In cross‑examination Mr Luckman said that at the meeting one member raised the matter that in replacing extinguishers with Firewatch extinguishers they would be taking off extinguishers with high ratings and replacing them with extinguishers with a lower rating. Mr Luckman said the brigade members' response was:
"The members of the brigade and myself were very concerned that they were taking off fire extinguishers that had a very high rating and putting on something that had a very low rating when those boats have LP gas cylinders on them and some of them have got as much as 500 litres of fuel on them".
Mr Smith said that prior to 6 February 1997 comments had been made to him by various CFA personnel of concerns following their attendance at field days and four wheel drive shows that claims had been made that the Firewatch extinguisher complied with the European Standard for electrical conductivity but did not comply with the Australian Standard. Mr Smith was concerned that it was stated on the Firewatch extinguisher or in the handout that the Firewatch representative was distributing that it met the European Standard but that that standard was not relevant in Australia. Mr Smith said that he gave recommendations to brigades about what products they should distribute and what products they should not distribute only if he was concerned about the product. Mr Smith's concerns came from the field days and the way in which the Firewatch extinguisher was marketed. Mr Smith was also concerned about the Firewatch extinguisher because he was concerned that it did not have the performance of a conventional foam extinguisher. The Firewatch extinguisher has an atomising/spray type nozzle which means that rather than producing a foam it produces a fine atomised mist. It is no part of my reasons to form a view or to make a finding on how the Firewatch extinguisher performs compared with other foam extinguishers. The only relevant point is that Mr Smith, at the time of the bulletin, had a belief, which I find was an honest belief, that the Firewatch extinguisher performed differently from other extinguishers.
75 Mr Owen was likewise concerned as he observed that it had been said at a Land Rover field day that the Firewatch extinguisher was good for vehicles for A class fires and although it did not have an Australian Standard electrical rating it was tested to 35,000 volts and European rated and therefore could be used on 240 volt installations. Mr Owen's major concern was what he saw as the confusion in the general community about the use of the Firewatch extinguisher on electrically energised fires and he saw it as part of the CFA's public safety role to raise the issue. The instructions Mr Owen gave Mr Smith as to the preparation of the bulletin were to identify the concern of the CFA regarding the electrical rating and the concern that the Firewatch extinguisher did not have the level of ratings for the B classification required by the Building Regulations and the Dangerous Goods Regulations. Mr Owen also had a concern that CFA brigade personnel might replace a class B extinguisher rated 20 and above with a nine litre Firewatch extinguisher which would not meet the required coverage because it only had a 10B rating.
76 I am quite satisfied that what motivated Mr Smith and Mr Owen to draft and publish the bulletin was a concern about public safety and the use to which consumers might use the Firewatch extinguisher. There was no indirect purpose or motive in the publication of the bulletin nor was there any wilful act or intention to damage or harm the applicants or their fire extinguisher.
77 The applicants submitted that I should find malice in the publication and distribution of the bulletin because I should not accept that persons with the qualifications of Mr Smith and Mr Owen and with the experience and understanding they had of ratings and classifications would make the mistakes which have occurred in the bulletin. However, the fact that Mr Smith and Mr Owen made a mistake does not of itself constitute malice. The applicants submitted that it was what they called the excessive subject‑matter in the bulletin which evidenced the existence of malice. They relied on Adam v Ward [1917] AC 309 and FAI General Insurance Ltd v ARIA Insurance Brokers Ltd (1992) 108 ALR 479 for the proposition that excessive language used in a publication may be used as evidence of malice. That principle may well be, but in the instant case before me there was no excessive rhetoric or hyperbole and to the extent to which the language used in the bulletin was either confusing, misleading or incorrect, I am satisfied, especially having heard in detail from Mr Owen and Mr Smith and having heard their reasons for the publication of the bulletin, that there was no malice which intruded into the publication of the bulletin. The cause of action based on injurious falsehood is not made out.
