R & D Vodusek Pty Ltd (t/a Vodusek Meats) v Evans [2007] VSCA 53

" ... The first year working in building was 'hell'. I had great difficulty holding a nail and I was constantly hitting my finger. Even now, it continues to catch when I go to get into the nail bag. I also have difficulty handling many tools, such as for example a plane, or many other tools which need a tight grip, and I have difficulty in using a chisel. I have limitation in grip ability, and I have to be constantly aware of my finger, and try to protect it or not use it. In winter the problem is much worse because the pain is greater and the disability is greater also. The finger changes colour and becomes painful in winter. I deliberately avoid performing some jobs and in many others I am now much slower, especially while working in a confined area or in putting up sheeting which requires nail bag use, and grabbing the correct nails and inserting my hand into the nail bag. I still have to ensure that my finger is out of the way when nailing, and this slows me down very considerably.

Apart from the great difficulty I have in carrying out my employment and being unable to continue in employment as a slaughterman or meat worker, I have many other difficulties inflicted upon me. For example, I have difficulty doing up buttons and in the performance of many household and recreational activities which require gripping on my part. Even, for example, gripping the dishes to dry them is difficult. Further, I was coaching the Katunga Fourths last year in AFL Football, but I had considerable difficulty in that I could not grab the football or mark it. It used to hit my finger first, which caused me enormous pain. Building my house has been made more difficult, and I have been much slower and have been unable to complete it, whereas by now I would have completed it. Playing with my children and playing sport with them at home is more difficult, especially football and cricket, or in the performance of any other activity, sport or recreation, which requires a two-handed grip."

In his second affidavit, sworn on 1 August 2006, the respondent swore that he continued to have difficulty in positioning his hand in tight or confined spaces, for example between walls, and that he tried not to use his left hand when working and had become much more reliant on his right hand. He stated that he was presently engaged in training an under-17 football team, but that he continued to suffer pain in the finger and was very restricted in ball handling, especially marking. He said, too, that his finger remained bad and was curling, and that the pain was constant and was a daily source of irritation, inconvenience and disability, especially as he went about his employment, attempting to continue to earn income in the building industry.

6 Much of the respondent's evidence was not in dispute. The experts on both sides were substantially agreed about the nature of the injury and the respondent's prognosis. But the effects of the injury on the respondent were in issue. The appellant's case below, as now, was that the effects were not as grave in terms of either pain and suffering or loss of earning capacity as the respondent alleged.

7 The bulk of the hearing below was devoted to the appellant's cross-examination. In evidence-in-chief, the respondent simply adopted the contents of his two affidavits as true and correct. Then, in cross-examination, he was asked these questions, to which he gave the following answers:

"Question: In your first affidavit, ... you say you were coaching the Katunga Fourths in 2004?

Answer: I wasn't coaching, I was assistant coach.

Question: You were assistant coach in '04, what about last year?

Answer: I was team manager.

Question: And this year?

Answer: I'm a team manager and assistant coach when he's not there.

Question: You say in your affidavit that you were coaching the Katunga Fourths in 2005, but you had considerable difficulty in that you couldn't grab the football or mark it?

Answer: That's - that is correct.

Question: Is that the situation now?

Answer: Yes, it is.

Question: Your Honour, I'd like to show Mr Evans some film."

The respondent was next shown two sections of video tape recording totalling approximately 15 minutes which had been extracted from a longer video tape of about two-and-a-half hours duration. In the first section, the respondent was seen to be engaged in kick-to-kick coaching activities and in the course of those activities on one occasion to mark the football and then to kick it back in the direction from which it had come. In the second section, the respondent was shown to use his left hand to reach up to some spouting in order to take out a key which apparently was kept there for safe keeping. The respondent was then asked these questions about the film, to which he gave the following answers:

"Question: Is that you marking the ball there?

Answer: Yes, it is.

...

Question: How frequently do you have - do you go to training?

Answer: Every Tuesday and every Thursday night.

Question: And what time does training usually start and finish?

Answer: Half past five to quarter to seven.

Question: And would this be a standard sort of kicking drill where you have goal kicking practice for?

Answer: That's only for the first team. It's every - and I step out of it."

And then with respect to the second section of the video, there was this:

"Question: What are you doing there, Mr Evans?

Answer: That is where the key is hidden.

