Adams v Quasar Management Services Pty Ltd
[2002] QSC 223
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- Notable Unreported Decision
- Adams v Quasar Management Services Pty Ltd[2002] QSC 223
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Adams v Quasar Management Services Pty Ltd[2002] QSC 223
Adams v Quasar Management Services Pty Ltd[2002] QSC 223
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Civil Trial |
ORIGINATING COURT: | Supreme Court Brisbane |
DELIVERED ON: | 13 August 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 April – 1 May 2002 |
JUDGE: | Philippides J |
ORDER: | That judgment be given for the plaintiff against the second and third defendants in the amount of $102,479.10 including interest. |
CATCHWORDS: | CONTRACT – BREACH – whether defendants breached contract – whether plaintiff entitled to terminate contract – whether fundamental terms – where contract for authorship of building construction manuals – where plaintiff was author – where defendants imposed new conditions – where both parties terminated contract prior to completion CONTRACT – REPUDIATION – where late performance by plaintiff – where defendants served notice making time of the essence – whether notice specified reasonable time for completion – whether notice amounted to repudiation – whether plaintiff lawfully terminated contract CONTRACT – QUANTUM MERUIT – whether plaintiff entitled to payment for services rendered – where defendants counterclaimed for breach of contract DAMAGES – CONTRACT – MEASURE OF – where contract for authorship of building construction manuals – where contract terminated prior to completion – whether plaintiff entitled to money owed under the contract – where plaintiff claimed under quantum meruit for services rendered outside the contract – where defendants counterclaimed for breach of contract – where plaintiff claimed for loss of opportunities had contract been completed – whether loss of opportunity to write updates for manuals – whether loss of opportunity of acknowledgment as author – whether exemplary damages available COPYRIGHT AND DESIGNS – INFRINGEMENT – whether defendants breached plaintiff’s copyright in the published manual – whether plaintiff assigned copyright to defendants – whether plaintiff assigned licence to defendants INTELLECTUAL PROPERTY – COPYRIGHT – whether defendants owed plaintiff duty to acknowledge authorship under s 190 Copyright Act – whether defendants breached duty by failing to acknowledge plaintiff – whether defendants breached duty by acknowledging others TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – whether representation as to copyright misleading or deceptive – whether failure to acknowledge plaintiff misleading or deceptive – whether acknowledgment of others misleading or deceptive Copyright Act 1968 (Cth), s 190, s 193, s 194, s 196(3) Copyright Amendment (Moral Rights) Act 2000, Item 3, Schedule 1 Addis v Gramophone Co Ltd [1909] AC 488 Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 Australian Blue Metal Ltd v Hughes [1963] AC 74 Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229 Chaplin v Leslie Frewin (Publishers) Ltd [1966] Ch 71 Clark v Associated Newspapers Pty Ltd [1998] 1 All ER 959 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Devefi Pty Ltd v Mateffy Perl Nagy Pty Ltd (1993) AIPC 90-989 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Gray v Motor Accident Commission (1998) 196 CLR 1 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 K M A Corporation Pty Ltd v G & F Productions Pty Ltd (1997) 38 IPR 243 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Loew’s Inc v Littler [1958] 2 All ER 200 Louinder v Leis (1982) 149 CLR 509 Messager v British Broadcasting Co Ltd [1929] AC 151 Moore v News of the World Ltd [1972] 1 All ER 915 Tolnoy and Anor v Criterion Film Productions Ltd [1936] 2 KB 1625Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 Wilson v Weiss Art Pty Ltd (1995) AIPC 91-139 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448 |
COUNSEL: | The plaintiff appeared on his own behalf Ms J Dalton for second to twelfth defendants |
SOLICITORS: | The plaintiff appeared on his own behalf Clayton Utz for second to twelfth defendants |
PHILIPPIDES J:
A.BACKGROUND
[1] The plaintiff, Mr Adams, a registered civil engineer, carried on businesses as a self-employed specialist technical author for the Australian building and construction industry, and also acted as a consulting engineer, building surveyor and provider of educational courses and seminars. The plaintiff was employed by the Local Government Department for some 10 years from 1978, during which time he developed a strong professional relationship with the Queensland Master Builders Association (“QMBA”).
[2] In 1982, the QMBA published a Domestic Construction Manual (“DCM”) relating to building law and practice for domestic building work in Queensland of which the plaintiff, as employee of the Department, was a co-author. This was followed by a second edition in 1985, which was revised by the plaintiff, assisted by Mr Button, a civil engineer and academic. In 1989, the plaintiff left his employment with the Department and set up on his own in anticipation of being asked to write the third edition of the DCM. In 1990, the plaintiff and Mr Button were engaged to write the third edition of the DCM for the QMBA. This work appears to have been coordinated by Mr Pickering, who was then executive director of the QMBA.
[3] During mid to late 1990, negotiations took place between the QMBA, the second defendant, Standards Australia (“Standards”), an organisation involved in preparing and promoting standards for the building industry, and the third defendant, Master Builders Australia (“MBA”). These negotiations concerned MBA and Standards taking over the DCM project and using it as the basis for a joint submission to the Federal Government for the production of a national domestic construction manual.[1]
[4] On 6 November 1990, MBA and Standards entered into a Memorandum of Understanding for the joint development of a National Home Building Manual (“the joint venture”).[2] During this period, the work commissioned by the QMBA on the third edition of the DCM proceeded, with the plaintiff and Mr Button being paid for that work by the QMBA, pursuant to their agreement with QMBA. In addition, discussions continued as to the production of an Australian Domestic Construction Manual (“ADCM”) using the third edition of the DCM as a base.
[5] By letter dated 3 April 1991, the plaintiff and Mr Button submitted a revised quotation in respect of the production of the ADCM for consideration by MBA and Standards (“the joint venturers”). By letter dated 19 June 1991, the joint venturers agreed to appoint the plaintiff and Mr Button as consultants in respect of the preparation of the ADCM on the terms specified in the revised quotation of 3 April 1991, as modified by the letter of 19 June 1991. It was accepted that the quotation of 3 April 1991 and the 19 June 1991 letter constituted an agreement, whereby the plaintiff and Mr Button agreed with the joint venturers to create the ADCM using the third edition of the DCM as a base. The letter of 19 June 1991 was signed by the plaintiff, Mr Button, Mr Horwood (Standards’ CEO) and Mr Murray (the MBA’s National Executive Director).
[6] The agreement specified that the ADCM was to be comprised of separate editions for Queensland, New South Wales and Victoria, with an addendum to the New South Wales edition for use in the ACT. The quotation of 3 April 1991 contained details of the work required to “Australianise” the draft third edition of the Queensland DCM, so as to make it a suitable base for all state editions. Thus, the “base Australian document” was to “be published as the Queensland edition, then enabling the NSW, Victorian and ACT editions to be prepared with a minimum of change in the material”.
[7] The agreed price for the entire ADCM work was $115,000, with $83,500 allocated for the “Australian including Queensland edition”, a further $8,500 allocated for each of the New South Wales and ACT editions, and $14,500 allocated for the Victorian edition. The format of each manual was to follow that in the DCM, consisting of 5 chapters as follows:
(a) Part A – Administration: setting out administrative steps and procedures for domestic building;
(b) Part B – Building legislation: containing excerpts from local government legislation and regulations, the Building Code of Australia and related Australian Standards;
(c) Part C – Construction theory: containing information on building design, building products, building methods and building processes;
(d) Part D – Design information: containing information relevant to special design factors, structural works, services, external works and existing buildings;
(e) Part E – Examples: containing pro-forma check lists and certificates to ensure compliance with design, approval and building processes.
[8] The agreement provided, by virtue of the letter of 19 June 1991, for work to commence on the ADCM on 6 May 1991. It also specified dates for completion of the various editions as follows:
(a) completion of the “Australian (including Queensland edition) draft” by 13 September 1991;
(b) completion of the New South Wales edition and ACT addendum draft by 4 October 1991 (allowing a further 3 weeks);
(c) completion of the Victorian edition draft by 9 November 1991 (allowing a further 5 weeks).
[9] The agreement provided that the day to day management of the project would be the responsibility of a project manager who was specified as Mr Pickering. The agreement also contained, in item 5 of the letter of 19 June 1991, a provision dealing with copyright and contained a provision, in item 4 of that letter, as to acknowledgment, stating:
“Acknowledgments
We are willing to make an appropriate acknowledgement of the work undertaken by the consultants (Messrs Adams and Button) but that such acknowledgement shall be on the inside cover to the manual.”
[10] Work on the Queensland edition commenced with progress payments being made as the work continued. The Queensland manual was completed in February 1992. By March 1992, the joint venturers had become concerned about aspects of the ADCM project, in particular the size of the manual and costings, and dissatisfied with Mr Pickering’s management of the project. The plaintiff was asked to stop work until a meeting to be held on 8 April 1992, at the launch of the Queensland edition.
[11] On 8 April 1992, the Queensland edition, comprising some 900 pages, was launched. The plaintiff and Mr Button were acknowledged in the manual, although this was preceded by disputation with the joint venturers about the entitlement and the formulation of the acknowledgment. At the meeting on 8 April 1992, it was confirmed that the plaintiff do no further work, until the joint venturers received a reconciliation of costs, whereupon the plaintiff and Mr Button would be invited to provide a fixed price to complete the manual in other states. Discussions also took place concerning the updating of the manual, with the plaintiff being asked to provide a proposal for the updating of the Queensland edition.
[12] In May 1992, Mr Pickering’s employment with the QMBA was terminated and he was replaced as project manager by Mr Cusack (the MBA’s Director of Legal and Technical Services).
[13] On 19 June 1992, at a meeting between the joint venturers, it was decided (notwithstanding the agreement with the plaintiff) to call for tenders to complete the remaining manuals. By letter dated 24 June 1992, the joint venturers advised the plaintiff that they were calling for tenders to complete the contract. On or about 30 June 1992, the joint venturers sent out invitations to tender to prospective tenderers, including the plaintiff.
[14] By letter dated 13 July 1992, the plaintiff’s then solicitors wrote to the MBA, advising that the plaintiff remained ready, willing and able to complete the remaining manuals in accordance with the agreement and requiring confirmation that the contract remained on foot. An internal MBA memorandum of 2 August 1992 underlined the increasingly ambivalent attitude of the MBA to the ADCM project, noting that on a purely commercial assessment, the project had become unattractive. It also became apparent that relations between the QMBA, which had been heavily involved in the project, and the MBA had become strained.
