Conclusions on the various questions in issue in the proceedings
155 As to the evidence, I am satisfied that each witness was properly seeking to explain his understanding of the factual circumstances about which he speaks reflected in the affidavits and where relevant the oral evidence. As to the evidence of Mr Kirk (who was not cross-examined), I accept that his own experience as a driver/mechanic in the period December 2010 to May 2016 was as described at [117] of the reasons. He says that as a driver he has never paid any attention to the plaque bearing the approval number and he has never seen a farmer or any other person pay any attention to such a plaque. He also says that in his experience farmers take very little notice of the truck/tanker and the pumping gear and he has never been asked any questions about whether the metering system is approved, calibrated or how it might work. I also accept the evidence of Mr Raddatz although his oral evidence as described at [116] needs to be noted carefully as does the evidence of Mr McMahon at [66] to [69] of these reasons. I accept the evidence of Mr McMahon, Mr Miller, Mr Wastell, Mr Robertson and Mr Jensen. The cross-examination of Mr Wastell and Mr Jensen should be particularly noted.
156 I also take judicial notice of certain contextual matters and they are these. I take notice of the widespread public discussion over approximately 10 years about structural adjustments within the dairy industry which have resulted in governments establishing adjustment packages to encourage some dairy farmers to quit the industry largely with a view to seeking to establish efficiencies and greater productivity in the sector. I also take judicial notice of the public discussion over many years about the costs of production of milk on the part of dairy farmers and the rates of return dairy farmers experience in conducting their dairy farms. This public discussion has taken place in major daily newspapers of record and especially in the form of financial commentaries in the financial pages of The Australian newspaper, and The Financial Review and also in electronic news broadcasts. As a result, I take judicial notice of the proposition that dairy farmers are not only interested in the revenues they derive from the production and sale of milk but rather such a matter is a critical question of interest. Dairy farmers have a very particular interest in understanding the mechanisms by which the volume of their milk production is measured and a very particular interest, to the fraction of a cent, in the revenues they derive from the daily sale of milk to a milk processor. Fundamentally this means that dairy farmers are interested in ensuring that the volume of milk transferred from their refrigerated vats to the tanker and then from the tanker to the processor is measured with a high degree of accuracy. Dairy processors who receive the milk also have a very particular interest in ensuring the accurate measurement of the volume of milk transferred from the tanker to the processor. None of this is inconsistent with the evidence of Mr McMahon, Mr Miller, Mr Wastell, Mr Robertson and Mr Jensen and for that matter, Mr Raddatz.
157 I also accept that dairy processors and dairy farmers know and understand that in the dairy industry (their industry) there is a regulatory regime in place which, put loosely, governs the processes by which approvals and related steps are taken the result of which enables particular measuring instruments to be used in the process of transferring milk from a dairy farmer's refrigerated vat to the tanker and then from the tanker to the processor so as to ensure the high degree of accuracy required of such an activity by both the dairy farmer and the processor.
158 I accept that dairy farmers are not in the habit of examining, as a regular matter, a plaque reciting a particular approval number, attached to measuring instruments. I also accept that on the balance of probabilities dairy farmers are unlikely to be familiar with a particular pattern approval number such as NMI 5/6E/13A. I also accept that dairy farmers are unlikely to engage in conversation with a truck driver about the regulatory regime within their industry and are unlikely to be asking a truck driver about whether a metering system installed on the truck is approved or properly calibrated. That would naturally follow because dairy farmers, knowing that there is a regulatory regime in place governing such a fundamental matter as the measurement of the volume of milk transferred from each farm to the tanker and then to the processor, would undoubtedly proceed on the basis that the tanker could not pull up at the farm gate and at the farmer's refrigerated vat and undertake any transfer operation unless all regulatory requirements were satisfied, whatever they may be.