Question: Key to get in the room, was it? Is that right?

Answer: Yes.

Question: It's in the guttering?

Answer: Yes.

Question: I tender that, Your Honour."

8 There followed a discussion between the judge and counsel on both sides as to the relevance of the film, in the course of which there was this exchange:

"His Honour: Yes, it's all about the mark and the ---

Counsel for the appellant: No, just really I was asking for an explanation, Your Honour, about that but it was really the mark, that's the main - - -

His Honour: Yes, all right.

Counsel for the respondent: One mark, Your Honour, as I saw it.

His Honour: Yes.

Counsel for the respondent: One mark.

Counsel for the appellant: It's a matter for Your Honour if ---

His Honour: It's - I mean, yes. You have a bit of trouble marking now compared to before you said in your affidavit, is that right?

The respondent answered: Yes, that's right.

His Honour: Yes. The ---

Counsel for the appellant: Your Honour, if I could put what he did say in his affidavit was that that he can't grab the football or mark it and that's the reason that the film has been shown to Mr Evans.

His Honour: Yes, I mean, I'll look at it again but it was marked. I mean - it wasn't - it wasn't Carey or Batten like I ---

Counsel for the appellant: I said Your Honour it wasn't the usual video - footage to be used in here."

Finally, the respondent was asked these questions concerning football and other activities, to which he gave the following answers:

"Counsel for the appellant: Is the situation with football, as it was with other activities, that you still do them but you have occasional difficulty doing things?

Answer: I only do it because my son's right into football. And I just get involved with it to help them out.

Counsel for the appellant: What I'm putting to you is that as far as your finger's concerned, you still do all the things that you used to do, but you might do them a little bit differently?

Answer: I do them a lot different. As I said, you've got me doing one mark - but how many marks did you see me miss, because my finger's hit and it's gone. None of that's on the video."

9 Based on the respondent's cross-examination, counsel for the appellant submitted in final address that although the respondent has "obviously got a problem with his finger", it was not such as to restrict his ability to work full hours as a builder's labourer. To that the judge responded that he had some doubts about "whether the problem with the finger" did restrict the respondent's ability to work as a builder's labourer, but that otherwise the respondent did not strike him as "an untruthful man". That led finally to a further exchange between counsel and the judge, as follows:

"Counsel: And just in that context also, and obviously the film's a matter for Your Honour, but on the face of it, he can't mark the [ball]. That's what he says in his affidavit. He talks about enormous pain. He can't mark or grab it. Well, again, if you just read that you'd think he goes along to coaching and just stands around and talks to the boys and tells them what to do. That he actually isn't involved in anything. Now, it wasn't vigorous activity, but it's - sustained kick-to-kick ...

His Honour: I should imagine with a finger like that you'd have trouble marking the ball.

Counsel: Well, it's a matter for you, Your Honour, when you have a look at - - -

His Honour: He took the mark - that's right, yes. I mean that doesn't affect - that doesn't potentially affect my view of his - of his credibility - it's - - -

His Honour: I'm in two minds about that. The other matter seems to be more important. I mean, if he - if it's only - if it's availability that affects the amount of work he does, not his ability to do it, Barwon Spinners tells me what to do, but he says it is capacity. Now, do I disbelieve him or believe him?"

10 In his reasons for judgment, the judge said that he had considered "all of the evidence" and that "it included (1) the plaintiff's affidavits, (2) his oral evidence including cross-examination, (3) the medical reports tendered by the parties, (4) taxation and other financial documents and summaries related to earning capacity." But his Honour did not refer specifically to the video tape or to the cross-examination on the video tape, or to counsel's submissions as to the effect of the video tape and cross-examination.

11 In this appeal, the appellant's principal attack is therefore upon the judge's failure to deal specifically with the video tape and the video tape cross-examination. Counsel who now appear for the appellant contend that the contents of the video tape precisely address the proportion of the evidence on which the respondent relied to satisfy the requisite statutory tests, and accordingly that the judge was bound to evaluate it for the purposes of making his assessment. In counsel's submission, the judge was guilty of specific error in failing to have regard to that evidence. Further, or alternatively, they contend that the judge's failure to refer to that evidence, and to deal with it, amounted to a failure adequately to explain his Honour's reasoning process, which, having due regard to all the circumstances of the case, in itself constituted an error of law.