[15] On 5 August 1992, a meeting was held between the plaintiff, Mr Button, the QMBA and Mr Pickering and the joint venturers, at which the plaintiff advised that his previous price of $115,000 for completion of the work still stood. A further meeting was agreed to be arranged for 13 August 1992. By letter dated 13 August 1992, the plaintiff’s solicitors wrote to Mr Murray of the MBA asking whether the meeting was proceeding on the basis that it was “acknowledged that a contract is in existence”.
[16] By letter dated 14 August 1992, the joint venturers wrote to the plaintiff’s solicitors stating they accepted that the contract was still on foot, specifying that one of the primary objectives was that the remaining editions “be completed as expeditiously as possible”, and requiring the plaintiff to commence work “forthwith”, with the balance of work to be completed by 30 November 1992. By letter dated 28 August 1992, the plaintiffs’ solicitors responded, stating that the direction as to the completion of the remaining manuals was unreasonable and proposing completion of the Victorian edition by 30 January 1993, completion of the New South Wales edition by 31 March 1993 and of the ACT edition by 31 June 1993. However, by letter dated 16 September 1992, the plaintiff’s solicitors indicated that the plaintiff remained ready, willing and able to complete the contract within a period of not more than 6 months.
[17] By letter dated 21 September 1992, the joint venturers’ solicitors advised that the plaintiff’s refusal to complete the outstanding editions by 30 November 1992 amounted to a repudiation of the agreement by the plaintiff and that unless the repudiation was withdrawn by 22 September 1992, the joint venturers would terminate the agreement on the basis of that repudiation. By letter dated 22 September 1992, the plaintiff’s solicitors advised that the plaintiff was terminating the contract on the basis that the joint venturers’ conduct amounted to a repudiation of the contract. On 28 September 1992, the joint venturers’ solicitors advised that the plaintiff’s purported termination was accepted as a repudiation of the agreement and terminated the contract on behalf of their client.
[18] Thereafter, the plaintiff proceeded with the writing of his own building construction manuals and in December 1992 he published, through his business Universal Texts, “DC1” and “DC1.1”. Further books were launched in January and March 1993.
[19] On 22 December 1992, the joint venturers agreed to engage Trevor Howse & Associates, the sixth defendant, to adapt Parts A and B of the Queensland edition for the purposes of the New South Wales edition of the ADCM. The seventh defendant, Mr Howse, a building surveyor and director of Trevor Howse & Associates, was involved in completing the adaptation of the Queensland edition. In addition, Quasar Management Services (“Quasar”), the fourth defendant, was engaged to adapt Parts C, D and E of the Queensland edition for the purposes of the New South Wales edition of the ADCM. The fifth defendant, Mr Johnston, a civil engineer and director of Quasar, was involved in completing the adaptation of the Queensland edition. The New South Wales edition was published by the joint venturers in December 1993.
[20] In September 1994 the joint venturers engaged Building Surveying Services (“BSS”), the eighth defendant, to complete the adaptation of Parts A and B for the Victorian edition of the ADCM. The ninth defendant, Mr Gairns, and the tenth defendant, Nicholas Kukulka, were building surveyors and directors of BSS and were involved in the adaptation. The eleventh defendant, Mr Cocks, a property law consultant and the twelfth defendant, Mr Webster, an accountant were also engaged by BSS to assist with the Victorian edition. In addition, Quasar was engaged by the joint venturers to complete the adaptation of Parts C, D and E of the Victorian edition. It was published by the joint venturers in July 1995.
[21] Neither the New South Wales nor the Victorian editions contained any acknowledgment of the plaintiff’s contribution to these editions as author of the Queensland edition. In June 1999, the ADCM was withdrawn from sale by the joint venturers. The value of sales of the various editions of the ADCM, until their withdrawal, totalled $1,050,000, with sales of 5,442 copies of the Queensland edition, 225 of the New South Wales edition and 322 of the Victorian edition.
B.CLAIMS AGAINST THE JOINT VENTURERS
[22] The plaintiff claims relief against the joint venturers for:
(a) monies accrued under the agreement;
(b) declarations, damages and injunctions for breach of the agreement;
(c) a claim upon a quantum meruit for services rendered;
(d) damages and injunctions for infringement of copyright by publication of the New South Wales and Victorian editions;
(e) damages and injunctions for breach of statutory duty not to attribute the plaintiff’s authorship to others in respect of the New South Wales and Victorian editions;
(f) damages and injunctions for breach of s 52 of the Trade Practices Act 1974 (“the TPA”) by publication of the New South Wales and Victorian editions.
1.Breach of Contract Claim
[23] The plaintiff alleges that, by the letter of 14 August 1992, the joint venturers repudiated the agreement by imposing an immediate commencement date of 14 August 1992 and a completion date of 30 November 1992 that was unreasonable.
[24] It is also alleged that, by virtue of various other stipulations in the letter of 14 August 1992, the joint venturers breached the agreement by imposing new conditions, entitling the plaintiff to terminate the contract. These new conditions were:
(a) the removal of Mr Pickering and appointment of Mr Cusack as project manager;
(b) requiring the ultimate expression of the manual rest with the joint venturers as expressed by Mr Cusack;
(c) restricting literary work to the Victorian and New South Wales editions (with an ACT addendum to the New South Wales edition), and excluding updates and new editions;
(d) allowing the plaintiff and Mr Button only consultative roles in marketing and promotion;
(e) requiring fresh negotiation of travel and interstate work requirements and authorship fees; and
(f) extending the joint venturers’ copyright entitlements to the manuals to second and subsequent editions.
[25] In addition, it is alleged that the joint venturers breached the agreement so as to warrant termination by the plaintiff by:
(a) taking the benefit of the copyright without acknowledgment; and
(b) taking the benefit of editorial control of the content of the manuals.
[26] The plaintiff also alleges that the joint venturers, by the letter of 14 August 1992, combined with the letter of 24 June 1992 directing the plaintiff that all future liaison with the manufacturers would be undertaken by the joint venturers, repudiated the agreement.
[27] The plaintiff’s case is that the plaintiff accepted the joint venturers’ repudiation and by the letter of 22 September 1992 terminated the agreement.
[28] The joint venturers on the other hand allege that the letter of 14 August 1992 did not constitute a breach of contract and that the time period specified for completion was reasonable. They deny that the joint venturers’ direction of 14 August 1992 to recommence work and the request for an undertaking that the plaintiff was prepared to do so contained in their letter of 9 September 1992 constituted a breach of contract. They in turn allege that by failing to so complete the work or give an undertaking as requested, the plaintiff repudiated the agreement, entitling them to terminate. The joint venturers counterclaim for breach of contract for $32,000 relating to the costs of paying others to complete the New South Wales and Victorian editions.
(a)Mr Pickering’s Termination as Project Manager
[29] The letter of 14 August 1992 stated that:
“… whereas Mr Pickering was the original Project Manager he is now no longer employed by QMBA. For this reason and because the MBA still wishes to fulfil the project management function, the Joint Venture has appointed Mr David Cusack to be the Project Manager for the remaining three editions. Mr Cusack will receive assistance from Mr Dawkins but for the purpose of [the plaintiff] he is to accept instructions from and report only to Mr Cusack.”
[30] As I have mentioned the plaintiff relied on Mr Pickering’s removal from the position as project manager as a breach of contract entitling him to terminate the contract. In this regard, the plaintiff relied on the following provision in the agreement:
“The day to day management of the project will be the responsibility of a project manager who shall be Mr Eric Pickering. A three person Project Management Committee comprising of representatives of [MBA and Standards] and Mr Eric Pickering will have overall responsibility in respect to the production aspect of the project. The consultants will be reporting on the progress of the project to the Committee through Mr Eric Pickering.”
[31] Whether a term is essential or not is a question of construction which is to be answered with due regard to the general nature of the contract considered as a whole and to its particular terms. In determining this, regard is had, inter alia, to the importance which the parties have attached to the provision.[3] This term did not become a term of the contract by virtue of the plaintiff’s letter of 3 April 1992, but at the joint venturers’ initiative, by virtue of their letter of 19 June 1991. It appears that the joint ventures thereby sought to ensure the project remained on track. Counsel submitted that there is no evidence that the plaintiff had indicated to the joint venturers that Mr Pickering was regarded as fundamental to the project and Mr Pickering did not so regard himself.
[32] The intention behind the relevant clause appears to have been that there be a representative of each of Standards, the MBA and the QMBA involved in the project management, with the QMBA’s representative, Mr Pickering, having day to day management. The involvement of Mr Pickering arose out of his employment by the QMBA and his historical connection with the DCM. There is no basis for inferring any intention that Mr Pickering continue with the project, even if his employment with the QMBA were to cease.
[33] In the circumstances, I do not consider that the term required Mr Pickering to remain project manager irrespective of his employment by QMBA. Furthermore, even if that conclusion were incorrect, I am not persuaded that the term specifying Mr Pickering as project manager was a term of such importance as to entitle the plaintiff to terminate the agreement on its breach.
(b)Other Alleged Breaches
[34] As I have mentioned, it is alleged that, by the letter of 24 June 1992, the joint venturers sought to impose new conditions on the plaintiff amounting to a repudiation of the contract, for example, the requirement not to liase with manufacturers. In so far as the letter of 24 June 1992 sought to put the balance of the contracted work to tender, it amounted to a repudiation. However, the plaintiff did not thereupon seek to terminate the contract, but rather sought assurances that it remained on foot and it is clear that, at least by 14 August 1992, the parties had both reverted to the terms of the original contract.
[35] Nor do I consider that any of the other matters relied on in respect of the letter of 14 August 1992 as breaches of contract were such as to warrant termination of the contract.
(c) Was the time period specified in the letter of 14 August 1992 for completion of the New South Wales and Victorian manuals reasonable?
[36] The term specifying time for performance became a contractual term as a result of the plaintiff’s specification of a time period for performance in the quotation of 3 April 1991. I am satisfied that the documentary and oral evidence supports the view that the term as to the time for performance of the work was an essential term of the agreement, and regarded by the parties as of critical importance.
