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[2005] FCAFC 251
Federal Court of Australia (Full Court)
2005-12-01
Nicholson JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of the Supreme Court of Western Australia entered on 21 October 2004 under which, inter alia, the court declared that the appellant had infringed Letters Patent No. 684592 ("the Letters Patent") granted to the first-named respondent ("Hall") under the Patents Act 1990 (Cth) ("the Patents Act") and had infringed Design No. 120181 ("the Registered Design") of which Hall was registered as owner under the Designs Act 1906 (Cth) ("the Designs Act"). The court also declared that Design No. 143028 of which the appellant was the registered owner under the Designs Act was invalid and liable to be removed from the Register of Designs. The court further ordered that the appellant be restrained from infringing the Letters Patent and the Registered Design; that the appellant deliver up to the respondent all material in the possession of the appellant that constituted an infringement of the Letters Patent or the Registered Design; and that the appellant's counterclaim be dismissed. 2 The proceeding in the Supreme Court commenced in January 2001. That court was a "prescribed court" under the Patents Act and the Designs Act having jurisdiction in matters arising under the Patents Act and Designs Act in respect of which a proceeding could be started in that court. A proceeding in respect of infringement of the Letters Patent or infringement of the Registered Design, or in respect of rectification of the Register of Designs, was a proceeding that could be started in the Supreme Court. (See: Patents Act ss 3, 120, 155; Designs Act ss 4, 31, 32, 39, 40G(1B)). 3 The Designs Act was repealed on 17 June 2004, the date of commencement of the Designs Act 2003 (Cth) ("the New Designs Act"). Under s 151(2)(a)(i) of the New Designs Act the Registered Design was taken to be registered under the New Designs Act from that date. Transitional provisions set out in s 155(1) of the New Designs Act provided that a proceeding under the Designs Act that was pending immediately before commencement of the New Designs Act was to be determined as if the Designs Act had not been repealed. Therefore, when the proceeding in the Supreme Court came on for hearing in September 2004 it was a proceeding to which s 155(1) of the New Designs Act applied. 4 Jurisdiction to hear an appeal from the judgment of the Supreme Court in this matter is conferred on this Court as an exclusive jurisdiction by s 158(1), (4) of the Patents Act, s 40I(1), (4) of the Designs Act and s 87(1), (4) of the New Designs Act. However,the provisions of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("the Cross-vesting Act") appear to invest a concurrent, although qualified, appellate jurisdiction in the Supreme Court. (See: Cross-vesting Act s 7(5), (7), (8)). It is unnecessary to consider whether the appellate jurisdiction now exercised by the Court has been conferred by the Designs Act or the New Designs Act. 5 On 2 November 2004 the appellant commenced an appeal in the Supreme Court. On 2 March 2005 the Supreme Court made an order, by consent, that the appeal be transferred to this Court and that the costs in the appeal be costs in the cause of "the transferred proceeding". 6 Section 157 of the Patents Act, s 40H of the Designs Act, and s 86 of the New Designs Act give the Supreme Court power to transfer both the originating proceeding and the appeal proceeding to this Court. It should be assumed, however, that the power of transfer exercised by the Supreme Court was that provided by s 7(5), (7) of the Cross-vesting Act and that the only proceeding transferred to this Court is the appeal proceeding. It is to be noted that the parties to the appeal did not include another party to the originating proceeding bound by the judgment of the Supreme Court and, therefore, that further party has not subscribed its consent to the order of transfer. 7 The judgment of the Supreme Court was an interlocutory judgment limited to questions of liability, the further rights of the parties being left for determination at a later date. (See: Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767). Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal to this Court shall not be brought from such a judgment unless the Court gives leave to appeal. The appellant sought that leave when the matter came on for hearing. The respondent did not oppose the grant of leave. The Court extended the time within which the appellant could make such an application and granted leave to appeal from the interlocutory judgment. All steps taken by the parties prior to the grant of leave, whether in this Court or in the Supreme Court, were taken to be steps in the appeal. 8 A short summary of the relevant facts upon which the learned Commissioner's decision is based is as follows. Between 1992 and 1993 Hall developed an idea for an article of headwear to provide protection from the sun for the head, face and neck of the wearer and be able to withstand wind and rain. Hall's idea consisted of a visor to which material was attached to cover the top of the head and hang down at the sides and back of the head and neck, being held to the head by an adjustable headband. Fastening devices were attached to the pendant material to allow it to be fixed across or under the face or held at the back of the head and away from the face. Prior art existed for a number of the elements of the foregoing idea. 9 Hall instructed a firm of patent attorneys to lodge an application for registration of a design under the Designs Act and to lodge a patent claim specification under the Patents Act. Registration of the Registered Design and grant of the Letters Patent followed in due course. 