FEDERAL MAGISTRATES COURT OF AUSTRALIA
SOLITAIRE HOMES PTY LTD v URBAN VENTURES PTY LTD & ORS	[2010] FMCA 185	

COPYRIGHT – Alleged infringement of copyright of project home house plans – subsistence of copyright – “substantial part” and house plans – general principles regarding damages or account of profits – cost of the proceedings a factor in the award of exemplary damages.

PRACTICE & PROCEDURE – Application to set aside Default Judgment – application granted.

EVIDENCE – Application to adduce tendency evidence.	

Copyright Act 1968 (Cth), ss.10, 13(1), 14(1)(b), 21(3), 31(1)(a)(i), (b), 32(3), 36(1), 115(1) - (4), 116, 126(a), 196(1), 196(3)
Evidence Act 1995 (Cth), s.97
Federal Magistrates Court Rules 2001, rr.7.01, 13.07	

Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342
Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes [1971] 2 NSWLR 278
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951
Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in Liq) (2007) 239 ALR 702; (2007) 71 IPR 437
Australian Securities and Investment Commission v Rich (2005) 218 ALR 764
Australian Securities and Investment Commission v Vines [2003] NSWSC 1237
Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472; (1990) 17 IPR 69
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
A V Jennings Ltd v Bogdan (2009) 80 IPR 356
Bailey v Namol Pty Limited (1994) 53 FCR 102
Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375
Barrett Property Group Pty Ltd v Merticon Homes Pty Ltd (2007) 74 IPR 52
Beck v Montana Constructions Pty Ltd [1964-65] NSWLR 229
Brodie v Singleton Shire Council (2001) 206 CLR 512
British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309
Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64
Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1
Dart Industries Inc v Decor Corporation Pty Ltd (Lettuce Crisper Case) (1993) 179 CLR 101
Deckers Outdoor Corporation Inc v Farley No 5 (2010) 262 ALR 53
Designers Guild Ltd v Russell William (Textiles) Ltd [2001] FSR 113
Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No.2) (2005) 225 ALR 569; (2006) 66 IPR 561
Dixon Projects Pty Ltd v Hallmark Homes (2004) 60 IPR 8
Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490
Dr Martens Australia Pty Limited v Bata Shoe Co of Australia Pty Ltd (1997) 75 FCR 230
Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415; (1999) 161 ALR 503; (1999) 43 IPR 1
Eagle Rock Entertainment Ltd v Caisley (2006) 66 IPR 554
Elwood Clothing Pty ltd v Cotton Clothing Pty Ltd (2009) 80 IPR 566
Enzed Holdings Limited v Wynthea Pty Limited (1984) 4 FCR 450; (1984) 57 ALR 167
Francis Day & Hunter Ltd v Bron [1963] Ch 587
Friend v Brooker (2009) 239 CLR 129; (2009) 255 ALR 601
Gaunt v Hille (2008) 75 IPR 33
Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) 225 ALR 57; (2005) 67 IPR 497
Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 135 ALR 638; (1996) 34 IPR 84
IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 254 ALR 386; 83 ALJR 585; 80 IPR 451
Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd (2008) 77 IPR 523
Interfirm Comparison (Aust) Pty Limited v Law Society of New South Wales (1975) 6 ALR 445
Jacara v Perpetual Trustees WA Ltd (2000) 106 FCR 51
Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241
Kenrick & Co v Lawrence & Co (1890) 25 QBD 99
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (2010) 83 IPR 582
LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24
Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd [1970] 3 NSWLR 265
Louis Vuitton Malletier South Australia v Toea Pty Ltd (2006) 237 ALR 118; (2006) 70 IPR 307
Luxottica Retail Australia Pty Ltd v Grant (2009) 81 IPR 26
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 
Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd (2008) 248 ALR 364; (2008) 75 IPR 455
New England Country Homes Pty Ltd v Moore (1998) 82 FCR 500; (1998) 45 IPR 186
Norm Engineering v Digga Australia (2007) 162 FCR 1; 72 IPR 332
Placer (Granny Smith) Pty Limited v Theiss Contractors Pty Limited (2003) 196 ALR 257
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88; 145 ALR 1; 37 IPR 417
Ratcliffe v Evans [1892] 2 QB 524
SW Hart & Co Pty Ltd v Edwards Hot Water Systems, Autodesk Inc v Dyason (No 2) (1985) 159 CLR 466
Rutter v Brookland Valley Estate Pty Ltd (2009) 81 IPR 549
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 514
Tolmark Homes Pty Ltd v Paul (1999) 46 IPR 321
Ullrich Aluminium Pty Ltd v Dias Aluminium Pty Ltd (2006) 233 ALR 660
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601
Woolworths Ltd v Olson (2004) 184 FLR 121
Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171	

I. Freckleton & H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fourth Edition (Sydney: Lawbook Co., 2009)
J.D. Heydon, Cross on Evidence (Eighth Australian Edition) (Sydney: LexisNexis Butterworths, 2010)
J. Lahore, Copyright and Designs (Loose-Leaf Service) (Sydney: LexisNexis – Butterworths, 2004)
G. McGowan, “IceTV v Nine Network and the Copyright in Factual Compilations in Australia,” (2009) 83 Australian Law Journal 840-848
S. Odgers, Uniform Evidence Law (Eighth Edition) (Sydney: Lawbook Co, 2009)
T.H. Wells, “Monetary Remedies for Infringement of Copyright,” (1989) 12 Adelaide Law Review 164-200

Applicant:	solitaire homes pty ltd	

First Respondent:	urban ventures pty ltd T/As Urban Design and Drafting	

Second Respondent:	jaime charles farrelly	

Third Respondent:	a & A Martins pty ltd t/as a & A constructions	

File Number:	CAG 53 of 2007	

Judgment of:	Neville FM	

Hearing dates:	17, 18, 19 November 2008
17, 18, 19 March 2009
17 and 18 August 2009	

Date of Last Submission:	18 August 2009	

Delivered at:	Canberra	

Delivered on:	23 March 2010	

REPRESENTATION
Counsel for the Applicant:	Mr Higgs SC
Mr Pappas 	

Solicitors for the Applicant:	Nicholl & Co	

Counsel for the First and Second Respondent:	Ms Olsson SC	

Solicitors for the First and Second Respondent:	Trinity Law	

Counsel for the Third Respondent:	Mr Lunney SC	

Solicitors for the Third Respondent:	Tetlow Tigwell Watch and Pamela Coward Higgins Lawyers	

ORDERS
1)	That the Applicant be declared the copyright owner of the plans for the Solitaire house, and of the dwelling known as the Solitaire house.
2)	That pursuant to section 115(2) of the Copyright Act 1968, the First Respondent pay to the Applicant damages in the sum of $10,000. 
3)	That pursuant to section 115(4) of the Copyright Act 1968, the First Respondent pay to the Applicant exemplary damages in the sum of $2,500.00.
4)	That the cross-claim against the Third Respondent by the First and Second Respondents be dismissed.

5)	That	the Application to adduce further evidence relating to an account of profits against the Third Respondent be dismissed.

6)	That the Applications to adduce tendency evidence against, respectively, the Second Respondent (by the Applicant), and against the Third Respondent (by the Second Respondent), be dismissed.

7)	That any submissions in relation to costs be filed and served by each of the parties within 28 days of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA	
CAG 53 of 2007
SOLITAIRE HOMES PTY LTD	
Applicant
And

urban ventures pty ltd	
First Respondent

jaime farrelly	
Second Respondent

a & A Martins pty ltd t/as a & A constructions	
Third Respondent

REASONS FOR JUDGMENT
Index to Judgment
I.	Introduction	and Procedural History							
(i)		Introduction													[1] – [6]
(ii)		Summary:  Procedural History						[7] – [13]
II.	Procedural Events 													
(i)		Default Judgment & the Third Respondent		[14] – [19]

(ii)		Cross Claim against Third Respondent			[20] – [22]

(iii)	Applications to Adduce Tendency Evidence	[23] – [30]

(iv)	Application to Join Extra Party						[31] 

III.	Evidence of Protagonists											 
(i)		Zelko Pekic													[32] – [53]

(ii)		Angelo Turcin												[54] – [93]

(iii)	Jaime Farrelly												[94] – [174]

(iv)	Agostinho Martins											[175] – [219]

(v)		Evidence: Summary of Findings						[220] – [223]
IV.	Evidence of Experts												[224] – [281]

(i)		Terence Ring													[226] – [246]

(ii)		John Poiner													[247] – [273]

(iii)	Christopher Novak											[274] – [280]

(iv)	Expert Evidence: Summary of Findings			[281]
V.	Copyright: Subsistence, Breach & Other Things		

(i)		Statutory Provisions										[282] – [283] 

(ii)		Jurisprudential Principles								[284] – [287]
VI.	Questions & Answers												[288] – [332]

(i)		Does copyright subsist in the plans?				[289] – [294]

(ii)		Who owned the copyright in the plans?			[295]

(iii)	Breach of copyright?										[296] – [297] 

(iv)	Damages or account of profits?						[298] – [319]

(v)		Flagrancy damages?										[320] – [323]

(vi)	Contribution and indemnity?							[324] – [332]

