Realestate.com.au v Hardingham [2022] HCA 39
R commissioned H to photograph properties for sale under an informal agreement. R later provided them to a sub-licensee for uploading to a subscription website. H sued R for breach of copyright.
In determining contractual terms, Kiefel CJ and Gageler J (at [15-17]) said the test is what reasonable people with knowledge of the circumstances then known to both parties would have taken their words and conduct to mean. The focus is on what they objectively conveyed11, not their ‘uncommunicated subjective motives or intentions’12. The silence of H and the ‘commercial reality’ of website uploading, confirmed there was no breach of copyright.
This principle is from Episode 92 of interpretation NOW!
Footnotes:
11 Ermogenous [2002] HCA 8 (at [25]), Pacific [2004] HCA 35 (at [40]).
12 cf Abignano [2022] NSWSC 1739 (at [50]), Toll [2004] HCA 52 (at [40]).