10 The Letters Patent granted Hall a monopoly of use of the invention for a term of 20 years from 6 January 1995, the priority date being 10 January 1994. The title of the invention set out in the Letters Patent is "an article of headwear". The article in respect of which the Registered Design is registered is said to be "a hat". The application for registration of the Registered Design was lodged on 10 March 1993 and it was registered on 4 May 1994, the priority date being the date of lodgement of the application. In the course of the hearing of the appeal the Court was informed that the rights of use and reproduction under the Letters Patent and the Registered Design had been assigned to the second-named respondent. 11 Pursuant to the Letters Patent and the Registered Design the respondent began to manufacture and sell an article of headwear, under the trade name "Araphat", as an embodiment of the invention and an application of the Registered Design. The respondent appointed the appellant to act as distributor of the "Araphat" hat in Western Australia. By the end of 1999 sales of the "Araphat" hat represented 80% of the business of the appellant. Shortly thereafter the relationship between the respondent and the appellant was terminated. The appellant then purported to "create her own hat" and began to manufacture and sell a hat under the name "Le Hood". 12 The respondent claims that the manufacture and sale of the "Le Hood" hat infringed the respondent's rights under the Letters Patent and the Registered Design. The appellant contends that the "Le Hood" hat differs in a material respect from an article manufactured pursuant to the monopolies granted by the Letters Patent and Registered Design. 13 Numerous points of defence raised by the appellant at trial are no longer live questions in the appeal. The appellant defines the questions to be determined in the appeal as follows: (a) the proper construction of the words "a plurality of fastening means" as used in the principal claim of the Letters Patent; (b) whether the appellant's product is an obvious imitation of the Registered Design; (c) whether the Registered Design is invalid by reason of the terms of s 22B of the Designs Act.
INFRINGEMENT OF LETTERS PATENT 14 It appears to have been accepted by the parties that the idea for an article of headwear the subject of the Letters Patent reflected an inventive step in that it combined elements of prior art to create a new and useful form of headwear. 15 Where the invention differed from the prior art and exhibited an inventive step was in the idea of taking a visor, to which an adjustable headband and a length of material was attached, and using fastening means attached to that material to configure the material so that it could be kept in a position that would protect the neck and/or head and/or face of the wearer from sun, wind or rain. 16 The Letters Patent defined the monopoly claimed by Hall in 14 claims. The finding that articles of headwear manufactured by the appellant infringed the Letters Patent was made by the learned Commissioner in respect of Claims 1-13 compendiously. Claim 14 was excluded from consideration. The respondent gave notice that if the appellant succeeded in the argument that the "Le Hood" hat did not infringe Claims 1-13 of the Letters Patent, it would be contended that the learned Commissioner's finding that the Letters Patent had been infringed should be upheld by reason of infringement of Claim 14 (described by counsel for the respondent as "an omnibus claim"). 17 The claims of the Letters Patent read as follows: '1. An article of headwear characterised by a substantially forwardly projecting peak or visor, an adjustable head engaging band and a length or sheet of material, the head engaging band being attached or attachable to the peak or visor at or near a rear edge thereof, the length or sheet of material being attached or attachable to the peak or visor and extending rearwardly thereof, whereby the peak or visor may be positioned on a wearer's head such that the material covers the wearer's head and hangs therefrom about the shoulders and neck of the wearer, wherein the head engaging band is positioned about a rear of the wearer's head such that the peak or visor is held in position thereon, the material having provided thereon a plurality of fastening means whereby the material may be fastened to protect the wearer's neck and/or face, the fastening means being arranged on the material such that the material may be drawn to a number of positions in front of the wearer's neck and/or head and/or face and the material fastened together releasably in a number of arrangements as desired by the wearer. 2. An article of headwear according to claim 1, characterised in that a number of fastening means are provided about a lowermost edge and sides of the material when in position on a wearer's head whereby the sides may be drawn together and fastened to protect the wearer. 3. An article of headwear according to claim I or 2 characterised in that the two sides of the length of material are proportioned whereby they may overlap when adjusted or arranged to protect the wearer's neck and/or head and/or face. 4. An article of headwear according to claim 1, 2 or 3, characterised in that the fastening means are provided in the form of a hook and loop type fastener. 