VII.	Conclusion																[333] – [334]
I.			Introduction & Procedural History
(i)			Introduction
1.	These proceedings involve allegations of breach of copyright.   Involved are plans for, and the building of, two modest-sized houses.  Senior Counsel for the Applicant, Mr Higgs SC, regularly referred to them as ‘small project-type homes.’  Such a description seems not to have been disputed during the course of the trial.  The houses are located in two relatively new suburbs in the northern region of the Australian Capital Territory.
2.	The house that was designed for and built by the Applicant, Solitaire Homes Pty Ltd (“Solitaire”), is in the suburb of Gungahlin.  Mr Angelo Turcin is the sole director, and an employee, of Solitaire.  He is also the nominated building licence holder for Solitaire.
3.	It is alleged that the plans for the second house, which is in the somewhat proximate suburb of Dunlop, were copied by either the First and Second Respondents (Urban Ventures Pty Ltd t/as Urban Design & Drafting: “Urban Design”, and Mr Farrelly respectively), on the one hand, and/or the Third Respondent (A & A Martins Pty Ltd: “A & A Martins”), on the other.  The Third Respondent admitted that it built the Dunlop house.
4.	For the purposes of these reasons, for ease of reference, the houses will be referred to as “the Solitaire house” and “the Dunlop house”, respectively.
5.	In 2004, the Solitaire house and Solitaire Homes Pty Ltd were awarded a Master Builders Association of the ACT Award for Excellence.  Unsurprisingly, there was some publicity surrounding that award, which gave some public prominence to the Solitaire house.
6.	It is alleged that the copying of the plans and the building of the Dunlop house were in breach of the copyright pertaining to the plans of, and the building that became, the Solitaire house.
(ii)		Summary: Procedural History
7.	By an Application filed on 11th December 2007, in addition to a significant number of procedural orders, for example in relation to discovery (which matter was the subject of not infrequent contest prior to the eventual commencement of the trial), Solitaire sought:
a)	declaratory and injunctive relief against the Respondents
b)	damages for breach of copyright under s.115(2) of the Copyright Act 1968 (“the Act”)
c)	in the alternative, an account of profits under s.115(3)
d)	damages for conversion or detention under s.116
e)	additional damages under s.115(4)
f)	interest
g)	costs on an indemnity basis against the First and Second Respondents, or in the alternative on a party/party basis
h)	costs on a party/party basis against the Third Respondent
8.	By a Response filed on 20th June 2008, the First and Second Respondents opposed the orders sought by Solitaire in relation to the allegations of breach of copyright.
9.	By an Amended Response filed on 10th November 2008, the First and Second Respondents again opposed the orders sought by Solitaire for breach of copyright and sought relief, by way of cross-claim, against the Third Respondent for contribution and or indemnity for any judgment or relief recovered against them by Solitaire.
10.	The Third Respondent also opposed the orders sought by Solitaire but otherwise sought no relief against any of the other parties to the proceedings.
11.	Original estimates of the duration of the proceedings – of approximately three days – proved to be significantly awry.  The case occupied eight days.  Unfortunately, given the demands on the three Senior Counsel involved (two of whom were from Sydney), the hearing was conducted over a somewhat protracted period between November 2008, and then March and August 2009.
12.	In Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd, the Full Federal Court (Branson, Sundberg & Kenny JJ) identified three questions which the primary judge in that case [should have] considered.  Those questions were: “(a) to identify the work in suit in which copyright subsists; (b) to identify in the alleged infringing work the part taken (that is, derived or copied) from the work in suit; and (c) to determine whether the part taken constitutes a substantial part of the work in suit.”
13.	Having regard to these questions, in my view, the most efficacious course in resolving the issues before this Court is to pose and to answer the following six (6) questions.  These questions will be posed again and answered after the consideration of all the evidence.  The questions to be answered are:
a)	Does copyright subsist in the plans for and the house built by Solitaire?
b)	Who owned the copyright in the plans and the Solitaire house?
c)	Was the copyright in either or both the plans and the house breached?  If so, how and by whom?
d)	If breach of copyright is established, what is the appropriate remedy: damages or account of profits?  If “damages” is the more appropriate remedy, what is the appropriate measure of damages?
e)	If established, do the facts and findings in relation to breach of copyright warrant the award of flagrancy damages pursuant to s.115(4) of the Copyright Act 1968?
f)	If established, do the facts and findings in relation to breach of copyright give rise to a claim for contribution and/or indemnity by the First and Second Respondents against the Third Respondent?  If so, what is the scope of such a claim?
II.		Procedural Events
(i)		Default Judgment & the Third Respondent  
14.	On 23rd May 2008, the solicitors for the Applicant filed an Application in a Case (with supporting affidavit filed on the same date) in which they sought various orders including that default judgment be entered in favour of the Applicant against the Third Respondent, pursuant to Rule 13.07 of the Federal Magistrates Court Rules 2001.  Judgment was entered against A & A Martins on 9th June 2008.
15.	There was no dispute that, at the time judgment was entered against the Third Respondent, Mr Martins, who is a director of A & A Martins, was diagnosed with, and receiving treatment for, bowel cancer.  Unsurprisingly, he was unable to participate actively in the litigation until the trial was well underway because of his medical treatment.  Indeed, when Mr Martins commenced his oral evidence in March 2009, he was still undergoing chemotherapy.  When the trial resumed (and he was under cross-examination) in August 2009, his health, fortunately, was much improved.
16.	On 18th November 2008, the Third Respondent filed an Application in a Case in which it sought to set aside the judgment obtained against it.  In his supporting affidavit (filed on the same day), Mr Martins explained the sequence of his diagnosis and treatment (surgical and daily chemo- and radiation therapy) for bowel cancer.  He explained further that in addition to dealing with bowel cancer, Mr Martins was diagnosed with pancreatitis (which required further treatment), and further, that his new-born son was also diagnosed with cancer.  Understandably, his son required urgent and on-going medical treatment.
17.	Mr Martins also deposed to his Father being a director of A & A Martins but who did not speak English.  Mr Martins deposed further that, unsurprisingly, his focus for many months was on his and his son’s health rather than on business matters, which included these proceedings.
18.	Although notified late to the other parties, and after some discussion of the application on the first day of the trial (17th November), the actual hearing of the application to set aside the default judgment took place on day three of the trial (19th November 2008).  The delay between the application first being raised and being heard is explained simply so as to allow the other parties an opportunity to consider their respective positions (procedurally and otherwise) in the event that the default judgment was set aside.  The application to set aside was formally opposed by the First and Second Respondents, as well as by the Applicant.
19.	In addition to my consideration of (a) the interests of justice, (b) the efficient conduct of the proceedings, and (c) ensuring that any issue of prejudice to any party was satisfactorily dealt with, Senior Counsel for A & A Martins, Mr Lunney, pointed out that whatever the result of his client’s application, Mr Martins would most likely (if not certainly) be called to give evidence in the proceedings in any event.  It would be better, in his submission, if Mr Martins’ evidence came before the Court in the more usual course – that is, in the course of each party giving evidence – rather than otherwise.  In the result, the application to set aside the judgment was granted on 19th November 2008.
(ii)		Cross-claim & leave to amend 
20.	On 6th November 2008, pursuant to Rule 7.01 of the Federal Magistrates Court Rules 2001, Urban Design and Mr Farrelly filed an Application in a Case (with supporting affidavit filed on the same date) in which they sought leave to file and serve an Amended Response.  
21.	The Amended Response included a cross-claim against the Third Respondent, A & A Martins, which pleaded that
(a)	the work performed by Urban Design and Mr Farrelly in relation to the Dunlop house was commissioned by A & A Martins and done at the request, and under the direction, of A & A Martins; and
(b)	in the event that Urban Design or Mr Farrelly were found liable (in whole or in part) in relation to Solitaire’s claim, they claimed against A & A Martins contribution towards or indemnity for any judgment or relief recovered against it or them.
22.	That application to amend was heard, and granted, on 7th November 2008.
(iii)		Applications to Adduce Tendency Evidence
23.	Two Notices of Intention to Adduce Tendency Evidence, pursuant to s.97(1) of the Evidence Act 1995, were filed in the proceedings.  The first was filed on behalf of Solitaire on 15th August 2008.  It was directed to the ‘character, reputation, conduct or tendency to prove that Jaime Farrelly has or had a tendency to act in a particular way or to have a particular state of mind.’  The ‘tendency evidence’ relied upon was set out in two affidavits: (a) Angelo Turcin, sworn 6th December 2007 (pars.39-44), and (b) Washington Romero-Ferre, sworn 15th August 2008.
24.	The conduct or tendency evidence claimed arose out of Mr Farrelly attending a Solitaire display home (not the home the subject of these proceedings) and using a false name recorded in the attendance book at the display home.  As stated in the Notice: “The tendency sought to be proved by the evidence is the tendency of the Second Respondent individually and as sole director of the First Respondent to access, view and/or study the latest iteration of the applicant’s architectural plans and to do so surreptitiously in this instance under cover of a false and misleading entry in the applicant’s entrance book.”
25.	The second such Notice was filed on behalf of Urban Design and Mr Farrelly on 16th March 2009.  The evidence relied upon was set out in the affidavits of Mr Farrelly of 18th November 2008 and 23rd February 2009.
26.	The Notice in question here referred to tendency evidence relating to A & A Martins, “through [among others] the controlling mind of its directors, officers or agents”, where that company “had a tendency to act in a particular way...” in relation to copying or substantially reproducing a substantive part “of various artistic works, being various building plans, created by the First Respondent.”
27.	The evidence referred to in both Notices was the subject of extensive cross-examination.  I deal with it later in these reasons.  It is sufficient to note here the import and relevant principles relating to such evidence.
28.	So far as is relevant to the present case, s.97 of the Evidence Act refers to “evidence of the ... conduct of a person to prove that a person had a tendency to act in a particular way.”  In addition to giving reasonable notice, it is a requirement of the section that the Court “thinks that the evidence will, either by itself or having regard to other evidence adduced ... have significant probative value.”  What is, and what is not “significant probative value” has been the subject of much discussion – judicial and academic.
29.	For example, the Full Court of the Federal Court (Sackville J; Whitlam & Mansfield JJ agreeing) in Jacara v Perpetual Trustees WA Ltd, set out some basic authority in its discussion of the “test of ‘significant probative value’.”  At [72] of that judgment, Sackville J referred approvingly to the statement of Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd, where his Honour said (at pp.175-176): “... what is clearly required, if [tendency] evidence is to be admissible, is that it could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent; that is, more is required than mere statutory relevance.”  In the same place, Lehane J said that tendency evidence would have to be “clearly and strongly probative of the relevant fact in issue.”
30.	To state the obvious, these statements of principle must be borne in mind when considering the evidence of Mr Farrelly and Mr Martins, later in these reasons.
(iv)	Application to join extra party
31.	On the last day of the trial, the Applicant sought to join Mr Martins in his personal capacity as a Fourth Respondent to the proceedings.  Again in accordance with the clear principles regarding, among other things, case-management and delay set out by the High Court in Aon Risk Services Australia Limited v Australian National University, to which I have already referred, because all parties had known of Mr Martins’ relevance to the proceedings as a principal of the Third Respondent since the commencement of the proceedings, at such a late stage of the trial, it was not appropriate to accede to the application.  Accordingly the application was refused.
III.		Evidence of Protagonists
(i)		Evidence of Mr Pekic
32.	Mr Pekic has qualifications in architecture and environmental design.  He is not a registered architect.  He “draws plans for a living.”  For some 15 years or thereabouts he has designed and drawn plans for houses and, subject to what is said below, operated his business in this regard under the name of Axis Design and Drafting.
33.	Since approximately 1999, through his business relationship with Solitaire (which came via his relationship with Mr Turcin – they are personal friends as well as business associates), he has regularly designed houses and drawn plans for Solitaire.
34.	He said, and it was essentially unchallenged, that in about January 2002 Mr Turcin approached him to design and prepare drawings for a project home, which ultimately became the Solitaire house.
35.	Mr Pekic operated his business out of premises owned by his accountant.  Out of those same premises another company, Laopair Pty Ltd (“Laopair”), also operated.  Mr Pekic thought that this company had formerly been in the building industry.
36.	Mr Pekic owed some money to Laopair.  He sometimes caused invoices to be written under the name of his business, Axis Design or Axis Design and Building, but with Laopair’s ABN on the invoice.  Sometimes it was Mr Pekic’s practice to arrange for cheques to be made payable to Laopair or, on other occasions, to endorse cheques he received to Laopair.
37.	Two tax invoices were issued to Solitaire, in relation to the design and plans for the Solitaire house, by an entity known as Axis Design, which was the then trading name of Mr Pekic.  Those invoices became Exhibit M.
38.	Between January and July 2002, Mr Pekic and Mr Turcin met a number of times to discuss plans for the Solitaire house.  Mr Pekic confirmed that Mr Turcin emphasised to him that he (Mr Turcin) wanted a “stand out” home of contemporary design “with unique external and internal features.”
39.	Mr Pekic deposed to there being six particular features of the Solitaire house that are unique or unusual and, in his view, “had not been done before (particularly in the ACT where I practice).”  As listed by him, those six features are: 
a)	the tiled blade wall to the front balcony/ porch; 
b)	the upstairs home theatre; 
c)	the use of the theatre balcony as the front porch; 
d)	the combined use of flat roofing and hipped roofing;
e)	the total front elevation appearance – the general composition of the front façade being unique; 
f)	the informal L-shaped living areas on the ground floor which separates the master bedroom at the front of the home from the other bedrooms located at the rear of the residence.
40.	In pars.10 - 13 of his November 2008 affidavit Mr Pekic recounted the various amendments to the original plans he drew.  Those working drawings were either annexed to his affidavit or exhibited to him at the time of its swearing.
41.	Mr Pekic deposed that he, and he alone, designed and drew all of the plans and working drawings in relation to the Solitaire house.  I accept his evidence without hesitation in this regard.
42.	The amended plans were lodged, by Mr Turcin, with the Australian Capital Territory Planning and Land Authority (“ACTPLA”) on or about 1st November 2002.
43.	The same plans were presented to the Master Builders Association of the ACT in about April 2004.  They were awarded the 2004 prize for the best Medium Density Small Lot Housing by that Association “for excellence in design and building.”
44.	The same plans and the house, said Mr Pekic, were finalists in the Housing Industry Association of Australia awards.  In particular, this occurred in the categories of 2004 Small Lot Housing and 2004 Custom Built Home ($250,000 – 400,000).
45.	In the remainder of his affidavit, Mr Pekic confirmed that (a) in the course of construction, the house attracted significant attention (including being photographed by the local newspaper, The Canberra Times), (b) the certificate of occupancy was not issued until 16th July 2004, and (c) Mr Turcin expressed concern about Mr Pekic doing similar plans for other builders, to which Mr Pekic responded, saying that he did not want Solitaire/Mr Turcin to hold exclusive copyright either.  Accordingly Mr Pekic proposed that he (through his business, Axis Design and Drafting) and Mr Turcin own the copyright jointly.
46.	Mr Pekic confirmed that the final and draft plans, annexed and exhibited to his affidavit, were the first plans that he created “in consultation with Mr Turcin for this style of home.”  He also confirmed that Solitaire built the home in accordance with his plans.  He undertook some supervision of the work, by which he later confirmed that he meant to convey that he attended the site to see that the house was being built as he had envisaged in the drawn plans.
47.	On 6th December 2007 Mr Pekic executed a Deed of Assignment of Copyright in the plans.  The other parties to the deed were Mr Turcin and Solitaire.  A copy of that deed is annexure C to Mr Pekic’s affidavit.  By that deed, Mr Pekic and Mr Turcin transferred the copyright in the plans for the Solitaire house to Solitaire “from the date of the creation of the plans.”
48.	Originally Mr Pekic was not intending to charge Mr Turcin any fee for the design of the Solitaire house because Mr Turcin was intending to live in it himself, and because Mr Pekic and Mr Turcin were friends.  At Mr Turcin’s insistence, Mr Pekic issued an invoice for what he described as a “nominal fee.”
49.	While he agreed that three features of the front of the house – the blade wall, the recessed entrance and the position of the garage, were, to a degree, dictated by the lease conditions and the planning requirements, he maintained that the combination of the blade wall with ceramic tiling (which was not on the first draft of his plans) with the recessed entrance, were unique features of the Solitaire house.
50.	He confirmed that the blade wall, of itself, did not make the Solitaire house unique.  He confirmed, however, that it was the first blade wall in Canberra that was tiled.  Implicit in this statement is that it is in the context of project homes.  Mr Pekic’s actual statement or assertion, in my view, was not seriously challenged in the course of the trial.
51.	Mr Pekic said that a year or so after completion of the Solitaire house he and Mr Turcin spoke about a licence fee for the use of the plans for that house.  He said that they had agreed on an “exorbitant fee” of $40,000.  The fee was set so as to dissuade people from using the plans, even under licence.  But he also agreed that if someone was prepared to pay such a fee, so be it.
52.	Mr Pekic confirmed that, from start to finish, the preparation and drawing of the plans for the Solitaire house took approximately 70 or 80 hours to complete.  This would have been over a six to eight month period.
53.	I have already noted that Mr Pekic was a very credible witness.  I have no difficulty in accepting his evidence in its entirety.
(ii)		Evidence of Mr Turcin
54.	Mr Turcin’s evidence is considered in two parts – (a) his affidavit and oral evidence in relation to the plans and construction (and related issues) concerning the Solitaire house; (b) matters relating to the “tendency conduct” of Mr Farrelly.
55.	Evidence in Relation to the Solitaire House:  Unsurprisingly, at the outset of his affidavit and oral evidence Mr Turcin outlined his discussions with Mr Pekic and the principles or concepts that guided him to settle on the design that became the plans for and the building of the Solitaire house.  In his own words, “this house was ... to become the signature against my company name.”
56.	He confirmed that the element of the “blade wall” was inspired by an article he read in a building magazine.  He maintained, without too much opposition, that his tiled blade wall in the Solitaire house was, at the time of its construction, unique in project homes in the ACT.
57.	Mr Turcin also maintained that having two informal living areas (i.e. the downstairs kitchen and the upstairs “home theatre” in the Solitaire house) were also unique to project houses in the ACT up to the beginning of 2005.  Likewise, he contended that a project home with a “home theatre”, between 2003 and early 2005, had never been built in the ACT.
58.	He confirmed that when the plans were drawn up for the Solitaire house, it did not include a letter box.  It will be seen plainly from the photographs of both houses that each of them has a similarly styled, and located, letterbox.
59.	In both his affidavit (par.19) and in his oral evidence, Mr Turcin confirmed and described his attempts to make secure the building site on which the Solitaire house was being constructed.  He indicated that when he was on the site, it was common to have people wander in to try to look at the house under construction, such was the interest in it.  Part of that interest may well have come from the fact that the Solitaire house was the only double storey house in the street, which otherwise comprised single-storey project homes.  There seemed to be no contention against this proposition.  Indeed, as will be seen later in these reasons, there was independent evidence that confirmed the uniqueness of the Solitaire house, at the very least, in it being the only two storey dwelling in the street.
60.	In order to protect the Solitaire house, its design and ‘special features’ – in so far as that might be possible – Mr Turcin confirmed that the house was secured by fencing.
61.	Mr Turcin confirmed that in 2004 he received two inquiries about licensing the use of the Solitaire plans.  He quoted a fee of $40,000 in each instance.  Nothing ever came of those inquiries.  He stated with singular force that, as at the date of the trial, ‘no one has built this house.’  And, in any event, he said, he always preferred to build a house rather than to license someone else to do so.  Indeed, apart from ensuring the quality of each house he builds, Mr Turcin said that “I’ve never sold a plan and my intention is never to sell a plan....”
62.	Mr Turcin also confirmed that the Master Builders Award for the Solitaire house led to significant publicity.  This resulted, among other things, in the house being photographed for the Canberra and Region Building News in the Souvenir Edition of June 2004, which contained the 2004 Boral Excellence in Building Awards.
63.	There was an awards dinner, with attendant photographs, on that occasion.
64.	Matters of awards and attendant publicity are, of course, relevant to the fact that some fundamental details of the Solitaire house were, so to speak, “out in the market place” (and prominently so) at least from the time of the Master Builders Awards in mid-2004.  This also included Mr Turcin giving an interview to The Canberra Times newspaper.  An article subsequently appeared in that newspaper.
65.	In the course of cross-examination, Ms Olssen, quite properly, sought to question Mr Turcin’s credit.  Briefly stated, it occurred this way.
66.	Mr Turcin did not acquire his builder’s licence until 2004.  Prior to that time, Mr Turcin’s Father had been the nominated builder for Solitaire.  He confirmed that the company (Solitaire) purchased three blocks of land in April 2002 in Gungahlin, the last of which was used for the Solitaire house.
67.	Building of the Solitaire house commenced in 2002, at which time Mr Turcin did not have his builder’s licence.  There was a company licence for Solitaire, which it acquired after commencement of the building of the Solitaire house.  And, as I have said, Mr Turcin senior was the licensee and holder of the requisite builder’s licence.
68.	Mr Turcin advised the Master Builders Fidelity Fund that his Father was the builder, at a time when Solitaire (through Mr Turcin) was constructing the house.
69.	In sum, Ms Olssen’s point was that Mr Turcin used his Father’s building licence (and name) as a matter of convenience at a time when he (Mr Turcin) did not have a licence.  Mr Turcin confirmed that although he did the work for Solitaire in the construction of the house, his Father was regularly on site.  Mr Turcin also agreed that he did not distinguish between the company (Solitaire) and himself.
70.	Whatever the particulars of the ownership of the land upon which the Solitaire house was built, and the details of who held the requisite builders licence at the time (initially Mr Turcin senior, and from 2004, Mr Turcin), and the undoubted importance of the correct details being given to the Master Builders Fidelity Fund, for my part, this discussion assisted me little in the resolution of the principal issues to be determined.
71.	I found Mr Turcin to be a very committed witness who gave his evidence candidly.  I have no reason not to accept his evidence.  He has obviously invested heavily – at a personal level and otherwise – in the litigation under consideration.  
72.	Mr Turcin’s Evidence Regarding Mr Farrelly:  There are three sources for this evidence: (a) Mr Turcin’s primary affidavit; (b) his oral evidence; and (c) a DVD that was played in Court being CCTV footage of Mr Farrelly’s attendance at another home built by Solitaire.  In addition to this material there is an affidavit from Mr Romero-Ferre, filed on 18th August 2008.  He is a casual employee of Solitaire.
73.	Stated generally, the evidence in the sources referred to relates to Mr Farrelly’s alleged conduct, which was said to establish his propensity to view, access and or study Solitaire’s work.  In turn, this propensity and or course of conduct relates to the principal contention that Mr Farrelly copied the plans and/or the [alleged] unique design features of the Solitaire house.
74.	The alleged conduct is in two parts.  The first relates to Mr Turcin contending that he saw Mr Farrelly “in the near vicinity of” the site of the Solitaire house.  In his oral evidence, Mr Turcin confirmed that he saw Mr Farrelly “in front of” the Solitaire house “half a dozen times” during its construction.
75.	The second part of the conduct arose this way.  Mr Turcin was constructing another house in the new Canberra suburb of Harrison (“the Harrison house”).  In his evidence, he described it as a “larger version of” the Solitaire house.  
76.	Mr Turcin gave evidence concerning two things in relation to the Harrison house.  The first was that he had prepared detailed “entry conditions” for anyone wishing to enter and view the Harrison house.  A copy of those “entry conditions” is annexure “A” to Mr Romero-Ferre’s affidavit filed on 16th March 2009.  The entry conditions were developed in early 2007, which is also to confirm that they were put in place after the commencement of these proceedings.
77.	Mr Turcin said that he developed these conditions “to prevent any of these people to come in there [to the Harrison house] and taking ideas”  The reference to “these people” referred to one of the conditions of entry, which stated: “No builders, architects or agents unless approved.”  The conditions also confirmed that “plans will not be provided.”
78.	Mr Turcin also confirmed that he developed the “entry conditions” so that “if Mr Farrelly turned up he was to read that and leave.”
79.	The second matter of evidence concerned (a) the unchallenged affidavit evidence of Mr Romero-Ferre, and (b) the CCTV footage of Mr Farrelly visiting the Harrison house on 24th June 2007.
80.	The substance of Mr Romero-Ferre’s evidence was that he was employed by Solitaire to supervise the entrance of persons to the Solitaire display house at Harrison: thus, to provide them with information and to ensure that persons wishing to view the display home signed a “sign-in book” or “entrance register.”
81.	He deposed that on 24th June 2007 a gentleman of specified height and dress attended the Harrison house.  Mr Romero-Ferre asked him to read the conditions of entry and to sign the requisite book.  The person spoken to said that he would rather not do so.  Mr Romero-Ferre said that if he did not sign the book he could not be permitted to enter the house.  The said person signed the book.
82.	A short while later, Mr Romero-Ferre saw Mr Turcin speaking with the person, shortly after which the said person left the building.  Mr Turcin then advised Mr Romero-Ferre that the “said person” was Mr Farrelly with whom he was engaged in legal proceedings.
83.	Mr Romero-Ferre then went on to depose to Mr Turcin asking to see the sign-in book.  Mr Romero-Ferre pointed to the signature of Mr Farrelly in the book.  He had signed the name “Matt Alchin” and not Jaime Farrelly.  A copy of the page from the sign-in book with this signature is Annexure “B” to Mr Romero-Ferre’s affidavit.  There is neither name nor signature that reflects or remotely resembles the name “Jaime Farrelly” in the entrance register.
84.	I note, too, that the ‘entrance register’ does not require visitors to provide telephone contact details.  The provision of a telephone number is listed as “optional.”  In such circumstances, Mr Farrelly’s comment/explanation (noted below) that he did not wish to be ‘followed up by sales agents’, in my view, rings quite hollow.  I do not suggest that, by itself, this evidence suggests any particular mens rea (used, of course, in a non-criminal sense) on the part of Mr Farrelly.  Rather, in my view, it is part of the often jumbled and disjointed, if not flawed, mosaic that was Mr Farrelly’s evidence, which I deal with in more detail later in these reasons.