159 As to the pattern approval number, the particular sequence of letters and digits would likely be unknown to the dairy farmer. The pattern approval number could just as easily be "ABC/1234567". However, whatever the particular pattern approval number allocated by the Chief Metrologist to an approval might be, the important matter is that there is a correlation between the measuring system deployed on tankers to transfer milk and a number affirming that that measuring system is approved under the regulatory regime in place. Some dairy farmers may come to know the particular number relevant to that approval, but I accept that most of them, even though they might not know or not be able to recall the particular sequence of letters and digits, nevertheless know and understand that a number signifying an approval of a pattern or design for a milkflow metering system is an important matter. This is particularly so on the part of the more sophisticated entities in the dairy industry being the milk processors. The milk processors, as Mr Miller's evidence affirms, have systems and structures in place, no doubt as a function of scale, by which they recognise, on balance, that a particular approval and a corresponding approval number is an important matter. The milk processors are in a different position to the extent that they are much more likely to become familiar with the particular pattern approval number and its corresponding relationship with that which is approved. They are more likely to recognise the particular pattern approval number as a number which corresponds to a particular approval of a particular system.
160 The dairy industry is no doubt made up of a large number of participants who, or which, engage at many functional levels of that industry. However, the dairy farmers and the milk processors are not simply "consumers" of services or goods in a sense relevant to these proceedings. They are key participants with a very particular interest in the topic of and matters related to the mechanisms by which milk volumes are transferred and measured in the transfer as between farm, bulk haulage contractor and milk processor. In that sense, they are informed consumers in a key sectoral part of the market.
161 These proceedings, at one level at least, are concerned with whether the conduct of the respondents of affixing the particular pattern approval number to the measuring instruments (system) installed on their trucks/tankers, without the approval of the applicant, is conduct which carries with it a representation to the dairy farmers and, on the applicant's case particularly, the milk processors, as and when the respondents go about the activity of bulk haulage of milk (and thus the transfer activity as described), that the particular instruments so marked are instruments that "could be used legally to measure the volume of milk transferred to or from the vehicle on which the particular instrument was installed", when that was not so for the reasons identified at [130] to [132] of these reasons.
162 As to the principles to be applied in determining whether conduct is misleading and deceptive, the parties are agreed about those principles. There is no need in these reasons to restate the principles. They are to be found in these authorities: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [98]-[103]; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at [202], Deane and Fitzgerald JJ; Lumley Life Ltd v IOOF of Victoria Friendly Society (1989) 16 IPR 316; Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191.
163 In these reasons I have described in some detail the applicant's argument going to the contended unlawfulness of use of measuring instruments which is said to render the contended representation a misrepresentation. I have taken into account the applicant's argument based upon the objects of the legislation and the references to the Explanatory Memorandum and the construction attributed, in particular, to ss 18GA, 18GG, 18GK, 19A, 19AAB, 19B and Regulation 60. However, I am not satisfied that the conduct of the respondents of affixing the pattern approval number to measuring instruments carries with it the representation as contended. I am not satisfied that the use of the measuring instruments by the respondents is rendered unlawful, as the applicant contends. That follows as a matter of statutory construction of the relevant provisions for the reasons identified by the respondents at [150] of these reasons which I accept as correct. It is not necessary to restate those matters again, other than to emphasise the point that none of statutory provisions, when correctly construed, engages the condition in the Certificate of Approval concerning the reservation to the applicant of the right to authorise the affixing of the pattern approval number to a particular instrument.
164 The conduct of the respondents of affixing the pattern approval number to measuring instruments installed on their trucks carries with it a representation that the measuring instruments accurately measure, within the tolerances recognised by the approval, the volume of milk transferred from the dairy farmers refrigeration vat to the tanker and then to the processor.
165 It is no part of the applicant's case that that representation is a misrepresentation.
166 The next level of the applicant's case is that the conduct of the respondents in affixing the pattern approval number to measuring instruments installed on their tankers carries with it a representation to those persons seeing the pattern approval number that Flogineering has given its approval to mark the instruments with the number. As to the dairy farmers, I am not satisfied that the evidence demonstrates that dairy farmers are sufficiently familiar with the pattern approval number so as to associate it with an entity called Flogineering so as to reach the conclusion that affixing the mark carries with it a representation that Flogineering has given its approval to mark the instruments with the number. I am not satisfied that there is the degree of recognition or reputation subsisting in Flogineering by reason of the pattern approval number to reach the point that a dairy farmer, seeing that number, would be led or likely be led to believe that the number was applied to the instruments with the approval of the entity called Flogineering.
167 That conclusion might be less true of the milk processors. However, I am not satisfied on the current state of the evidence that affixing the number carries with it the representation that Flogineering has given its approval to mark the instruments with the pattern approval number.