Defamation
78 The applicants made the following allegations in their further amended statement of claim:
"17. Further or alternatively to paragraphs 13 to 16 hereof, by distributing and publishing the Bulletin in the manner alleged the Respondents have falsely and maliciously published, of and concerning Applicants as sellers and distributors of foam fire extinguishers, the words set out in the Schedule.
18. Those words in their natural and ordinary meaning were meant and were understood to mean that:
(a) the Applicants sell and distribute and are prepared to sell and distribute Foam Spray Fire Extinguishers that they know do not comply with relevant legislative requirements.
(b) the Applicants obtained and attempted to obtain orders for their Foam Spray Fire Extinguishers by making false and misleading statements about the performance characteristics of the Extinguishers.
(c) the Applicants have caused Australian Standards to improperly endow their Fire Extinguishers with a B classification.
(d) the classification given to the Applicants' Foam Spray Fire Extinguishers by Australian Standards was only temporary;
(e) the Applicants' Foam Spray Fire Extinguishers would inevitably lose their B classification.
19. Further, those words were calculated to and did disparage the Applicants in the business of selling and distributing foam fire extinguishers."
I take the reference to "the words set out in the schedule" to be a reference to the whole of the bulletin as there was no schedule attached or annexed to the further amended statement of claim.
79 The bulletin clearly makes statements in respect of the Firewatch extinguisher but it is less clear whether the bulletin is making statements about the applicants themselves or, more particularly, the second applicant. A distinction should be drawn between words which reflect upon a person's goods and words which reflect upon a person as a person. The distinction was explained in South Hetton Coal Company Limited v North‑Eastern News Association Ltd [1894] 1 QB 133 at 138‑139 where Lord Esher MR said:
"It may be published of a man in business that he conducts his business in a manner which shews him to be a foolish or incapable man of business. That would be a libel on him in the way of his business, as it is called - that is to say, with regard to his conduct of his business. If what is stated relates to the goods in which he deals, the jury would have to consider whether the statement is such as to import a statement as to his conduct in business. Suppose the plaintiff was a merchant who dealt in wine, and it was stated that wine which he had for sale of a particular vintage was not good wine; that might be so stated as only to import that the wine of the particular year was not good in whosesoever hands it was, but not to imply any reflection on his conduct of his business. In that case the statement would be with regard to his goods only, and there would be no libel, although such a statement, if it were false and were made maliciously, with intention to injure him, and it did injure him, might be made the subject of an action on the case. On the other hand, if the statement were so made as to import that his judgment in the selection of wine was bad, it might import a reflection on his conduct of his business, and shew that he was an inefficient man of business. If so, it would be a libel."
(See also Gatley on Libel and Slander 9th ed. at p.62.)
80 The respondents submitted that the words in the bulletin related only to the applicants' goods and it was said that the only reference to the conduct of the applicants was in relation to the presentation or promotion of the Firewatch extinguisher as a non‑conductor of electricity. That statement in the bulletin is not the subject of complaint by the applicants.
81 I have considered the words set out in the bulletin and have reached the conclusion that they related only to the Firewatch extinguisher and not to the manner in which the applicants conducted their business. The words are critical of the applicant's goods but they do not bear a meaning which disparages the applicants. The words set out that the Firewatch extinguisher does not meet the criteria of certain legislation but they say nothing in respect of the knowledge of the applicants or the manner in which the applicants sell and are prepared to sell and distribute the Firewatch extinguisher. The only statement made about performance characteristics related to the non‑conductivity of the extinguisher but that is not the subject of complaint. There is nothing in any of the words which can give rise to the imputation that the applicants have caused Australian Standards to endow the Firewatch extinguisher with a B classification improperly. There are no words in the bulletin which carries any imputation that the classification given to the Firewatch extinguisher was only temporary and that it was inevitable that the extinguisher would lose its B classification. For these reasons I do not consider that the words in the bulletin carry any of the imputations alleged by the applicants.