85.	It is as well, if not more convenient here, to record in more detail Mr Farrelly’s comment or answer as to why he used a false name in the entrance book at the Harrison house.  He said that he “didn’t want to be followed up by sales agents and people that might use your name for that purpose.”  He also said that he took the view that he was [simply] “a member of the public”; that he had gone through other homes in the display village, and that he “did not have any reason to think there was an issue with me going into this home.”  Candidly, he also admitted that his visit “may not have been the smartest thing to do.”
86.	While I accept Mr Farrelly’s candour, his explanations are, respectfully, far-fetched.  He was not ‘just a member of the general public.’  And he certainly could not wear that description when visiting a Solitaire display home in circumstances where he and his business were engaged in litigation with Solitaire.  I do not accept, in any respect, Mr Farrelly’s explanations in relation to the Harrison house.
87.	The “sign-in” book is headed “Entrance Register.”  Among other things, it advises prospective viewers of the Harrison house that “the home is under 24 hour, 7 day a week, video surveillance with cameras fitted throughout the home.”  Notwithstanding this, as already indicated, Mr Farrelly ventured through the Harrison house.  The Court viewed, in open court, the CCTV recording of his visit.
88.	Among other things, it was put to Mr Farrelly, but denied, that in the course of his somewhat brief inspection of the Harrison house he ‘paced out’ certain dimensions of the house.  Such an interpretation is not far-fetched, although for reasons noted shortly below, I do not need to make any formal findings in relation to Mr Farrelly’s conduct at or in the Harrison house.
89.	Although Mr Farrelly was asked, and essentially denied, numerous questions about his actions recorded on the CCTV recording, in my view, the more salient points of this evidence were that (a) he went to the Harrison house that was built by Solitaire, (b) at a time when he was aware of a significant dispute with Mr Turcin and Solitaire, (c) he clearly and deliberately signed a false name to gain entry to the display home, and (d) his incongruous, if not incredible, response of signing a false name so as to avoid being pursued by sales agents, when there was no requirement to provide contact details.
90.	While Mr Farrelly’s actions appear on the DVD recording as somewhat suspicious, and he could be taken, in some respects, as suggested by Mr Higgs, to be ‘pacing out’ certain dimensions of the house – and I take Ms Olssen’s point that people go to display homes precisely for the purpose of examining ‘every nook and cranny’ (my words) – for the purposes of these reasons I do not need to make any finding about those actions, other than the observations already made in the preceding paragraph.  At the very least, his completely inappropriate action in visiting the Harrison house, and where he signed a false name, did not put his evidence in the most favourable light.
91.	There are now only two other matters to deal with in relation to Mr Turcin’s evidence.  The first is that he received an inquiry from a Dr Maldoni on or about 2nd August 2005 regarding houses built by Solitaire.  Mr Turcin annexed to his December 2007 affidavit a copy of an email from Dr Maldoni.  The relevance and or importance of this is that Dr Maldoni and his wife ultimately purchased the Dunlop house from Mr Martins and had no further contact with Mr Turcin and Solitaire.  The coincidence was not explained or explored to any great degree.  It remains a curiosity – at least.
92.	The second matter of relevance is that, upon reviewing the plans for the Dunlop house, Mr Turcin deposed to estimating that the net profit on its construction would be in the order of $70,000.  In cross-examination, however, he said that he thought an expected profit margin on the Dunlop house by a project builder would be in the order of $40,000, or possibly a tad more.
93.	In this regard, the solicitors who originally acted for Mr Turcin and Solitaire sent a letter of demand to the First and Third Respondents, dated 9th October 2006, in which, among other things, damages were claimed in the sum of $48,000.
(iii)		Evidence of Mr Farrelly
94.	Mr Farrelly swore four substantive affidavits in these proceedings, and a fifth affidavit, which annexed answers to interrogatories administered by the Applicant to the First and Second Respondents.  The four substantive affidavits, so-called, were filed respectively on 13th and 18th November 2008, 24th February 2009, and 5th August 2009.
95.	By way of overview, the affidavit filed on 13th November 2008 detailed what might be described as Mr Farrelly’s evidence in chief.  Helpfully, it annexed, among other things, copies of plans relevant to the proceedings.  There was, however, one unexplained omission to which I will come in due course.
96.	The affidavits filed on 18th November 2008 and 24th February 2009 might most conveniently be described as Mr Farrelly’s response to, among other things, Mr Martins’ affidavit of 17th November 2008.
97.	Mr Farrelly’s affidavit filed on 5th August 2009 explained why certain “invoice request forms” (which are annexed to the affidavit) were not previously discovered.
98.	In addition to the significant volume of these affidavits, Mr Farrelly spent significant time in the witness box.
99.	After setting out very briefly some specific matters, Mr Farrelly’s evidence might conveniently be considered under two, discrete but obviously related categories: (a) his affidavit evidence in relation to the plans for the Dunlop house, and (b) his oral evidence at trial.
100.	Affidavit Evidence: Mr Farrelly obtained his formal qualifications in architectural drafting in 1997.  He is a director of the First Respondent (Urban Ventures Pty Ltd), which was incorporated in 2001, and which carries on a design and drafting business under the name of Urban Design and Drafting (“Urban Design”).
101.	In his affidavit filed 13th November, Mr Farrelly deposed to the following: that prior to reading Mr Turcin’s affidavit of 6th December 2008, (a) he had never seen the plans for the Solitaire house; and (b) he had never seen photographs of the Solitaire house.  He also stated that he had never visited the Solitaire house.
102.	The Plans for the Dunlop House: Mr Farrelly’s evidence essentially focussed upon two things, both of which were set out in his affidavit of 13th November 2008, and repeated regularly in his oral evidence.  Those two things were: (a) that Mr Martins, and not either of the first and second respondents, was responsible for the design of the Dunlop house, and (b) that Mr Martins sat with Mr Farrelly at the latter’s computer (at Mr Farrelly’s office) while he made suggestions/directions for Mr Farrelly to alter or amend the plans for the Dunlop house.
103.	Urban Design was retained by A & A Martins Pty Ltd (“A & A Martins”) to draft plans for the Dunlop house.  The agreement between the two companies was oral.
104.	Mr Farrelly contended that in approximately 2003, Mr Martins telephoned him and said words to the effect: “I want you to put a plan on Block 3, Section 135.  Use the plan from Block 19, Section 145 Dunlop and fax me a sketch.”  It was uncontested that Urban Design and A & A Martins had worked together since about 2001 and in doing so, Mr Martins, on behalf of A & A Martins, had, from time to time, asked Urban Design, through Mr Farrelly, to re-use (and sometimes adapt) a certain plan from a previous job for other projects.
105.	Between 2003 and 2005, on behalf of Urban Design, Mr Farrelly employed other persons to draft plans, in particular, Mr Ian Dawn whose initials, “ID”, appear on many of the plans before the Court.
106.	Sketch plans were sent by fax to Mr Martins, by Mr Farrelly, on 3rd June 2003.  Copies of them comprise annexure H to Mr Farrelly’s affidavit filed on 13th November 2008; copies of the relevant plans are to be found at Appendix C to this judgment. Over the course of a few days (still in June 2003), various changes to the plans were suggested by Mr Martins and effected by Mr Farrelly, each of them acting on behalf of their corporate entities.
107.	Mr Farrelly deposed that, on or about 10th January 2005, Mr Martins came to his office in Griffith (ACT) and indicated that he wanted some changes to the plans for the Dunlop house.  Mr Farrelly maintained that Mr Martins sat next to his computer workstation and indicated to Mr Farrelly the changes he wanted to the plans.  The amended plans were given directly to Mr Martins (they are annexure M to the November 2008 affidavit).
108.	Mr Farrelly next deposed that on or about 12th January 2005 Mr Martins again came to his office and had a conversation to the following effect.  Mr Martins is alleged to have said: “The layout of the site on the site plan appears to be wrong.  Can we check the site shape please[?]”  Mr Farrelly confirmed that he would do so.
109.	Mr Farrelly maintained that, after checking the site plan and confirming that it was incorrect, Mr Martins again sat next to his computer workstation and gave specific directions to correct and to revise the plans.  Mr Farrelly said that upon completing the corrections he gave Mr Martins a copy of the plans, which comprise annexure N to his 13th November 2008 affidavit.
110.	On or about 19th January 2005, Mr Farrelly contended that Mr Martins again came to his office to ask for further amendments to the plans to the Dunlop house, and again sat beside Mr Farrelly’s computer workstation to indicate the changes he wanted.  Annexure O to Mr Farrelly’s 13th November 2008 affidavit contains the amended plans which Mr Farrelly said he gave to Mr Martins at that time.
111.	Mr Farrelly next said that “shortly thereafter”(i.e after the 19th January visit to his office) Mr Martins came to Urban Design’s office and said that he wanted to add a second storey to the Dunlop house plans.  Again, Mr Farrelly said that Mr Martins sat next to his workstation and directed the changes to the plans, and that he gave him a copy of the amended plans, which comprise annexure P to his November 2008 affidavit.  In particular, Mr Farrelly drew attention to the proposed amendments on a document entitled “Drwg No 1”, being an abbreviated reference to “Drawing No 1.”
112.	What might be called, in a short-hand manner, ‘the same routine’ continued to be asserted by Mr Farrelly in relation to further amendments to plans for the Dunlop house, which took place on or about 27th January 2005.  Again, Mr Farrelly contended that Mr Martins attended his office in Griffith and, seated next to his workstation, directed changes to the plans.  A copy of those plans is annexure Q to Mr Farrelly’s 13th November 2008 affidavit.
113.	Mr Farrelly said that he understood that A & A Martins lodged an amended development application “in or about February 2005.”
114.	Mr Farrelly went on to state that he received a telephone call from Mr Martins on or about 22nd February 2005 after having faxed Mr Farrelly a copy of an objection received in relation to the amended development application.  It was unchallenged that Mr Martins requested Mr Farrelly to deal with the objection.
115.	Annexure R to Mr Farrelly’s 13th November 2008 affidavit is a copy of the objection, which was sent under cover of a letter from the ACT Planning and Land Authority (“ACTPLA”), dated 16th February 2005.  Urban Design’s response, dated 21st February, is also part of annexure R.
116.	Finally, Mr Farrelly said that (a) he understood that the amended development application was approved, and (b) at around this time, Mr Martins again came to his office to ask for a few other amendments to be made to the plans for the Dunlop house.  Again, he deposed that Mr Martins sat next to his computer workstation and directed the changes to be made.
117.	The only other matters to note at this juncture are that (a) Mr Farrelly could not (at that stage) locate the relevant invoice for the plans and the various amendments in relation to the Dunlop house, but indicated that the usual fee was $990.00, and (b) after the completion of the plans, neither Urban Design (nor Mr Farrelly) had any other involvement in the construction, nor the selection of materials concerning that house; nor did he or Urban Design have any interest in the subsequent sale of the Dunlop house.  These matters were unchallenged.
118.	In fact, two invoices were sent by Urban Design to A & A Martins in relation to “design, working drawings & disbursements; [&] energy rating” concerning Block 3 Section 135 Dunlop: the first, dated 30th June 2003, was for the sum of $979.00; the second invoice, dated 1st February 2005, which bore the same description of “design, working drawings, etc”, was for the sum of $1,100.00.  Copies of both invoices were annexed to Mr Martins’ affidavit, filed on 17th November 2008 (annexures B & F respectively).
119.	Mr Farrelly’s Evidence at Trial:  Mr Farrelly’s evidence at trial may conveniently be dealt with under three aspects: (a) the general account of designing and drafting the plans for the Dunlop house (including [briefly] the production and relevance of Urban Design invoices), (b) the change in plans from a single to a double storey, and (c) other matters.
120.	Design or Only Drafting Plans?  It is intended as a statement of fact that Mr Farrelly’s evidence, particularly in relation to the design and drafting of the Dunlop house, waxed and waned to a significant degree.  (Formal findings are made later in these reasons.)  Over many hours in the witness box, he stated, as firmly as he could, that he designed, or was involved in the design of, the Dunlop house.  Sometimes this was qualified by saying that he was involved [only] in the “concept drawing” of the plans, with or without Mr Martins.
121.	On other occasions, he was just as adamant that his involvement in the plans was simply, and solely, as the person drafting them, under Mr Martins’ direction and instruction.  This is also to say that Mr Farrelly sought to emphasise that he was simply drafting or giving effect to Mr Martins’ design specifications; thus, he contended that Mr Martins was the true designer of the Dunlop house.
122.	In addition to this, particularly in the lengthy and regularly visited questions surrounding the production (late or otherwise) of invoices by Urban Design, Mr Farrelly insisted (in effect) that invoices were rarely if ever changed and, therefore, they contained a standard reference to “Design, Working Drawings & Disbursements.”  His evidence was that the reference to “design, etc” was basically a pro-forma or template invoice which was generated as a matter of routine and without, necessarily, bearing any direct correlation or reference to the actual work done on any particular job, including whether there was in fact any design work, as opposed to only the drafting of plans.
123.	Of the two positions propounded, unsurprisingly, Mr Farrelly might be taken as emphasising the denial of anything to do with the design of the Dunlop house.  As the trial wore on, I had the distinct impression that Mr Farrelly’s evidence in relation to certain matters, particularly that Mr Martins was truly the person responsible for the design of the Dunlop house and that he was merely the compliant draftsman, became more firm, or at least significantly more firm than at the commencement of the trial.  I should not be taken as accepting Mr Farrelly’s emphasis on him being the compliant draftsman.
124.	However, Mr Farrelly was rather definite on the other position at other times in the course of his cross-examination.  For example, early in the trial an exchange took place, noted below, between Mr Farrelly and Mr Higgs SC.  It did so in the context of discussion in relation to the discovery of and complaint by Mr Martins that the original (12th January) plans for the Dunlop house did not fit on the block.
125.	After acknowledging that (a) Mr Martins told him that he (Mr Martins) wanted to start building [soon], (b) Mr Martins wanted the “mirror-reversal” error of the plans corrected, and (c) Mr Martins was not happy with the situation (Mr Farrelly agreed with all of the above, which was somewhat different to the account he gave as set out above taken from his affidavit), the discussion between Mr Higgs SC and Mr Farrelly was as follows:
Mr Higgs:	... Now, so can I take it that apart from the bad language you are in general agreement with the account of the conversation of Mr Martens [sic] with you where he asked you to fix up the problem about the site, the building on the block that occurred on or about 12 January 2005?
Mr Farrelly:	We had that conversation.
Mr Higgs:	Right, ... what did you do in order to try and fix up the problem, as you promised that you would?
Mr Farrelly:	Redraft – the plan was redrafted to suit that correct block shape.
Mr Higgs:	Right, and did you undertake that work yourself?
Mr Farrelly:	No, it would have been undertaken by myself, yes – I did the design works.  It would have been done by myself, yes.
126.	Although it might be said that this cross-examination is not inconsistent with Mr Farrelly’s position that he only did the drafting of (including making amendments to) plans and not any design, in my view, because it refers so directly (and rather emphatically so) to design I have the greatest difficulty in accepting Mr Farrelly’s contention that his role was solely as the draftsman of the plans for the Dunlop house and that he was not in any way involved in their design.  I note again that Mr Farrelly’s qualifications and experience were in architectural drafting; Mr Martins’ qualifications and experience (noted below) were not.  I take it to be understood that architectural drafting necessarily involves at least some basic elements of design.
127.	Immediately after the exchange set out above, Mr Higgs also discussed with Mr Farrelly what happened next, after the plans had been corrected.  Again, contrary to his affidavit evidence where he repeatedly stated that Mr Martins came to his office and sat with him while plans were either drawn or amended (and, once finished, handed Mr Martins a copy of the corrected plans), he agreed with Mr Higgs’ question/comment, which was to the effect that, after the plans had been corrected, (a) he contacted Mr Martins, and (b) he faxed Mr Martins a copy of the amended plans. The question can be posed, not unreasonably, why fax plans to someone if, as is alleged, that person was sitting beside you?
128.	It might be explained that Mr Farrelly gave Mr Martins a copy of the concept plan and later faxed him the detailed working drawings.  However, such an explanation was not proffered by Mr Farrelly and, therefore, I can only deal with the evidence before the Court.  Given Mr Farrelly’s evidence, including his agreement with the proposition that he faxed the plans to Mr Martins, I cannot accept his contention that he gave a copy of the plans to Mr Martins at his office.
129.	Put as neutrally as possible, Mr Farrelly’s oscillation in his evidence did not assist his case.
130.	The Change from Single to Double Storey: A significant area of contention was the sequence of events and the design and drafting of plans that resulted in the Dunlop house going – and rather quickly so – from a single to a double storey.
131.	As will be seen later in these reasons, Mr Martins maintained that the quite sudden change from a single to a double storey in the plans for the Dunlop house was Mr Farrelly’s initiative.  It was, he said, Mr Farrelly’s concept, design and drafting.  Mr Farrelly had a rather different account.  I have detailed it from his affidavit earlier in these reasons.  It is time to consider it in the light of his cross-examination.  This should best take place in the context of a brief narrative of the plans and the dates taken from the annexures to Mr Farrelly’s affidavit filed on 13th November 2008.
132.	Annexures G – N of that affidavit all detail a single storey dwelling.  In each and all of those plans, at the front of the house there is located a double garage and a room described as “Dining Lounge”.  These two rooms are separated by the entrance to the house, which is stated to be through a porch.
133.	The dates of the plans are important.  Annexure G is dated 21st September 2002; annexure L is dated 30th June 2003; annexure M is dated 10th January 2005.  It is annexure M and the following annexed plans that were the primary focus of the contest before the Court.
134.	Most of the plans have an “ACT house energy rating scheme” stamp which also displays the date.  For example, in relation to the plans at annexure M there is a correlation between the date of the plans and the energy rating, both being 10th January 2005.
135.	It is also worth noting here that each set of plans typically records, among other things, the client, the block and section numbers, the job number, the drawing number of each plan, the date, and the initials of the person who did the drawing.  I need not consider other matters, such as the scale of the plans, and the suburb, which are other pieces of information recorded and immediately obvious on the face of the plans.
136.	Thus, again to take the plans at annexure M, the client is shown as “A & A Constructions”; the plans concern “Block 003, Section 135”; the job number is “A03261”; there are three (3) drawings in the annexure; the date is recorded as “10/01/05”; and the initials on the plans are “ID.”  In this instance, the initials “ID” refer to Mr Ian Dawn, who, as I have previously noted, formerly worked for Urban Design.
137.	The plans at annexure N are somewhat different to those previously noted, essentially because they are described as “concept plans”, as opposed to the more detailed working drawings found in other plans, both earlier and later.  The plans at annexure N are dated 12th January 2005.  As with previous plans they show, at the front of the house, a double garage and a dining – lounge configuration, separated by the entry to the house.  As at 12th January, the Dunlop house remained a single storey dwelling.
138.	The plans at annexure O show a number of significant changes to previous plans.  Formally, twelve (12) changes are listed on drawing number 2.  Most relevantly for current purposes, the changes refer to the correction of the orientation of the block, the [re]location of the master bedroom and ensuite to the front of the house, and the change to the front facade to include parapet walls.  The plans also note (see drawing number 2) that there is [only] a roof above the entrance porch.  This is relevant to later changes, which disclose changes so that there is a terrace above the porch.
139.	Although the plans themselves bear the date of 10th January 2005, they carry an ‘energy rating stamp’ dated 19th January 2005.  The initials on the plans indicate that Mr Ian Dawn was again the person responsible for drafting them.  The plans continued to show that the Dunlop house remained a single storey dwelling.
140.	Another, and unexplained, curiosity of the plans that comprise annexure O, was explored by Mr Lunney, Senior Counsel for Mr Martins.  Late in the trial he questioned Mr Farrelly about differences in the font style in the drawings numbered 3 and 4.  They appear to be perhaps handwritten, but certainly they are quite different to the style and font of other drawings.  They are also in a slightly different place or location on the plans to all other drawing numbers.
141.	Among other things, this anomaly in font style and location of the drawing number led Mr Lunney to suggest to Mr Farrelly, in accordance with Mr Martins’ evidence (noted below), that the plans that are at annexure O came into existence after the plans that comprise annexure P.  This would be congruent, he suggested, with the [alleged] suggestion or advice to expedite approval of the plans given by Mr Farrelly to Mr Martins that, given the urgency of correcting the plans and to commence construction, the plans for a single storey house could be lodged with ACTPLA first, and then the second storey plans could be lodged as an amendment to the earlier plans.  Unsurprisingly, Mr Farrelly rejected this scenario.
142.	The plans at annexure P brought rather more significant changes to the Dunlop house.  On their face, they are dated 19th January 2005.  Five (5) drawings comprise the plans.  Mr Farrelly was unable to explain why drawing number 3 was not part of the plans available to the Court.  This omission was remedied by the complete plans that were annexed to Mr Martins’ affidavit (annexure D), filed on 17th November 2008.  The missing page 3 of the plans presents the “Upper Floor Plan”, with the description “home theatre.”
143.	The first and second pages of the plans at annexure P clearly show a staircase, leading to an upper floor, which is noted on the face of the plans as one of two amendments (the other being an amended “EER” – “energy efficiency rating”).
144.	Drawing number 5 of the plans at annexure P details, among other things, what was described often in the proceedings as a “blade wall” at the front of the house.  Mr Farrelly agreed with a suggestion from the Bench that, to the untrained observer, the drawing of the blade wall indicated a finish with tiles.  There was no dispute that the blade wall of the Solitaire house was finished in tiles.  However, Mr Farrelly could offer no explanation as to why he had drawn the blade wall of the Dunlop house with what appears to be a tile finish.  He simply opined that he was following Mr Martins’ instructions, but otherwise, he could offer no information or explanation.
145.	Mr Farrelly claimed clear recollection of many things about the plans, their drafting, to whom they were given, and such things.  On such a matter of detail as the blade wall, which was such a significant feature on both houses, the lack of explanation was, at the very least, unfortunate if not somewhat surprising.
146.	While I accept that ‘Drawing 5’ of the plans of 19th January 2005 (annexure P) has no written explanation directed to the blade wall, and that the plans have what I take to be standard notations, such as “External finish as selected”, I take the drawing as presented to the Court, which clearly shows patterned markings, to be an indication of tiles or something similar.  The markings on the blade wall are certainly and clearly different to other details of other walls shown on the plans.  In the absence of any evidence to support any other finding, it seems to me that the blade wall for the Dunlop house was drawn so as to indicate, or at least to suggest, that it be clad in tiles of some sort.
147.	Accepting that blade walls were not, in 2005, in themselves, an unique architectural feature, in the context of the design and construction of the Dunlop house, and in the context of the original design and construction of the Solitaire house, in my view, the blade wall was a significant feature – as part of the overall design (and particularly the facade) of the Dunlop house.
148.	The plans at annexure Q note the following: (a) on drawing number 1, in handwriting, identified by Mr Farrelly as his, seven (7) amendments are noted, including “Upper Floor added to design”, “Master bedroom relocated”, “overall house size reduced” and “area of staircase removed from house area.”  These plans are dated 27th January 2005.  The date is handwritten.  The energy rating stamp bears the date 19th January 2005.  Mr Farrelly asserted that the handwritten notations which record the amendments were as per instructions given by Mr Martins.
149.	The initials of the person responsible for drafting the plans indicate, again, Mr Ian Dawn.  However, it seemed not disputed that Mr Farrelly was the person responsible for these plans, and details such as changing the initials for Mr Dawn to those for Mr Farrelly were obviously not a high priority.
150.	Drawing number 2 of the plans at annexure Q confirms the location of the staircase as well as noting, above the entrance porch, what is described as “Terrace above.”  Drawing number 3 is the “upper floor plan”, which bears the description (and specifications for the) “home theatre.”
151.	The copy of the plans, dated 27th January 2005, at annexure Q to Mr Farrelly’s affidavit do not indicate whether, and if so when, they were approved by ACTPLA.  Annexure E to Mr Martins’ affidavit, filed on 17th November 2008, contains a copy of those same plans dated 27th January 2005.  The plans annexed to Mr Martins’ affidavit bear an “Approval Granted” stamp under the Land (Planning and Environment) Act 1991 (ACT), dated 5th April 2005.
152.	In the course of questioning of various witnesses (expert and other) Ms Olsson SC rightly, essentially and effectively, pointed out that the scope of design in homes like the Dunlop house is, to a certain degree, dictated by lease and development conditions, as well as the limitations of the small block itself.  There can be, and was, little or no objection to such questions and observations.  Indeed, Mr Farrelly said that he discussed such conditions (which dealt with things like “set backs” from the road) with Mr Martins at his office.
153.	In his oral evidence, Mr Farrelly agreed that there were similarities between the Dunlop and the Solitaire houses, but, he maintained, there were also differences.  He considered that while there was some similarity in outside appearance between the two houses, the floor plans were completely different.
154.	Of perhaps more moment was Mr Farrelly’s contention that Mr Martins told him that the urgency for the plans of 10th January 2005 to be amended was because the Dunlop house was already under construction.  Mr Farrelly said that Mr Martins told him of the construction of the Dunlop house being underway on 18th or 19th January 2005, the latter being the date of the plans at annexure P in Mr Farrelly’s November 2008 affidavit.
155.	This latter part of his evidence is not completely inconsistent with what Mr Martins contended.  For example, in his affidavit filed on 17th November 2008, Mr Martins said (at par.12) that on 11th January 2005 he spoke with Mr Farrelly by telephone in the course of which, accenting the need for haste in correcting the wrongly drawn plans, he said that he needed something to be done quickly because ‘the job was meant to start next week.’  This would at least accord with the proposition of Mr Farrelly that the construction of the house was underway on 18th or 19th January 2005.
156.	In re-examination, Mr Farrelly was “directed” to annexure R of his affidavit, which contains the notification from ACTPLA of an objection by a neighbour to the Dunlop house, together with the letter from that neighbour dated 2 February 2005, regarding the application to add a second storey to the house.  The neighbour’s letter refers to “the single dwelling being constructed on Block 3, Section 135 Dunlop....”  The letter goes on the state: “The base level of the house under construction is already above the base level of our house....”
157.	I do not necessarily draw any particular inference from the neighbour’s letter of objection.  It does not confirm (or deny) Mr Farrelly’s contention that Mr Martins advised him on 18th or 19th January 2005 that the house was already under construction in the latter part of January.  What is curious – to put it as neutrally as possible – is, if a house is under construction, how (and why) plans could be altered in any significant way?
158.	Mr Farrelly confirmed that the plans that constitute annexure O to his November 2008 affidavit, which detail [still] a single storey house, were generated on 19th January 2005, the date of the energy rating stamp.  It followed, as he said, that the plans for the double storey house were not in existence on that date.