[37] However, it is clear that, as at August 1992, the time for completion of the contracted work was at large as a result of the joint venturers having permitted the plaintiff to proceed with the work otherwise than in accordance with the time period specified in the agreement. In those circumstances, either party was entitled to serve a notice making time of the essence.[4] The plaintiff was required to complete the work within a reasonable time and the joint venturers were required to be reasonable in fixing any date for completion. The issue is whether the specification in the letter of 14 August 1992, that the remaining manuals be completed by 30 November 1992, was reasonable.
[38] The onus is on the joint venturers, as the party stipulating the new time for performance of the contract, to establish that the time specified in the letter of 14 August 1992 was reasonable, such issue being determined as at the time the new stipulation was made.[5]
[39] In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd, Mason CJ said:[6]
“In judging whether the time allowed was reasonable the Court must consider all the circumstances of the case, including any unnecessary delay on the part of the party to whom the notice is given before it is given: Stickney v Keeble ([1915] AC 386). There Lord Parker of Waddington observed at p 419:
“In considering whether the time so limited is a reasonable time the Court will consider all the circumstances of the case. No doubt what remains to be done at the date of the notice is of importance, but it is by no means the only relevant fact. The fact that the purchaser has continually been pressing for completion, or has before given similar notices which he has waived, or that it is specially important to him to obtain early completion, are equally relevant facts…”
[40] Thus, whether the time period specified in the letter of 14 August 1992 was reasonable is to be determined “in the light of the circumstances in which the notice is given”.[7] Those circumstances include:[8]
(a) the nature of the delay;
(b) the amount of work remaining in order to complete the contract;
(c) whether there have been repeated demands for performance;
(d) the importance of prompt completion.
[41] In order to properly consider the reasonableness of the time period imposed by the letter of 14 August 1992, it is necessary to outline in some detail the circumstances leading up to the delay in completing the Queensland and other editions, the attitude of the joint venturers concerning that delay, and the conduct of the parties leading up to the letter of 14 August 1992.
[42] The minutes of a meeting on 18 June 1991, involving the plaintiff and the joint venturers, indicate that it was recognised as imperative that the manual be available prior to the end of the year and that the plaintiff advised that the Queensland edition should be ready in 2 months “with the critical path being the role played by the manufacturers and the promulgation of the Queensland legislation”.
[43] On 2 September 1991, Mr Pickering wrote to the plaintiff and Mr Button advising that he had been asked by the joint venturers to convey their request that the Queensland edition be published so as to be available for purchase by the end of November 1991. He also requested a plan for the production of the Queensland manual and the other editions. A project schedule dated 6 September 1991 compiled by the plaintiff indicated a completion date of the end of November 1991, some 2 months after the contracted time for completion.
[44] On 28 October 1991, Mr Pickering was told by Mr Dawkins that the manual was required within the next few days in order that it be published by 1 January 1992. However, by late November 1991, it was clear from the progress claim submitted for payment by the plaintiff that the manual would not be completed for publication as requested. Nevertheless, the joint venturers did not take the plaintiff to task and made no further issue of this further indication of delay. On the contrary, in a memorandum to the plaintiff dated 20 December 1991, Mr Dawkins congratulated the plaintiff on the part which had been forwarded to him, namely Part A.
[45] The work on the Queensland edition was completed on 17 February 1992, as evidenced by the progress claim for payment. In addition, the plaintiff submitted a claim for work external to his contractual obligations, which he claimed was additional work he was required to perform, relating to proof reading, type setting and preparation of text on behalf of manufacturers. The plaintiff claimed that, in part, the delay had been caused by this additional work.
[46] By letter dated 20 March 1992, the plaintiff indicated that he would move onto preparation of the New South Wales edition, in respect of which he had carried out preliminary work, which edition was under the agreement to have been completed by 4 October 1991. By 23 March 1992 the joint venturers were becoming increasingly concerned about aspects of the ADCM project, particularly issues relating to unexpected costs overrun, partially resulting from the size of the manual, and a misunderstanding as to the extent of the print run,[9] and had become dissatisfied with Mr Pickering’s management of the project. It was agreed at a meeting of the joint venturers on 23 March 1992 that the plaintiff be asked to stop work until the joint venturers had had an opportunity to consider the size of the manual and the expenses that had been incurred. It was also at this meeting that it was decided that Mr Pickering should cease to act as project manager. The plaintiff was told to put all further work on hold until 8 April 1992, when a meeting was to take place on the occasion of the launch of the Queensland edition of the ADCM.
[47] At the meeting of 8 April 1992, between the joint venturers and the plaintiff, the plaintiff was directed to stop work pending a reconciliation of costs, but was told that upon that being done, he would be requested to put forward “a fixed price to complete the manual”. The plaintiff was also requested to quote for the preparation of an update for the Queensland edition. The minutes of the meeting do not record any concerns about the delay in production of the Queensland edition, nor was there any mention as to the time frame for the New South Wales edition or other editions, nor any recorded dissatisfaction or criticism of the plaintiff’s progress with the balance of the work. Indeed, on the following day, Mr Murray wrote to the plaintiff thanking him for his “commitment, energy and patience” and congratulating him on the manual, which he described as “a totally professional publication the like of which I doubt exists anywhere else in the world”. He stated that he looked forward to working with the plaintiff in the publication of the other state editions and the updating exercise. Later in April 1992, the QMBA forwarded the joint venturers the requested reconciliation of costs.
[48] In May 1992, the plaintiff provided, as he had been requested by the joint venturers to do, a progress report on marketing, an outline of the minimum amendments required to the ADCM and a revised quotation for $48,000 for completion of the manuals. On 4 June 1992, Mr Cusack (who had by then taken over the management of the ADCM project from Mr Pickering, although the plaintiff had not yet being advised of that development) wrote to Mr Horwood, stating that the various actions undertaken or proposed by the plaintiff appeared to be “very worthwhile”. He indicated that the revised quotation, while a “little generous”, included all clerical support.[10] He noted that the time being quoted for completion of the manuals was approximately 12 weeks (4 weeks for each remaining state/territory). He recommended that the plaintiff be asked to provide a more specific list of the work to be done, noting that if another consultant were to be employed “they would need considerably more time (expense) to digest the existing edition.” In addition, the QMBA wrote to the joint venturers on the same day recommending approval of the plaintiff’s revised quotation, pointing out that it included travel and support costs and was less than the budgeted amount of $53,000.
[49] There was still no communication by the joint venturers indicating any urgency as to the timetable for completion. Rather, the joint venturers approached the plaintiff to advise about other aspects of the ADCM. Thus, on 12 June 1992, the plaintiff, at Mr Cusack’s request, provided a business plan for marketing for the meeting of the joint venturers to be held on 19 June 1992.
[50] Notwithstanding that course of conduct, the minutes of the joint venturers’ meeting of 19 June 1992 reveal a change in attitude by the joint venturers. It was agreed at that meeting that quotations be obtained from other consultants for completion of the other manuals, with the contracts for that work to be let by the end of July for completion of the work by September 1992. This resulted in the 24 June 1992 letter, whereby the joint venturers advised the plaintiff that tenders would be sought for the remaining editions of the ADCM.
[51] In the period up to April 1992, the joint venturers had only raised the issue of delay in production of the Queensland edition on a few occasions. There is no documentary evidence that they communicated any concern to the plaintiff as to the delay in completion of the New South Wales or other editions. Nor can their conduct in effectively “suspending” work from April to 14 August 1992 be disregarded. It is also to be noted that during that period, the joint venturers continued to be in regular contact with the plaintiff, seeking his views and assistance on various matters concerning the ADCM.
[52] The joint venturers’ conduct during the period from April to July 1992 was not indicative of any great urgency as to completion of the work. It is not until the meeting of 5 August 1992 that regard was had to the time frame for the completion of the remaining work, with the minutes recording that, in terms of priority between the remaining editions, the joint venturers wished to proceed as a matter of urgency with the Victorian edition and to have this published in November 1992. No mention was made of the timing for the New South Wales edition.
[53] Mr Horwood’s evidence was that a relevant factor in imposing the time period specified by the letter of August 1992, was the need to seize a commercial “window of opportunity” before the introduction of changes to the Building Code of Australia in June 1993. However, that consideration is not shown to have emerged as a pressing issue in any of the documents relating to the relevant period.
[54] Counsel for the defendants submitted that it was relevant in considering the reasonableness of the new period stipulated for performance, to bear in mind that 15 weeks was proposed as opposed to the period of eight weeks specified in the agreement. It was also submitted that the initial period of eight weeks had been selected by the plaintiff and that the plaintiff had not alleged that that period of eight weeks was insufficient for the work to be performed. Counsel also submitted that the work to be done to complete the New South Wales and Victorian editions was “minimal” and that the evidence indicated that, at the time the plaintiff was requested to complete the work, he had already commenced work on the New South Wales edition, having billed $5,000 of the $8,500 allocated in the contract price for the New South Wales and Victorian editions.
[55] It appears that the time period specified in the letter of 14 August 1992 was imposed by Mr Murray, without consultation with those closest to the project, that is Mr Dawkins, who had most involvement in the project from Standards’ point of view, or Mr Cusack who, as I have noted, was not critical of the time period of twelve weeks proposed in the plaintiff’s revised quotation. It appears that Mr Murray fixed the time period by reference to the initial period provided by the contract. However, this failed to have regard to the circumstances which existed as at August 1992. There were a number of matters which were emerging as contentious issues and which affected the climate in which the manuals were to be completed. These included a difference of opinion between the joint venturers and the plaintiff as regards matters not covered in the detail of the contractual terms, such as matters of editorial control and the objectives of the ADCM, which in the past Mr Pickering had left to the plaintiff and which required time to be discussed upon the change of the project manager.[11] Indeed, both Mr Pickering and Mr Cusack acknowledged that there were tensions and disparate objectives, which would have had an effect on the time required to complete the project. Mr Dawkins also agreed that there would be some difficulties in management arising because of the change of project manager.