168 The next level of the applicant's case is a contention that the conduct of the respondents of affixing the particular pattern approval number to the measuring instruments installed on their trucks/tankers is conduct which carries with it a representation to the milk processors and, in a wider sense, to the dairy farmers, that the regulatory regime governing the processes undertaken by relevant participants in the transfer of milk from a dairy farmer's refrigerated vat to a tanker and from the tanker to the milk processor (in a way which guarantees the integrity of the accuracy of the measurement of the volume of milk so transferred), provides for a right, in someone, whoever it might be, to apply a pattern approval number (whatever it might be), to measuring instruments used for that purpose as a regulatory signification of an authority to so mark the measuring instruments.
169 I accept that the conduct of the respondents in so affixing the pattern approval number to the relevant measuring instruments carries with it that representation.
170 The question is whether that representation is a misrepresentation because the regulatory right to authorise the marking of instruments purporting to comply with the approval, with the pattern approval number NMI 5/6E/13A, was reserved to only persons authorised by Flogineering under the conditions of approval having regard to s 19A of the Act and Reg 60(4) of the Regulations; see [27], [43], [46] and [48]-[54] of these reasons. The second question is whether the conduct, if it be a misrepresentation, falls within the statutory description of misleading and deceptive conduct.
171 The first question raises a difficult question of construction of the Act and Regulations in relation to the proper role to be attributed to a condition of approval of a pattern when the condition, on its face, appears to regulate the conduct of authorising only a particular person to mark instruments with the number NMI 5/6E/13A.
172 To recap briefly the earlier part of these reasons, s 19A of the Act provides that regulations may make provision for the approval and verification of patterns of measuring instruments as patterns of such instruments suitable for use for trade and any other legal purpose. The Regulations provide that an approving authority may approve the pattern of a measuring instrument by certifying that the instrument is suitable for use for trade or as a legal measuring instrument: Reg 60(1)(b). Regulation 60(1)(d) contemplates that the approving authority may issue a copy of the Certificate not merely to the applicant but also "to anyone else whom the authority considers should be given the copy". That express discretionary power conferred upon the approving authority to issue a copy of the Certificate to "anyone" (apart from the applicant for approval) the authority considers ought to be given a copy of it, might be thought to be consistent with the scope of a condition (as an expression of the power to approve the pattern of a measuring instrument), authorising only a particular person to mark any instruments (purporting to comply with the approval), with the approval number NMI 5/6E/13A. Approval of the pattern of a measuring instrument "is subject to", by operation of Reg 60(4), a condition that a measuring instrument on which the number of the approved pattern is marked must comply with the pattern "and any other condition to which the approval is subject" (Reg 60(4)(a)) and any other condition "stated in the certificate of approval": Reg 60(4)(b).
173 In this case, there are three conditions recited on page 2 of the Certificate of Approval under the heading "CONDITIONS OF APPROVAL" (see also, for the precise text, setting and format, [49] of these reasons): first, instruments purporting to comply with the approval shall be marked with pattern approval number NMI 5/6E/13A; second, instruments purporting to comply with the approval shall be marked with that number "only by persons authorised by the submittor", which was Flogineering; and third, it is Flogineering's responsibility to ensure that "all instruments marked with this approval number" are "constructed as described in the documentation lodged with the NMI, and with the Certificate of Approval and Technical Schedule".
174 The document then recites two matters under the heading CONDITIONS OF APPROVAL the first of which is not a condition but which draws Flogineering's attention to the notion that failure to comply with "this Condition" (which is the three elements recited above and the fourth element below) may attract penalties under s 19B of the Act "and may result in cancellation or withdrawal of the approval, in accordance with document NMI P 106". The second matter is a condition and it says: "Auxiliary devices used with this instrument shall comply with the requirements of General Supplementary Certificates No S1/0/A or No S1/0B".
175 As to s 19B of the Act (see [30] of these reasons), it provides that "a person" shall not "falsely represent" that a pattern of a measuring instrument is "in accordance with a pattern approved under the regulations" or falsely represent that a measuring instrument is "in accordance with a pattern approved" under the Regulations.