159.	Mr Farrelly said that the plans for the double storey Dunlop house came into existence ‘shortly after 19th January 2005.’  He said that, because he works quickly, he was able to draw the detailed plans for the Dunlop house in two to three hours.  As will be seen from the expert evidence called on his behalf, and dealt with later in these reasons, this is a quite astonishing assertion.  Mr Novak in particular said that the drawing side of plans would usually take the better part of eighteen (18) hours.
160.	While I do not doubt that Mr Farrelly is a very fast worker in the drawing of plans, I do have quite some difficulty in accepting completely the time frames that he asserted in the light of the detailed evidence of experts who were, as I have said, called on his behalf.  Moreover, to re-draw a complete set of plans, for a very significantly different design for the Dunlop house (annexures P & Q), also tells against the incredibly short time suggested by Mr Farrelly to complete those drawings.  In this respect I must be guided more by the evidence of the expert, Mr Novak, in which case, the time frame - and the events that are contended to have taken place therein - as described by Mr Farrelly is, in my view, even more dubious.
161.	I wish next to consider briefly Mr Farrelly’s evidence in relation to the “home theatre.”
162.	The substance of Mr Farrelly’s evidence was that the “home theatre” was Mr Martins’ idea and that the description “home theatre” was “what he (Mr Martins) wanted it called.”  Mr Farrelly agreed that the description “home theatre”, and the feature of a home theatre itself, were unusual.  He also confirmed that Mr Martins had never sought to include a home theatre in any other house plans drawn by Mr Farrelly.
163.	For my part, having regard to (a) the evidence of Mr Farrelly and Mr Martins (noted later in these reasons) in relation to the “home theatre”, and in particular (b) Mr Martins’ evidence (which I accept) that he does not even own a television and, therefore, why would he have built a home theatre for his own home, I do not accept Mr Farrelly’s evidence that the initiative for, and the description of, the home theatre came from Mr Martins.
164.	I need to deal briefly with two other issues: (a) Mr Farrelly’s evidence in relation to his [later] visit to a different Solitaire house (“the Harrison house”) and (b) his contentions in relation to Mr Martins’ [alleged] history of or tendency to copy and or appropriate the plans of Urban Design for his (Mr Martins’) own purposes.  The first matter obviously relates to the issue of “tendency evidence” in relation to Mr Farrelly; the second relates the issue of “tendency evidence” in relation to Mr Martins.
165.	As I have already noted, Mr Farrelly explained that he used a false name to enter Solitaire’s display house at Harrison because he did not wish to be “followed up by sales agents.”  He confirmed that he knew the home was a Solitaire home, that Mr Turcin “was behind Solitaire”, and that, at that time, there was a dispute between Mr Farrelly and Mr Turcin.
166.	Mr Farrelly maintained that he took the view that (a) the house was open to the general public, (b) he was a member of the public, therefore (c) he was entitled to enter and view the house.  It mattered little to him, and he had difficulty accepting, that he was not an ‘ordinary member of the public’ because (d) he was in a litigious dispute with Solitaire (and Mr Turcin) and (e) he was an architectural draftsman.  After some questioning, he did acknowledge that it was perhaps not “the smartest thing to do”, to have gone to view the Solitaire house at Harrison in all the circumstances of the litigation that was on foot.
167.	He also acknowledged that he understood that the Solitaire sign at the Harrison house warned “builders, architects or agents” not to enter the house.  At the same time, he contended that, if truth be known, he did not actually fit into any of those prohibited categories of persons.  While not overly significant, answers of this kind were pedantic and unhelpful.
168.	It is sufficient simply to note – again - that I regard Mr Farrelly’s evidence in relation to his visit to the Harrison house as either confirmation of an alarming naïveté and/or a disturbing example of disingenuousness.  In my view, I do not need to consider further the detail of his evidence in relation to what was captured on the CCTV recording of his visit to the Solitaire house in Harrison.  It only confirmed the concerns I have just expressed.
169.	Indeed, on the basis of the test espoused by Lehane J in Zaknic, to which I have referred earlier in these reasons, namely, is the evidence adduced “clearly and strongly probative of the relevant fact in issue”, in my view, as a single instance or event, it does not meet Lehane J’s test.  Therefore the application to adduce this evidence for the purposes set out in the application must be refused.  That said, the evidence is part of what I have previously described as Mr Farrelly’s flawed mosaic of evidence.
170.	In relation to Mr Farrelly’s contentions concerning Mr Martins’ tendency or history of using some of Urban Design’s plans, because (a) I do not think that that tendency evidence assists the Court in resolving the issues for determination as between the Applicant and the Respondents, and (b) I prefer the evidence of Mr Martins to that of Mr Farrelly, for the reasons set out below that deal with Mr Martins’ evidence, I do not propose to deal further with these matters.
171.	By way of conclusion, in my view, Mr Farrelly’s evidence was flawed.  Accepting that most witnesses are nervous, he struck me as a man whose evidence in relation to the matters before the Court was significantly coloured by reconstruction and his attempt to explain or to justify his past actions in relation to the plans for the Dunlop house.  I have already referred to the oscillation of his evidence in relation to the ‘design/drafting’ issue.  Indeed, some of the evidentiary difficulties presented by her client were candidly and forthrightly acknowledged by Ms Olsson.
172.	I had the strong impression that, when confronted in January 2005 by an irate client in the shape of Mr Martins, who was understandably complaining about a significant and fundamental error in the plans for his house, the construction of which he was wanting to commence quickly, Mr Farrelly took the understandable (but imprudent if not fraught) course of endeavouring to appease and to placate his client.  He did so, in my view, by taking the expedient course of using the basic design of the Solitaire house and applying it to the Dunlop house.
173.	The further matters that, in my view, militate against the Court accepting Mr Farrelly’s evidence arise out of the following: (a) the conflict between the expert evidence and Mr Farrelly as to how long it would take (i) to design and (ii) to draft the plans for the Solitaire house; (b) the very short time between the plans which detailed a single storey house and their transfiguration to a double storey house with significant if not striking features and a façade that very closely resemble the Solitaire house.
174.	In my view, his intention – then (in 2005) and now (in the course of giving evidence) - was not to deceive, and still less to appropriate the Solitaire plans (and/or their most striking features) for any material or other personal gain, but, rather opportunistically, to look for a quick solution to get his company, and his client, out of the predicament in which they all found themselves, and which had been the product of an error in the design of the Dunlop house produced by Urban Design.
(iv)		Evidence of Mr Martins
175.	Mr Martins filed three affidavits in these proceedings – 17th and 18th November 2008, and 16th March 2009.  I have already recounted the unfortunate, and doubtless scarifying, personal and family medical issues with which he had to contend during the course of the trial, and which, particularly in the early stages of the litigation, rather limited Mr Martins’ involvement.  I need not repeat them.  Mr Martins was sufficiently recovered from his travails that he gave evidence towards the end of the trial over two days.
176.	There were two substantive issues addressed: (a) conversations between Mr Martins and Mr Farrelly relating to, and events surrounding, the drafting of plans concerning the Dunlop house, and (b) conversations between Mr Martins and Mr Farrelly regarding the current proceedings.
177.	The Plans for the Dunlop House: The substantive evidence of Mr Martins on this matter is as follows.  For my part, unless otherwise indicated, I should be taken as accepting the following account of events.  I do so because I found Mr Martins to be a very straight-forward witness who gave his evidence in a measured and balanced manner.  Also, almost without exception, his narrative of events not only had a logic, consistency and credibility about it (which Mr Farrelly’s evidence rather regularly, and unfortunately, did not) but also it was supported by relevant documentation, such as date-stamped plans.
178.	Mr Martins has been a builder in Canberra since approximately 1990.  He is a director of the Third Respondent company.  He is also a director and share-holder of another company, together with his sister, called Primavera Holdings Pty Ltd (“Primavera”).
179.	Primavera owned nine blocks of land, including Block 3 Section 135, Dunlop, which was the site on which “the Dunlop house” was built.  It was Mr Martins’ intention, once the Dunlop house was built, to live in it as his family residence.
180.	As he had done since approximately 2001, in late 2002 Mr Martins, on behalf of the Third Respondent (“A & A Martins”), through Mr Farrelly, engaged the Second Respondent to draw house plans for each of the nine blocks [originally] owned by Primavera.
181.	Mr Martins maintained that plans were never developed “from scratch.”  They invariably began by using plans from Mr Farrelly’s catalogue of plans, which would, in turn, be modified based, in part, on suggestions from Mr Martins.  Moreover, on a number of occasions, Mr Martins stated that A & A Martins essentially repeated plans and invariably built standard project homes.
182.	The First Respondent completed the plans for the Dunlop house on 30th June 2003.  A copy of them was annexed to Mr Martins’ affidavit, filed 17th November 2008.  The plans were approved by the ACT Planning and Land Authority (“ACTPLA”) on 18th July 2003.
183.	A & A Martins was invoiced by the First Respondent (“Urban Design”) for these plans, in the sum of $979.00.  A copy of that invoice is annexure “B” to the same affidavit.  The invoice clearly stated that the fees were in relation to “design, working drawings & disbursements.”  This evidence is relevant, in part, because there was contested, indeed contradictory, evidence from Mr Farrelly (as previously noted) in relation to whether he provided design services as opposed to providing only ‘working drawings.’
184.	Returning to Mr Martins’ narrative, he contended that, in early January 2005, he spoke with Mr Farrelly in the course of which he confirmed that he (Mr Martins) was intending to buy the block in Dunlop and that he wanted “something modern looking.”  He also indicated to Mr Farrelly that he would appreciate it if these plans could be done ‘as soon as possible.’  Mr Martins also contended that he made a number of suggested modifications to Mr Farrelly’s original plans.  New, more ‘modern looking’ plans were prepared by Mr Farrelly in the light of these suggestions.
185.	Mr Martins attended the offices of Urban Design on 10th January 2005 to pick up the working drawings in relation to the Dunlop house.  He contended that a few other changes were made at that time to the plans, and that he complimented Mr Farrelly on the “attractive set of plans”; the plans were lodged with the ACTPLA later that same day; the plans were approved on 11th January 2005.  A copy of them was annexed to Mr Martins’ affidavit (annexure “C”).
186.	Should it need to be stated, the plans, as originally drawn, were for a single level house.  Indeed, in his cross-examination, Mr Martins confirmed that his original intention was to build a single storey house.
187.	On 11th January 2005, Mr Martins dropped off the plans he had collected from Mr Farrelly to his surveyor, Mr Milburn.  He asked Mr Milburn to commence “setting out” the house on the block sometime in the next week, but also noting that he wished to commence construction as soon as possible.
188.	As it happened, Mr Milburn called Mr Martins on or about 11th January, stating that the house, as drawn in the plans, did not fit on the block because it had been incorrectly drawn.
189.	Mr Martins said that on or about 11th January 2005, he called Mr Farrelly immediately after receiving the news from Mr Milburn.  At par.12 of his affidavit filed on 17th November 2008, Mr Martins recounted, in some brief, colourful detail, the telephone conversation he had with Mr Farrelly.  In substance, Mr Farrelly checked the plans and recognised that he had “mirror-reversed” the block outline.  According to Mr Martins, Mr Farrelly assured him that he would ‘try to come up with a new design’ and otherwise to leave the problem with him.  Mr Martins confirmed to Mr Farrelly, in very firm terms, that he had better come up with a solution very quickly because the construction was due to commence the following week.
190.	The following day (12th January 2005) Mr Martins received from Mr Farrelly, by facsimile, an amended sketch plan.  In Mr Martins’ view, it was nowhere near as good as the original design.  He did not explain why he held this view.  He told Mr Farrelly that he needed it improved dramatically and he re-emphasised the need for this to occur quickly.
191.	On or about 17th January 2005, Mr Martins had a telephone conversation with Mr Farrelly, in the course of which Mr Farrelly asked him to come to his office.  This occurred the following day (18th January) at around 2.30pm.
192.	The revised plans involved a two storey concept, something, Mr Martins said, had not previously occurred to him because all other houses in the area were single storey, plus, (a) the construction cost of a two storey house would be more than a single level house, and (b) such a plan would take longer to be approved.  The proposed new plan moved the master bedroom to the front of the house and a lounge room to the second storey.  Of some moment was/is the fact that the second storey was designated “home theatre” on the revised plans.  He maintained that the second storey plan was at Mr Farrelly’s institution, as were other features, such as the tiled blade wall.
193.	Mr Martins also maintained that Mr Farrelly assured him that such a plan would be a “complying development” and would be approved without much difficulty.  Mr Farrelly also suggested, according to Mr Martins, that the plans should be lodged in two stages: the ground floor to be lodged first, then the upper storey, the approval for which would likely take approximately 30 days.  On the basis of this, said Mr Martins, he gave Mr Farrelly the “go ahead” to complete the plans.
194.	On 19th January 2005, Mr Martins telephoned Mr Farrelly three times to inquire about the progress of the plans.  The first call was around 10.30am, the next call was around 1pm, and the third was at 6pm.  During the last call Mr Farrelly informed Mr Martins that the plans would be ready to be picked up ‘in half an hour.’  Mr Martins duly arrived and left shortly thereafter with both sets of plans: the first set for a single storey, dated 10th January (“10-01-05”), and the second set for a double storey, dated 19th January  (“19-01-05”).  A copy of the second set of plans for the double storey is annexure “D” to Mr Martins’ 17th November 2008 affidavit.  Mr Martins confirmed that the plans for the single level house were lodged and approved on or about 20th January 2005.  On that date, Mr Martins again called the surveyor, Mr Milburn, to ask him to pin out the site.
195.	The single storey plans, as lodged, contained no reference to a staircase.
196.	While he could and would make small changes to plans, Mr Martins confirmed – on more than one occasion – that he relied upon Mr Farrelly’s expertise and experience in relation to design and drafting.  This was put, for example, during one part of his cross-examination, as Mr Martins remaining the builder and Mr Farrelly as the designer.
197.	In my view, it is also not without significance that Mr Martins said that the types of homes he (i.e. A & A Martins) built were “not fancy homes” but rather were “pretty straight forward homes, most of them.”  Indeed, they were “small project homes.”  Most of the plans for ‘his homes’ were, he said, “repeat plans.”
198.	On 25th January 2005, Mr Martins gave instructions to an office assistant to lodge the plans for the second storey.  He said that the plans were not approved that day and in fact were “knocked back” because of insufficient detail.  Mr Martins dropped the plans back to Mr Farrelly to amend them.
199.	On 27th January 2005, Mr Martins telephoned Mr Farrelly and arranged for his office assistant to collect the corrected plans.  A copy of those plans is annexure “E” to Mr Martin’s 17th November 2008 affidavit.  On 28th January 2005, these plans were re-lodged with the ACTPLA.
200.	The First Respondent, Urban Design, invoiced the Third Respondent (Invoice No.784: dated 1st February 2005) for the amended plans, in the sum of $1,100.00.  The invoice, which is annexure “F” to Mr Martins’ affidavit, stated that it was for “Design, working drawings and disbursements [and] House energy rating.”
201.	On 22nd February 2005, ACTPLA advised A & A Martins that a complaint had been lodged in relation to the proposed second storey on the Dunlop house.  Early that afternoon, Mr Martins faxed ACTPLA’s letters of notification regarding the complaint to Mr Farrelly; Mr Martins requested that he resolve the issue essentially by pointing out that the plans complied with the Lease and Development Conditions.  In fact, in addition to this request to Mr Farrelly, A & A Martins also sent a letter to ACTPLA, dated 24th February 2005, which responded to the objection.
202.	On 1st March 2005, Mr Martins had a conversation with ACTPLA, in the course of which the Authority indicated that there remained a few small errors on the plans.  Mr Martins subsequently telephoned Mr Farrelly to ask him to make the necessary corrections as soon as possible.
203.	On 4th March 2005, Mr Martins went to Mr Farrelly’s office to collect the further corrected plans.  Mr Martins lodged them with ACTPLA later that same day.
204.	In May 2005, Mr Martins purchased from the family company, Primavera, the block on which the Dunlop house was ultimately built.  Construction was completed on 11th October 2005.  The house was sold in April 2006.
205.	Mr Martins & Mr Farrelly - The Current Proceedings:  Mr Martins deposed to receiving a telephone call from the Applicant’s then solicitors (Meyer Vandenberg) in early October 2006 in which he was advised that a claim for breach of copyright was being pursued against A & A Martins.  He confirmed that he immediately called Mr Farrelly.
206.	At par.29 of his 17th November 2008 affidavit Mr Martins set out the substance of that telephone conversation.  Summarised, Mr Farrelly’s response, as contended by Mr Martins, was that the claim was rubbish and that he (Mr Farrelly) would “look after it.”  Mr Martins said that Mr Farrelly advised him that he was speaking with his solicitor and that ‘we’ll sort it out.’
207.	Mr Martins deposed to hearing nothing further about these proceedings between October 2006 and 12th December 2007.
208.	In late January 2008, Mr Martins deposed to having a further telephone conversation with Mr Farrelly.  As set out in par.35 of his affidavit, Mr Martins deposed to the conversation in words to the following effect:
Third Respondent:  “Jaime, I thought you’d resolved that copyright issue at Dunlop.  But I received court orders in December that the matter is going to court some time next month.  What’s going on?”
Second Respondent: “I know, it’s bullshit.  There’s a few similarities on the outside, but the internal layout is completely different, so how can that be copyright.”
Third Respondent: “Jaime, I’ve seen the photos they sent us.  The front of the home in Gungahlin is fucking similar to the one you drew plans for in Dunlop, almost the same.  Did you draw those plans or did they?”
Second Respondent: “They’re not copied plans.”
Third Respondent: “I hope not, I really do.”
209.	Mr Martins’ second affidavit, filed on 18th November 2005, did two things.  It recounted some further detail in relation to his medical treatment for bowel cancer and the consequences of it.  The affidavit also, very briefly, deposed to Mr Martins relying on or agreeing with Mr Poiner’s expert evidence and contending that, after examining the plans for the Solitaire house, he did not believe that “the Dunlop  home is significantly similar to the [Solitaire] home.”
210.	Mr Martins’ third affidavit, filed on 16th March 2009, also did two things.  First, it dealt with contentions regarding his ‘arrangements’ with Mr Farrelly concerning use of the latter’s plans.  Briefly stated, Mr Martins said that, while he sometimes used Mr Farrelly’s plans, (a) he did so with Mr Farrelly’s permission, and (b) he paid Mr Farrelly for such use.
211.	Secondly, after denying that he had ever (a) seen the plans for the Solitaire house, (b) seen the Solitaire house, (c) visited any display home in any display village in Canberra, and (d) met Mr Turcin, Mr Martins sought to rebut a number of matters that were alleged in Mr Farrelly’s affidavit of 12th November 2008.  Those matters related to (e) a series of allegations that Mr Martins, on a number of occasions, sat next to Mr Farrelly at his work station computer and directed various changes to the Dunlop house plans, and (f) contentions that Mr Martins attended Mr Farrelly’s office on various, specified occasions.  Mr Martins denied both sets of allegations.
212.	In the course of his cross-examination, Mr Martins said that his estimate of the cost of construction of the Dunlop house was $270,000, which would, in his view, result in a profit of $40,000.
213.	There is one final thing to note about Mr Martins’ evidence.  In my view, it is significant.  I have already noted that the new, revised plans from Mr Farrelly (annexure “D” to Mr Martins’ 17th November 2008 affidavit) contained a second storey.  At drawing number 3 of those plans, which bear the date 10th January 2005 (“10/01/05”), and an energy rating stamp from Mr Farrelly dated 19th January 2005, the upper storey carries the description “home theatre.”  In his evidence, Mr Martins confirmed that at the time these plans were drawn, and as at the date of the trial, he did not own a television.  He asked the question, or made the point – in my view, not unreasonably – why would someone who does not even own a TV give instructions to someone to draw plans for a house in which he plans to live and require that there be a home theatre?
214.	As I have already indicated, I have no reason to doubt Mr Martins’ evidence, and in many respects, least of all on this point.  I accept his querulous response about the incongruity of someone in his circumstances with no TV proposing that in his yet to be constructed new house there be plans drawn that specify a room dedicated and styled as a “home theatre.”
215.	Before leaving his evidence, I should also note one other matter.  At different stages in his evidence, Mr Martins referred to a person called “Leonie” who provided various consultancy services to A & A Martins around the time in question.  Although Mr Martins said that he still speaks with her from time to time, her consultancy services seem to have ceased, on Mr Martins’ evidence, from around the time of his marriage in 2007.  Mr Martins’ wife, he said, now provided a range of professional services to A & A Martins, which seem to have made at least some of those provided by “Leonie” superfluous.
216.	“Leonie’s” services appeared to be primarily in relation to suggestions in relation to colour schemes and finishes.  There was no evidence, nor was it suggested, that this person “Leonie” was a director of A & A Martins or employed by that company, other than as a consultant, and then, apparently, in a somewhat limited capacity.
217.	Ms Olsson submitted that the Court could or should draw an adverse inference against Mr Martins’ evidence in the light of the failure to call “Leonie.”  She relied upon the recent decision of Greenwood J in A V Jennings Ltd v Bogdan, where his Honour allowed an appeal, in part, on the grounds that the husband was a “contributory author” of amendments to infringing house plans but who was not called at the trial.
218.	Greenwood J held that an [adverse] inference should have been drawn because of this failure to call Mr Bogdan as a witness in the proceedings.
219.	For my part, at its highest, the role and responsibilities of “Leonie” were speculative and, it would seem, somewhat occasional.  As already indicated, she held no formal position within the company, A & A Martins.  For these reasons, and because of the findings I have made in these proceedings more specifically in relation to the evidence of Mr Farrelly and Mr Martins, I do not consider that any particular inference should be made, in the circumstances of this case, in relation to the failure to call “Leonie.”
(v)		Evidence: Summary of findings
220.	I accept Mr Pekic’s evidence without qualification.
221.	I accept Mr Turcin’s evidence, also without qualification.
222.	For the reasons and comments outlined earlier, I do not accept Mr Farrelly’s evidence.  I find that he copied the design plans of the Solitaire house and used them in the plans for the Dunlop house.  I accept that he was not involved in the subsequent sale of the Dunlop house and that, as a consequence, his only “gain” from the use of the plans were the fees charged by Urban Design to A & A Martins.
223.	I prefer the evidence of Mr Martins to that of Mr Farrelly where there is any conflict between the two of them.
IV.		Evidence of Experts
224.	Three experts, each of whom produced reports of varying and various detail, were called in these proceedings.  Mr Ring was called on behalf of the Applicant, Solitaire; Mr Poiner and Mr Novak were both called on behalf of the First and Second Respondents.
225.	Although made in the context of expert evidence in an infringement of design case, in my respectful view, the comments of Crennan J in Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd are apposite in the Court’s use of experts in this case.  Her Honour referred to “expert evidence [that] enables the court’s eye to be an “instructed eye.””  So too here: accepting that, ultimately it is for the Court to decide the issues before it, nonetheless, the experts called assisted the Court to determine more accurately the nature and extent of the claims that were at the centre of this litigation.
(i)		Evidence of Mr Ring 
226.	Mr Ring swore an affidavit on 23rd October 2008, which was filed the following day.  In it he set out his qualifications and his experience over 17 years as an architect in the ACT.
227.	Unfortunately, although Mr Ring referred to having received a copy of the Guidelines for Expert Witnesses in Federal Court and Federal Magistrates Court (a copy of which was also attached to his affidavit), he did not disclose, as required by those Guidelines, that he had a pre-existing, professional and personal relationship with Mr Turcin, and with Mr Turcin’s parents.  In my view, such an oversight – indeed, error - in relation to the engagement of and disclosure by an expert witness was rather remarkable if not astonishing.  It would appear that those who engaged him had not read the Guidelines.  In any event, such matters were canvassed at a little length – and properly so - by Mr Higgs at the outset of Mr Ring’s evidence at the trial.  However, save for Ms Olsson’s submission at the end of the trial that Mr Ring’s failure to disclose his prior relationship with Mr Turcin cannot be overlooked and was “a very grave matter”, little further comment was made on this omission.  Accepting that there was this problem, as I have already said, it is for the Court to weigh and to decide the utility of his evidence.  Indeed, it may be that the problem is less with Mr Ring and more with those who allowed such a difficulty to arise.
228.	In his affidavit of October 2003, Mr Ring did two things.  First, leaving aside the description of his qualifications and experience, he recounted briefly the history of the development of the plans for the Dunlop house (pars.5-8).  Secondly, Mr Ring listed the similarities and differences between the “style, proportion and scale” of each of the two houses (pars.9-15).  I will deal with each of these aspects.
229.	There is, nor can there be, little dispute over what might be described as the “general procedural history” in relation to the “development” of the plans for the Dunlop house.
230.	Plans were developed and approved between (approximately) mid- 2002, and construction was completed of the Solitaire house in December 2003.  The Solitaire house featured, among other things, an upstairs home theatre and, in Mr Ring’s opinion, “unique minimalist architectural elements.”  As we will see in due course, these elements included a “blade wall” as a feature of the facade of the house. The Dunlop house was completed in 2005.
231.	The original plans for the Dunlop house were first lodged with the ACTPLA in June 2003.  An amended plan was lodged on 8th July 2003, and a further amended plan lodged on 10th January 2005.  In each of these plans the Dunlop house is drafted to show a single storey dwelling.  In Mr Ring’s opinion (affidavit: par.6), in relation to these plans “there was no similarity between the Dunlop and Gungahlin [Solitaire] homes at that time.”
232.	On 27th January 2005, a further amended plan was lodged with ACTPLA in relation to the Dunlop house.  It included a second storey.  For the reasons given in his affidavit, and in his oral evidence (noted below), Mr Ring was of the opinion (affidavit: par.8) that, with the amended plans “... there has been a complete redesign of the residence in January 2005, and this in my opinion is when the Gungahlin [Solitaire] home is reproduced.”
233.	As set out in his affidavit (pars.9-15), the following are the similarities and differences between the plans for the respective houses described by Mr Ring:
9. The similarities of style, proportion and scale in the lower floor plans are: 
a) the location of the master bedroom and en-suite; 
b)a large L shaped open plan living area, encompassing kitchen, dining and living areas;
c)the separation of the master bedroom and en-suite from the other bedrooms by the large L shaped open plan living area;
d)the location and proportions of the front porch; 
e)the location of the garage and entry; 
f)the location of the staircase; 
g)the location of the pergola, over the top right hand side of the house plan; and 
h)the size of the overhang of the garage vis-à-vis the side of the house.  