5. An article of headwear according to any one of the preceding claims, characterised in that the material is a flexible or pliable material able to conform to the crown of the wearer's head and hang therefrom. 6. An article of headwear according to any one of the preceding claims, characterised in that the length of material is attached to the visor such that sides of the length of material hang from the visor over the sides of the visor and in turn the sides of the wearer's face. 7. An article of headwear according to any one of the preceding claims, characterised in that the head engaging band has an adjustment means provided therein allowing the length of the band to be adjusted to suit the size of the wearer's head. 8. An article of headwear according to claim 7, characterised in that the adjustment means of the band comprises a releasable and adjustable join whereby the continuity of the band may be broken and reattached to adjust the length of the band to suit the head of a wearer. 9. An article of headwear according to claim 8, characterised in that the band is formed in part from a hook and loop type fastening allowing the length of the band to be adjusted. 10. An article of headwear according to any one of the preceding claims, characterised in that the material has one or more fastening means provided thereon allowing the material to be releasably attached to the band. 11. An article of headwear according to claim 10, characterised in that the fastening means allowing the material to be releasably attached to the band is 30 provided in the form of one or more straps able to be held to the band. 12. An article of headwear according to anyone of the preceding claims, characterised in that the peak or visor is formed of a rigid material in a crescent shape whereby the forehead of the wearer is received within the hollow described by the crescent shaped peak or visor. 13. An article of headwear according to claim 12, characterised in that the material is fixedly attached to the peak or visor at or adjacent a rear edge thereof. 14. An article of headwear substantially as hereinbefore described with reference to Figures 1 to 4, 5 and 6, 7 and 8, 9 and 10, 11 to 13, 14 and 15, 16 to 18, 19 and 20, 21 or 22.' 18 It is not in issue that the elements of the invention claimed in Claim 1 of the Letters Patent could be reduced to the following essential items:
infringement of registered design 41 Section 30 of the Designs Act provides that: 'Infringement of monopoly in designs 30. (1) A person shall be deemed to infringe the monopoly in a registered design if he, without the licence or authority of the owner of the design: (a) applies the design or any fraudulent or obvious imitation of it to any article in respect of which the design is registered; (b) . . . (c) sells, or offers or keeps for sale, or hires, or offers or keeps for hire, any article: (i) to which the design or any fraudulent or obvious imitation of it has been applied in infringement of the monopoly in the design; or (ii) . . .' 42 The terms "monopoly", "design" and "article" are defined in s 4(1) of the Designs Act as follows: ' "monopoly", in relation to a registered design, means the exclusive right to apply the design to an article in respect of which the design is so registered; "design" means features of shape, configuration, pattern or ornamentation applicable to an article, being features that, in the finished article, can be judged by the eye, but does not include a method or principle of construction; "article" means any article of manufacture and includes a part of such an article if made separately ….' 43 A design (consisting of observable features applied to an article) is registered in respect of the article specified in the application. (See: s 23(3)). An application for registration is to be accompanied by representations of an article to which the design is applied (i.e. "of the article specified in the application"). (See: s 20(3)(b)). 44 Section 20(4) of the Designs Act states that an application for registration of a design may be accompanied by a "statement of monopoly" in respect of the design to which the application relates. Section 4(1) of the Designs Act provides the following meaning for "statement of monopoly": '"statement of monopoly", in relation to a design, means a statement relating to the representations of an article to which the design is applied that indicates: (a) those features of the representations in respect of which the applicant for registration of the design wishes to claim a monopoly; and (b) those features of the representations that are to be disregarded in considering the extent of the monopoly protection.' 45 The statement of monopoly recorded in the Register of Designs for the Registered Design reads as follows: 'Monopoly is claimed in the shape and/or configuration of a hat as illustrated in the accompanying representations.' 46 Although it was asserted in the respondent's statement of claim that the appellant infringed the respondent's monopoly by applying the Registered Design that contention was not pressed at trial. The issue before the learned Commissioner, therefore, was whether the appellant infringed the Registered Design by applying a fraudulent or obvious imitation of the Registered Design to an article, to wit, the hats manufactured by the appellant being Exhibits 7 and 9. The learned Commissioner found that an obvious imitation of the Registered Design had been applied to Exhibits 7 and 9. 