82 I am satisfied that the bulletin reflected upon the products of the applicants and not upon the applicants themselves.
Qualified privilege
83 If I am wrong in concluding that the words in the bulletin do not carry defamatory imputations of the applicants it is then necessary to consider the defence raised by the respondents that:
"any distribution of the Bulletin was the subject of qualified privilege because the firstnamed respondent had an interest and/or duty in distributing the Bulletin and the recipients had an interest in receiving the Bulletin."
There was little dispute between the parties as to the relevant principles which applied in relation to the defence of qualified privilege. The ingredients of the defence of qualified privilege were identified by Lord Atkinson in Adam v Ward (supra) at 334 in the following terms:
"It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential."
In Bruton v Estate Agents Licensing Authority [1996] 2 VR 274 Batt J adopted this passage and said at 292:
"The comprehensive formula of Lord Atkinson is often usefully analysed, so far as the publisher is concerned, under the heads of performance of a duty, protection of an interest, and common interest".
84 The nature of the interest possessed by the recipient of the publication was expressed by Griffith CJ in Howe & McColough v Lees (1910) 11 CLR 361 at 369 as follows:
"Again: 'interest' does not mean an interest in the particular subject matter as to which the communication is made, but an interest in knowing the fact communicated, in other words, an interest in the subject matter to which the communication is relevant, as for instance the solvency of a probable customer."
The interest must be something more than a matter which would interest the public to hear. As Smithers J said in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 541:
"The reciprocal duty and interest will not arise from the mere fact that the publisher has information which would interest the public to hear. There must be an interest of a particular kind. The kind of interest which will justify the publication is an interest arising from some particular quality in the subject."
More recently in Bruton v Estate Agents Licensing Authority (supra) Batt J said at 293-294:
"Although the word 'interest' is not used in any technical sense, it has, as stated in Fleming, op. cit., p. 569, been narrowly construed as meaning 'something much more than mere curiosity as to the private business or affairs of other persons' and as referring to 'a real and direct personal, trade, business or social concern' (Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 C.L.R. 632 at 662), 'such as would assist in the making of an important decision or determining of a particular course of action': Austin v. Mirror Newspapers Ltd. [1986] A.C. 299 at 311."
85 The respondents submitted that the CFA had a legal, moral or social duty to publish the bulletin and that such duty could be derived from s 20 of the Country Fire Authority Act. The applicants submitted that there was no relevant reciprocity of interest in the recipients.
86 I am satisfied that on each occasion on which the bulletin was published as established by the evidence it was published on an occasion of qualified privilege. Those occasions were the occasions on which the bulletin was published to each of the addressees of the bulletin as set out in the bulletin and also the occasions upon which persons such as Mr Luckman and other members of the CFA published the bulletin either to persons who owned fire extinguishers or who were potential purchasers or users of fire extinguishers. I include within this category the persons who owned and operated the Eildon Boat Club, the Jerusalem Creek facility and the Darlingford marina. In my opinion, they had an interest in receiving the bulletin because they were involved with persons who owned house boats and who could be reasonably expected to be interested in the use of portable fire extinguishers. They also had an interest in ensuring that people who had access to, and used their facilities, had available to them appropriate and adequate fire fighting equipment. So far as the distribution to CFA officers and members and its contractors is concerned, I am satisfied that there was a common interest for the same reason.
87 The applicants also relied upon a distribution of the bulletin to Mrs J Coupe, a former secretary of the CFA Bayles brigade. There was no evidence that she saw or read the bulletin. Her husband, the captain of Bayles brigade opened the letter containing the bulletin and read it because he was captain of the brigade. Thus in this instance the occasion on which the bulletin was published was still one of qualified privilege.