12 In my view, there is force in the appellant's contentions. I accept that the judge's failure to refer specifically to the video tape and to the video tape cross-examination was exceptionable. In my view, it was not enough for the judge simply to list in summary form the evidence to which he had regard. The evidence needed to be adumbrated and it needed to be analysed. As this Court has said repeatedly,[1] when a judge is called upon to decide a serious injury application, the judge is bound to give reasons, and the reasons should ordinarily deal with the substantial points which have been raised, make findings of fact on material questions of fact, refer to the evidence or other material upon which those findings are based, and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. As has also been stated repeatedly, the requirement to refer to the evidence is not satisfied by simply listing the evidence to which the judge has had regard, and the requirement to refer to the evidence is not limited to the evidence which has been accepted or acted upon. Accordingly, where a judge rejects or excludes evidence from consideration, which is relevant and cogent, it is ordinarily not possible to give a fair and sensible set of reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, whilst it is not incumbent on a judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is ordinarily necessary for the judge to refer to and assign reasons for the rejection of the argument or the resolution of the issue. In this case, in my view, the video tape evidence and the effect of the cross-examination were sufficiently important to warrant that treatment.

13 It may be that the judge was not greatly assisted by the manner in which the appellant's case was presented. I have referred already to the content of the final address, and it will be recalled that counsel for the appellant made no more precisely defined submission on the effect of the tape and cross-examination than that it was a matter for the judge. With respect, I should have thought that such a submission was not particularly helpful.

14 Generally speaking, if counsel contends that a piece of evidence is important, it is incumbent on counsel to submit clearly that it is important, and he or she should explain in submission clearly why it is submitted to be important. If the matter is said to go only to credit, counsel should say that it goes only to credit, and he or she should explain why and how it is said to affect credit. If something is said to be probative of a fact in issue, counsel should submit clearly that it is contended to be probative of a fact in issue and explain to the judge why it is said to have that effect. And if something is said to bear on both credit and on fact in issue, counsel should make clear that it is contended to have both of those effects and explain why it is so contended. To say no more than that the effect of something is a matter for the judge is unlikely to accomplish either of those objectives. It tends to leave the judge at large.

15 But all that having been said, in my view the judge in this case should have appreciated that the video tape was sufficiently important to warrant specific attention. In truth, it comprised substantially all of the subject matter of cross-examination and all of the substance of the appellant's final address, and as such it called out for an explanation as to how it did or why it did not affect the judge's conclusion. The absence of such an explanation in my view entailed appellable error.

16 It is agreed on all hands that the case turned so much on the assessment of credit and credibility that it is not practicable for this Court to decide the application itself under s 134AD of the Act.

17 In the result, I would allow the application for leave to appeal, treat the appeal as instituted and heard instanter, set aside the judgment below and remit the matter to the court below for re-determination according to law.

18 I invite Neave JA to state next her reasons for judgment.

19 I gratefully refer to the statement of facts set out in Nettle, J.A.'s reasons.

20 In his reasons for judgment the learned judge below referred to the evidence he had considered, including the plaintiff's affidavits, his oral evidence including cross-examination, and the medical reports and opinions tendered by the parties. His Honour summarised the state of the respondent's finger as follows:

"...medical treatment has not greatly improved function of the finger. For example, most recent surgery addressed the problem of it sticking out, however, it presently remains in a curled position, still sticking out to a significant extent. In evidence before me, the plaintiff stated that it is getting worse. Amputation is a possible consequence."

21 The learned judge referred to the respondent's evidence in his affidavit of 17 February 2005 that he had lost dexterity as a result of the injury, that he suffered from considerable pain and that because his little finger stuck out it was difficult for him to handle tools. The respondent also deposed that he now had to work more slowly, particularly when he was in a confined area or when he was removing nails from a nail bag and hammering them in. His Honour said that he accepted Mr Evans's evidence on most things, including his description of past and present symptoms, and that there was no significant disagreement in the medical evidence. He held that the plaintiff had satisfied the test for a serious injury in terms of its pain and suffering consequences.

22 It was submitted on behalf of the appellant that his Honour's failure to analyse or explain how he had taken account of the evidence contained in the video of Mr Evans activities amounted to a specific error. The appellant's written outline of argument also contended that his Honour had erred in law because his reasons for decision were inadequate.