47 By a purported cross-appeal the respondent contends that the learned Commissioner erred in failing to find that the appellant applied a fraudulent imitation of the Registered Design in the manufacture of the articles comprised in Exhibits 7 and 9. Given that the learned Commissioner declared that the appellant had infringed the Registered Design the notice of cross-appeal should be treated as a notice of the ground on which the respondent would seek to support that declaration of infringement if the appellant succeeds in the argument that the learned Commissioner erred in finding that the appellant infringed the Registered Design by applying an obvious imitation thereof. 48 It was not in issue that at all material times the appellant was aware, or believed, that the respondent was the owner of a registered design in respect of the article represented by the "Araphat" hat. Therefore, it is appropriate to deal first with the issue raised by the respondent on the "cross-appeal", namely, that the appellant applied a fraudulent imitation of the Registered Design in the manufacture of the articles in Exhibits 7 and 9. 49 If it is established that an alleged infringer of a registered design knew of, or had reason to suspect, the existence of a registered design, a finding of application of a fraudulent imitation may follow notwithstanding that the differences between the design applied to an article and a registered design are greater than those that would allow a finding to be made that an obvious imitation of a registered design had been applied. (See: Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 216 ALR 205 at [21]). It still remains an essential element of a finding of infringement by fraudulent imitation, however, that the alleged offending article be an imitation of a registered design. A conclusion that an alleged offending article is an imitation of a registered design will be more readily drawn where the alleged infringer, with knowledge of the existence of the registered design, has set out to copy in substance that design although introducing changes thereto. (See: Polyaire at [27]-[28], [36]). 50 The type of fraud to which the expression "fraudulent imitation" applies is of a lesser degree than that required to meet the usual meaning of that word. 51 As stated in Polyaire at [35]: 'It is important to keep in mind in applying para (a) of s 30(1) of the Act that the court is concerned with a type of statutory fraud somewhat removed from fraud at common law, and the degree of moral turpitude or recklessness generally required for its establishment. The kind of fraud that the Act seeks to remedy is closer in kind to, but is still not entirely analogous with, equitable fraud, which, for its establishment, does not require that an actual intention to cheat must always be proved; proof of misconception of the extent of a person's obligation, to act or to refrain from acting in a particular way, may suffice.' 52 If it is found that there has been infringement by fraudulent imitation it becomes unnecessary to determine whether there has been infringement by obvious imitation. An obvious imitation made with knowledge of the existence of a registered design is a fraudulent imitation. (See: Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239 at 248). 53 Comparison between an alleged infringing article and a registered design (i.e. the representation of an article to which the Registered Design is applied) is a matter of judgment according to the appearance to the eye of one to the other. It is a question of the impression conveyed by the eye to the brain of that comparison, not a test involving matters of measurement or ratio. A narrow or technical approach must be avoided lest the owner of a registered design be denied the benefit of registration. (See: Wanem Pty Ltd v John Tekiela (1990) 19 IPR 435 per Gummow J at 440). 54 At the same time, however, it is to be kept in mind that where a registered design involves small variation from the prior art small differences between the registered design and an alleged infringing article may mean that no infringement of a registered design has occurred. The alleged infringing article must embody the features of the registered design that distinguish it from the prior art. (See: Dart Industries Inc v Décor Corporation Pty Ltd (1989) 15 IPR 403 per Lockhart J at 409). 55 The representations of the article to which the Registered Design is applied are the twelve illustrations in Schedule 1 of these reasons. For the purpose of these reasons these illustrations have been numbered 1-12. It was accepted that the illustrations so numbered may be divided into six separate depictions of the Registered Design as follows: (1, 2); (3, 4); (5, 6); (7, 8, 9); (10); (11, 12). It is accepted that illustrations (1, 2) reflect the prior art. The appellant submitted that although the configurations shown in illustrations (1, 2); (5, 6); and (10) were able to be replicated in the "Le Hood" hat in Exhibits 7 and 9, no replication of the configurations shown in illustrations (3, 4); (7, 8, 9); or (11, 12) could be made by manipulation of Exhibits 7 and 9. 