Legislative Council: Wednesday, August 30, 2023



KittyKeeper Mobile Game

The Hon. D.G.E. HOOD (17:44): I move:

That this council—

1. Acknowledges there is a dispute between Kitcatco and Mighty Kingdom pertaining to the intellectual property ownership of the KittyKeeper mobile game;

2. Recognises that further independent investigation is warranted to establish ownership of KittyKeeper's intellectual property; and

3, Implores the state government to ensure all future government grants concerning the mobile gaming sector are awarded with clarity pertaining to intellectual property ownership.

I rise today to bring to members' attention an allegation that a government grant was received by a company that owned ownership of another company's intellectual property in order to receive that grant. This matter concerns specifically the $480,000 KittyKeeper game grant awarded in very early February 2018, I understand, by the then Department for Industry and Skills to South Australian mobile game developers Mighty Kingdom.

In my contribution today I wish to stress that I am not in a position to judge if wrongdoing has occurred. It is not for me to determine culpability or otherwise; it is for others to make that determination, of course. However, my scrutiny of this matter has led me to the conclusion that at the very least it warrants further independent investigation and that it should be brought to a conclusion one way or another.

The first allegations in this matter were publicly raised at a parliamentary select committee in 2021 when Mr Justin Daley, the CEO of Kitcatco, presented documentation that he was the owner of the KittyKeeper game and its intellectual property. Mr Daley's continued allegations have been subsequently ventilated in the media on numerous occasions and investigated by South Australia Police. Unfortunately, though, he is no closer to finding a resolution now than he was back in 2021.

Mr Daley's allegations were investigated by DIS in 2020 after a request for an investigation from the Office of the Small Business Commissioner. I am told that DIS specifically asked Mr Daley to provide evidence of his stated ownership of the KittyKeeper game IP prior to 2018. I am informed that Mr Daley provided DIS with registered trademark certificates and service contracts between Mighty Kingdom and his company, Kitcatco, that certainly in my judgement appear to show his ownership of the game's intellectual property. He also presented numerous emails and communications from Mighty Kingdom which, again, appear to be acknowledging Mr Daley's ownership of the game's trademark, copyright and all forward-facing consumer content.

What is also worth noting is that Mr Daley, on the information provided, appears to have conceived the game and contracted Mighty Kingdom to build him the KittyKeeper mobile game and pay them in full for that contracted work. This is not in dispute, as I understand it. This service provider/client relationship was defined in Mighty Kingdom's terms and conditions. Mr Daley's total amount paid to Mighty Kingdom, I am informed, is in excess of some $400,000.

When DIS investigated allegations against Mighty Kingdom, Adam Reid, the then CEO of DIS, reported back to Mr Daley, and I quote directly:

There appear to be some obstacles for you (Mr Daley) to overcome if you were to establish ownership…The ownership of the game is not clear cut…I do not consider it possible or appropriate for me to adjudicate on what appears to be a genuine dispute between you and Mighty Kingdom as to the ownership of the intellectual property of the game.

This is somewhat curious, as my understanding is that the grant conditions do not allow for any dispute with regard to who owns the KittyKeeper game IP. Indeed, the grant states that the company warrants to the minister that it holds all the IP in the game, that company being Mighty Kingdom.

The grant specifically defines IP as any patent, copyright, trademark, trade name or design, etc. Mr Daley claims he can prove with documentation from Mighty Kingdom that he owns the trademarks, copyright and all consumer-facing elements of the game. Mr Daley also has registered trademarks for the game's core branding, including its name KittyKeeper, lodged prior to any of this back in November 2017.

Since that investigation, Mr Daley, with the help of the Hon. Tammy Franks MLC, has sought documentation under the freedom of information arrangements relating to the grant, including the email negotiations between Mighty Kingdom and DIS. Those FOI requests were consistently denied and redacted by DIS.

For around three years, Mr Daley requested those documents through the Hon. Ms Franks' office, and finally in January of this year two of the dozens of pages were unredacted under appeal. In those two pages is what appears to be evidence showing Mighty Kingdom claimed ownership of Mr Daley's intellectual property to DIS. It also appears to show that DIS knew Mr Daley owned specific elements of the game IP, including the trademark, and yet awarded the grant to Mighty Kingdom in any case. Indeed, in a specific email, Lou Jansen from DIS asked Dan Thorsland from Mighty Kingdom on 14 February 2018, and I quote directly:

Can you provide more information on Kitcatco re: the ownership of the IP of KittyKeeper? Where are they based, what is the full name of the legal entity?

Mr Thorsland's reply, and again I quote:

Currently they own the Trademark for KittyKeeper and Mighty Kingdom owns the IP for the game that is being funded.