10. The differences in the style, proportion and scale in the lower floor plans are: 
	a)the location of bedroom two and the main bathroom; 
	b)the location of the study;
c)the location of the kitchen within the large L shaped open plan living area; and 
d)the orientation of the L-shaped open plan living area.  

11. The similarities in the style, proportion and scale of the upper floor plan are: 
	a)the existence of a home theatre; 
	b)the orientation of the staircase; 
	c)the location of the balcony; and 
	d)the relative sizes of the home theatre. 

12. The similarities of style, proportion and scale in the front elevation plans are: 
	a)the orientation of the sliding door and windows on the top level; 
the shape of the roof; 
b)the balcony; 
c)the proportions of the garage, central façade, and left handed façade; 
d)a general similarity of style and proportions; 
use of blade wall with ceramic tiling; and a recessed entry.  

13.The differences in style, proportion and scale are: 
a) the wider proportions of the home theatre on the copy plan; and 
b)the orientation of the ground floor window (i.e. vertical as opposed to horizontal).

14. The similarities of style, proportion and scale in the back elevation plans are: 
	a)the location of the rear entrance; 
b)the general orientation; and 
c)the large window / sliding doors on the right hand side.  

			15.The differences in the style, proportion and scale are: 
a) that the Gungahlin home has two rear entrances whereas the Dunlop home has only one rear entrance; and 
b)the Dunlop home has only one large window in the home theatre, as opposed to the Gungahlin home which has two small windows.

