Case: Crocker v Papunya Tula Artists Pty Ltd (1985) 61 ALR 529
Outcome: cited
The fact that the basis of the Most Likely Scenario was the data summary which Mr Tracy already had prior to the meeting with Mr Breed does not automatically establish that he had already created the Most Likely Scenario prior to 5 January 2005. However in my view, the evidence supports the respondents' submissions that Mr Tracy both initiated the creation of the Most Likely Scenario, and was the "author" of that document. I form this view for the following reasons: &#8226; Prior to the meeting of 5 January 2005 Mr Tracy had clearly isolated from the 2005 Sunstate Budget.xls (a document of 141 pages in length) material of 22 pages which became the "data summary.xls". He clearly considered this data of such importance that he had forwarded it to Mr Bailey on 4 January 2005 as reference material for Mr Bailey's valuation. Accordingly, by 4 January 2005 (prior to his meeting with Mr Breed) Mr Tracy was clearly focusing on that data, and in a position to manipulate the material in the data summary.xls to create the various scenarios including the Most Likely Scenario. &#8226; However in any event Mr Tracy's own evidence demonstrates that he created the Most Likely Scenario rather than Mr Breed. Mr Tracy had brought his laptop to the meeting, and he deposed that he asked Mr Breed to consider a number of scenarios which Mr Tracy had already created , including one titled the Most Likely Scenario. Mr Tracy asked Mr Breed to assist him because the spreadsheets were complex and Mr Tracy was not familiar with them. The concept of the Most Likely Scenario was conceived by Mr Tracy, its data set was provided by Mr Tracy, and his own evidence demonstrates that he drew Mr Breed in to assist him in the technical task of completing the various scenarios to his (Mr Tracy's) satisfaction. The author of the Most Likely Scenario was Mr Tracy, not Mr Breed (cf observations of Morling J in Crocker v Papunya Tula Artists Pty Ltd (1985) 61 ALR 529 at 531, and discussion in S Ricketson The Law of Intellectual Property: Copyright, Designs &amp; Confidential Information (2nd ed, looseleaf) Lawbook Co 2002, para 7.45). &#8226; Although little weight can be attributed to Mr Breed's evidence, his evidence is that Mr Tracy created the Most Likely Scenario and Mr Breed assisted Mr Tracy. 528 Further, I am not persuaded that Mr Breed had represented to Mr Tracy that the Most Likely Scenario was "the most accurate prediction" of the yield that would be obtained from the land in the 2005 Crop Year. I have already noted in this judgment the caution with which courts approach serious difficulties of proof of oral or partly oral conduct in the absence of some reliable contemporaneous record or other satisfactory corroboration ( Watson (1995) NSWLR 315 at 319). The only evidence of Mr Breed's oral representation was the evidence of Mr Tracy, who had visited Mr Breed with apparently pre-conceived ideas as to, inter alia , the "most likely" scenario for 2005, and who had recruited Mr Breed's assistance in entering the data to produce these scenarios. While I do not doubt Mr Tracy's honesty, in my view it is likely that Mr Tracy satisfied himself of the various scenarios and considered those scenarios vindicated by the assistance Mr Breed provided him in producing them. 529 Finally, I consider that the claims of the applicants in paras 19(n)-(s) as to the "true position" are not substantiated. I will deal specifically with the claims in para 19 in more detail later in the judgment 530 In my view the claims in para 16 Further Amended Statement of Claim are not substantiated. 531 In para 17 of the Further Amended Statement of Claim the applicants claimed as follows: On 6 January 2005 the First Respondent represented to the First and Second Applicants that: a) the land would yield 13,415 bins of fruit picked for the period 1 January 2005 until 30 September 2005; b) the land would yield 249,441 cartons of packed fruit for the period 1 January 2005 until 30 September 2005; c) the proceeds of sale of the fruit crops that would be grown on the land for the period 1 January 2005 until 30 September 2005 would be $5,443,770.00; d) the average price per carton for fruit yielded by the land for the period 1 January 2005 until 30 September 2005 would be as follows: Murcotts $22.87; Lemons $30.12; Imperials $18.08; Novas $20.14 and Ellenors $17.94; e) the fruit yielded by the land for the period 1 January 2005 until 30 September 2005 would yield the following packout rates: Murcotts 65%; Lemons 80.5%; Imperials 70%; Novas 75% and Ellenors 67%. PARTICULARS The representations were written and are contained in a document entitled "Production Pricing Schedule Jan 05.xls" which was an attachment to an e-mail from the Third Respondent to the Second Applicant sent on 6 January 2005.