23 This makes it necessary to refer to the respondent's evidence in some detail. I have already referred to the evidence in Mr Evans's first affidavit, sworn on 17 February 2005. In addition to saying that he had difficulties in employment and household activities which required him to grip firmly, he deposed in that affidavit that:

"I was coaching Katunga Fourths last year in AFL football, but I had considerable difficulty in that I could not grab the football or mark it. It used to hit my finger first, which caused me enormous pain. Playing with my children and playing sport with them at home is more difficult, especially football and cricket, or in the performance of any other activity, sport or recreation which requires a two-handed grip."

24 In his second affidavit, sworn on 1 August 2006, shortly before the hearing, the respondent said that:

"I am presently engaged in training an under-17 football team but I am very restricted in ball handing [sic] especially marking. To do so causes pain. Further, I believe my finger may have curled slightly more in the last 18 months and I am seriously considering the option of having it amputated. I have also found that the pain has extended into my forearm and this is continuing... The finger remains bad, it is curled, and the pain and ache in the finger is constant. It also protrudes. It is a constant daily source of pain, irritation, inconvenience and disability..."

25 In the proceedings below, a video film of Mr Evan's activities lasting two hours and twenty three minutes was admitted in evidence. Approximately 15 minutes of the video were shown while the respondent was being cross-examined. In the first section of the video, which lasted for about eleven minutes, Mr Evans was seen coaching footballers. In one incident he marked the ball using both his hands. In the second portion of the video, which lasted about four minutes, he was shown at football training reaching up to retrieve a key to a gymnasium from some guttering. He appeared to do so with his left hand.

26 Before the video was shown, counsel for Vodusek cross-examined Mr Evans as follows:

"Question: You say in your affidavit that you were coaching the Katunga Fourths in 2005, but you had considerable difficulty in that you couldn't grab the football or mark it?-

Answer: That's - that is correct.

Question: Is that the situation now?

Answer: Yes it is. ...

Question: And is that you marking the ball and kicking it?

Answer: Probably, yes..."

27 The video was played and the cross-examination continued.

"Question: Is that you marking the ball there?

Answer: Yes it is.

Question: And its hard to see there because of the car there, but are you just doing kick to kick with the young blokes who are in the team?

Answer: They'll be trained to kick through goal , yes. ..."

His Honour: Yes, but was it kicked to you when you marked it or was it handballed or thrown?

Answer: It would have been ...

His Honour: Can you say?

Answer: It would have been kicked I 'd imagine."

28 Mr Forrest, who appeared for the appellant, contended that Vodusek's counsel had drawn his Honour's attention to the importance of the video to the respondent's case. Counsel had referred to Mr Evans' statement in his affidavit that "He can't grab the football or mark it, and that's the reason that the film has been shown to Mr Evans". It was submitted that his Honour had erred by failing to refer to the video evidence in his reasons, because the inconsistencies between the video evidence and the evidence adduced on behalf of the appellant were central both to the credibility of the appellant and to the extent of the appellant's impairment.

29 Mr Forrest drew attention to his Honour's statement in discussion with counsel that his Honour was "in two minds" about the respondent's credibility. He submitted that this underlined the necessity for the learned judge below to explain how he had taken account of the video in assessing the appellant's credibility.

30 Mr Gorton, who appeared for Mr Evans, submitted that the video was of peripheral relevance to the respondent's case. The respondent's claim to have suffered serious injury was supported by the medical evidence, including the medical report of the appellant's expert witness, Mr Behan. Mr Gorton contended that the video had little impact on the respondent's credibility. The respondent had not claimed that he could not play football. In both his affidavits he had said that he was involved in training football teams. In his first affidavit he had not denied that he could mark a football, but had said that it caused him difficulty and pain. He had made a similar statement in his second affidavit, in which he had also said that the condition of his finger had deteriorated since the first affidavit was sworn.

31 Mr Gorton referred to the following question and answer in cross-examination:

"Question: ... as far as your finger's concerned, you still do all the things that you used to do, but you might do them a little bit differently?

Answer: I do them a lot different. You've got me doing one mark, but how many marks did you see me miss, because my finger's hit and it's gone. None of that's on the video."