56 With regard to illustrations (3, 4) of the Registered Design it is true that Exhibits 7 and 9 do not embody a specific means of attachment to the headband as indicated in those illustrations but the appearance of illustrations (3, 4) is achieved by tucking the pendant material of Exhibits 7 and 9 under the headband. The appearance achieved has sufficient similarity to illustrations (3, 4) to suggest to the eye that it involves an imitation of those representations of the application of the Registered Design. The differences in manufacture of Exhibits 7 and 9 that involve deletion of a means by which the material may be attached to the headband directly do not involve the introduction by the appellant of a novel feature with the intent of providing a different design. Rather it may be said to be a difference based on a desire to copy the Registered Design to a degree that may avoid infringement thereof. 57 With regard to illustrations (7, 8, 9) and (11, 12) the appellant's submissions on these representations did not address the fact that components of a "Velcro" fastener had been affixed to the underside of the headbands in Exhibits 7 and 9 making possible the configurations discussed earlier in respect of the infringement of the Letters Patent. 58 By use of these additional fastening tabs representations of the Registered Design contained in illustrations (7, 8, 9) and (11, 12) can be repeated in appearance to the eye by manipulation of the material in Exhibits 7 and 9, the degree of similarity being sufficient to be regarded by the eye as an imitation of the Registered Design notwithstanding the difference in method employed. To the eye the differences are not so substantial that the configurations of Exhibits 7 and 9 obtained from the use of those means can be said to reflect a fresh design unable to be described as an imitation of representations of the Registered Design. 59 By comparing the representations of the Registered Design with all possible configurations of Exhibits 7 and 9 it can be seen that any differences in appearance between the two are at the margins, there being an underlying commonality in the basic elements of style, proportion and presentation including a visor and headband; pendant material attached thereto; and fastening devices attached to that material. Examination of the representations of the Registered Design and the configurations of Exhibits 7 and 9 show that in totality an imitation of the Registered Design has been achieved and that any differences recognised by the eye do not detract from the overall impression of imitation. 60 Given that such differences are explicable by the appellant's knowledge of the existence of a Registered Design the imitation observed is to be taken to result from a desire to come as close as possible to the Registered Design whilst attempting to avoid infringement and is a fraudulent imitation in the articles that comprise Exhibits 7 and 9. 61 The evidence before the learned Commissioner, as the learned Commissioner appeared to accept, failed to discharge the onus on the appellant to show that it did not embark upon copying the Registered Design. 62 It follows that this ground of the appeal must fail.
invalidity of registered design 63 In the application for registration of the Registered Design lodged on 10 March 1993 the article to which the Registered Design was applied was said to be a "Hat or Cap for Use by Surfers or Skiers". The Registrar of Designs advised Hall that the article should be renamed "a hat". The Registrar also advised Hall that the representations accompanying the application for registration were confusing, and suggested that a set of photographs replace the representations filed. In April 1994 Hall submitted "commercially-drawn depictions" of the design being the 12 illustrations in Schedule 1. Registration of the design was granted by the Registrar upon lodgement of those representations. 64 The appellant submitted that the learned Commissioner erred in failing to find that the Registered Design was invalid and that it was liable to be expunged from the Register of Designs. The ground for that submission was that the learned Commissioner should have found that in April 1994 the respondent had amended the representations accompanying the application for registration by introducing "new shapes or configurations" that increased the scope of the application, contrary to s 22B(1A) of the Designs Act. 65 Section 22B of the Designs Act reads as follows: '22B. (1) The Registrar may, on request made to him in the prescribed manner, amend an application for registration of a design lodged under this Act. (1A) An amendment under subsection (1) shall not be made if, as a result of the amendment, the scope of the application for registration would be increased by the inclusion of matter that was not in substance disclosed in the application for registration as lodged. (2) An appeal lies to the Federal Court from a refusal by the Registrar to amend an application under subsection (1). (3) In this section: "amend", in relation to a representation of an article to which a design is applied, includes the substitution of one representation for another representation; "application for registration of a design" includes the representations of the article to which the design concerned is applied and any statement of monopoly or statement of novelty in respect of the design.' 66 The first point to note about the content of s 22B is that the expression "application for registration of a design" is expressly defined to include the representations of an article to which the design is applied and that the word "amend" has an expanded meaning where the amendment of an application for registration of a design is the amendment of representations of the article to which the design is applied. In that circumstance the word "amend" includes substitution of one representation for another representation. 