[56] One of the issues which emerged as a source of contention concerned the new wind loading code which had been adopted into law in Queensland, but had not yet been adopted in New South Wales or Victoria. The plaintiff pleaded that completion of the manuals was contractually dependent on certain technical standards relating to wind loads for housing being adopted into legislation. The plaintiff thus asserted that he could not complete the work within the time frame nominated, because the new wind loading code that had been detailed in the Queensland edition had not yet been adopted into law in New South Wales or Victoria. The wind loading was contained primarily in Part C of the manual, although it also, according to the plaintiff, affected Part D. Counsel for the defendants submitted that the parties’ contemplation was always that Part C would remain unchanged in the New South Wales and Victorian editions. The defendants’ counsel submitted that what the contract required was clearly set out in the letter of 3 April 1991, which specified that Part C would not change and that there would be minor alterations only to Part D. It was submitted that it was apparent from the plaintiff’s memorandum of 20 March 1992 that, in accordance with his 3 April 1991 letter, the plaintiff was preparing to complete the New South Wales and Victorian editions according to the Queensland wind loading, no matter what the law was in New South Wales and Victoria. Counsel for the defendants submitted that, in any event, there was no impediment arising from the wind loading codes to writing the manual as at 14 August 1992; it could either have been written on the new standard, or the old one. Counsel submitted that the real difficulty in complying with the time specification was that the plaintiff proceeded on the basis that the manual should promote what he saw as “best practice” and the new wind loading standard was in his view “best practice”. Whilst it is possible that this area of dispute could have been accommodated as the joint venturers’ witnesses maintained, it would, nevertheless, have required some discussion and time.
[57] In my view, it is clear from the matters referred to that given the joint venturers’ conduct in acquiescing to the delay in the completion of the Queensland edition, their conduct in suspending work from April to August 1992, and the emerging disagreement over various issues, the imposition of a tight time frame for completion was not reasonable. The original time frame of 8 weeks was no longer appropriate or reasonable.
[58] The plaintiff’s pleaded case was that the 15 week period stipulated failed to take into account the plaintiff’s circumstances and commitments, which he claimed reduced the amount of time available to him during the 15 week period by some 46 days (some 9 working weeks) to 6 weeks. These commitments were as follows:
(a) the plaintiff’s commitment to compiling and submitting a tender for a design manual for steel-framed housing, which the plaintiff claimed he spent 10 days working on;
(b) the plaintiff’s obligations as a distant education lecturer at the Central Queensland University, which the plaintiff alleged took up almost 32 days;
(c) the plaintiff’s appointment on 8 July 1992 as principle building surveyor for the Oakey abattoir extensions, which the plaintiff claimed required his attendance for 3 days;
(d) the fact that the plaintiff was committed to attending a seminar in Brisbane on 24 August 1992 in relation to the Queensland manual.
[59] Counsel for the defendants accepted that it was appropriate to consider the plaintiff’s commitments, in determining the question of the reasonableness of the new time imposed by the joint venturers. Given that the joint venturers had kept the plaintiff in limbo since April 1992, it would not have been reasonable to have required the plaintiff to have immediately resumed work on the ADCM, without regard to his other commitments. However, it was submitted by counsel that the plaintiff’s commitments were less than claimed by the plaintiff.
[60] It was thus submitted that the plaintiff’s evidence as to the time spent on the tender for steel-framed housing should not be accepted and that there was no evidence that the plaintiff was doing work in the university subjects he claimed to have been working on, nor any independent evidence of the plaintiff’s attendance at the Oakey abattoir. Counsel submitted that, the plaintiff could only point to 14 days during the 15 week period, when he would not have been able to work on the ADCM. Counsel submitted that the plaintiff’s university work commitment was overstated by 20 working days, for which there was no documentation, so that only about 10 days were taken up with the claimed work. Allowing for this overstatement, counsel for the defendants submitted that the plaintiff would have had 51 working days (10 weeks) in which to complete the ADCM, and that, if the university commitment was as claimed by the plaintiff, he would have had 31 days (6 weeks), not counting weekends, to perform the work.
[61] It appears that there is some difficulty with the documentary evidence substantiating the plaintiff’s claim concerning his commitments during this period. Nevertheless, accepting that, given his other commitments, the plaintiff had some 10 weeks to complete the manuals, as I do, I do not consider that that period was a reasonable period to complete the remaining manuals. In so concluding I take into account, inter alia, the matters mentioned above concerning the joint venturers’ conduct, their acquiescence to past delays, the change of management of the project, the emerging issues of contention and the nature of the work that remained to be done. I also take into account the fact that Mr Cusack, who had taken over as project manager, had not considered a 12 week period unreasonable.
[62] In the circumstances, I do not consider that a reasonable period was specified for performance by the letter of 14 August 1992. The joint venturers, by their conduct in insisting on performance by 30 November 1992, repudiated the agreement, thus entitling the plaintiff to terminate the agreement.
2. Contractual Claims
(a)Monies owing under the Contract in respect of the Queensland Edition
[63] The plaintiff claims $3,425 as due and owing under the agreement in respect of the Queensland edition. Of the $115,000 contract price, $83,500 was attributable to the Queensland Manual. The plaintiff alleges that of that amount, $73,500 is attributable to his authorship. The joint venturers did not dispute this calculation, but claimed a set-off in respect of their counter-claim arising out of the plaintiff’s alleged repudiation of the agreement.
[64] For the reasons I have already outlined, I do not consider that the plaintiff repudiated the agreement in failing to comply with the time frame set out in the letter of 14 August 1992. Accordingly, the plaintiff is entitled to the sum of $3,425 as due and owing under the agreement.
(b)Claim for Damages for Breach of Contract
(i)Monies which would have been payable under the agreement for the remaining editions
[65] The plaintiff also seeks damages of $26,460 in respect of the balance of monies which would have been payable under the agreement for the remaining manuals had the agreement not come to an end. This amount is calculated by deducting from the contract price of $115,000 the sum of $83,500, being the amounts paid or accrued in respect of the Queensland edition, which leaves the sum of $31,500 payable under the agreement in respect of the New South Wales, ACT and Victorian editions. The plaintiff claims 84% of the figure of $31,500, that is, $26,460, on the basis of the percentage apportionable to the work done by the plaintiff as opposed to Mr Button.
[66] The defendants do not take issue with the claim to authorship of 84% of the work, nor the appropriateness of that percentage as a basis for further calculations, but submit that from the amount of $26,460 should be deducted an amount of $8,500, specified in the agreement as being for travel expenses and which were not incurred. That reduces the claim to $17,960. I accept that submission.
[67] The defendants also submit that any amount found to be payable under this head should be substantially discounted in light of the plaintiff’s evidence that there was no profit to him in doing this work. That submission overlooks the indirect benefits, which the plaintiff considered may flow from authorship. I do not consider any such reduction is appropriate.
[68] The plaintiff is entitled to the sum of $17,960 as damages in respect of the balance of monies payable under the agreement for the remaining manuals.
(ii)Loss of Opportunity Claims
[69] The plaintiff claims damages in respect of the loss of opportunity to have authored the New South Wales, Victorian and ACT editions and to have been acknowledged as their author. In his pleading, the plaintiff identifies a number of lost opportunities flowing from the loss of opportunity to complete the manuals. These include:
(a) the loss of authorship recognition in respect of the New South Wales and Victorian manuals;
(b) the loss of opportunity in liaising with various personnel in the building industry outside Queensland;
(c) the loss of opportunity to write updates for the Queensland, New South Wales and Victorian editions;
(d) the loss of opportunity of being involved in promoting the Queensland manual outside Queensland;
(e) the loss of opportunity to be given an inspection of building construction methods in New South Wales, Victoria and the ACT;
(f) the loss of opportunity of holding one seminar in each of Sydney and Melbourne as specified in the quotation of 3 April 1991;
(g) the loss of opportunity in having Mr Pickering as the project manager;
(h) the loss of opportunity in writing texts for interstate manufacturers who wished to be included in the interstate editions;
(i) the loss of opportunity of meeting with certain organisations and individuals identified in the quotation of 3 April 1991.
[70] The plaintiff alleges that when the agreement was entered into, the joint venturers were aware, from various correspondence, that the plaintiff derived a significant part of his income from other work, which depended on his acknowledgment as an author of technical publications and that the plaintiff placed importance on his authoring the manual, being required to liaise with building product manufacturers and acknowledgment as an author of the manual.
[71] Apart from separately quantified claims, in respect of the loss of opportunity to complete the updates to the manuals and the loss opportunity to charge a fee premium as a service provider, the loss of opportunity claims identified above are presented as one of loss of the opportunity to exploit the more enhanced reputation which the plaintiff claimed he would have gained through being a “national author of the ADCM” and to network in the writing and promotion of the ADCM. That claim is quantified as one for damages for past commercial losses and damage to future reputation as an author, as set out in clauses 2 to 5 of the Combined Damages Schedule to the Third Amended Statement of Claim (“the Combined Damages Schedule”). An alternative claim for damages is set out in clause 6 of the Combined Damages Schedule.
a. Loss of Opportunity to Write Updates
[72] The defendants accept the plaintiff’s claim that the initial contract between the joint venturers and the plaintiff carried with it the commercial opportunity that the plaintiff write updates for the Queensland, New South Wales and Victorian editions. The plaintiff claims the sum of $24,000 for the loss of this opportunity, the figure being calculated on the basis of the amount of the plaintiff’s quotation to update the Queensland edition.
[73] Counsel for the defendants submitted that the loss of these opportunities must be valued as a hypothetical exercise in ascertaining how the contract would have turned out had it not been brought to an end as it was.[12] It was contended that the amount claimed should be discounted to take into account the evidence that, by March 1992, Standards at least had formed a view that it would not enter into further contracts with the plaintiff, such was their disappointment with his performance in relation to the Queensland edition. In addition, it was submitted that it was relevant to have regard to the evidence that the joint venturers had rejected the $8,000 quotation as too expensive. It was submitted that the evidence supported the view that the joint venturers’ dissatisfaction with the plaintiff would have persisted. It was said that was relevant to the likelihood of a valid termination and whether or not the plaintiff would have received the job to update any editions.