88 Although the applicants relied upon a distribution of the bulletin to the applicants' competitors Tyco and National Fire and Security there was no evidence of any such distribution directly to those companies. It is apparent that National Fire and Security came into possession of the bulletin as its representative Mr Harrison gave a copy of it to Lindy Moss of Omni Vox Productions. A National Fire and Security representative also delivered a copy of the bulletin to George Boden of Watchkeeper Security. There was no evidence as to how those representatives obtained a copy of the bulletin. Although Mr Smith and Mr Owen did not intend the bulletin to be published to persons other than the addressees specified in it a number of persons within CFA brigades passed it on either to persons with whom they had maintenance contracts or persons who either had or might have had an interest in acquiring a portable fire extinguisher. Such a publication to such persons occurred on an occasion of qualified privilege.
89 But what if such a person passed it on to a competitor of the applicants such as Tyco or National Fire and Security? In such circumstances I do not consider that the CFA would be responsible for such republication. I am satisfied that all CFA personnel who distributed the bulletin only intended to distribute it to persons who had an interest in acquiring portable fire extinguishers or were involved with such persons such as the operators or managers of the Eildon Boat Club, Jerusalem Creek mooring facility and the Darlingford marina. I do not consider that any CFA officer intended the person to whom he or she distributed the bulletin to pass it on to anyone who did not have an interest in acquiring a portable fire extinguisher. Nor do I consider that it was the natural and probable result of the distribution of the bulletin by CFA officers to such persons that it would be given to the applicants' competitors such as Tyco and National Fire and Security.
90 A person who publishes a libel is only responsible for a republication of the libel if that person authorised the repetition of the libel or intended that the libel be repeated or the repetition was the natural and probable consequence of the initial publication or the person was under a moral duty to convey the libel to the other person: cf Speight v Gosnay (1891) 60 LJQB 231 at 232; Sims v Wran [1984] 1 NSWLR 317, 320; John Fairfax & Sons Limited v Cojuangco (1988) 165 CLR 346, 350; Slipper v British Broadcasting Corporation [1991] 1 QB 283, 289‑295; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364, 267‑368; Williams v John Fairfax Group Pty Ltd (1991) 7 BR 160, 162‑164; Gatley on Libel and Slander, (op cit) 155‑159. The interest and concern of the CFA and its officers at all times was that of public safety and the protection of property and person by the availability of adequate fire fighting equipment.
91 I do not consider that the defence of qualified privilege is negatived by any malice on the part of the CFA or any of the persons who published or republished the bulletin. There is no evidence that any occasion on which the bulletin was published or republished was misused. Again, the applicants submitted that there has been an excessive publication having regard to the subject matter referred to in the bulletin. For the reasons to which I have already referred in the context of injurious falsehood I am not satisfied that there was either an excessive publication or a use of language such as to raise an inference that there was malice which brought about or intended that publication. Although Mr Smith and Mr Owen used incorrect terminology which in one respect was wrong and in other respects was ambiguous, that circumstance, of itself, is insufficient to raise an inference of malice. In Clark v Molyneux [1877] 3 QB D 237 Cotton LJ said at 249:
"In order to shew that the defendant was acting with malice, it is not enough to shew a want of reasoning power or stupidity, for those things of themselves do not constitute malice: a man may be wanting in reasoning power, or he may be very stupid, still he may be acting bona fide, honestly intending to discharge a duty."
92 A useful analysis of the circumstances in which malice may negative a defence of qualified privilege is found in the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135. At 150‑151 Lord Diplock said:
"Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, 'honest belief.' If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest,' that is, a positive belief that the conclusions they have reached are true. The law demands no more.
Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.
Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to derive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found."
(See also Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50‑51).
93 I am not satisfied that Mr Smith, Mr Owen or any other person who republished the bulletin acted recklessly in so doing or that they were indifferent to the truth of what they published. There is no suggestion that there was any intention to do harm to the applicants or that Mr Smith or Mr Owen or any of the other persons were activated by personal spite or ill will towards the applicants. Nor is there any suggestion that there was any substantial motive in obtaining some advantage to the CFA unconnected with the duty or interest which constituted the reason for the privilege. In short, there was no misuse of the occasions which gave rise to the qualified privilege. The onus is on the applicants to prove malice in order to deprive the respondents of the defence of qualified privilege and that onus has not been discharged by the applicants. The cause of action in defamation is not made out.