176 As to the document NMI P 106 described as Approval and Certification Procedures for Measuring Instruments Suitable for Use for Trade and Other Legal Purposes, that document addresses topics of cancellation and withdrawal of a Certificate of Approval. Clause 4.3 contemplates that the holder of a Certificate of Approval may apply to have the certificate cancelled. Apart from that possibility, cl 4.3 recognises that the NMI may have grounds for cancelling a Certificate of Approval in the following circumstances: first, an instrument does not comply with the metrological criteria required by Australian pattern approval specifications; second, an instrument is not manufactured or used in accordance with the approved pattern as described in drawings and specifications lodged with the NMI; third, the certificate expires; or fourth, "other appropriate reasons". As to withdrawal, cl 4.4 recognises that the NMI may withdraw a certificate of approval "where cancellation is not considered appropriate". After a Certificate of Approval has been withdrawn, all instruments must be removed from use for trade.
177 As to conditions, cl 5 recognises that conditions may be stipulated to which the approval of the pattern is subject. Examples of conditions which might be imposed are set out in cl 5 and they include these: first, a review date is generally nominated which is normally five years from the date of approval subject to certain exceptions; second, a condition might stipulate whether the certificate relates to a single instrument or a small number of instruments as distinct from a pattern of an instrument; and third, any additional conditions thought appropriate by the NMI subject to the type of measuring instrument or component the subject of the approval.
178 Clause 11 addresses the topic of the "Certificate Documents" and recites that the Certificate of Approval nominates the pattern and variants (if any), applicant's name, manufacturer, date of approval, review date, approval number and conditions of approval. The pattern is described in the Technical Schedule and the test procedure specifies the tests necessary to confirm the performance of the instrument. Clause 11.3 recognises that at the same time that the applicant receives the Certificate of Approval (which includes the Technical Schedule and test procedure), a copy of it is placed on the NMI website for all to see and read. Clause 11.5 addresses the topic of Responsibility for Compliance of Instruments with the Certificate. Clause 11.5 says this:
It is the responsibility of the applicant nominated in the certificate of approval, whether as agent or manufacturer, to ensure that all instruments manufactured to a pattern and installed for trade use, comply with the certificate of approval, its technical schedule and the drawings and documentation retained by the NMI. Instruments shall not deviate in any significant structural or metrological fashion from the sample instrument, or its approved variants.
It is an offence for a person, other than the applicant or an agent nominated to the NMI in writing by the applicant, to mark an approval number on any instrument for which they do not hold the certificate or an authority to manufacture (or import) from the applicant, thereby purporting that it complies with that certificate. This may constitute an offence under the National Measurement Act 1960 (Cth).
However, a supplier/installer may copy an approval number from one part of an instrument to a central nameplate, for example when a dial is replaced with a digital indicator and the basework number which appears on the dial has to be transferred to the digital indicator.
[emphasis added]
179 At one level, the power to impose a condition of the approval might operate at a binary or bilateral level as between the Chief Metrologist/NMI on the one hand and an applicant for an approval of the pattern of a measuring instrument, on the other hand. However, it seems clear enough that the condition does not operate on the footing of a true condition such that instances of the marking of measuring instruments with the pattern approval number without the authority of Flogineering would or could give rise to a revocation, cancellation or withdrawal of the approval. Plainly that cannot be the statutory intention.
180 The approving authority has exercised a power arising under Reg 60(4) in furtherance of s 19A of the Act to impose a condition of approval of the pattern for the measuring instrument in question in these proceedings. The conditions impose a responsibility on Flogineering to ensure that all instruments marked with the approval number NMI 5/6E/13A are constructed as described in the documentation lodged with the NMI and in accordance with the relevant Certificate of Approval and the Technical Schedule. That obligation is a significant responsibility. It reflects the condition that instruments purporting to comply with the approval must be marked with the pattern approval number NMI 5/6E/13A and so marked only by persons authorised by the submittor of the application for the approval. The scheme of the Act engages enabling provisions such as s 19A which makes provision for regulations conferring power on an approving authority to cast a responsibility upon the submittor to "ensure", as a condition of regulatory approval of the pattern of instruments for use for trade, that "all instruments" marked with the approval number are constructed as described in the documents and Technical Schedule. The statutory scheme contemplates that, as part of that regulatory approval process, instruments purporting to comply with the approval must be marked with the number and only marked by persons authorised by the party bearing the responsibility of ensuring that the instruments are constructed in accordance with the documentation, the Certificate of Approval and the Technical Schedule.