[74] It is clear that some personality issues were emerging in the relationship between the parties. It seems that the joint venturers developed the view that the plaintiff was endeavouring to impose his unsolicited views in respect of matters outside the contract. While that view seems somewhat unfair, given that the plaintiff’s views were often sought and adopted, the reality remains that considerable tension had developed in the relationship. It is appropriate therefore that some discounting take place to reflect the possibility that the plaintiff would not have been engaged to complete the updates had the agreement not been terminated in the manner it was. I do not consider that a substantial discount is warranted, since the evidence also showed that the joint venturers had indicated that they were pleased with the quality of the plaintiff’s work. An appropriate award for this loss is $20,000.
b.Loss of Opportunity to charge a Fee Premium for Professional Services
[75] The plaintiff claims damages of $94,122 (inclusive of interest) as set out in items 2.3 and 2.5 of the Combined Damages Schedule, for loss of the opportunity of charging out professional services at a fee premium of $75 per hour. The plaintiff claims that the opportunity to charge a fee premium would have arisen had he written the New South Wales and Victorian manuals and would have resulted from the recognition flowing from his acknowledgment as author of the ADCM editions. The claim is calculated by reference to the plaintiff’s actual earnings for the years from 1992 to 1998, with no claim being made for the period after June 1999, when the ADCM was withdrawn.
[76] Counsel for the defendants, in submitting that this claim should be rejected, pointed to the fact that there was no evidence that the plaintiff was able to charge a premium in Queensland where his reputation was established and the ADCM had sold well. Further, none of the consultants involved in the New South Wales or Victorian editions considered that they could charge such a premium. Of course, this does not deal with the plaintiff’s contention that the ability to charge a fee premium would have flowed from the reputation he would have earned as a national author, as opposed to a state based author. The evidence of Mr Dawkins and Mr Horwood, which I accept, was that fees in the industry were set by the market based on years of reputation and good service, rather than from an acknowledgment as the writer of a text book or manual.
[77] The defendants pointed out that no evidence was given as to the plaintiff’s charge out rates prior to undertaking work on the ADCM, nor rates for other professionals, nor was evidence given by any witness supporting the amount of the premium. The defendants also pointed to the unsatisfactory evidence as to the plaintiff’s consulting work during the period in question. I accept the evidence of the defendants’ witnesses disputing the ability to charge a fee premium as alleged by the plaintiff.
[78] I am not satisfied that the evidence supports the plaintiff’s claim that he lost the opportunity to charge a fee premium. Accordingly, I make no award for this claim.
c.Loss of Opportunities flowing from Loss of Association and Attribution
[79] The plaintiff submits that, as a matter of fact and law:
(a) The development of an author’s future reputation is dependant on publication with due acknowledgment;[13]
(b) An unknown author has a struggle to become known;[14]
(c) Without substantial re-marketing, it is impossible to address that difficulty once the author’s initial major literary work has been copied with no apology or rectification for a number of years;
(d) In the circumstances of this case, the profound harm done to the plaintiff dictates that apologies and damages must reflect the practices and values of current commerce. That is, the plaintiff’s loss of involvement and acknowledgment were the means (now lost) by which he would initially brand his authorship and market and add value to his future products.
[80] Two alternate methods of assessing damages are relied upon by the plaintiff in the Combined Damages Schedule in respect of loss of opportunities arising from loss of authorship, association and attribution. Clauses 2 to 4 quantify the plaintiff’s claim for past and future losses. An alternative quantification is provided in clause 6 of the schedule and the plaintiff’s second affidavit.
(i)The Claim for Past Losses
[81] The plaintiff claims damages for this loss of opportunity on the basis that, had he been the author of the New South Wales and Victorian editions, in addition to the Queensland edition, his reputation would have been enhanced as a result of being associated with the ADCM and being attributed as a national author.
[82] The plaintiff makes a claim for “past losses” for the period from 22 September 1992, when the agreement was terminated, to 18 June 1999, when the ADCM was withdrawn. That claim is based on a contention that the plaintiff would have published various texts through his business, Universal Texts, and has lost the opportunity of generating the volume of sales which his enhanced reputation as national author of the ADCM would have commanded. The plaintiff’s claim is based on a formula involving the notional cost of a text produced by him multiplied by the estimated number of sales, which could have been achieved over a three-year period for the text. The estimated sales figures are based on Mr Pickering’s predicted sales for the ADCM of 25,500 sales over 3 years. The figure thus arrived at is further multiplied by a factor representing the life of the notional text based on the assumption that the plaintiff would have produced a text every three years.
[83] The details of this formulation are contained in clauses 2 to 5 of the Combined Damages Schedule. The plaintiff thus claims $175,735 damages for loss of opportunity in respect of the plaintiff’s “loss of association” in Queensland, representing the loss of the opportunity to achieve sales in the order of $843,750 (being 7,500 lost sales over a three-year period of a text he would have produced, notionally priced at $50, for 2.25 such three-year periods[15]) less the present value of sales achieved by the plaintiff through the Universal Texts business of $668,015. In respect of “loss of association and acknowledgement” for the period the New South Wales edition was published, the plaintiff claims the loss of the opportunity to earn $455,000 representing 5,000 lost sales over a three-year period of a $50 text over 1.82 such three-year periods. As for the “loss of association and acknowledgement” during the period the Victorian edition was published, the plaintiff claims $325,000, being 5,000 lost sales over a three-year period of a $50 text over 1.3 such three-year periods. The plaintiff makes an allowance in these claims for overhead and production costs in the order of 40%, such being the alleged historic cost of overhead and production costs incurred in the production of texts through the Universal Texts business.
(ii) The Claim for Future Losses – the Compensation Programme
[84] In addition, the plaintiff claims in item 3 of the schedule for “future losses”. As stated in the Combined Damages Schedule, this relates to the loss of the opportunities which would have accrued from the plaintiff’s “personal presence at seminars and the like and at which the plaintiff could have used his association with both [Standards and MBA], and his acknowledgment, as a means of increasing the opportunity of earning income”. The plaintiff therefore claims for “the loss of the chance to take advantage of opportunities which would have accrued to him from otherwise being associated” with the joint venturers during the period the New South Wales and Victorian editions were published. The plaintiff claims for a “compensation programme”, representing the cost of re-instating a marketing programme similar in reach and support as that which occurred in Queensland after the publication of the Queensland edition of the ADCM. The period in respect of which loss and damage is claimed is nine years as an author, nine years as a provider of educational courses and four years as a provider of professional services.
(iii)The Alternative Claim as set out in Clause 6 of the Schedule
[85] The plaintiff’s alternative claim for loss arising in his capacity as author is based on the difference in the value to the plaintiff between two positions, namely, “(a) a theoretical current position where it is assumed that the circumstances have not been affected by the defendants’ conduct, and (b) the actual current position”. The plaintiff seeks to quantify this loss by reference to “business planning and accounting procedures applicable to the development, introduction and growth of new products”. The plaintiff alleges that the conduct of the joint venturers caused loss and damage by delaying the plaintiff’s progress in achieving his potential as a commercially successful author and placing at risk the level of equity that could be retained in the business, because of the lower cash flow generated in the early years of his business than would have been the case had the agreement not been breached.
[86] The details of this claim are set out in the plaintiff’s second affidavit. The plaintiff has developed a model which formulates the total revenue potential of the plaintiff’s business as $8,300,000. It envisages an ambitious publishing schedule of texts and a 5 year growth stage for each text. It assumes an injection of equity of $2 million through a share issue and that $2.5 million would be raised in loans. It thus assumes that, with external funding, the business would have been transformed from the cottage type business the plaintiff currently operates as Universal Texts into a corporate entity, possibly an unlisted public company.
(iv) Appropriateness of the Plaintiff’s Formulae for Compensation
[87] It was conceded that the plaintiff had a legal right pursuant to the contract to be acknowledged in the New South Wales and Victorian editions. However, it was contended that the formula put forward by the plaintiff as the basis of compensation was fundamentally flawed. For the reasons which follow, I accept that submission. The flaws in the models put forward by the plaintiff as an appropriate basis of compensation are of such a nature that the plaintiff’s formulation cannot be salvaged by means of some discounting or adjustment.
[88] Firstly, the plaintiff’s formula is based on the projected sales figures predicted by Mr Pickering for the ADCM, which were never achieved. The plaintiff claims that that is irrelevant, because Mr Pickering’s estimates should be regarded as an accurate approximate reflection of the depth of the market and the reason why the ADCM did not reach those estimates was the result of Mr Pickering’s termination as project manager and the joint venturers’ failure to promote the ADCM adequately. In this regard, the plaintiff points to the fact that the sales of the Queensland edition, during the period Mr Pickering was project manager, were on target to meet Mr Pickering’s projections.
[89] I do not consider that the evidence supports the proposition that Mr Pickering’s projections of the estimated sales for the ADCM form an appropriate basis for estimates as to what further sales the plaintiff may have achieved had the contract not come to an end. In this regard, I accept the evidence of the defendants’ witnesses that the plaintiff’s case that he would have been able to achieve sales parallel to those projected by Mr Pickering for the ADCM is entirely unrealistic. Nor do I consider that the sales achieved by the ADCM, as opposed to the projections for it, are an appropriate indicator of the sales which the plaintiff could have achieved in respect of his own texts. I accept the evidence of the defendants’ witnesses, Mr Murray, Mr Dawkins, Mr Horwood and Mr Sternberg, that, without the backing of the joint venturers, who hold a unique position in the industry, the plaintiff would not have matched sales of the ADCM. This is borne out by the fact that the sales of the plaintiff’s texts in Queensland did not come close to matching those of the ADCM figures, notwithstanding his extensive contacts and history of writing in Queensland.
[90] Secondly, the plaintiff can only be entitled to compensation for the loss of opportunity and association on the basis of the course of promotional activities, which the agreement provided for. The plaintiff’s case in this regard is based on an underlying misconception that the joint venturers were required under the agreement to publish and market the ADCM. The plaintiff’s underlying complaint is that the defendants did not market the ADCM as strenuously as he considered they should have. The Combined Damages Schedule therefore erroneously assumes that there was an obligation on the defendants to market all editions, and to market more extensively than they actually did, so as to achieve Mr Pickering’s sales figures. While the plaintiff did not expressly plead a case alleging the defendants were under a contractual obligation to promote and market the ADCM, at trial the plaintiff sought to argue such a case relying on paragraph 18(h) of the Statement of Claim, which alleges that there was an implied term that the joint venturers would do all things necessary to enable the plaintiff to have the benefit of the agreement. However, I do not consider that that pleading encompasses an allegation that there was an implied term as to marketing. Further, no such implied term can, in any event, be made out on the facts of this case.