234.	Mr Ring concluded his opinion (affidavit: par.16) with the following statement: 
	The Dunlop home facade appears to be a direct duplication of the Gungahlin [Solitaire] home.  When the two homes are juxtaposed, the overall design style, proportion and scale are substantially similar.  The architectural forms on the Dunlop home facade are reproduced with the same scale and proportions, thus the design essence is reproduced.  When the photographs of the facades are compared in terms of style and proportion the similarities and differences become obvious.
235.	Mr Ring’s Oral Evidence: The differences and similarities noted in his affidavit/Report were, unsurprisingly, the subject of significant cross-examination.  Summarily stated, the salient features of it are as follows.
236.	First, Ms Olsson SC explored the impact of the ACT Leasing and Development Guidelines on the design of houses of the kind under consideration here.  Mr Ring confirmed that he did not refer to those guidelines in his affidavit because, in his view, there was no need to do so.  He agreed with Ms Olsson’s questions that highlighted that the guidelines provided for things like the preferred location of the driveway, minimum setbacks, and such matters.
237.	Mr Ring agreed with the proposition that, with those guidelines in mind, there was no other location for the garage than where it was situated on the Dunlop property.  But, as he also said, such was the same for many other properties.
238.	With significant particularity, Mr Ring was taken through a range of differences between the two houses.  This line of questions led him to agree with the proposition that ‘... there are substantial differences in the position of the rooms and in their dimensions’ between the two houses.
239.	Mr Ring maintained that a tiled blade wall was unique in Canberra in 2003.  I agree with the substance or effect of his comments, in response to further questioning from Ms Olsson, that the concept of a blade wall, which featured in the work of famous architects from earlier generations (e.g. Frank Lloyd Wright), was not relevant to whether such a concept was unique to Canberra in 2003.
240.	He agreed that “in terms of architectural concept and idea, architects inspire each other.”  It was not a question of stealing plans but rather “being influenced by ideas.”  This, too, was qualified by the importance, he said, of “proportion of scale.”
241.	He agreed that matters like fenestration were dictated by weather and climate.  Similarly, the planning guidelines to which I have previously referred, determine matters such as colour, and finish on a house.
242.	Mr Lunney, Senior Counsel for the Third Respondent, had no questions for Mr Ring.
243.	In re-examination, Mr Ring opined that a very large amount of time would be required to get to the stage of design that resulted in the Solitaire house.  This is to say that, using the usual architectural/drafting sequence of bubble diagrams, relationship diagrams, hierarchy diagrams, then moving to the drafting of the plans themselves, the time involved is very significant.
244.	These opinions of Mr Ring were based not only on his experience as an architect but also because he teaches architectural drafting at the Canberra Institute of Technology.  He has done so since 1990.  Mr Farrelly was one of Mr Ring’s students.
245.	Mr Ring considered that the central [unique] concepts of the Solitaire house were: the facade, the ensuite and master bedroom at the front of the house, and the home theatre upstairs.  He considered the same to be the central concepts in the Dunlop house.  In his view also, matters such as the location of a pergola and the location of bedrooms were not the substantial part of the design.
246.	He opined that there were no substantial differences between the facades, the master bedroom, informal [downstairs] living area, and upstairs home theatre in both houses.  And, he was of the view that the small differences that were evident and achieved in the plans for and building of the Dunlop house, compared with the Solitaire house, did not represent – or presumably require – “any real degree of skill or judgment” in the drafting of the plans for the Dunlop house.
(ii)		Evidence of Mr Poiner
247.	Mr Poiner is an architect of wide and significant experience.  He graduated with an honours degree in architecture in 1954.  He is now non-practising.  He resides in Sydney.  He confirmed that he had no experience in building “project homes” and no experience in the ACT.  He also confirmed that the last time he was involved in architectural work in relation to residential dwellings was “in the order of 30 years” ago.
248.	Mr Poiner provided the Court with three reports on behalf of Urban Design and Mr Farrelly.  The first was dated (and filed on)14th November 2008; two Supplementary Experts Reports, A & B, were both filed on 27th February 2009.  Mr Poiner was asked to comment on the respective plans of the two houses in question, as well as on Mr Ring’s affidavit/Expert Report.
249.	As just indicated, Mr Poiner’s original report commented on and compared the plans for the respective houses.  It runs to 15 pages, plus annexures.  Supplementary Report A corrected a number of errors in the original Report.  Supplementary Report B commented on and compared plans drawn by the First and Second Respondents with those drawn or prepared by the Third Respondent.  It runs to 46 pages, plus a small number of annexures.
250.	Stated shortly, and unsurprisingly so, Mr Poiner opined that “... notwithstanding the similarities [to which he had referred earlier], the internal floor plan dimensions and layouts of rooms and areas in the Dunlop House have resulted in overall floor plans, including their shapes and dimensions, that are significantly different from those of the Gungahlin [Solitaire] House.”
251.	Similarly, and no less unsurprising, he opined that various plans prepared by A & A Martins, which bore notes referring to Urban Design’s responsibility, led him to the view that Urban Design was the drawings’ original author.
252.	Mr Poiner’s Original Report: Mr Poiner’s original report conveniently distinguished between “plan accommodation content” (pars.3.2 – 3.3) and “Claimed planning similarities and differences” (pars.3.4 – 3.34).  The latter dealt essentially with claims made by Mr Ring in his Report.
253.	In relation to the “plan accommodation content”, the following may be noted from Mr Poiner’s Report.
254.	First, he listed what he described, at par.3.2, as the “broad similarities in the floor plan content” of the two houses.  In his view, they provided “similar, but not identical, accommodation.”
255.	Secondly, also in par.3.2 (p.6) of his Report, Mr Poiner said: “... I am of the opinion that the general content of the floor plans of the two houses does not of itself support a notion that either was influenced by the other.  In my view, both fall within the framework of or exhibit influence by normal modern house-design content standards.”
256.	Thirdly, he noted a range of differences between the plans.  In my view, the difference he lists are relatively inconsequential: e.g. such as one house having a storeroom and the other no storeroom, one having a walk-in pantry, the other a pantry cupboard, in one the study has natural light while the other does not.
257.	Fourthly, I have already noted Mr Poiner’s conclusion at par.3.3 (p.7) that in his opinion, the differences he noted “add weight to the view that the accommodation content of the buildings does not of itself support the thesis that one plan was influenced by the other.”  Mr Poiner’s qualification “of itself”, which I have accented or emphasised, is significant, for reasons I will come to shortly.
258.	I note the following from the Report in relation to the “claimed planning similarities and differences.”  I will not deal with each and every matter raised by Mr Poiner.
259.	Mr Poiner referred to Mr Ring’s claimed similarity in relation to the location of the master bedroom and ensuite.  Mr Poiner stated (par.3.6; p.8): “I agree that in both designs the master bedroom suite ... is similarly located, is of equivalent content and is separated from secondary bedrooms.”  However, he goes on to explain how or why this is, apparently, of little or no moment.  He commented: “... the planning change in the Dunlop House that relocated the master bedroom ... suite is a marked design improvement in that it provides a heightened level of privacy for the bedroom’s occupants.  In my experience such an arrangement is a frequent preference of architects and is often illustrated in architectural publications.”
260.	In the next paragraph (3.7) Mr Poiner concluded that “there is little agreement in the detailed layout of the two master bedroom suites designs.  ... In my opinion there is no substantial similarity in the design of the two master bedroom suites.”
261.	I observe here, as I have done elsewhere in these reasons, that, in my view, the crucial focus, if not the entire gravamen, of this case is less on the minutiae that distinguishes one part of any plan from another (a storeroom here, and pergola there, or even the dimensions of certain rooms) but more on (a) when, how and by whom the plans for the Dunlop house were changed from a single storey to a double storey dwelling, and (b) in what “central conceptual” ways those plans were changed?
262.	Before considering Mr Poiner’s Report further, an example of what I have just stated may assist.  Mr Poiner noted in his Report, par.3.28 (p.13), that the “sizes of the theatres in the two houses differ.”  He reported further that in the Solitaire house, the dimensions of the home theatre are “6.98m x 4.04m and has an internal area of 27.47 sq.m.  The overall area of its upper floor, including the stair, is 39.25 sq.m.”  He compared these figures with the dimensions of the home theatre in the Dunlop house, thus: “The theatre in the Dunlop House is dimensioned approx. Average 5.98m x 4.81m and has an internal area of 29.12 sq.m.  The overall area of its upper floor, including the stair, is 35.68 sq.m.”  Thus, on these figures, the difference in dimensions is 3.57 square metres.  In my view, such a small difference, to a degree, speaks for itself.
263.	The matters noted are important items of detail.  The crucial legal question, however, is not the details of areas of the upper floors but how it came to be that, one day on the plans for the Dunlop house, there was no upper floor, let alone a room designated “home theatre”, and a very short time later there were such items, and which bore a striking resemblance to those found in the plans of and building owned by Solitaire.  In my view, it is the concept, sudden appearance and execution of the upper storey and designated “home theatre” on the Dunlop house plan (and its subsequent building) that is critical rather than the fine detail of the dimensions of the respective theatres.
264.	The same issues of something not being on the Dunlop plans one day, but then suddenly appearing on them, and the changes bearing a striking likeness in basic design or concept – such as in relation to the location of the master bedroom suite at the front of the house, the use of a blade wall and the front facade more generally, and the already mentioned upper floor home theatre – remain the central points of reference for these reasons.
265.	Returning to Mr Poiner’s Report, he agreed (par.3.12) that the designs of the entry porches of the two houses were similar.  As with other areas of similarity, he explained, from an architectural perspective, why and or how the location of the item under consideration was logical to be located where it now appeared on the plans.  Such reasons included convenience for occupants and visitors and or to facilitate other planning issues.
266.	Similar comments were made in his Report in relation to the garage locations.  He said (par.3.14) that “the garage locations in the Dunlop and Gungahlin [Solitaire] House designs are similar.”  His explanations for the location were set out in pars.3.14 - 3.17.
267.	In relation to the location (as opposed to the existence and when and how it came to be) of the staircase, Mr Poiner said, at par.3.19, that the “internal staircase serving the upper storey of the Dunlop House is approximately two metres further forward (towards the front door) than the equivalent stair in the Gungahlin [Solitaire] House.”
268.	In relation to the claimed similarity between the “style, proportion and scale of the front elevation”, Mr Poiner said (par.3.29): “I agree that the elements that together make up the front elevations of the Dunlop and Gungahlin [Solitaire] Houses have created facades that resemble one another, notwithstanding that there are differences in dimension, arrangement and detail of the component parts.”  (Emphasis added.)  He continued: “In my opinion the resemblance has been assisted primarily by two factors, the plan placement of equivalent ground floor and upper floor rooms in the houses ... and the employment of so-called minimalist facade design that has been a theme in domestic Australian architecture over recent years.”
269.	Mr Poiner concluded (par.3.30): “I disagree with the Ring Report paragraph 16 statements that the Dunlop House facade is a ‘direct duplication’ of that of the Gungahlin House or that facade forms have the same proportions – in my view the dimensional differences deny such assessments.  I do accept however that the facades possess a common general design quality.”  Emphasis has been added.
270.	Mr Poiner’s Oral Evidence: In cross-examination, Mr Poiner agreed that the photographs of the two houses show that they are similar.  He disagreed with, or did not like, Mr Higgs’ description that they were “strikingly” similar.  He did, however, concede that to the untrained observer “striking” would be an apt description.
271.	Helpfully, Mr Poiner prepared overlay transparencies, which enabled a relatively quick and simple comparison to be made of the plans of the two houses.  Mr Poiner noted that they related only to the plans of the houses for the lower level.  He said that because the drawings for the upper storey were simple, and because the scale was “near enough the same so that a reasonable comparison of size could be seen,” he did not prepare a transparency for the upper level.
272.	As a result of using the transparencies, noting again that he was referring specifically and only to the ground floor plans of the houses, in his view, there was “very little of planning layouts of the two houses that coincide.”  Having said that, he conceded on a number of occasions that the facades of the two houses are similar.  He also agreed that, as a concept, having an upstairs home theatre, and the upstairs balcony of the Dunlop house, was “striking”, particularly (as he was asked to assume) in a street of single-storey project homes.  He agreed that, conceptually, the home theatre with a balcony off it were essentially the same in both houses.  He agreed similarly – i.e. conceptually – that the facades of the houses (as a whole) were the same.
273.	Finally, and most relevantly, he agreed that “as a concept” ‘tying the upstairs home theatre with the open plan kitchen/informal living area downstairs’ is very similar in both houses.  He said that they “most certainly have similarities as well as differences.”
(iii)		Evidence of Mr Novak
274.	Mr Novak’s unchallenged evidence was that he has been “involved in mechanical, structural and architectural drafting” since he was about 16 years of age.  He is now aged 60.  His formal qualifications are in sheet metal work and mechanical engineering.  With his wife, he conducts a design and drafting service in Canberra.  He is the current president of the ACT regional branch of the Building Designer Association of NSW Inc.
275.	The primary focus of Mr Novak’s evidence related to ‘the fees that a draftsperson would levy on a project house builder’ for each of the Solitaire and Dunlop houses in about mid 2005, ‘what those fees would be today’, and any other matters that he considered relevant to the proceedings – obviously within the scope of his experience and expertise.
276.	Mr Novak swore an affidavit on 12th November 2008 (filed on 13th November 2008).  In it, he expressed the following opinion:
a)	The design stage of each of the houses the subject of these proceedings would occupy approximately 12 hours, and the drafting of the plans would take a further 18 hours.
b)	The hourly rate for a draftsperson for design and drafting in 2005 would have been approximately $55.00 per hour (thus, according to his estimate of time involved in the instant plans, this would lead to a total of $1650.00).
c)	In his view, the current rate for such work by such a person is approximately $90.00 per hour (thus, according to his estimate of time involved in the instant plans, this would lead to a total of $2700.00).
277.	In his oral evidence, which he gave in a most uncomplicated and helpful manner, Mr Novak gave the following brief evidence.
278.	First, he said, on more than one occasion, that the plans for the Solitaire house, and no less so for the Dunlop house, were what he would describe as “typical project homes.”
279.	Secondly, he also said on more than one occasion that it was not the preferred option of having the client (whether builder or otherwise) sit next to the person drafting.  Such a situation slows the process down considerably and extends the drafting time.  Mr Novak regarded such intervention as “interference”.
280.	Thirdly, Mr Novak was taken to Mr Farrelly’s affidavit of 13th November 2008, and in particular, annexures N and O.  In his view, there was a “total redraw” of the versions of the plans, as set out in those annexures, from what is set out in “N” and what appears in “O.”  In his view, the “re-draw” would take approximately 18 hours of drafting to complete.
(iv)		Expert Evidence: Summary of Findings
281.	The evidence from the experts confirmed my views, which may be summarised as follows:
a)	there is significant similarity between the facades of the two houses.  It is very significant, in my view, that Mr Poiner, the principal expert for the First and Second Respondents, stated this quite clearly;
b)	there is significant similarity in the conceptual layouts of the two houses;
c)	there is significant similarity between the two houses, notably in relation to the following features: the upstairs ‘home theatre’, the terrace/balcony off that theatre, the location of the master bedroom and ensuite at the front of the house, and the use of a tiled blade wall.  These features were not in any of the earlier plans for the Dunlop house, and only appeared, to speak colloquially, ‘very late in the day.’  In my view, they are the most prominent and obvious similarities between the two houses.  Although it is dealt with in more detail below, it is apt to record here that, in my view, for the purposes of principles of copyright, these features constitute a “substantial part of the work”;
d)	the evidence of Mr Novak, in particular, casts even further doubt on Mr Farrelly’s testimony regarding the time he alleges it took him to re-draw the plans for the Dunlop house containing the features just noted.
e)	I do not need to make any formal findings regarding the evidence of either Mr Ring or Mr Poiner.  Their experience in relation to homes of the kind in question here, and their professional experience, speaks for itself.  In my view, in the result, their analyses related more to questions of degree – not quite akin to how many angels dance on the head of a pin – than to opposition in relation to the principal, conceptual and other matters to which I have referred.
V.		Copyright: Subsistence, Breach & Other things
(i)	Statutory Provisions
282.	The provisions of the Copyright Act 1968 that are relevant to these proceedings are ss.10 (definition of “artistic work”); 13(1) (acts comprised in copyright); 21(3) (reproduction and copying of “artistic work”); 31(1)(b) (the nature of copyright in original works); 32(3) (original works in which copyright subsists, particularly “buildings”); 36(1) (infringement); 115(1) – (4) (actions for infringement).
283.	For ease of reference, I set out below relevant parts of the sections to which I have referred.
(ii) 	Jurisprudential Principles
284.	Before dealing with each of the questions that, in my view, will resolve the issues for determination in these proceedings, the following statements from the recent High Court judgment in IceTV v Nine Network Australia Pty Ltd provide both summary of principle and context to the issues in dispute.
285.	In their joint judgment, French CJ, Crennan and Kiefel JJ, said, at [28] in relation to copyright generally (internal citations omitted):
	Copyright does not protect facts or information. Copyright protects the particular form of expression of the information, namely the words, figures and symbols in which the pieces of information are expressed, and the selection and arrangement of that information. That facts are not protected is a crucial part of the balancing of competing policy considerations in copyright legislation. The information/expression dichotomy, in copyright law, is rooted in considerations of social utility. Copyright, being an exception to the law's general abhorrence of monopolies, does not confer a monopoly on facts or information because to do so would impede the reading public's access to and use of facts and information. Copyright is not given to reward work distinct from the production of a particular form of expression.
286.	In relation to “substantial part”, their Honours said, at [30] and [32] (again with internal citations omitted):
	So as to indicate that the time and title information alleged to have been reproduced did not form a large part of a Weekly Schedule, the primary judge referred to the copying of "slivers of information". However, in order to assess whether material copied is a substantial part of an original literary work, it is necessary to consider not only the extent of what is copied: the quality of what is copied is critical.
	It is often said that questions of whether a substantial part has been copied are questions of fact and degree. However, a factor critical to the assessment of the quality of what is copied is the "originality" of the part which is copied.
287.	The following comments and observations from the other joint judgment in the same case are also apposite.  At [69], [70] and [71], their Honours, Gummow, Hayne and Heydon JJ, said (internal citations omitted):
	That imprecision is apparent not only in the terms "compilation" and "substantial part", but extends to what have been seen in the case law as the conceptual underpinnings of the protection by the Act of original literary, dramatic, musical and artistic works. The importance attached in the nineteenth century to the protection by injunction of legal rights, provided they were proprietary in nature, encouraged the treatment by the courts of copyright as the reward for productive labour; hence the use in some of the cases of the agricultural metaphor of sowing and reaping. That metaphor also relieved the courts from the perceived hazards involved in adjudicating upon aesthetic qualities of literary and other works. (But there remained the difficulties associated with the expression "a work of artistic craftsmanship".
	The agricultural metaphor is still encountered in the case law. For example, in Designers Guild Ltd v Russell Williams (Textiles) Ltd Lord Bingham of Cornhill said:
	"The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown."
	But, as Morritt LJ had emphasised when that litigation had been in the English Court of Appeal:
	"the object of the law of copyright is to protect the product of the skill and labour of the maker not to confer on him a monopoly in the idea it may express".
	Further, Morritt LJ stressed, and, with respect, properly so, that this latter consideration is important when determining whether a "substantial part" of a work has been reproduced by a defendant. That consideration also is important in resisting the deceptive simplicity of the formula repeated by Lord Reid in Ladbroke (Football) Ltd v William Hill (Football) Ltd that "what is worth copying is prima facie worth protecting". However, as will appear later in these reasons, the rhetoric of "misappropriation" appears to have influenced the outcome in the Full Court.
	A safer, if necessarily incomplete, guide when construing Pt III of the Act is the proposition that the purpose of a copyright law respecting original works is to balance the public interest in promoting the encouragement of "literary", "dramatic", "musical" and "artistic works", as defined, by providing a just reward for the creator, with the public interest in maintaining a robust public domain in which further works are produced.
VI.		Questions & Answers 
288.	Leaving aside questions of account of profits, damages, and contribution/indemnity, in the context of copyright and “project homes” (and plans thereof), the following sample of cases (and regularly cited other authority therein, such as SW Hart & Co Pty Ltd v Edwards Hot Water Systems, Autodesk Inc v Dyason (No 2), Data Access Corporation v Powerflex Services Pty Ltd, Francis Day & Hunter Ltd v Bron, and Ladbroke (Football) Ltd v William Hill (Football) Ltd) details relevant principles: Beck v Montana Constructions Pty Ltd, Lend Lease Homes Pty Ltd v Warrigal Homes Pty Ltd, Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes, LED Builders Pty Ltd v Eagle Homes Pty Ltd, Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd, Tolmark Homes Pty Ltd v Paul, Dixon Projects Pty Ltd v Hallmark Homes,  Eagle Homes Pty Ltd v Austec Homes Pty Ltd, Tamawood Ltd v Henley Arch Pty Ltd, Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd, Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd, A V Jennings Ltd v Bogdan.  Having regard to the principles set out in these (and other) cases to which I will refer in detail as required, I move to a consideration of the following questions, which were noted earlier in these reasons.
a)	Does copyright subsist in the plans for and the house built by Solitaire?
b)	Who owned the copyright in the plans and the Solitaire house?
c)	Was the copyright in either or both the plans and the house breached?  If so, how and by whom?
d)	If breach of copyright is established, what is the appropriate remedy: damages or account of profits?  If “damages” is the more appropriate remedy, what is the appropriate measure of damages?
e)	If established, do the facts and findings in relation to breach of copyright warrant the award of flagrancy damages pursuant to s.115(4) of the Copyright Act 1968?
f)	If established, do the facts and findings in relation to breach of copyright give rise to a claim for contribution and indemnity by the First and Second Respondents against the Third Respondent?  If so, what is the scope of such a claim?
(i)	Does copyright subsist in the plans for and the house built by Solitaire?  
289.	Section 126(a) provides that copyright shall be presumed to subsist in the work or subject-matter to which the action relates if the defendant does not put in issue the question of whether copyright subsists in the work or other subject-matter.
290.	The First and Second Respondents did not admit that Solitaire has copyright in either the plans for, or the building known as, the Solitaire house.
291.	In Tamawood, the Full Court observed, at [38], “The application of the law of copyright to project home plans gives rise to special difficulty.  All modern homes have certain features in common.”  The Court also said, at [39]: “The idea-form distinction, often elusive, is particularly so in the case of project homes.  Yet the originality threshold for copyright protection is low.”
292.	The Court went on to state, at [41]: 
	The drawing of plans for project homes involves a mixture of the use of familiar ideas based on objects in the real world (many other project homes and the plans for them) on the one hand, and labour, skill and judgment (in combining and arranging the various parts) on the other hand.  It may be possible to say of each individual part, considered in isolation, that it merely expresses a common idea, yet there will be copyright in the whole plan if the combination and arrangement originated with the author.  In protecting that origination, copyright protects the author’s labour, skill and judgment.
293.	I have already indicated that I accept, without qualification, the evidence of both Mr Pekic and Mr Turcin.  This is so particularly in relation to the plans and the construction of the Solitaire house.  I accept Mr Pekic’s evidence, noted earlier in these reasons at [32], which lists six distinguishing features of the Solitaire house.  Most, if not all of, those same features are found in the Dunlop house.  In my view, taken together, there is more than sufficient originality in both the plans and the house to warrant a finding that copyright subsists in both the plans for and the Solitaire house itself.
294.	In my view, there is also support for, and certainly nothing against, such a finding in the expert evidence before the Court.
(ii) 	Who owned the copyright in the plans and the Solitaire house?
295.	At [47] – [48] of these reasons, I detailed the circumstances and the unchallenged facts surrounding the deed of assignment of the copyright in the plans and the Solitaire house.  On the basis of those facts, I have no difficulty in finding that the Applicant in these proceedings holds the relevant copyright in the plans and the Solitaire house.  A declaration to that effect will be made.
(iii)		Was the copyright in either or both the plans and the house breached?  If so, how and by whom?  
296.	One of the most succinct summaries of principle in relation to copyright and project homes is by Weinberg J in Inform Design and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd.  I adopt, respectfully, and for ease of reference set out in full, his Honour’s summary at [58] – [72]:
58 Section 31(1)(a)(i) of the Copyright Act (Cth) gives to the copyright owner the exclusive right to "reproduce the work in a material form".  Section 14(1)(b) provides that reference to a "reproduction ... of a work" shall be read as a reference to "reproduction ... of a substantial part" of the work.  Section 21(3) provides that an artistic work shall be deemed to have been reproduced if a two-dimensional work is reproduced in three-dimensional form or vice-versa. 
59 The term "reproduction" is not otherwise defined.  However, as Diplock LJ observed in Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587 at 623, it plainly involves two elements.  First, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter.  Second, the copyright work must be the source from which the infringing work is derived. 
60 In SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59;(1985) 159 CLR 466, Gibbs CJ said (at 472):
"The notion of reproduction, for the purposes of copyright law, involves two elements - resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work".  Lord Reid said in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 276 ...: 
‘Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying.  And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken’." 
61 Reproduction can either be direct or indirect.  A direct infringement involves the doing of an act comprised in the copyright.  Unlike patent, design and trademark law, copyright does not give an exclusive monopoly.  Broadly speaking, it protects against copying. 
62 Copying can be conscious or subconscious: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [24]. In Francis Day & Hunter Ltd v Bron, Willmer LJ explored the idea of "subconscious" copying.  His Lordship said (at 612-614):
"I confess that I have found the notion of subconscious copying one of some difficulty, for at first sight it would seem to amount to a contradiction in terms, the word ‘copying’ in its ordinary usage connoting what is essentially a conscious process ... The conclusion at which I arrive on this part of the case is that subconscious copying is a possibility which, if it occurs, may amount to an infringement of copyright.  But in order to establish liability on this ground, it must be shown that the composer of the offending work was in fact familiar with the work alleged to have been copied." 
63 His Lordship (at 614) then went on to adopt, as correct, the following four propositions:
"(1) In order to constitute reproduction within the meaning of the Act, there must be (a) a sufficient degree of objective similarity between the two works, and (b) some causal connection between the plaintiffs’ and the defendants’ work.  (2) It is quite irrelevant to inquire whether the defendant was or was not consciously aware of such causal connection.  (3) Where there is a substantial degree of objective similarity, this of itself will afford prima facie evidence to show that there is a causal connection between the plaintiffs’ and the defendants’ work; at least it is a circumstance from which the inference may be drawn.  (4) The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference of causal connection arising from the objective similarity, but is in no way conclusive." 
64 Copying in relation to building plans is not confined to tracing and can be established even where there are significant differences between the finished products.  In LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215, there were differences in room sizes, window placings, wall alignments, and cupboards between the plans of the applicant and respondent. Nonetheless, these differences were minor and there was found to be reproduction of a substantial part of the applicant’s plans. 
65 Davies J found that the respondent did not ask its draftsmen to copy the applicant’s plans.  The respondent gave instructions to change the respondent’s existing plans, both by way of sketches and orally, which, when implemented, would bring those plans into line with the applicant’s plans.  This was said to constitute deliberate copying, though achieved by the giving of instructions for change rather than the direct tracing of one plan from another.  There was thus a causal connection between the two sets of plans. 