This was two weeks before DIS awarded Mighty Kingdom $480,000 of taxpayer money for a grant that states clearly Mighty Kingdom warrants that it holds all of the IP in the game.

My reading of these documents appear to show that Mr Daley's ownership of the game is sufficiently documented—at least to me. He has produced contracts that, again, appear to show that he intended to engage Mighty Kingdom as a service provider only to build him a mobile game. In my mind, those contracts appear to define his ownership of the game IP. Those contracts appear to show that Mighty Kingdom were aware of and acknowledged Mr Daley's ownership of the game IP.

The difficulty is that every agency Mr Daley approached to look at and investigate his claims always referenced that original investigation by DIS. They all quote that the investigation stated the ownership of the IP is 'not clear cut'. However, the grant conditions, as they have been explained to me and as my research into the topic facilitates, do not allow for the IP rights to remain unclear. The legitimate question becomes: should the grant have been awarded in those circumstances?

Investigating agencies would have seen that the department investigating allegations being made is the very same department that awarded the grant. I will read that again: investigating agencies would have seen that the department investigating the allegations being made is the very same department that awarded the grant. This appears to be a clear conflict of interest, and even the DIS CEO alludes to this fact in some of his communications.

Now the situation on face value appears to demonstrate that Mr Daley has sufficient evidence to support his contention that Mighty Kingdom has claimed ownership of his IP incorrectly. I stress again that it is not for me to determine if this has been done deliberately or inadvertently but, at the very least, I say again that further independent investigation is warranted on the facts as they stand.

Upon request, the Auditor-General and the Ombudsman would not further investigate. Premier Malinauskas, to be fair, after requesting and receiving a briefing from the police commissioner late last year on this matter, did not allow the matter to lie, and referred the case to the appropriate minister, the Hon. Andrea Michaels, for consideration. Despite the newly available documentation, I understand the matter has not been progressed by any of these avenues.

SAPOL conducted a six-month investigation into the allegations. They looked at the new information and determined it needed to be referred to ICAC, but my understanding is also that ICAC is not progressing the matter either. I make no criticism of either ICAC or SAPOL or any of the other avenues pursued but, in the end, I certainly believe that a further independent investigation is required in order to finalise this matter.

Substantial amounts of taxpayer, and indeed private, funds are involved, and it is my firm belief that South Australian taxpayers deserve certainty in this matter, as does everyone else involved, of course. Why are government agencies refusing to look at this new, unredacted information that has been discovered in recent times, information that SAPOL saw fit to refer to ICAC, information that seems to suggest that an organisation may have incorrectly claimed ownership of a client's intellectual property, thus providing access to a substantial amount of South Australian taxpayer money?

I seek leave to table a number of documents provided to me by Mr Daley in order to support his claims, namely: firstly, a minimum value product ownership and investment documentation document; secondly, a prototype ownership documentation document; thirdly, a trademark registration documentation document; and fourthly, the relevant documents I have mentioned above via the Freedom of Information Act.

Leave granted.

The Hon. D.G.E. HOOD: I also seek leave to table a statutory declaration signed by Mr Daley stating that all the information he provided to me with respect to the circumstances surrounding the legal ownership of the KittyKeeper game and associated intellectual property is absolutely true and correct to the best of his knowledge without exception.

Leave granted.

The Hon. D.G.E. HOOD: Adelaide is fast becoming an international heavyweight when it comes to the digital gaming industry, and that is a good thing, something all of us would support. The South Australian taxpayer is currently pouring significant sums of money into the mobile gaming sector. Intellectual property, both original and licensed, forms a significant part of the virtual economy and it is imperative that the highest ethical and governance standards are routinely in place if South Australia is to be seen as a credible and supportive home to this fast-growing and high-value industry—something I am sure all of us would wish to see.

Taxpayer grants should always receive the highest scrutiny, and well-documented allegations of irregularity should be taken seriously by governments and their agencies and afforded every reasonable consideration when being investigated.

I believe that we may have been provided with an opportunity to learn from the experience of people like Mr Daley in order that we may formulate a framework of protections which provides the industry with confidence and thus attracts other leading talent to the digital gaming industry here in Adelaide.

I wish to stress that I raise this issue in an effort to provide the impetus for a satisfactory resolution of a matter that has bounced from one agency to another, with a final outcome not yet achieved. I wish to again make it clear that it is not my role to determine where blame does or does not lie in this matter, and I stress that I am not doing so in any way. I am not. This is, and should be, wholly the domain of others.

My role as a member of the Legislative Council is to see that such matters are brought to light fairly, in line with our established practices, so they can be fully investigated, tested and ultimately brought to a conclusion. However, after close examination of this quite complex matter over several months, I have arrived at the conclusion that there are several irregularities to warrant a full independent and final forensic investigation of it.

Debate adjourned on motion of Hon. I.K. Hunter.