[91] Thirdly, I accept the submissions of counsel for the defendants that the Combined Damages Schedule is, in any event, based on an unrealistic view of the New South Wales and Victorian markets. I accept the evidence of the defendants’ witnesses that the Queensland market reflected circumstances entirely different from those in New South Wales and Victoria, given that Queensland had had the benefit of a 10 year history of use of construction manuals. In their evidence at trial the plaintiff’s experts, Mr Berry and Mr Leigh, both conceded that the historical differences between Queensland and the other states were significant, but considered that could be overcome in time with correct marketing. Thus the plaintiff contended that the Queensland experience could have been replicated in New South Wales and Victoria, if the joint venturers had established the appropriate background (that is, through road shows and other promotions). However, this highlights the plaintiff’s erroneous premise that the joint venturers were obliged to engage in marketing.
[92] Fourthly, I am not persuaded that the evidence supports the view that there was a national market for the plaintiff’s technical texts. I note Professor Keil’s evidence in this regard. I accept the defendants’ submission that the reports of Mr Berry and Mr Leigh suffer from the weakness that they are based on information provided by the plaintiff which they have failed to independently verify, and on assumptions that cannot be borne out. There was no evidence of there being any national authors in the industry. The plaintiff himself has not written for any state other than Queensland and apart from the situation in Queensland, there is no evidence of technical texts being supplied or marketed in other states.
[93] Fifthly, the formulae contended for by the plaintiff assumes that he would have written a new “DC” series every three years. I am not satisfied that there is any justification for such an assumption. Nor do I consider that the plaintiff demonstrated that he had sufficient resources to write, publish and market the works outside of Queensland as he contended.
[94] Sixthly, the plaintiff’s formulae assumed a 60% profit margin, which is based on the plaintiff’s claim that historically, expenses in his Universal Texts business were limited to 40%. I do not consider that the financial accounts presented by the plaintiff support such a claim. It seems the proposition that expenses were limited to 40% was achieved by the plaintiff representing a number of expenses as his own rather than those of Universal Texts. When the financial documents for Universal Texts and the plaintiff are considered in their totality, it cannot be said that the plaintiff has shown that he has made a profit in respect of his publications. Further, as the defendants’ counsel submitted, the plaintiff has failed to factor into his calculations the increased wages and rent he would be obliged to pay if he were to expand his business as contended. Nor do I accept the plaintiff’s submissions that savings in producing bulk texts would outweigh expenses.
[95] As regards the Clause 6 claim this alternative claim is unacceptably speculative. The number of texts to be written, the number of their sales, their pricing and their content are not based on any acceptable hypothesis. The econometric models are of no assistance as the assumptions on which they are based are too speculative. In this regard, I accept the evidence of Professor Keil and Mr Murray over that of the plaintiff and his witnesses.
[96] Furthermore, I am not satisfied on the evidence that, had the plaintiff had the opportunity to achieve the enhanced reputation, which he claims being the national author of the ADCM would have brought, and the consequent association and attribution which would have resulted, this would have translated into an increased capacity to sell texts. In my opinion no such correlation has been established.
[97] Accordingly, whilst the plaintiff lost the opportunity of having an enhanced reputation and of association and attribution, I do not consider the claims for compensation set out in the Combined Damages Schedule represent an appropriate means of assessing that lost opportunity and compensation for it.
(iv)The Appropriate Method of Compensation
[98] It was conceded that the plaintiff had a legal right pursuant to the contract to be acknowledged in the New South Wales and Victorian editions and to certain liasing in New South Wales and Victoria in compiling the additional manuals. However, it was submitted that it is not possible to mathematically quantify the plaintiff’s loss of association, attribution and enhanced reputation and that the appropriate approach was to make a global assessment. The defendants submitted that it the circumstances an award of $5,000 was adequate for this loss.
[99] In assessing the value of this right, the defendants’ counsel submitted that regard must be had to the following:
(a) Only 2074 copies of the New South Wales edition and 329 copies of the Victorian edition were sold and that the defendants’ promotional material for the Queensland, New South Wales and Victorian manuals did not name the consultants who prepared those editions, nor was there any obligation to do so;
(b) The evidence was that the consultants who prepared the New South Wales and Victorian editions received no inquiries regarding the manuals and their evidence was that there was no perceptible enhancement to their professional reputation. (However, the plaintiff contended that they did not seek to maximise the benefits of acknowledgment, by actively promoting their authorship of the ADCM as he would have done. He contended that there was a commercial value to the plaintiff in being able to go to the market by direct mail promotion and the like, while being acknowledged as the principal author of the ADCM);
(c) Where the plaintiff received much more than his contractual due (for example, through road shows by way of a separate marketing agreement) the plaintiff has not been able to capitalise on his commercial advantage. It was argued that while the plaintiff had been very active in promoting and selling his texts and networking both with his own established network and with others during production of the Queensland edition of the ADCM, his business was not shown to have been profitable or to be likely to become so.
[100] In valuing the commercial opportunity represented by the plaintiff’s contractual entitlement to liasing in New South Wales and Victoria, counsel for the defendants’ submitted that the following should be taken into account:
(a) This right was limited in time to a maximum of 25 days, with nearly one half of this work being done, as is evidenced by the plaintiff having claimed nearly half his travel and accommodation allowances as at January 1992;
(b) There was evidence that liaising with national manufacturers had been virtually completed by the time the Australianised edition was completed and evidence of the joint venturers undertaking this type of work from early on in the project;
(c) Further, the liaising and travelling was not contractually tied to the New South Wales and Victorian editions alone but was, in substantial part, associated with the Australianised Queensland edition;
(d) After January 1992, the plaintiff had continued to carry out liaising work in New South Wales of a substantial nature;
(e) The evidence of the joint venturers was that they would have relied upon the flexibility provisions of the contract if necessary, to limit liaising work which the plaintiff was to do;
(f) The plaintiff did not find it necessary to liaise with a lot of the people he originally thought necessary to prepare the Queensland edition and those engaged to prepare the New South Wales and Victorian editions found little need to liaise with others in order to prepare them.
[101] The defendants therefore submitted that whilst the plaintiff would have had a commercial opportunity to meet people who may have been relevant to his future career, that opportunity was, at most, in respect of some 12 or so days during a total period of eight weeks and there was no safe basis for concluding that such meetings would have led to any profitable or enduring relationships. It was contended that there was much common sense in Mr Cusack’s observation that doors would have been opened for the plaintiff during the course of the project, as people would have been willing to assist the joint venturers, but that thereafter, the plaintiff was unlikely to have enjoyed any ongoing special access to any people, because the doors were only really opened to the joint venturers, not the plaintiff.
[102] The defendants argued that the plaintiff’s experience in Queensland is illustrative of this, in that, as an employee of the Local Government Department and whilst acting under the auspices of the QMBA, the plaintiff had the opportunities to engage in technical debate with people and to have access to manufacturers on his own. However, he was unable to sustain these benefits, and notwithstanding his exposure from the promotion of the Queensland edition of the ADCM, he now received little work from them. Furthermore, it was submitted that the organisations the plaintiff complains of having a damaged relationship with are Queensland organisations in the main, with which he had a relationship before the contract was terminated.
[103] I do not accept that the plaintiff’s submission that he has lost opportunities to obtain work from these Queensland organisations, with which he had continuing contact over an extensive period. Nor do I accept the submission that any loss of opportunities in respect of the Queensland organisations referred to by the plaintiff arose from the loss of opportunity to become a national author.
[104] It is also necessary to take into account the fact that, as regards Standards, which was clearly an influential organisation in building regulation in Australia, the evidence from its representatives was that, because of their experience with the plaintiff prior to the termination of the agreement, the view had been formed (whether fairly or not) that further contractual dealings would not be entered into with the plaintiff.
[105] I accept the defendants’ submissions that the plaintiff has an exaggerated notion of what acknowledgment in the New South Wales and Victorian editions would have meant for him. His evidence was the opportunity of national authorship and acknowledgement (together with the promotion as such) would have resulted in the opportunity to become “absolutely famous in New South Wales”. The defendants’ witnesses, who I accept had a more comprehensive view of the market than the plaintiff, cast doubt on whether being acknowledged in the New South Wales and Victorian editions would have raised the plaintiff’s profile in any material way.
[106] Nevertheless, I accept that the plaintiff has lost the opportunity to an enhanced reputation, to a national profile as an author, to association and attribution, and to do some networking. Doing the best I can on the evidence, damages should be assessed on a global basis at $25,000 for the loss of opportunities as claimed by the plaintiff. This gives sufficient recognition to the loss of opportunities by way of consultancies or other work that association and attribution may have brought.
[107] Accordingly, the plaintiff is entitled to $62,960 damages for breach of contract as follows:
| (a) | In respect of the remaining manuals | $17,960 |
| (b) | Loss of opportunity to write updates to the manuals | $20,000 |
| (c) | For loss of opportunities arising from authorship and attribution | $25,000 |
3.Quantum Meruit Claim for Type Setting Work
[108] The plaintiff claims $9,810 of the joint venturers upon a quantum meruit, plus interest of 11% from 10 March 1992, in respect of work, mainly relating to typesetting, performed outside the agreement.
[109] In relation to this claim counsel for the defendants submitted that Mr Pickering had no authority to request or acquiesce in the plaintiff doing this work. However, lack of authority was not an issue pleaded by the defendants.
[110] Further, it was submitted that the evidence of Mr Pickering did not support the plaintiff’s quantum meruit case. In addition, it was said that the plaintiff did not comply with his obligation under the contract to provide a word processed hard copy of the manuscript for typesetting and that the amounts claimed for typesetting included changes to the substance of the text, as a result of the plaintiff using the typesetters as a word processing service.
[111] I accept that the plaintiff did use the typesetters as a word processing service and that this accounted for some of the additional typesetting work carried out by the plaintiff. However, I also accept the plaintiff’s evidence that he took on a good deal of additional typesetting work, because of the typesetter’s lack of competence and because Mr Pickering was content to delegate that work to the plaintiff. I allow 90% of the claim of $9,810, making $8,829.
4.Breach of Copyright Claim
(a)The Plaintiff’s Case
[112] The plaintiff alleges that the ADCM agreement was an agreement for the creation of a future literary work and that the work contemplated and provided for in the agreement was “work” within the meaning of the Copyright Act 1968 (Cth) (“the Act”). It was not in dispute that the Queensland edition of the ADCM was a “literary work” within the meaning of the Act.