67 The inclusion of the concept of substitution as part of the meaning of the term "amend" indicates that it was contemplated by Parliament that a new representation may be lodged as an amended application and that such a new representation may include any matter that was in substance disclosed in the original representation. 68 It would seem to follow that Parliament intended that in respect of a representation the term "amend" is to be read liberally and that the limitation set out in s 22B(1A) is to be confined to a substituted representation which purports to extend the scope of the original representation in a fundamental respect and to disclose a design beyond that already disclosed. As Smithers J said in Chris Ford Enterprises Pty Ltd v BH & JR Badenhop Pty Ltd (1985) 7 FCR 75 at 87: 'The definition of "amend" is in liberal terms. The substitution of one representation for another must disclose something not disclosed in the application before amendment. It would seem therefore, that the restriction found in s 22B(1A) is not intended to exclude all amendments which introduce some difference in shape and configuration of the article or some new matter outside that disclosed in the original application. It would seem that it is designed to exclude amendments which extend the scope in some fundamental way and make disclosures clearly beyond those already made. It may be noted that the terms of s 22B(1) and s 22B(3) constitute precise positive statutory permission whereas the terms of s 22B(1A) are in a sense imprecise and call for the exercise of judgment. Reading the sections as a whole it is proper to conclude that Parliament intended genuine amendments reasonable in scope should be permissible and that the restrictive provisions of s 22B(1A) should be interpreted accordingly.' 69 The original representation comprised four drawings. A copy of those drawings is Schedule 2 of these reasons. For the purpose of s 22B the "amended application for registration" was the substituted representation depicted in Schedule 1. 70 The learned Commissioner rejected the appellant's contention that the substituted representation did not comply with the terms of s 22B(1A) of the Act and that the Registered Design was invalid. The learned Commissioner's reasons read as follows: 'True it is that the drawings accompanying the original application made by the plaintiff are in some respects amateurish and a little imprecise. Very plainly the illustrations later sent to the Registrar were of a higher quality and far clearer in their description of the use of the article. Nevertheless, those later depictions did no more than introduce clarity to the shape and configuration of the article. In my view, they did not change the design in any fundamental way. For these reasons I reject the defendants' plea under s 22B of the Act.' 71 Although the substituted representation amplified the shape and configuration of the design proposed for registration and "introduced some difference in shape and configuration of the article" and, perhaps, "some new matter outside that disclosed in the original application" it did not "extend the scope (of the application) in a fundamental way" or "make disclosures clearly beyond those already made". 72 It was open to the learned Commissioner to find, as had the Registrar, that perusal of the substituted representation did not reveal that it departed from the original representation in a significant respect to include matter that was not in substance disclosed in the original representation. 73 The design idea represented in the substituted representation was disclosed in broad terms in the original representation. The substituted representation removed uncertainty and defined with greater clarity the design as it applied to a hat. Although it included several configurations not set out in the original representation nonetheless the substance of the design applied in those configurations was disclosed in the original representation. 74 The appellant submitted that the learned Commissioner should have taken the approach followed by the Registrar in Re Application by International Chemical Engineering AG (1988) 11 IPR 601 in which the Registrar found that the substituted representation did not comply with s 22B(1A). 75 However, perusal of the reasons of the Registrar in that case (at p 603) show that the Registrar was unable to discern a design in the original representation and, ergo, the substituted representation in disclosing a design varied from the original representation in a fundamental respect. 76 The appellant has not shown that the learned Commissioner erred in law in failing to find that the registration of the Registered Design was invalid and that ground of the appeal also must fail.
orders 77 According to the foregoing reasons it will be ordered that the appeal and cross-appeal be dismissed and that the appellant pay the costs of the appeal and cross-appeal taxed as one set of costs.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Moore & Nicholson.
Counsel for the Appellant: A H Bowne SC; E McCloskey
Counsel for the Respondent: R J L McCormack; N J Landis
Solicitors for the Respondent: Mallesons Stephen Jaques
Lewis
Hall
(1984) 54 ALR 767
(1973) 130 CLR 461
(1988) 13 IPR 385
(1988) 81 ALR 79
(2002) 118 FCR 417
(2005) 218 ALR 761
(1991) 103 ALR 239
(1990) 19 IPR 435
(1989) 15 IPR 403
(1985) 7 FCR 75
(1988) 11 IPR 601
(2005) 216 ALR 205