Assessment of loss and damage
94 The evidence led in relation to the damage suffered by the applicants was limited. It demonstrated that there was a loss of turnover for the quarter April to June 1997 and although Mr Murnane the general manager of the second applicant and a director of both applicants, said that there was a continuing loss of $20,000 per quarter he was compelled to say that his conclusion was based on "a feeling". He put it this way:
"You have a feel for what is likely to happen within a business, what your expectations may have been based on previous experience within the industry or in a type of business that we're running."
Although there had been previous operations by the Firewatch group in business it had only commenced business in October 1995. The loss of $20,000 per quarter, in any event, is a loss of turnover and at the most the loss of gross profit per quarter is $5,000, the gross profit being 25%.
95 However, it is also necessary to establish that there is a causal relationship between the loss alleged and the contravening conduct relied upon. I am prepared, for present purposes, to infer that the loss for the April - June 1997 quarter was brought about by the dissemination of the bulletin. However, there are a number of statements in the bulletin which may have contributed to that situation. I have found that the only statement made which was misleading or deceptive or likely to be mislead or deceive was the statement that under its present rating schedule the only application within the Australian Standards for the Firewatch extinguisher was for A class hazards. The bulletin also referred to the fact that the Firewatch extinguisher failed to meet the criteria of the B classification under the Australian Standards or the requirements of the Australian Standards for building contract or Dangerous Goods legislation. Further, the bulletin referred to the issue of the Firewatch extinguisher not meeting the criteria for use on electrical hazards under the Australian Standards and recommended that brigades not become involved in the distribution or recommendation of the extinguisher. To the extent to which the drop in turnover was caused by persons reading these passages and being thereby influenced not to purchase a Firewatch extinguisher the resultant damage does not occur through any fault of the CFA or any contravention of s 52 or s 53 by the CFA.
96 It should also be remembered that the Firewatch extinguisher was primarily marketed as an extinguisher with an A classification. Mr Murnane said that the extinguisher was a class A rated extinguisher and he amplified this statement by saying:
"It has a B rating but I guess from a marketing point of view we take it as being a class A extinguisher with an additional class B rating".
When he was asked whether he meant that it was primarily directed at a class A market his answer was "primarily, yes".
97 In all those circumstances I consider that any damage sustained by the applicants as a result of the contravention of s 52 by the CFA is small and I assess that damage at $5,000.
98 Although an injunction was sought in the application I do not consider that this is now a case appropriate for the grant of a permanent injunction. On 5 August 1997 the CFA circulated all the addressees of the bulletin and directed that the bulletin was not to be distributed or shown to members of the public by any officer of the CFA or member of any brigade. It is not suggested that there has been any further distribution or publication of the bulletin after 5 August 1997, nor is there any suggestion that the CFA intends to make any further distribution or publication of it.
Should there be a correcting publication?
99 I have given consideration to whether I should order that the CFA publish a correcting bulletin or publish some other correcting statement. There are a number of matters which militate against a corrective publication. The bulletin was not published to the public at large. Although it was distributed widely within the CFA it was not every brigade which distributed the bulletin beyond its members. The only specific evidence about such distribution by a brigade was in relation to the Doveton and Eildon brigades. I am conscious of the distribution outside the CFA to the other persons to whom I have already referred and I take that into account. It should also be remembered that the CFA undertook on 1 August 1997 that it would within seven days, notify each of its brigades in writing that the bulletin was not to be distributed or shown to members of the general public and there is no suggestion that that undertaking has not been observed. I am also conscious, as Mr Murnane said, that from a marketing point of view the Firewatch extinguisher is primarily directed at a class A market. I have also found that it was not misleading or deceptive to state in the bulletin that:
"At this stage it has an A and B classification, although in most cases it fails to meet the criteria of the B classification under the Australian Standards or the requirements of the Australian Standards for building control or Dangerous Goods legislation."