32 When Mr Evans was re-examined by his counsel about what he meant by saying he did things a lot differently because of the finger, he had said that:

"Well, you've got to - you've got to think about how you're going to go round different tasks now. Beforehand you could just grab it, it was just natural. Now you've got to think about how to grab things properly, what you're going to grab. You've got to think twice now before you do it."

33 Mr Gorton submitted that the respondent had not claimed that he was incapable of training a football team, and that it was fanciful to suggest that the video had had any serious impact on his credibility. Further, both his Honour's discussion with counsel and his reasons for judgment showed that he had taken account of the video evidence. The manner in which the learned judge below dealt with the video evidence simply reflected the way in which the case had been conducted below.

Conclusion

34 In order to obtain leave to bring an action for common law damages for pain and suffering, the respondent must show that his injury was serious within the definition in the Accident Compensation Act 1985 ("the Act"). Section 134AB(37)(a) of the Act defines a serious injury as a permanent serious impairment or loss of a body function. It was not disputed that the respondent's injury was permanent. Under the "narrative test" for serious injury in s.134AB(38)(c), an injury is not to be held to be serious unless the pain and suffering consequence or the loss of earning capacity consequence is:

"when judged by comparison with other cases in the range of possible impairments or losses of a body function,... fairly described as being more than significant or marked, and as being at least very considerable."

35 Although s 134AD of the Act makes it unnecessary for the appellant to identify any specific error made by the judge below, the onus is on the appellant to persuade this Court that the decision below was wrong and should be reversed or at least set aside.[2] As was held in the Barwon Spinners Case:

"If a finding of fact is attacked, it is for the appellant, as the attacker, to carry the burden of persuasion..." [3]

36 In my opinion, the appellant has not satisfied the onus of showing that the decision below was wrong. As the learned judge below acknowledged, there was no real dispute in the medical evidence which supported the respondent's claim to have suffered serious injury. In particular, Mr Behan, who examined Mr Evans on behalf of Vodusek, reported that:

"4. The patient has an ongoing incapacity in relation to ulnar power grip and forearm pain....

5. The patient is not having any treatment at present and is taking analgesics for pain relief as the need arises...

6. I am not aware of any current treatment or of any future rehabilitation options.

7. I would consider the patient to have reached optimum recovery after his final operation with Mr Philip Slattery. I regard his current condition as stable and would not anticipate any further improvement after this length of time.

9. I note the issue of disfigurement, but certainly it would be important to overcome the restrictions of hand function, as the patient has dysfunction of the median nerve area of the left forearm and deficient ulnar power grip, with a left little finger which gets in the way. There is certainly protrusion of the digit and the left little finger crooks up when making a full fist.

10. The patient indicated that he would consider the possibility of amputation. I feel this would reduce the ulnar power grip more, and unless this was an absolute necessity from the functional point of view, it would be wise to keep the tendon functioning and the hand and little finger intact, even with a joint arthrodesis in a position of function."

Mr Behan also said that he considered the respondent's flexion deformity would be aggravated and worsen over time.

37 I agree that it would have been preferable for his Honour to have analysed the video evidence in his reasons, rather than simply referring in a general way to the evidence before him. In my opinion, however, the learned judge did not err by failing to make specific reference to the video evidence. I take this view for six reasons.

38 First, as I have already said, the medical evidence provided strong support for Mr Evans claim as to the condition of his finger.

39 Secondly, although his Honour did not explicitly refer to the video in his reasons, he did say that he had considered the respondent's oral evidence, including his answers in cross-examination.

40 Thirdly, it is necessary to take account of the nature of the video evidence, which was viewed by this Court in the course of hearing the appeal. The single shot of the respondent marking the football was taken some distance away. This made it difficult to assess the speed or angle of the ball when the respondent marked it or to see how he reacted when the ball hit his left hand. In another part of the video showing him in the goal square, he was holding the ball in his right hand, providing some support for his evidence that it was difficult to use the left hand. The film of the respondent retrieving the key was difficult to decipher and respondent's counsel made nothing of this incident in cross-examination or in her closing address.

41 In my view the material shown in the video was not clearly inconsistent with the respondent's evidence that, although he could participate in football training, it was difficult for him to grab or mark a football. For these reasons I do not think his Honour erred by failing to mention the video, though as I have said, it would clearly have been preferable for him to have done so.