181 The instruments marked with the pattern approval number by the respondents were not so marked with the approval of Flogineering. Flogineering was the party that had the relevant responsibility cast upon it as a condition of approval and, consistent with that responsibility, an obligation arose to ensure that instruments purporting to comply with the approval are marked with the pattern approval number and only marked by persons authorised by Flogineering. That part of the condition might be characterised as an obligation symmetrical with the responsibility cast upon Flogineering by the conditions. In any event, only persons authorised by Flogineering are entitled to mark instruments purporting to comply with the approval, with the pattern approval number NMI 5/6E/13A.
182 The instruments marked by the respondents with the approval number (or caused to be marked by the respondents with the approval number), were not so marked by persons with the authority of Flogineering.
183 The representation described in [168] of these reasons constitutes a misrepresentation made to the dairy farmers and the dairy processors. The misrepresentation, in a real and practical sense, is misleading or deceptive or likely to mislead or deceive, either or both of, the dairy processors and the dairy farmers into believing that the flowmetering instruments are marked with a regulatory signification in the form of an approval number by persons who hold the right to do so. The conduct, viewed as a whole, demonstrates a real and not simply a remote chance that those market participants will be misled or deceived or be likely to be misled or deceived.
184 Although the respondents say that the conduct is commercially insignificant, I am not satisfied that that is so. Endorsing the measuring instruments with a number signifying a regulatory relationship between the measuring instruments of the respondents and the approval obtained by the applicant for the pattern for those instruments for use in trade, is not an insignificant thing. Whatever the pattern approval number might have been, both the dairy farmers and the milk processors understood that the respondents were required to conduct their businesses in compliance with all aspects of the regulatory requirements.
185 Accordingly, as to the aspects of the matter described at [168] of these reasons, the respondents have engaged in misleading or deceptive conduct or conduct likely to mislead and deceive either or both of the milk processors and the dairy farmers. Such conduct constitutes a contravention of s 18 of the Australian Consumer Law. The respondents have also engaged in such conduct in connection with the supply, to milk processors, of the services of bulk haulage of milk. Accordingly, the respondents have engaged in contraventions of s 29(1)(e) and (g) of the Australian Consumer Law, as to the limb of those sections which addresses a misleading representation.
186 I am not satisfied that the passing off case has been made out having regard to the deficiency in establishing a particular reputation in the pattern approval number and its corresponding relationship with an entity described as Flogineering.
187 In these proceedings an order was made that for the questions set out at [118] to be tried separately. Those questions involve providing an answer to particular matters and giving consideration to the question of whether an injunction should issue under s 232 of the Australian Consumer Law or under the general law restraining the respondents from continuing to engage in any conduct found to be contravening conduct. As to the particular questions, in the language as framed, at [118] (a) to (e), the position is this.
188 Question (a) asks whether the requirements of the Act with respect to the approval and verification of measuring instruments, as well as the practice of the Chief Metrologist in issuing approvals which authorise a particular individual to assess compliance with the particular approval have, at all material times to the proceeding, been well known to those involved in the commercial bulk haulage of milk. It is not clear to me on the present state of the evidence that those persons involved in the commercial bulk haulage of milk necessarily "well knew" the particular requirements of the Act with respect to approval and verification or well knew that the Chief Metrologist had approved the particular pattern in issue in these proceedings on condition that instruments purporting to comply with the approval be marked only by persons authorised by the applicant. The evidence tends to suggest that the respondents may well have come to know of that condition or reservation in the approval in favour of the applicant, but I am not satisfied, on the balance of probabilities, that at all material times relevant to these proceedings the respondents well knew that matter. I accept, however, that at all material times, the respondents well knew that the pattern approval number could only be marked on the relevant instruments with the approval of someone as a function of the regulatory regime with which they were required to comply and the relevant someone, by operation of the condition, was the applicant.