100 If I were to order the publication of a correcting statement it would have the potential for confusion and further misunderstanding as it would be necessary to refer back to the bulletin and explain which statement was incorrect. In doing so it would be necessary to ensure that the explanation did not relate to or affect any other statement in the bulletin. Having regard to the nature of the ratings given to the various models of the Firewatch extinguisher within the B classification it would be necessary in any correcting publication to explain that although the Firewatch extinguisher has an application within the Australian Standards for B class hazards, that application is limited having regard to the level of the ratings certified and having regard to the limited application of the Firewatch extinguisher under AS 2444 (by virtue of the provisions of the Building Regulations and the Building Code of Australia) and the fact that it has no application under AS 1940 (made applicable by the Dangerous Goods (Storage and Handling) Regulations). It would also be necessary, in my opinion, for any correcting publication which would appear under the name of the CFA to make it clear that the CFA, although correcting a misstatement, did not endorse or recommend the distribution of the Firewatch extinguisher and was not changing its earlier recommendation. In order to ensure that there was no further misunderstanding it would also be necessary to make it clear that the Firewatch extinguisher does not have an "E" classification and is not approved for use in Australia in relation to electrically energised fires. Otherwise there would be a risk that potential consumers who read the correcting publication might think that it superseded the earlier bulletin.
101 I do not propose to order that the CFA publish a correcting bulletin because of the limited respect in which I have found the contents of the whole of the bulletin misleading or deceptive. The contents of any correcting publication would have to refer to the earlier bulletin in the manner to which I have referred and it would then be necessary to explain in some detail the limited application of the Firewatch extinguisher to class B fires. There is a risk that any correcting publication in the terms to which I have referred would confuse the issue rather than clarify it. I therefore consider in all the circumstances that it is not appropriate to order a correcting publication.
The second respondent
102 The proceedings were brought against the second respondent Mr Owen on the basis that he was the author of the bulletin. However, no submissions were addressed to the issue whether Mr Owen's conduct was such as to bring him within the provisions of s 75B of the Trade Practices Act. It was not suggested that at the time the bulletin was signed by Mr Owen and authorised for distribution by him that he was aware that what was in the bulletin of which complaint is made was false. In order for Mr Owen to be brought within the terms of s 75B(1) (a) it must be shown that he intentionally aided, abetted, counselled, or procured a contravention of s 52 and that he had knowledge of the falsity of the relevant representation. In order for Mr Owen to be brought within the terms of s 75B(1)(c) it must be shown that he was an intentional participant, that is he was knowingly concerned in or party to the contravention and had knowledge of the essential elements constituting the contravention: Yorke v Lucas (1985) 158 CLR 661 at 666‑670.
103 I am not satisfied that Mr Owen had the relevant intention or the relevant knowledge of the falsity of the relevant representation or of the essential elements constituting the contravention. The High Court in Yorke v Lucas (supra) did not consider the scope of the expression "induced … the contravention" in s 75(1)(b) but the Full Court of the Federal Court, (1983) 49 ALR 672 at 781 considered that the expression connoted:
"some act of compulsion by force or threat of force or some act of persuasion or stimulation aimed at ensuring that an act is committed which constitutes a contravention".
104 These expressions are not apposite to Mr Owen's role in the preparation and publication of the bulletin. The proceeding against the second respondent should be dismissed.
105 There will be a declaration as to contravention of s 52 of the Act by the CFA by distributing the bulletin containing the statement that "under its present rating schedule the only application within the Australian Standards" for the applicants' various models of extinguisher would be for A class hazards. The first respondent should be ordered to pay the second applicant $5,000 damages and the first respondent should pay the applicant's costs of the proceeding including reserved costs.