42 Fourthly, as both Warren CJ and Nettle JA discuss in their reasons, the final submissions of counsel for Vodusek in the hearing below did not suggest that the video was critical or pivotal to the defendant's case. Further, when his Honour said in discussion that "Mr Evans did not seem to me to be an untruthful man but it's difficult" and that "there would be difficulty marking a ball with a finger like that", counsel said, "Well, it's a matter for you, Your Honour."

43 I also note that counsel did not respond directly to his Honour's comment that "He took the mark, that's right, yes. I mean, that doesn't affect - that doesn't potentially affect my view of his credibility."

44 Fifthly, I agree with Mr Gorton's submission that his Honour's comment in discussion with counsel that he was "in two minds about credibility" must be read in the context in which it was made. The context shows that it related mainly, if not entirely, to the respondent's evidence on the loss of earning capacity claim, rather than his claim for leave to seek damages for pain and suffering. His Honour's statement was immediately preceded by counsel's submission that Mr Evans could do building work, albeit with some difficulty. It was followed by his Honour's

comments about the respondent's capacity for work.

45 Finally, as this Court said in the Barwon Spinners Case,[4] we must give weight to the advantages of the trial judge, who has had the benefit of hearing and seeing the witnesses. His Honour said that he accepted the plaintiff's evidence on most things, including his descriptions of past and present symptoms and the consequences they have for his general and working life.

46 Further, the learned judge viewed the respondent's hand and found that the difficulties described by the respondent were easily understood and not surprising. He said the respondent's descriptions of his difficulties with grip, dexterity and vulnerability to minor accident and pain were persuasive. Although it would be preferable for his Honour to have referred to the video, I am not satisfied that he erred by failing to do so.

47 The appellant was given leave to add an additional ground of appeal submitting that the reasons for decision were inadequate because of failure to refer to the video evidence. The conclusion that I have reached on the main ground of appeal also disposes of this contention.

48 For these reasons, I would refuse the application.

49 I have had the considerable benefit of considering the reasons for judgment in draft form of Nettle JA and Neave JA. For the reasons stated by their Honours, the video evidence dominated the presentation of the case in the County Court. The cross-examination of the respondent below was taken up almost entirely with the actions of the respondent on the video. Unfortunately, the final submissions of counsel for the appellant below failed to emphasise that the actions on the video were critical to the appellant's case. Rather, the assessment of the actions recorded on the video, in particular the taking of the mark and the reaching up to the spouting to retrieve the key, were left, I might say quite unhelpfully, to the judge, with the

comment: "It is a matter for you, Your Honour."

50 Notwithstanding such inadequacy on the part of the appellant's case below, it has repeatedly been stated by this Court that there are basic standards required to be met in reasoned judgments in these matters. For the reasons stated by Nettle JA, those standards were not met in this case and therefore appellable error has been made out. As the case is one that appears to turn on the credit of the respondent, I would not determine the matter as contemplated in s 134AD of the Accident Compensation Act 1985. That being so, and notwithstanding the observations of Phillips JA in Barwon Spinners[5] as to the weight to be attached to the findings of fact of the judge at first instance, I am not persuaded that the application of the civil proviso is appropriate.

51 For these reasons, and for the reasons expressed by Nettle JA, I would grant the application, allow the appeal and order that the matter be remitted for re-hearing.

52 The orders of the Court are as follows:

1. Leave is granted to the appellant to file and serve an amended notice of appeal (to include new ground 6) by 4 p.m. on 4 April 2007.

2. Leave to appeal is granted.

3. The appeal is treated as heard instanter and allowed and the judgment below is set aside.

4. The proceeding is remitted for re-hearing in accordance with law in the County Court by a judge other than the judge at first instance.

5. The respondent pay the appellant's costs of the appeal.

6. The costs of the hearing below be reserved to the judge on the re-hearing of the proceeding.

A certificate under the Appeal Costs Act 1998 is granted to the respondent.

[1] Shock Records Pty Ltd v Jones (2006) VSCA 180 at [84]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [35]- [38]; cf Conroy's Smallgoods Pty Ltd v Channel Seven Adelaide Pty Ltd [2007] SASC at [362]; Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117; (2006) 70 IPR 1 at [45].

[2] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 at [45].

[3] Ibid.

[4] Ibid.

[5] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.