Case: Woodtree Pty Ltd v Zheng (2008) 74 IPR 484 , 
Outcome: cited
Paul Vawdrey made handwritten notes on his copy of the Second Vawdrey Quote of what transpired at the meeting. Those notes record, in part, " 11 POSTS AS COVERAGE ON ". Paul Vawdrey's evidence was that the note recorded that a load restraint proposal was discussed by Vawdrey and Cameron that he (Paul Vawdrey) proposed. He said that he proposed to use a post per pallet space and that Mr Cameron and Mr Tindal liked the idea. Significantly, the notes do not describe anything "hanging off" or "extending from" each post, nor do they otherwise suggest that at this meeting there was any discussion of such a load restraint system. 20 Paul Vawdrey's evidence at trial was substantially different from and inconsistent with the account he had previously provided to the Patents Office of the same events on 15 March 2005 in the context of a patent application by Krueger for what became known as the "Slide-A-Gate" system. In his statutory declaration to the Patents Office, Paul Vawdrey described the meeting in the following terms: On the morning of 2 December 2002 I visited a customer of my company, being Glen Cameron Nominees Pty Ltd (hereinafter GCN), and met with Mr Glen Cameron and Mr Martyn Tindal. GCN were seeking to purchase 22 curtain sided semi-trailers for transporting double loaded pallets. I recall a discussion in the meeting about restraining the load and I recall the suggestion ( I do not recall by whom ) of using existing ("knee joint") sliding side posts at each pallet space to restrain the load. In other words the posts would be spaced along the sides of the trailer mid-way between the ends of each pair of double loaded pallets to prevent the pallets, and hence the goods on the pallets, from moving off the sides of the trailer. I further recall some concern being expressed at the meeting, as to whether a single post at each pallet space would be sufficient to restrain the load, or whether some additional restraint should be provided on each post . (Emphasis added.) This account of events does not support his evidence in this case that he was the author of the proposal to use sliding side posts to restrain the load. Further, there was no reference in the statutory declaration to anything "hanging off" or "extending" from each post. Taken at its highest, the account of events given in the statutory declaration spoke only of a concern being expressed that "some additional restraint should be provided on each post". Whether there would need to be additional restraint and, if so, what it might be, was not said to have been discussed. 21 What is not now in dispute is that during the Cameron / Vawdrey meeting Paul Vawdrey drew hand sketches of the load restraint proposals discussed during the meeting. The hand sketches are entitled, respectively, " CARGO NET INNER CURTAIN TRACK ", which has been crossed through (consistent with the rejection of that proposal by Mr Cameron during the meeting, see [24] below) and " 1 POST PER PALLET SPACING ". A copy of each of the sketches is in Annexure 2. The latter sketch was not crossed through. Mr Cameron recalls Paul Vawdrey drawing sketches during the meeting but does not recall what they looked like. Tindal recalls Paul Vawdrey drawing "1 Post Per Pallet Spacing". He also recalls that Paul Vawdrey "drew some other sketches" but does not recall what they looked like. Tindal was also in the habit of making handwritten notes about the proposals. Tindal's handwritten notes on Camerons' copy of the Second Vawdrey Quote include: 11 Two(2) sliding posts per side. 22 These contemporaneous documents thus record that during the course of the Cameron / Vawdrey meeting the idea of a "post per pallet" was discussed. The contemporaneous documents do not suggest, however, that there was any discussion of anything "hanging off" or "extending from" each post. 24 Mr Cameron reiterated the substance of that evidence before me. What then did Tindal's affidavit say? So far as is relevant, his evidence was that it was he (Martyn Tindal), not Paul Vawdrey, who raised the issue of a load restraint system that would "restrain double stacked pallets and prevent them from falling out when the curtains on the side of the trailer were opened." Tindal recalled that Paul Vawdrey suggested using cargo nets but that was immediately dismissed because the nets would have caught on the pallets. That is consistent with Paul Vawdrey having drawn the sketch labelled "CARGO NET INNER CURTAIN TRACK" and then crossing it through (see [21] above). 25 According to Tindal, it was after the rejection of the cargo net idea that Mr Cameron asked Paul Vawdrey if they could use conventional sliding posts located at each pallet space along the side of the trailer with "something hanging off or extending from each post to act as a load restraint, which was smaller and lighter than most traditional gates... [but] big enough to restrain double stacked pallets and not allow them to slip through". 26 What then is said to have occurred, at least according to Tindal (and by him adopting it, Mr Cameron) is that Mr Cameron also said "it would not be practical to have one post per pallet space because it would be laborious to remove all the posts" (emphasis added). One post per pallet space would have required 12 posts on each side of a 48ft trailer. Paul Vawdrey is also said to have indicated that he would submit a drawing and a cost estimate. 