189 Question (b) asks whether at any time material to the proceedings, any person has been able lawfully to mark an instance of an instrument as complying with the approved pattern, other than with the authority of the applicant. The condition of the approval reserves to the applicant the right to authorise the marking of instruments purporting to comply with the approval, with the pattern approval number, NMI 5/6E/13A. In these reasons I have already explained the apparent basis of the operation of that condition in the context of the Act and Regulations. I am not satisfied, having regard to the construction of the provisions of the Act, that a person who marks an instrument with the pattern approval number without the authority of the applicant engages in unlawful conduct. Of course, the Act creates a range of offences directed to very particular conduct falling within the statutory integers of the relevant provisions. For example, s 18GA provides that a person commits an offence if the person uses a measuring instrument for trade and the instrument is not verified. Section 18GE provides that a person commits an offence if the person uses a measuring instrument for trade and the instrument gives an inaccurate measurement or gives other information inaccurately. Section 18GM provides that a person commits an offence if the person marks a measuring instrument with a verification mark and the person is not entitled to do so. Section 19B provides that a person shall not "falsely" represent that a pattern of a measuring instrument is in accordance with a pattern approved under the Regulations or that a measuring instrument is in accordance with a pattern so approved. That section contemplates a false representation which may engage a mental element beyond simply conduct characterised as misleading or deceptive conduct or conduct likely to mislead or deceive and in any event, for the reasons earlier mentioned, the conduct contemplated by s 19B does not engage the condition relating to the authority of the applicant reserved to it by the condition. The conduct of marking an instrument with the number NMI 5/6E/13A gives rise to the contraventions earlier described and in that sense the conduct of marking is unlawful. However, I do not accept that the conduct of marking the relevant measuring instruments, without the authority of the applicant, is rendered unlawful per se by the Act and Regulations.
190 The answer to question (c) is that since 2004 the applicant has marked instances of the relevant measuring instruments with the number NMI 5/6E/13A in compliance with the condition in the approval reserving to it the sole right to so mark instruments.
191 As to question (d), I am not satisfied that the applicant has established "reputation" as contended.
192 As to question (e), I am satisfied that on each occasion which a respondent marked measuring instruments with the number NMI 5/6E/13A each respondent engaged in the contraventions earlier described. I am not satisfied that passing off has been made good.
193 As to [118] (f) a question arises as to whether, either pursuant to s 232 of the ACL, or under the general law, injunctions should issue restraining the respondents from engaging in particular conduct. Section 232(1) of Sch 2 to the Competition and Consumer Act 2010 (Cth) confers a discretionary power on the Court to grant an injunction in such terms as the Court considers appropriate if satisfied that a person has engaged, or is proposing to engage, in conduct in contravention of, relevantly, s 18 or s 29(1) of that Act. The power may be exercised whether or not it appears to the Court that the person intends to engage in conduct "of a kind" engaging a contravention of s 18 or s 29(1) of that Act: s 232(4). In this case, the evidence suggests that each of the respondents has from 1 January 2018 transitioned to using on their tankers flowmetering instruments that do not engage the approved pattern in issue and do not have affixed to the relevant instruments the pattern approval number NMI 5/6E/13A corresponding to the approval in issue. If that is so, there may be now no utility in exercising the discretion to grant an injunction under s 232 of the Act although there remains utility in granting a declaration as to the particular contravention in question. I would like to hear the parties further on the question of whether there is any utility in exercising the discretion under s 232 to now grant an injunction, before making final orders on this part of the proceeding. Submissions ought to be filed by the parties within 14 days addressed to that question. I propose to decide that matter on the papers unless a party wishes to be heard.
194 As already mentioned the separate questions addressed in this part of the proceeding are those set out at [118]. The only question going to a remedy is the issue of whether an injunction ought to be granted. Inherent in the determination of the questions and the matters in issue going to those questions is the making of a declaration explanatory of the conduct involving a contravention of s 18 and s 29(1) of the ACL. The wider remedies sought by the applicant against each respondent in the originating application involves a claim for damages pursuant to s 236 of the ACL, interest, costs and such order as the Court considers appropriate. The nature of the monetary claims are those set out at para 15 of the ASOC. It may be that the question of costs ought not to be resolved until all claims have been resolved or determined and especially whether the question of the monetary claims for loss and damage set out at para 15 can properly be characterised as loss or damage suffered because of the conduct of a person in contravention of s 18 and or s 29(1)(e) and (g), that is to say, whether the applicant has suffered a "reliance loss" according to the jurisprudence on that question.
195 The parties will be directed to put on written submissions within 14 days on the question of costs, addressing the disposition of the costs on the assumption that an injunction is granted and on the alternative assumption that the discretion is exercised to not grant an injunction. That might be the case in the event that none of the respondents are continuing to engage with flowmetering instruments the subject of the approval and not affixing the pattern approval number to flowmetering instruments.
I certify that the preceding one-hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Greenwood.