66 An important case for present purposes is Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378.  It also concerned copyright in project home designs.  The trial judge found that copyright had been infringed.  On appeal, Wilcox and Lindgren JJ in a joint judgment observed in relation to copyright and project homes generally: 
"[38] The application of the law of copyright to project home plans gives rise to special difficulty.  All modern homes have certain features in common.  In the case of project homes competing for the same number of dollars, there are pressures towards sameness.  Of course, the size, number of rooms and facilities will vary according to the price range.  Commonly, however, those in the same price range will be found: 
(a) to be designed to fit blocks of approximately similar shape and dimensions; 
(b) to provide for vehicular access and accommodation; and 
(c) to include features demanded by the market in question, such as, a certain number of bedrooms, a laundry, a kitchen, a family or rumpus room, an ensuite and a walk-in wardrobe (‘WIR’) in association with the main bedroom, built-in wardrobes in the other bedrooms, at least one bathroom in proximity to the other bedrooms, and certain facilities in the kitchen such as a sink, bench, dishwasher, stove, hot plate and microwave oven. 
[39] The idea-form distinction, often elusive, is particularly so in the case of project homes.  Yet the originality threshold for copyright protection is low.  It is no longer challenged that copyright subsisted in the Chirnside Works and Buildings, as well as in the Baltimore Works and Buildings. 
[40] Although copyright subsists in the whole of a plan or house, this does not mean that each individual part of it, considered in isolation, satisfies the originality test for the subsistence of copyright, that is to say, that it originated with the author.  Some parts may be original only in the sense that they are part of a whole which did originate with the author.  So, Lord Pearce was able to say that to copy an unoriginal part of a copyright whole is not an infringement: cf Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 ("Ladbroke") per Lord Pearce at 293. 
[41] The taking of an idea, as distinct from its expression, from a copyright work will also not constitute an infringement, since there is no copyright in ideas: cf Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 ("Kenrick").  Common examples concern objects in the real world or ideas based on objects in the real world.  A person who draws or photographs an object does not, through the copyright in the drawing or photograph, become entitled to prevent others from drawing or photographing the same object, even though there may be a striking similarity between the two drawings or between the two photographs.  The drawing of plans for project homes involves a mixture of the use of familiar ideas based on objects in the real world (many other project homes and the plans for them) on the one hand, and labour, skill and judgment (in combining and arranging the various parts) on the other hand.  It may be possible to say of each individual part, considered in isolation, that it merely expresses a common idea, yet there will be copyright in the whole plan if the combination and arrangement originated with the author.  In protecting that origination, copyright protects the author’s labour, skill and judgment. 
[42] It is reasonable to expect that the more simple, commonplace, familiar and straightforward the subject matter of a copyright work, the closer the similarity that will be required if infringement is to be found: cf Kenrick at 102."
67 Their Honours referred to the well-known passage from the judgment of Gibbs CJ in SW Hart & Co v Edwards Hot Water Systems, cited earlier in these reasons for judgment, and then continued:
"[44] ‘Causal connection’ and ‘objective similarity’ are not referred to in the Act, and are but the components of the Act’s concept of ‘reproduction’; Eagle at [98].  Causal connection is sometimes inferred from access to the copyright work in suit and sufficient objective similarity between it and the work said to infringe.  But the two elements are conceptually distinct: a young child may try to copy a drawing, yet fail, for lack of skill, to reproduce it; a skilful copier may attempt to copy a work on the basis of his or her recollection of it, yet fail for imperfection of memory; a chain of communications from the observer of a work to the ultimate author of an intended copy of it may be so defective that, again, the intended copy fails to reproduce the original.  But even a perfect copy, if truly accidental and independent, is also not a ‘reproduction’, because the necessary causal link between the two works is missing: cf Ladbroke at 276 per Lord Reid; Eagle at [85], [86]. 
[45] Tamawood concedes that there can be an infringement although the author did not directly copy from, or even know of, the copyright work.  The primary judge cited, in this connection, LED at 225, but that case did not go so far as Tamawood’s concession does.  In LED, a director of the alleged infringer gave instructions to its drafters for modifications to be made to bring plans into line with the copyright plans of the applicant.  The comparable situation in the circumstances of the present case would be that Mr Mizikovsky filled Ms Gould’s role, that is to say, that he, as an officer of Tamawood, and knowing of the Chirnside plan and intending to take from it, gave the unsuspecting Mr Middleton instructions for modifications to the Adrian, which, in fact, when implemented, would bring it into line with the Chirnside. On his Honour’s findings, that is not this case. 
[46] The primary judge expressed (at [42]) surprise at a statement in Eagle (at [86]) that ‘where subjective copying occurs there can be expected to be found an infringement, unless it transpires that the product is so dissimilar to the copyright work that the copyright work can no longer be seen in the work produced’.  Referring to an expectation, that statement allows for exceptions.  Also it must be read in context. As stated earlier in the judgment (at [72]) Eagle was better regarded as a case of reproduction of the whole of the copyright work, so it was strictly not necessary to undertake the ‘substantial part’ inquiry.  Eagle was a case of subjective copying of the shapes and arrangement of, and interrelationship between rooms, and of traffic flow, throughout the house.  The statement which surprised his Honour is akin to that of Lord Bingham in Designers Guild Ltd v Russell William (Textiles) Ltd [2001] FSR 113 (‘Designers Guild’) that: 
‘[w]hile the finding of copying did not in theory conclude the issue of substantiality, on the facts here [Designers Guild was also a case of overall similarity] it was almost bound to do so.’ (at 116-117)
It was acknowledged several times elsewhere in the judgment in Eagle (at [69], [74] and [103], for example) that subjective copying alone is not enough, and that where a part is taken it must be a substantial part of the copyright work.  Peterson J’s aphorism, ‘what is worth copying is prima facie worth protecting’, a statement made in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 610 in relation to the subsistence of copyright, was in fact invoked in the context of infringement and ‘substantial part’ in Ladbroke by Lord Reid at 279 and by Lord Pearce at 293-294, but the House of Lords may be taken to have cautioned against this practice in Designers Guild)." 
68 What is clear from Clarendon Homes v Henley Arch, and Tamawood v Henley Arch in particular, as well as the other cases cited, is that in order to prove infringement of copyright there must be proof of copying.  As indicated, copying can be deliberate or subconscious although, as the Full Court observed in Clarendon Homes v Henley Arch at [24], in cases involving works such as architectural plans, it would be surprising to find many cases of subconscious copying.  If a person independently creates a work that is substantially similar or even identical to another in which copyright subsists, the copyright holder has no recourse: Eagle Homes Pty Ltd v Austec Homes Pty Ltd[1999] FCA 138; (1999) 87 FCR 415 at [86] per Lindgren J.
69 In the absence of any direct evidence of copying, or access by the respondent to the applicant’s work, the causal link can be inferred.  The greater the degree of objective similarity, the more likely it will be that that inference will be drawn: SW Hart & Co v Edwards Hot Water Systems (at 472); Clarendon Homes v Henley Arch and Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd[2008] FCA 375. 
70 The operative similarity need not be, and indeed rarely will be, to the entire work.  However, correspondence to a substantial part of the applicant’s design will be sufficient to ground infringement: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd(2007) 74 IPR 52.  It is not necessary to show that the alleged copy is a perfect reproduction of a substantial part of the applicant’s work: British Northrop Ltd v Texteam Blackburn Ltd [1974] RPC 57 at 72 per Megarry J.
71 Determining whether "a substantial part of the work" has been reproduced is a question of fact and degree.  As indicated, greater weight must be given to the quality of what is reproduced than to its quantity: SW Hart & Co v Edwards Hot Water Systems.  The protected element may arise out of a combination of elements, any one of which considered individually might not qualify as sufficiently original to attract copyright.  An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant’s work: Autodesk Inc v Dyason [No 2][1993] HCA 6; (1993) 176 CLR 300 per Mason CJ at 305; Tamawood v Henley Arch at [52]; and Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490 at 494 per Lockhart, Spender and Ryan JJ.
72 A "substantial part" can be constituted by the arrangement of rooms in a design, as well as by matters such as traffic flow throughout a house: Eagle Homes v Austec Homes.  Although questions of "substantiality" and "reproduction" are ultimately for the Court to determine, it is permissible and of assistance to have regard to expert opinion to resolve those questions: Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 at 286 and Barrett Property Group v Metricon Homes at [28].  (Emphasis in original.)
297.	In the light of the above principles, and in the light of the evidence and findings previously set out, in my view, the following is clear and should be taken as formal determinations (using the language of Weinberg J in Inform Design and the authorities he cited):
(i)	There is “sufficient objective similarity between the infringing work [the Dunlop house] and the copyright work [the plans for and the Solitaire house], or a substantial part thereof, for the former to be described, not necessarily as identical with, but as a reproduction or adaptation of the latter.”
(ii)	On the evidence before the Court, “the copyright work must be the source from which the infringing work is derived.”  In my view, such is clearly the case here: the Solitaire house was the source ‘from which the infringing work [the Dunlop house] was derived.’
(iii)	Having regard to Willmer LJ’s four propositions in Francis Day & Hunter, cited with approval by Gibbs CJ in SW Hart & CO Pty Ltd v Edwards Hot Water Systems, all of which have been consistently cited in most of the cases referred to in [296] above, including Weinberg J in Inform Design (above), in my view, each of those four propositions has been satisfied on the evidence in these proceedings.
(iv)	“Copying in relation to building plans is not confined to tracing and can be established even where there are significant differences between the finished products.”  (Weinberg J in Inform Design at [64]: internal citations omitted).  Whatever the differences between the plans for, and the two houses themselves, details of which were helpfully provided by the expert evidence of Mr Poiner, they do not detract or disturb the basic and fundamental similarities of essential or material elements of the Solitaire house found in the Dunlop house.
(v)	‘In the absence of any direct evidence of copying, or access by the respondent[s] to the applicant’s work, the causal link can be inferred.  The greater the degree of objective similarity, the more likely it will be that inference will be drawn.’  (Weinberg J in Inform Design at [69]: internal citations omitted).  I agree with Ms Olsson’s submission that there is no direct evidence of copying. In my view, however, on the evidence, there is such significant similarity between the two houses (in particular, the various aspects of the facade, together with the second storey, complete with ‘home theatre’) that the causal link can confidently be inferred, supported by the circumstances surrounding the sudden and dramatic change of plans.
(vi)	“The operative similarity need not be, and indeed rarely will be, to the entire work.  However, correspondence to a substantial part of the applicant’s design will be sufficient to ground infringement.  … It is not necessary to show that the alleged copy is a perfect reproduction of a substantial part of the applicant’s work.” (Weinberg J in Inform Design at [70]: internal citations omitted).  In my view, on the evidence before the Court, these criteria, summarised and specified from significant earlier authority by Weinberg J, have been clearly made out in this case.  There is, as already said on more than one occasion, ‘correspondence to a substantial part of the applicant’s design, and the applicant’s house.’
(vii)	“Determining whether a “substantial part of the work” has been reproduced is a question of fact and degree.  …greater weight must be given to the quality of what is reproduced than to its quantity.   …An allegation of substantial reproduction will be made out if what has been taken is an essential or material part of the applicant’s work.”  (Weinberg J in Inform Design at [71]: internal citations omitted).  In my view, the elements identified by Mr Pekic at [38] – [41] above, save perhaps for the detail in relation to the combination of flat and hipped roofing, constitute “an essential or material part of the applicant’s work.”
(viii)	“If a person independently creates a work that is substantially similar or even identical to another in which copyright subsists, the copyright holder has no recourse.”  (Lindgren J in Eagle Homes Pty Ltd v Austec at [86]: internal citations omitted).  In my view, there was no credible evidence to support any suggestion that Mr Farrelly arrived at the design for the Dunlop house, with its significant array of features that are congruent with the Solitaire house, independently.  Indeed, on the evidence, I am firmly of the view, previously expressed, that Mr Farrelly copied the design of the Solitaire house and applied it to the plans for the Dunlop house.  He did so, in my view, not to cause injury to Solitaire (or to Mr Turcin) but to solve the predicament in which his company, Urban Design, found itself, in relation to the understandably irate Mr Martins, whose company was about to commence construction of a house that was to become his own home but which had been incorrectly drawn on the plans provided by Urban Design.  It also follows from these findings that, in my view, Mr Martins was not complicit with Mr Farrelly in the appropriation and use of the Solitaire plans/house.
(iv) 		If breach of copyright is established, what is the appropriate remedy: damages or account of profits?  If “damages” is the more appropriate remedy, what is the appropriate measure of damages?
298.	Section 115(2) of the Copyright Act provides: “Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.”
299.	A fulsome account of principle in relation to remedies that arise out of breach of copyright is in the joint judgment of Black CJ and Jacobson J (“the joint judgment”), at [23] – [39], and the separate judgment of Rares J, at [95] – [103], in Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in Liq).  Relevantly, their Honours make the following points.
300.	First, at [2], the joint judgment makes clear that in infringement of copyright cases, “... the applicant bears the onus of proof.  But as Bowen LJ said over a century ago, as much certainty is required as is reasonable, having regard to all the circumstances; to require more "would be the vainest pedantry"; Ratcliffe v Evans [1892] 2 QB 524 at 532-533; see also Placer (Granny Smith) Pty Limited v Theiss Contractors Pty Limited [2003] HCA 10; (2003) 196 ALR 257 at [37].”
301.	Secondly, at [24], the authorities are clear that “... an applicant cannot claim both damages and an account; an election must be made before judgment; Dr Martens Australia Pty Limited v Bata Shoe Co of Australia Limited (1997) 75 FCR 230 (Goldberg J).”
302.	Thirdly, at [25] and [34], the joint judgment makes clear that the “...purpose of an award of damages for breach of copyright is to compensate the plaintiff for the loss which he has suffered as a result of the defendant’s breach"; see Interfirm Comparison (Aust) Pty Limited v Law Society of New South Wales (1975) 6 ALR 445 at 446 (Bowen CJ); Bailey v Namol Pty Limited [1994] FCA 1401; (1994) 53 FCR 102 at 111 (Burchett, Gummow and O’Loughlin JJ).”
303.	Fourthly, at [35], the joint judgment said:
If a court finds that damage has occurred it must do its best to quantify the loss, even if some degree of speculation and guess work is involved; Enzed Holdings Limited v Wynthea Pty Limited (1984) 57 ALR 167 at 183 (Sheppard, Morling & Wilcox JJ).  But, as their Honours emphasised, this principle applies only where a court finds that loss or damage has occurred; it is not enough merely to show wrongful conduct by a defendant.  See also the observations of Mason CJ and Dawson J in The Commonwealth v Amann Aviation Pty Limited [1991] HCA 54; (1991) 174 CLR 64 at 83.
304.	Finally, at [36] of the joint judgment, their Honours said: “In Placer at [37] – [38] Hayne J pointed to the stricter approach taken by the courts in assessing damages where a plaintiff has not adduced evidence that was apparently available to prove the loss.”  The reference to Placer is to Placer (Granny Smith) Pty Ltd v Theiss Contractors Pty Ltd.
305.	The High Court reference to Placer is important because of the remarks of Hayne J, cited in full by Rares J at [101] in Aristocrat and with which the joint judgment agreed, at [36].  It is important in this case to recall Hayne J’s remarks in Placer.
306.	At [37] – [38] in Placer, Hayne J said (with Gleeson CJ, McHugh & Kirby JJ agreeing) (internal citations have been omitted):
Placer undoubtedly bore the burden of proving not only that it had suffered damage as a result of Thiess Contractors' breach of contract, but also the amount of the loss it had sustained.  It goes without saying that it had to prove these matters on the balance of probabilities and with as much precision as the subject matter reasonably permitted. 
It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence.  In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed.  References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind.
307.	In the current case, two things should be stated at the outset.  First, subject to what is noted below from the Applicant’s final submissions, Solitaire clearly claimed damages, as opposed to any accounts of profits.  Thus the election was made, as required.  Secondly, however, there is no evidence before the Court from the Applicant as to any precise figure of any loss or damage suffered.  
308.	In his final submissions, Mr Higgs SC submitted, in the alternative, that (a) flagrancy damages should be awarded against Urban Design/Mr Farrelly under s.115(4) (dealt with below), or (b) there should be an award of damages which approximated the expected profits on the [sale of the Dunlop] house (of between $40,000 - $70,000), or (c) (subject to formal findings and a number of other procedural matters, which included seeking leave to adduce further evidence regarding the profit made by the Third Respondent) there should be an account of profits from the Third Respondent, or (d) (based on Mr Martins’ evidence) the award of damages should be $40,000.  Nearly all bases were covered.  However, as Ms Olsson SC observed, although in the application, there was no submission in relation to injunctive relief and the delivery-up of plans.
309.	Ms Olsson SC submitted that, because (a) her clients (the First and Second Respondents) gained no profit from the copying of the plans – except for the quite modest professional fess charged, and (b) there is no evidence of damage suffered by the Applicant, or depreciation in the value of the Applicant’s plan or house, any damages - if awarded - should be minimal.  It also followed (and was clearly implicit in her submissions) that any claim for an account of profits had no basis, at least so far as her client was concerned, because there was no profit gained by her client arising out of the sale of the Dunlop house.
310.	I agree with Ms Olsson’s observations, which were to the effect that (a) the case concerned “project homes” (which is also to say – with no disrespect to any of the parties - that the proceedings involved homes of modest proportion, modest architectural significance, and, compared to many other houses and projects, of modest financial significance), and (b) the infringement was a “limited one-off, isolated incident.”  These circumstances also, in her submission, militated against any substantial award of damages.  It is certainly clear that there was no evidence, or even a hint, of profiteering on the part of any of the Respondents in relation to the Dunlop house.
311.	I also accept Mr Olsson’s submission that there is no basis for any award of damages against Mr Farrelly personally.  All of his actions that were the subject of scrutiny in these proceedings (with the exception of his visitation of the Harrison residence, in relation to which there were no claims), in my view, were conducted on behalf of the First Respondent, Urban Design.
312.	For his part, Mr Lunney SC made submissions in relation to remedies primarily on the basis that the Applicant had not discharged its responsibility of adducing evidence to support any award of damages or account of profits.  Solitaire relied, he submitted, simply on Mr Martin’s evidence, in the course of cross-examination, that the Dunlop house had been built on a “cost-plus” basis.  Other than that, there was little substantive evidence on which the Court could or should rely.
313.	In my view, in the light of the clear statement of principle by the Full Federal Court in Aristocrat an account of profits has no application in these proceedings in relation to the First and Second Respondents (I deal with the position of the Third Respondent shortly).
314.	A recent exposition of relevant principle in relation to damages is the detailed judgment of Tamberlin J in Eagle Rock Entertainment Ltd v Caisley.  Beginning at [10], his Honour outlined the two approaches regarding the assessment of damages.  The first is the “licence fee approach”, which refers to the loss of licence fees by the applicant as a consequence of the infringement; the second approach relates to the extent to which sales of the copyright owner’s product were lessened as a result of the competition posed by the infringing work.
315.	Respectfully, on the facts in this case, I adopt the view expressed by Greenwood J in AV Jennings where, at [96], his Honour said that “... damages should be assessed on the footing that damages are, in this case, at large.”  In that case, which is not completely dissimilar to the present one and also involved plans for a residential house, his Honour estimated damages on the basis that the contribution of the copyright in the plan at “about 10%.”  The estimate of the cost of design and construction of the house in that case was said to be $118,912.  The “margin” on that house was determined to be $41,019.  On these figures, his Honour said that damages should be in the range of $2,972 and $4,101.  On the facts and findings in that case, Greenwood J awarded damages of $3,536.
316.	In Tolmark v Paul, Beaumont J awarded damages of 5% of a total building cost of $66,000, which resulted in an award of $3,300.
317.	In Deckers Outdoor Corporation v Farley (No 5), Tracey J said, at [79]: “Even though the evidence may be deficient, the court is, nonetheless, obliged to do the best it can to make a just and fair assessment of the quantum of damages.”  Respectfully, I adopt his Honour’s comments. 
318.	In my view, there was a clear breach of copyright by Urban Design in relation to the plans for the Solitaire house.  I accept that the state of the evidence in relation to damages relied upon by the Applicant is poor; it is more by inference than by anything else.  Indeed, it is difficult to see, and (as already stated) there is very little evidence of, any actual damage the Applicant has suffered.  
319.	However, ‘doing the best to make a just and fair assessment of the quantum of damages’, and having regard to (a) the limited – and sometimes somewhat conflicting - evidence in relation to the cost of construction of the Dunlop house, (b) the fact that none of the Respondents ever actually owned the Dunlop house, (c) the “exorbitant licence fee” proposed by Mr Pekic and Mr Turcin for the use of the Solitaire plans, (d) the somewhat speculative nature of the “profit” on the sale of the Dunlop house (taken notably from comments – as opposed to documentary evidence of any kind - from Mr Turcin in cross-examination, and likewise from Mr Martins’ cross-examination), (e) the fact that there is no evidence of any continuing or repetition of any infringement – indeed, I accept without hesitation Ms Olsson’s submission that this was a “one-off event” – and, (e) the cases to which I have referred, in my view an appropriate award of damages is $10,000, which represents 25% of the asserted profit on the building of the Dunlop house.
(v) 		Do the facts and findings in relation to breach of copyright warrant the award of flagrancy damages pursuant to s.115(4) of the Copyright Act 1968?
320.	Section 115(4) provides:
Where, in an action under this section:
	(a)	an infringement of copyright is established; and
	(b)	the court is satisfied that it is proper to do so, having regard to:
	(i)	the flagrancy of the infringement; and
	(ia)	the need to deter similar infringements of copyright; and
	(ib)	the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff’s copyright; and
	(ii)	whether the infringement involved the conversion of a work or other subject‑matter from hardcopy or analog form into a digital or other electronic machine‑readable form; and
	(iii)	any benefit shown to have accrued to the defendant by reason of the infringement; and
	(iv)	all other relevant matters;
the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.
321.	There is significant authority in relation to the application of this section and the considerations relevant to an award of exemplary damages.  The following cases are but a sample: Raben Footwear v Polygram Records Inc, Woolworths Ltd v Olson, Norm Engineering v Digga Australia, Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in Liq), Luxottica Retail Australia Pty Ltd v Grant, Rutter v Brookland Valley Estate Pty Ltd, and Deckers Outdoor Corporation Inc v Farley.
322.	Accepting the evidence before the Court and the findings I have made, especially in relation to Mr Farrelly’s conduct on behalf of the First Respondent, in my view, some award of damages under s.115(4) is appropriate.  In the light of the authorities to which I have referred, and in the circumstances of this case, including the fact that (a) Urban Design is a very modest commercial enterprise, (b) there has been no profiteering by either the First or Second Respondents, and (c) there has not been, and is unlikely to be, any future infringement, an award of $2500.00 should be made in favour of the Applicant against the First Respondent by way of exemplary damages.
323.	In making award of damages under s.115(4)(b)(iv), the Court is entitled to take into account “all other relevant matters.”  In these proceedings, I am acutely conscious of the significant burden – financial and other – that the proceedings themselves will have already imposed on all parties.  In my view, in the overall circumstances of the case, this is a not insignificant consideration.  Indeed, having regard to the number of Senior and other Counsel involved, the length of the trial, the all-embracing and far-reaching involvement of solicitors, and numerous interlocutory Court events, it might be inferred that the combined legal costs are likely to exceed the cost of construction of either or both of the houses in question.  I recorded earlier in these reasons, at [55], that Mr Turcin said in evidence that “this house was  ... to become the signature against my company name.”  To state the obvious, “principles” or ‘signature houses’ are costly matters to protect.
(vi)		Do the facts and findings in relation to breach of copyright give rise to a claim for contribution and indemnity by the First and Second Respondents against the Third Respondent?  If so, what is the scope of such a claim?
324.	There were few, if any, submissions in relation to contribution or indemnity.  There were certainly no references to any cases on these subjects.  In the light of such a jurisprudential vacuum, the following brief observations may be made.
325.	To some degree, relevant to the consideration of this question is the operation of s.115(3) of the Copyright Act.  That section provides:
Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.
326.	Relevant jurisprudence in relation to (a) s.115(3), and (b) more generally in relation to contribution/indemnity more generally (both at common law and in equity) would include the following representative cases: (a) Golden Editions Pty Ltd v Polygram Pty Ltd, Louis Vuitton Malletier South Australia v Toea Pty Ltd; (b) Albion Insurance Co Ltd v Government Insurance Office (NSW), Burke v LFOT Pty Ltd, and Friend v Brooker.
327.	On the facts, as I have found and determined them, there was no “common purpose” or “common action” as between Mr Farrelly (on behalf of Urban Design) on the one hand, and Mr Martins (on behalf of A & A Martins) on the other hand, in relation to the use of the Solitaire plans and or the construction of the Dunlop house.  On this factual basis, and in the light of the authorities to which I have referred in the previous paragraph, I can find no basis upon which the claim for contribution or indemnity can succeed.
328.	In my view, on the facts in this case, there can be no foundation for any claim by either the First and or Second Respondents against the Third Respondent either as a joint tortfeasor, or on any other ground for that matter, in relation to the breach of copyright perpetrated by the First Respondent.  Accordingly, the cross-claim of the First and Second Respondents against the Third Respondent must be dismissed.
329.	In my view, the defence provided by s.115(3) has been made out.  As the terms of the section make clear, and using those terms, ‘... at the time of the infringement, on the facts which I have accepted, the Third Respondent, in my view, was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright.’  As the joint judgment of Burchett and Tamberlin JJ in Golden Editions Pty Ltd v Polygram (at p.86) stated plainly: “... in general the question is not whether the defendant knew the identity of the owner of the copyright, but whether the defendant has established a lack of awareness, and of reasonable grounds for suspecting, that the relevant act was an infringement of the copyright which was infringed, in whomsoever that copyright might be vested.”
330.	In the light of the findings I have made, and in particular my acceptance of Mr Martins’ evidence and the rejection of Mr Farrelly’s evidence, in my view, the defence under s.115(3) has been made out.
331.	In my view, the Applicant is not entitled under this section to any damages against the Third Respondent in respect of the infringement.
332.	Mr Lunney SC also submitted, in my view correctly, that there was no evidence before the Court that the Third Respondent ever owned the land on which the Dunlop house was constructed.  It was originally owned by Primavera, and later by Mr Martins.  In such circumstances, I do not see any legal basis upon which any claim for an account of profits could be pursued against the Third Respondent.  Also, as previously indicated, having regard to how, and over the long period of time, the proceedings were conducted by the Applicant, there was more than ample opportunity to adduce any relevant evidence against the Third Respondent in relation to any claim for an account of profits.  The Applicant has been long-represented by experienced solicitors; the conduct of the proceedings always reposed in their hands.  The application to seek leave to allow the Applicant to adduce further evidence in relation to an account of profits against the Third Respondent should not be granted.
VII.		Conclusion
333.	All parties have endured a long trial and doubtless have incurred very significant costs as a result of the protracted proceedings.  As already indicated, in my view, in accordance with authority, those costs and the other burdens have been part of my consideration of an appropriate award of damages, which flow from my determination that the First Respondent had infringed the Applicant’s copyright in the plans of the Solitaire house.
334.	Finally, as requested by all parties at the close of submissions, I will make no orders in relation to costs at this stage.  The parties are to provide written submissions in relation to costs within 28 days of the date of this judgment.
I certify that the preceding three hundred and thirty-four (334) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate:  D-R Gale

