with the matter (Mulheron). Earlier that day, Sciacca, who is himself a solicitor, had spoken to the respondent's solicitor, Mr Geoffrey Clark, a partner in Williams Graham & Carman of Cairns, and they had formulated amendments to the Crown Solicitor's draft deed to omit any requirement that the respondent assign information in the "public domain". Further the trial judge found that Sciacca "believed that what the Crown sought in Mulheron's letter of 5 December exceeded the provisions of the contract already made". The trial judge also made findings in relation to the telephone conversation between Sciacca and Mulheron. He said:

"At about 6 p.m. on 5 December 1989 Sciacca telephoned Mulheron. Mulheron said Crown Law had redrawn the deed Sciacca had prepared and had also drawn a deed of assignment. Sciacca referred Mulheron, among other things, to the notion that some of the information being purchased was not subject to copyright because it was in the public domain and said "I hope you are not trying to set us up for a default by asking us to perform something which is impossible to perform and make it a condition precedent". Mulheron replied "Absolutely not - the documents have been drawn by Crown Law in absolute good faith". Sciacca responded by saying in effect "If we are all acting in good faith then we would attend to all matters that are legally possible" and Mulheron said "I understand. That's right.".

It was during this conversation that Mulheron told Sciacca that Crown Law required a clearer schedule of what was being transferred and Sciacca replied saying in effect that Connell Wagner were the only people who could do that and he would speak to them immediately."

It was also found that Sciacca did speak to Connell Wagner as indicated.

On the following day, on the respondent's instructions, Connell Wagner transmitted the following letter and schedule to the appellant:

Further to your request of 5 December, we have provided the required schedule of information (other than formal reports or other items described in our letter dated 22 November 1989) held by ourselves and our various sub-consultants. As you will see from the attached schedule, we have established four categories of consultant/sub-consultant as determined by the type of role played in the research project. These categories are briefly explained below.

Organisations in this category are private companies which performed original research for the project and which are capable of assigning authorship. With the exception of miscellaneous data file referred to in our letter dated 22 November 1989, the information held but not included in the formal reports is limited to notes, calculation and correspondence files, originals of reports, drawings, and text, photographs, and miscellaneous third party published and unpublished data such as is usually accumulated by consultants in the evolution of their practices and over which the Principal would have no rights.

Organisations in this category are public bodies (either government departments or universities) which performed original research. Universities are publicly-funded education and research institutions and presumably cannot be directed in the manner of private companies. In the case of James Cook University, Prof Stark has since died and in any case, Trinity Point Hotel has previously granted limited rights of dissemination of the relevant information within academic circles (refer attached copy letters).

Organisations in this category performed limited field work and design work on behalf of Connell Wagner. In the case of Neumann Dredging, the field logs obtained from the sand quarry are included in the relevant report while Slurry Systems provided a letter (also included in the formal reports) base on their experience in the field of slurry transports. While it is possible that both organisations would have records of minor calculations and cost estimates, it is believed that these are of no commercial value or any worth to anyone. We do not believe that this work falls within the category of 'original research'.

The six organisations in this category were not responsible for any original research as their role involved the review and/or checking of the formal reports. In doing so, they made reference to various third party published and unpublished material in their possession, none of which was obtained for the purpose of this research project. Dr Fott in his role as geotechnical adviser took various field notes covering his two trips from San Francisco and performed miscellaneous preliminary calculations to guide and check the detailed work being done by the major consultants. The material supplied with the formal reports are the results of that guidance. We do not believe that this work falls within the category of 'original research'.

Trinity Point Hotel Pty Ltd v State of Queensland [1993] QCA 421

At a glance

Court

Decision date

Before

Source

Judgment (364 paragraphs)

Trinity Point Hotel Pty Ltd v State of Queensland [1993] QCA 421 (21 October 1993)

Parties

Cases Cited (1)