33 Secondly, Grant Krueger met with Gerges and drew another hand sketch of the Krueger Concept. A copy of that sketch is at Annexure 3. In his presence, Gerges drew a further hand sketch of the Krueger Concept. A copy of that sketch is at Annexure 4. These events demonstrate that as early as the afternoon of 2 December 2002, Grant Krueger (who had no relevant engineering experience) was aware of and understood the Krueger Concept so that he was able to sketch the Krueger Concept and explain it to Gerges (the Krueger engineer). Armed with these two explanations, Gerges was able to prepare his own sketch and then direct the preparation of appropriate engineering layouts depicting the Krueger Concept. This series of events is significant as will become obvious later in these reasons for decision. 34 The next day, 3 December 2002, Gerges asked another Krueger employee, Stephen Hunt, to prepare engineering layouts depicting the Krueger Concept. On 4 December 2002, Gerges approved the engineering layouts prepared by Hunt and asked Hunt to convert them into sales drawings. 35 On 4 December 2002, Hunt prepared the sales drawings, depicting respectively, a 48ft dropdeck curtain-sided trailer with eight sliding side gates and a 53ft dropdeck curtain-sided trailer with nine sliding side gates, but without Krueger's standard copyright and confidentiality notice ("the Initial Krueger Drawings"). The drawings did, however, contain a prominent copyright symbol with the word "Copyright" immediately beneath it. Hunt provided them to Grant Krueger. The Initial Krueger Drawings are part of Annexure 1. The Initial Krueger Drawings bear the date 4 December 2002. Those drawings show at least eight posts along each side of the truck. Each post has attached to or "hanging off" from it a gate which, because of the gate's size and shape, acted as a load restraint for two pallets. 44 Mr Michael Vawdrey gave evidence that his son Paul told him about the Cameron quote in the afternoon of 2 December 2002. Michael Vawdrey's evidence was that Paul told him that he , Paul, had suggested to Camerons that they use a post per pallet but that Camerons were concerned that this might not be sufficient and upon hearing this, he (Michael) suggested the hoops idea. There is no independent objective evidence that the conversation took place on that date. It is more probable than not that the conversation actually took place in the afternoon of 4 December, given the lack of any corroborating oral or documentary evidence to suggest that Vawdrey started working on a hoop design on that date and the affirmative evidence that Vawdrey was still proposing a non-hoop design as late as the afternoon of 4 December: see [51]. However, even taking Vawdrey's evidence at face value (ie that it was Michael Vawdrey who first suggested using hoops and that the suggestion originated on 2 December), it still undermines the Camerons and Vawdrey evidence that Paul Vawdrey, Cameron or Tindal had already suggested the Krueger Concept or even that there should be anything "attached to or "hanging off" each post at the Cameron / Vawdrey meeting earlier that day. 45 On 3 December 2002 at 2.55pm, Mr Tindal sent to Mr Cameron a spreadsheet entitled "FLEETSPEC.xls". That document included a reference to Vawdrey's load restraint proposal of eleven posts comprising "Sliding Side Posts: 9 of $4500" in addition to the "Side Posts: 2 Per Side Sliding". (The spreadsheet did not include any details of the Second Krueger Quote because that second quote was not sent by Krueger to Camerons until it was included with the facsimile of 1.38pm on 4 December 2002.) Again, contrary to the evidence of Mr Cameron and Mr Tindal that they had already discussed with Vawdrey that the side posts would have something hanging off them, the spreadsheet did not describe anything hanging off the side posts. 46 The events of 4 December 2002 are important. At about 11.55am, after speaking with his engineering group about the feasibility of the Krueger Concept, John Krueger telephoned Tindal on his mobile phone. The call lasted for approximately five minutes. Neither Tindal nor John Krueger was cross examined about the content of this conversation. According to John Krueger, he told Tindal that Krueger was confident that the concept would work and that a quotation and sales drawing would be sent to Camerons later that day. John Krueger's evidence was that he then asked Tindal whether any other manufacturer had provided Camerons with a concept that Camerons believed would work and Tindal told him that none had done so. Tindal did "not recall what was discussed during [this] telephone conversation with John Krueger". He did not deny the contents of the conversation as deposed to by John Krueger. 124 An "artistic work" includes a "drawing ... whether [the drawing] is of artistic quality or not": s 10(1) of the Act . Each of the Krueger Sketch and the Krueger Drawings falls within the inclusive definition of a drawing, as each "is a two-dimensional work in which shapes and images are depicted by lines, often without colouring" ( Woodtree Pty Ltd v Zheng (2008) 74 IPR 484 , at [25]), performing a visual rather than "semiotic" function: Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 at 662. The Krueger Sketch and the Krueger Drawings are, therefore, artistic works.