Date:  		23 March 2010

Index to Appendices

Appendix A

-	Photograph: the “Solitaire House”
-	Photograph: the “Dunlop House” 

Appendix B: Solitaire House Plans
-	Ground Floor Plan
-	Upper Floor Plan
-	Back and front elevation
-	Right and left elevation

Appendix C:  Dunlop House - 2003

-	Siteplan: 30th June 2003
-	Floorplan: 30th June 2003
-	Elevations & Section Plan: 30th June 2003

Appendix D: Dunlop House - 2005
-	Concept Plans (floor plan) - 12th January 2005
-	Concept Plans (floor plan & facade) - 12th January 2005
-	Site plan:10th January 2005, approval granted 11th January 2005, 
-	Floor plan:10th January 2005
-	Elevations & Section Plans (South, East, North and West elevations):10th January 2005
-	Site plan:19th January 2005, approval granted 19th January 2005.
-	Lower Floor Plan:19th January 2005
-	Upper Floor Plan:10th January 2005 [sic]
-	Elevations (South, West and North elevations): 19th January 2005 
-	Elevations & Sections (East elevation and Section A A): 19th January 2005
-	Upper Floor Plan: approved 5th April 2005
-	Lower Floor Plan: approved 5th April 2005
-	Elevations (South, West and North elevations): approved 5th April 2005.
-	Elevations & Sections (East elevation and section AA): Approved 5th April 2005

Appendix A

The “Solitaire House”

The “Dunlop House”

Appendix B

Appendix C

Appendix D