[113] The agreement contained, in item 5 of the letter of 19 June 1992, a provision dealing with copyright as follows:
“All copyright in respect to the contents of the Manual shall jointly remain with [Standards and MBA] and both of us shall have the right to undertake Amendments and Revisions as we see fit, and without future reference to you.” (“the copyright clause”)
[114] The plaintiff alleges that:
(a) the copyright clause provided for an assignment of a limited copyright, such limited copyright:
(i) being limited geographically to Queensland, New South Wales, Victoria and the ACT (the states for which manuals were to be prepared);
(ii) being limited to undertaking amendments and revisions of the first editions of the manuals;
(iii) not extending to any subsequent editions;
(iv) being limited to the joint venturers being entitled to undertake only amendments and revisions to the manuals.
(b) since the agreement was an entire agreement for a lump sum amount, the limited copyright in the work was not to be and could not be wholly assigned until the agreement was wholly performed.
(c) as the editions of the ADCM successively came into existence, and until the ADCM manuals were completed, the joint venturers acquired an implied licence to use the unfinished 1990 DCM in the manuals as they were successively created and to use such manuals as they were created, (the implied license arising as a matter of law from the nature of the agreement, being an entire agreement, and as a matter of necessity, so as to give business efficacy to the agreement).
[115] The plaintiff thus contended that the copyright clause did not grant an unlimited assignment of copyright in the Queensland edition to the joint venturers. Rather, it is said that the entitlement acquired to publish the state editions was one which arose in stages as each of the state manuscripts was delivered to them and was subject to the plaintiff’s participation in the writing of the editions as provided for on the agreement.
[116] The plaintiff alleges that the New South Wales edition published in December 1993 and the Victorian edition published in July 1995 were copied, or substantially and materially copied, from the Queensland manual, without his consent as owner of a portion of the copyright.[16] He alleges that the joint venturers infringed the plaintiff’s copyright by publishing, marketing, copying and distributing the New South Wales and Victorian editions without his consent.
[117] The plaintiff claims damages under s 115(2) of the Act and additional damages under s 115(4) of the Act.[17] In addition, the plaintiff seeks injunctive relief and declarations as to the effect of the agreement, in particular that:
(i) the joint venturers acquired no copyright in Queensland and that until the unsold copies of the manual were sold, they had acquired an implied licence to sell or dispose of them;
(ii) they had no right to produce and sell subsequent editions of the Queensland manual for New South Wales, Victoria and the ACT;
(iii) the licence to sell the manual ceased on 1 July 1997 upon adoption of regulations making the manual obsolete.
(b)Submissions on Behalf of the Defendants
[118] The defendants’ case is that the copyright clause operated as an assignment of copyright to the joint venturers (see s 196 and s 197 of the Act) and that it is contrary to the words of the copyright clause to read it as:
(a) creating a licence which is exclusive;
(b) creating a licence or an assignment which is limited in its geographical extent to Queensland or otherwise limited;
(c) having a three stage operation, contingent upon the handing over of work from the plaintiff to the defendants and “flowering” into a complete assignment when all three of the manuals, the subject of the agreement, had been provided to the defendants.
[119] The defendants submitted that, while there are cases in which a licence will be implied at law from the conduct of a copyright owner,[18] in the present case, the matter is not left to implication from conduct, since the matter of copyright is expressly dealt with in a clause of the agreement, which deals with the property in the copyright, and does so not in terms of a licence. The defendants thus submitted that a licence should not be implied, since the implication was not necessary as a matter of business efficacy. The defendants further submitted that the plaintiff’s position is contrary to general principles of copyright law, to the effect that the engagement for reward of a person to produce material of a nature, which is capable of being the subject of copyright, implies a permission, consent or licence in the person giving the engagement to use the material in the manner and for the purpose contemplated between the parties.[19] It was also argued that the material in the Queensland edition was not simply a manual for Queensland, but was the “Australianised” version of the ADCM, which in turn was, by the express agreement of the parties, to be used as a base for the New South Wales, ACT and Victorian editions with minimal changes. Although the contract provided that it was to be the plaintiff who was to convert the base manual into the New South Wales, ACT and Victorian editions, it was submitted that an artificial construction of the clause should not be adopted in order to reconfigure the plaintiff’s contractual claim into one for breach of copyright.
[120] Counsel for the defendants also pointed to the struggle which the plaintiff had to be acknowledged on the text at all as telling against the plaintiff’s copyright in the work. However, I do not consider that that matter is of much importance, since there was an express agreement that the plaintiff would be acknowledged and the difficulty in obtaining that acknowledgment is not reflective of anything other than Standard’s reluctance to break with its general practice. On the other hand, I note that although there was negotiation as to the wording of the acknowledgment, no issue was raised by the plaintiff as to the copyright block which appeared on the acknowledgment page. Furthermore, the Queensland edition contained a notice that copyright was owned by the joint venturers, without cavil from the plaintiff.
(c) What is the Effect of Clause 5?
[121] An assignment of copyright must be in writing and signed by, or on behalf of, the assignor.[20] The question of whether there has been an assignment of the copyright is one of construction of the contract in the light of the surrounding circumstances. Formal language is not required to effect an assignment, thus it is not necessary that the words “grant” or “assign” are used.[21] However, although no formal language is required, there must be a clear intention to effect an assignment, as distinct from a licence.[22] This question turns on the construction of the contract in light of the circumstances of the case.[23] The commercial significance of the transaction to the parties will form part of the surrounding circumstances to be considered when determining the intention of the parties.[24] A licence may be implied from the circumstances or the terms of any agreement between the parties.[25] Generally, as with implied contractual terms, a licence will be implied where it is necessary to give business efficacy.[26]
[122] The copyright clause was inserted by the defendants in their letter of 19 June 1991, which was signed by the plaintiff. That letter refers to the plaintiff as a “consultant” in respect of the preparation of the ADCM and to the joint venturers as “owners”.[27] The letter also stated at item 3 that “the decision in respect of the number of copies to be printed will be a decision that the owners will make at its [sic] absolute discretion.” The agreement provided that the bulk of the contract price, that is $83,500 of the $115,000, be allocated to be paid on the completion of the Queensland edition and that the other editions would be prepared with a minimum of change.
[123] What emerges from the terms of the agreement, comprised by the letters of 3 April 1991 and 19 June 1991, is that the parties had agreed on a lump sum contract for the manuals, with the joint venturers obtaining copyright in the Queensland edition on its completion and with such copyright remaining with them. While the contract envisaged that the plaintiff and Mr Button would write the other specified editions, there is nothing in the agreement, nor anything which arises as a matter of business efficacy, which reveals an intention that the assignment of copyright was conditional on the plaintiff and Mr Button writing the remaining editions.
[124] In the circumstances, I consider that there was an assignment of copyright in the Queensland edition of the ADCM pursuant to copyright clause. Accordingly, there was no infringement of copyright as alleged by the plaintiff. It follows that the plaintiff is not entitled to damages under s 115(2) of the Act, nor additional damages under s 115(4) of the Act, nor the other relief sought in respect of the claim concerning breach of copyright.
5. Section 190 of the Copyright Act Claim – False Attribution of Authorship
[125] The plaintiff claims relief pursuant to Part IX of the Act. The plaintiff alleges that the joint venturers breached the duty owed to him pursuant to s 190 of the Act. The New South Wales edition of the manual, when published, contained an acknowledgment that Parts A and B had been prepared by Trevor Howse and Associates and that Parts C, D, and E had been prepared by Quasar. The Victorian edition of the manual when published contained an acknowledgment that Parts A and B had been prepared by BSS and, more particularly, acknowledged those parts had been prepared by the ninth and tenth defendants, in association with the eleventh defendant and with the assistance of the twelfth defendant. It also stated that Parts C, D and E had been prepared by Quasar. The plaintiff was not identified as one of the authors of the original work comprised in the New South Wales and Victorian editions. It was common ground that certain parts of the New South Wales and Victorian editions remained unchanged from the Queensland edition, although the extent of the unchanged part was contentious.
[126] The plaintiff alleges that s 190 of the Act was breached by the acknowledgment of the fourth to twelfth defendants, without reference to the plaintiff, thereby implying sole authorship by those defendants of the New South Wales and Victorian manuals. The plaintiff seeks damages pursuant to s 194 of the Act in the amount of $2,174,149 or a sum in accordance with clause 6 of the Combined Damages Schedule, the basis of the calculation being the same as that referred to already in the context of the plaintiff’s claim for breach of contract. The plaintiff no longer seeks injunctions requiring the reinstatement of the plaintiff’s acknowledgment in the manual, however, he does seek an apology and the advertising of the plaintiff’s authorship.
[127] In submissions, counsel for the defendants conceded that there had been an infringement of s 190 of the Act. The evidence concerning the failure to acknowledge or make appropriate attribution of the plaintiff’s authorship, as given by Mr Dawkins was that in preparing the acknowledgment pages for the New South Wales and Victorian editions, the joint venturers “did not think of Mr Adams because he had been out of the project for some time.” However, the joint venturers would have had cause to have been aware that the issue of acknowledgment was an important one for the plaintiff, given the difficulty that had arisen with respect to his acknowledgment in the Queensland edition. At the same time care was given by the joint venturers to extensive acknowledgment of those involved in the New South Wales and Victorian editions, which acknowledgment had not been sought. Notwithstanding the duration of the litigation, the joint venturers only admitted to the false attribution at the conclusion of the trial.
[128] Although it was not pleaded, counsel for the defendants relied in submissions on the defence of reasonableness in s 195AR of the Act. Counsel submitted that the joint venturers’ omission to attribute original authorship to the plaintiff and Mr Button was reasonable given the joint venturers’ belief that they had copyright in the work and their payment to have the work adapted by others. Counsel also emphasised that the defendants had not been shown to have profited from the work and the fact that the non-acknowledgment was in the nature of an oversight. It was also said that the defendants acted reasonably having regard to the nature of the work involved, being a compilation, the fact that the Australianised (Queensland) version of the ADCM was adapted to form the New South Wales and Victorian editions as contemplated by the parties. Alternatively, reliance was placed on these matters as relevant to the granting of remedies under s 195AZA of the Act.
[129] Part IX of the Act was substantially amended by the Copyright Amendment (Moral Rights) Act 2000, which came into force on 21 December 2000. As the relevant attribution in this case occurred prior to 21 December 2000, it is Part IX, as in force prior to the amendments, that is applicable in this case. This is made clear by the transitional provisions of the Amendment Act.[28] Section 195AR and s 195AZA of the Act form part of the provisions of Part IX introduced in December 2000 and are therefore not applicable.
