Case: Council of the City of Sydney v Goldspar Australia Pty Limited (No 2) [2002] FCA 1268
Outcome: related
On 28 August 2002 I delivered reasons for judgment in relation to four separate questions ordered to be determined in this proceeding pursuant to O 29 r 2 of the Rules of Court ( Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1064). On 11 October 2002 I delivered reasons for judgment as to the orders to be made following the earlier reasons for judgment ( Council of the City of Sydney v Goldspar Australia Pty Limited (No 2) [2002] FCA 1268). In the result, the orders made on 11 October 2002 were varied on 17 October 2002 and 21 October 2002. The answers to the separate questions related, in essence, to issues concerning copyright and intellectual property. 138 The scope of works set out as part of s 2 of the Specification included the following: '2. ... c. The contract works shall generally comprise but not necessarily be limited to the following: i. Manufacture of cast , ribbed, circular hollow base section of column: diameter and length to suit pole type. ii. Manufacture of extruded 150mm x 150mm square hollow steel section - lengths to suit pole type. iii. Manufacture of 'Unistrut' type P3300 channel lengths to suite pole type. iv. Manufacture of 200mm long 'Bracket' extrusion section for mounting to 'Unistrut' as 1200mm centres on upper part of column . v. Manufacture of 1200mm long corner extrusion sections. vi. Manufacture of access cover extrusion sections in 1200mm lengths. vii. Manufacture of column top cap finish. viii. Manufacture of all mounting bracket types. ix. Manufacture of all luminaire/banner/traffic light etc outreach arms including attachment brackets and connections. x. Manufacture and incorporation into pole base all proposed electrical equipment mounting brackets and fixings. xi. Assembly of complete lighting column including all screw fixing base plate mounting, welding and accessories to form a complete installation xii. Use of corrosion resistant materials, connection joints, screws fixings etc only either individually or the connection between materials with a minimum 10 year corrosion guarantee. xiii. Compliance with all Roads and Traffic Authority codes, Standards and design drawings. xiv. Compliance with all Energy Australia Codes, Standards and design drawings. xv. Compliance with Australian Standards for each material type/condition and use. xvi. Finishing of external surfaces, cleaning and delivery to site in nominated locations within the City of Sydney CBD. xvii. Testing and commissioning of-manufactured pole with and without accessories/outreach arm mounted. xviii. Manufactured Technical Drawings and bound Technical Catalogue of parts. xix. Provision of two pre-production prototype units including all accessories. d. The complete Installation shall conform with the latest Edition of relevant Australian Standards. In the event of new Editions being published during manufacture, the instruction of the Council Representative shall be sought and any modification of change made shall be carried out. e. The Supplier shall include for all fixings, boxes, supports, brackets and other items of sundry equipment in order to form complete pole arrangements ie Type A, B, C, &amp; D. f. The works shall consist of the supply and installation of all materials, fixtures, fixings and equipment required to form a complete installation. g. All materials, fixings and equipment detailed shall be new before being installed. Under no circumstances shall any second hand/reclaimed materials be used on any part of the installation, without prior consent in writing of the Council Representative.' 139 Section 9 dealt with installation and was as follows: 'The installation portion of the contract requires the Supplier to: 1. Supply and install the street light luminaires to the outreach arms 2. Supply and install all cabling from the luminaire to RCD/fuses at the base of the pole 3. Supply and install terminal strip/DIN rail and plate RCD (Residual Circuit Breaker)/fuses including terminations 4. Installation of pole to site within CBD (to be nominated), position pole and provide concrete footing base with Rag Bolt assembly of a type recommended by an independent structural engineer The Supplier shall arrange for all necessary incoming underground cabling/conduiting and pay all fees associated/necessary to Energy Australia. 400 All electrical work shall be installed to AS3000, Energy Australia service rules and be carried out by a Licensed Electrician. The luminaires shall be equal to GEC Osram 250w metal halide Optispan Aeroscreen luminaire complete with integral 'Ultratech Australia' stop dimming control gear 3 stage 100%, 70%, 40%. The Supplier shall incorporate, in the design, slotting and other arrangements to achieve perfect horizontal and vertical alignment of the poles, outreach arms, luminaires, etc, having regard to the likely tolerances in the installation of the footings and rag bolt assemblies.' 140 The notice of termination relied upon three separate bases--the first was failure to show reasonable cause as required by the notice to show cause dated 23 February 2000 (the first show cause notice) (arising from the Council's Order No 1); the second was failure to show reasonable cause pursuant to another notice dated 23 February 2000 (the second show cause notice) (arising from the Council's Order No 2) (in each case relying upon cl 25(4)(b) of the contract); and the third was Goldspar since 19 October 1999 manifesting an intention not to be bound by the contract and thus having repudiated it.