[130] The key provisions of the former Part IX of the Act applicable in the present case are s 190, which imposed the duty and s 194, which provided for damages for breach of s 190. There are few authorities dealing with s 190. A similar provision in the Copyright, Designs and Patents Act 1988 (UK) has been considered in Clark v Associated Newspapers Pty Ltd[29] and Moore v News of the World Ltd.[30]
[131] As regards damages, s 195(3) of the Act requires that any damages recovered in proceedings brought otherwise than under Part IX of the Act are to be taken into account in assessing damages in proceedings instituted by virtue of Part IX and arising out of the same operation or transaction.
[132] The plaintiff has not shown that the false attribution resulted in any specific financial loss to him. Nor is there evidence that those who were the beneficiaries of the false attribution received contractual or other benefits as a result of the false attribution. The award I have made for lost opportunities arising out of the loss of association and attribution as a result of the joint venturers’ breach of contract adequately covers the claim for damages for false attribution. In the circumstances, I do not consider that any further compensation in addition to that provided for loss of opportunity is warranted. To award additional compensation would result in double damages.[31]
[133] As regards the apology sought by the plaintiff, although an apology is specifically provided for under s 195AZA of the current version of Part IX of the Act, it was not under the former Part IX of the Act. Further, the apology sought by the plaintiff would, in any event, be an inappropriate remedy in the present case, given the time that has elapsed since the false attribution, and the withdrawal of the manuals.
6.Trade Practices Claims against the Joint Venturers
[134] At trial the plaintiff abandoned his claim for damages for alleged misleading and deceptive conduct concerning the entering into of the agreement. The remaining claim under the TPA relates to the representation in the manuals that the fourth to twelfth defendants had prepared the NSW and Victorian editions and to the joint venturers’ claim to copyright of those manuals. It is claimed that, by making such representations, the joint venturers engaged in misleading or deceptive conduct under s 52 of the TPA. Given the conclusion I have reached concerning the issue of copyright, there is no conduct by the joint ventures, in breach of the TPA, in respect of their claim of copyright.
[135] In relation to the remaining claim under the TPA concerning the representation that the fourth to twelfth defendants were the authors of the New South Wales and Victorian editions, to the exclusion of the plaintiff, this is more appropriately characterised as a claim under s 190 of the Act, which claim I have already dealt with. I do not consider that the plaintiff has shown any basis for further compensation for breach of the TPA, which would be additional to the compensation which I have determined the plaintiff is entitled to receive in respect of the loss of opportunity claim arising for breach of contract. Nor do I consider that this is an appropriate case for the apology sought by the plaintiff for the reasons stated above.
7.Exemplary Damages
[136] The plaintiff claims exemplary damages of $500,000 on the basis that the joint venturers acted in contumelious disregard of the plaintiff’s contractual and statutory rights and entitlements to have his authorship acknowledged and to have it falsely attributed to others.
[137] The award of exemplary damages is, as the cases show, an extraordinary remedy. It is intended to punish and deter the wrongdoer for a conscious and contumelious disregard of another’s rights.[32] Exemplary damages are not available for breach of contract, unless the conduct constituting the breach is also a tort, for which exemplary damages are available.[33] In the case of the economic torts, in which intention is an element and damages are “at large”, a defendant must be guilty of something bordering on the malicious before the remedy will be granted.
[138] No claims were pursued by the plaintiff which are capable of supporting an award of exemplary damages at common law, the claims for injurious falsehood and fraud having been discontinued. In any event, there has been nothing contumelious in the conduct of any of the defendants. Whilst certain conduct of the joint venturers can be criticised, for example the failure to acknowledge the plaintiff in the New South Wales and Victorian editions, there is no conduct which would have warranted the award of exemplary damages.
C.CLAIMS AGAINST THE FOURTH TO TWELFTH DEFENDANTS
[139] The plaintiff claims relief against the fourth to twelfth defendants in respect of the publication of the NSW and Victorian manuals for:
(a) copyright infringement by amending and adapting the Queensland manual;
(b) breach of statutory duty under s 190 of the Act not to attribute the plaintiff’s authorship to others by inserting their own names into the adapted manuals, implying authorship;
(c) breach of s 52 of the TPA.
[140] The fourth to twelfth defendants deny any breach as alleged.
[141] Given my finding in relation to the issue of copyright, there can be no claim for copyright infringement against the fourth to twelfth defendants.
[142] As regards breach of s 190 of the Act, I do not consider that the conduct of these defendants amounted to a breach of s 190. The decision to insert an acknowledgment of the fourth to twelfth defendants in the adapted manuals was that of the joint venturers, and the relevant conduct carrying out that decision was that of the joint venturers. The acknowledgment of the fourth to twelfth defendants arose from the terms of the relevant contracts. The conduct of these defendants simply concerned their own acknowledgment and the fourth to twelfth defendants played no part in the decision not to acknowledge the plaintiff. Nor were they responsible for the insertion of the attribution in the manuals, that decision being the responsibility and decision of the joint venturers. For these reasons the claim under the TPA also fails.
D.CONCLUSION
[143] The plaintiff is entitled as against the second and third defendants to $75,214 as follows:
| (a) | Monies due and owing under the agreement for completion of the Queensland edition of the ADCM | $ 3,425 |
| (b) | Damages for breach of contract | $62,960 |
| (c) | Quantum meruit claim | $ 8,829 |
[144] As regards interest, counsel for the defendants submitted that the defendants should not be responsible for the plaintiff’s dilatoriness and that interest should only be for a period of three years, on the basis that the plaintiff first articulated his claims in the long statement of claim served in January 1999. In Serisier Investments Pty Ltd v English[34] it was held that a defendant will not be required to pay interest from the date of the loss where the plaintiff has been guilty of unreasonable delay in prosecuting the claim. In this case, the plaintiff first issued a writ against the first, second and third defendants in the Supreme Court on 19 December 1996. The plaintiff also issued a writ against the remaining defendants on 30 June 1998 in the Federal Court, which was transferred to the Supreme Court by order of Spender J on 3 September 1998. The two actions were consolidated. The plaintiff’s Amended Statement of Claim was filed on 29 November 1999. There were a number of adjournments of the trial prior to the hearing on 8 April 2002. Whilst the action has not proceeded as expeditiously as it ought to have, the conduct of the second and third defendants, in only conceding certain important issues such as false attribution, should not go without comment.
[145] Having reviewed the file and the chronology of this proceeding, I consider that interest should be awarded from January 1999. I award interest on the $75,214 from January 1999 at 10% per annum, being $27,265.10 interest. The plaintiff is therefore entitled to $102,479.10.
[146] I shall hear the parties as to the formal orders to be made and as to costs.
Footnotes
[1] In July 1990, the Building Regulation Review, through the Department of Industry Technology and Commerce had advertised for the production of a “National Home Building Manual”, containing all the information required for home builders in Australia.
[2] As it turned out public funding did not eventuate for the join venture and the joint venturers proceeded to fund the project themselves.
[3] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 431.
[4] Louinder v Leis (1982) 149 CLR 509 at 528.
[5] Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 per Brennan J at 647; per Mason CJ at 640.
[6] (1989) 166 CLR 623 at 638.
[7] Australian Blue Metal Ltd v Hughes [1963] AC 74 at 99; see also Louinder v Leis (1982) 149 CLR 509; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623.
[8] Louinder v Leis (1982) 149 CLR 509 per Mason J at 527; Australian Blue Metal Ltd v Hughes [1963] AC 74 at 99.
[9] It appears that the joint venturers had not been kept appraised of these matters by Mr Pickering.
[10] It seems that the joint venturers were still concerned about costs, including costs being billed for clerical work by the QMBA. The agreement provided for the QMBA to provide clerical work of $21,000.
[11] See Draft Minutes of Meeting of 1 September 1992.
[12] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 94.
[13] Tolnoy and Anor v Criterion Film Productions Ltd [1936] 2 KB 1625 confirmed in Commonwealth v Amman Aviation Pty Ltd (1992) 174 CLR 64 per McHugh J at para 26.
[14] Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 338.
[15] The figure of 2.25 represents the number of three-year periods from 22 September 1992 to 18 June 1999.
[16] A claim as copyright owner under an assignment in respect of Mr Patterson’s authorship of the Queensland edition was not pursued.
[17] The plaintiff did not pursue the pleaded claim for an account of profits.
[18] Devefi Pty Ltd v Mateffy Perl Nagy Pty Ltd (1993) AIPC 90-989 at 39,374-5.
[19] Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229 at 235.
[20] s 196(3) Copyright Act 1968 (Cth).
[21] Chaplin v Leslie Frewin (Publishers) Ltd [1966] Ch 71.
[22] Wilson v Weiss Art Pty Limited (1995) AIPC 91-139 at 39,285.
[23] Wilson v Weiss Art Pty Limited (1995) AIPC 91-139 at 39,285.
[24] Messager v British Broadcasting Co Ltd [1929] AC 151; Loew’s Inc v Littler [1958] 2 All ER 200; Wilson v Weiss Art Pty Ltd (1995) AIPC 91-139.
[25] K M A Corporation Pty Ltd v G & F Productions Pty Ltd (1997) 38 IPR 243.
[26] Ricketson S & Creswell C, The Law of Intellectual Property: Copyright, Designs & Confidential Information (2001) LBC, Sydney, at 99.
[27] Such terminology was also evident in the minutes for the meeting of 18 June 1991.
[28] See Item 3, Schedule 1 Copyright Amendment (Moral Rights) Act 2000 (Cth).
[29] [1998] 1 All ER 959.
[30] [1972] 1 All ER 915.
[31] Moore v News of the World Ltd [1972] 1 All ER 915 at 449.
[32] Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 per Hill and Finkelstein JJ at 190; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448 per Brennan J at 471; Gray v Motor Accident Commission (1998) 196 CLR 1 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 7.
[33] Gray v Motor Accident Insurance Commission (1998) 196 CLR 1 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 6; Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 per Hill and Finkelstein JJ at 191, Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71; Butler v Fairclough (1917) 23 CLR 78 per Griffith CJ at 89.
[34] [1989] 1 Qd R 678 at 679.