Designs Act 1906, ss. 4, 17, 18, 20, 21, 25, 27A, 30, 32B, 33 and 49.

The appellants pay to the respondents their costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a judgment of a Judge of this Court (Northrop J.) in which his Honour dismissed an application for injunctive and other relief brought by the appellants against the respondents in respect of an alleged infringement of a design of which the first appellant is registered as owner. The design was registered on 7 May 1987 in respect of "A Pressure Sprayer". The certificate of registration includes a statement of monopoly which says, "Monopoly is claimed in the shape and configuration of A PRESSURE SPRAY WASHER and the like as shown in the representations". There was no statement of novelty. The application for registration of the design was lodged on 17 September 1985. The term of the initial registration was one year commencing on 7 May 1987; see, however, the provisions of s. 27A of the Designs Act 1906 ("the Act") which provides for extensions of the term. The design has a convention priority date of 21 March 1985 allowed under s. 49 of the Act.

2. The representations referred to in the statement of monopoly consist of a series of diagrammatic perspectives of the spray washer. These are appended as Appendix A hereto.

3. It was explained in evidence that the purpose of the spray washer is to enable it to spray a mixture of water and soap or detergent solution in an appropriate concentration. It can be used for cleaning down walls and windows, for washing motor vehicles and for other like purposes. A standard hose fitting is attached to the aperture at the rear of the washer. The round cylinder or drum like portion of the washer is filled with soap or detergent solution. When the hose is turned on water passes through the barrel or wand of the washer and sucks an appropriate quantity of the soap or detergent solution from the drum with the consequence that there is sprayed on to the object which is to be cleaned a satisfactory mixture of water and soap or detergent at substantial pressure. There is a lever on the spray washer which enables the user to close a valve and thus prevent detergent from being sucked from the drum. The spray washer then sprays water only thus enabling all traces of soap or detergent to be removed from the article which is being cleaned.

4. The evidence disclosed that spray washers of this kind have been manufactured for many years. However, the earlier ones did not have a reservoir of soap or detergent solution in a drum fitted in the way that the appellants' design is constructed. The earlier models had a container or reservoir of solution appended beneath the spray. A rubber or plastic tube led from the reservoir to the spray. As the water passed over the aperture the solution would be sucked into it with similar results as occurs in relation to the appellants' device.

5. It is the appellants' case that the essential feature of the design is the placing of the drum in relation to the barrel or wand in the way shown in the diagrams. It should be noted, however, that there are other features of the design. There are the shape of the drum, the shape of the barrel or wand, the suggestion that the barrel or wand is extendable because of the reference to it being telescoped in some of the diagrams, and there are the position and shape of a number of protrusions including the solution inlet, the filler cap and the operating lever.

6. The washer which the respondents wished to market is depicted in the diagrams which are appended to these reasons and marked Appendix B. The respondents' washer, like that for which the first appellant has the registered design, has a barrel which is part of the drum or reservoir in which the soap or detergent solution is stored. A substantial difference between it and the appellants' washer is the pistol grip shown in the diagrams and the fact that the water inlet is at the base of the pistol grip rather than at the back of the washer as is the case with the appellants' design. There are other differences of a less significant kind. The fact that the water inlet is at the base of the pistol grip means that there are less fittings on the rear of its reservoir. The equivalent fittings are at the base of the pistol grip. The dial which enables a user to choose whether to have a soap solution or plain water is differently placed, the appellants' being on top of the water inlet and the respondents' being at the back of the reservoir. The shapes of the two dials are also different. There are similarities at the front of each reservoir, although that of the appellants has flanges and other protrusions on it. Each washer makes provision for alternative nozzles to be attached to it. Those on the appellants' design are attached to two lugs on the top of the reservoir; those on the respondents' washer are attached to lugs on the front of the reservoir. There is a difference between the appearance of the two reservoirs caused by the fact that flanges which surround each are differently placed; that on the appellants' design is towards the front of the reservoir, that on the respondents' washer is towards the back of it.

7. In passing it may be noted that each design uses a different method of causing the soap solution to be mixed with the water passing through the barrel. Nothing turns on this; no question of any infringement of patent arises.

8. The relevant provisions of the Act are to be found in ss. 4, which is a definition section, 17, 18, 20, 21, 25, 27A, 30, 32B, 33 and 49. The relevant definitions in s. 4 are of "design", "monopoly", "statement of monopoly" and "statement of novelty". These definitions are as follows:-

"'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;

.................................................

'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;

.................................................

'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;

'statement of novelty', in relation to a design,

means a statement relating to the

representations of an article to which the

design is applied that indicates those features

of the representations in respect of which

novelty or originality is claimed."

9. Section 17 of the Act, so far as relevant, is as follows:-

"17.(1) Subject to this Act, a design shall

not be registered unless it is a new or

original design and, in particular, shall

not be registered in respect of an article if

the design-

(a) differs only in immaterial details or in

features commonly used in the relevant

trade from a design that, before the

priority date in respect of the

application for registration, was

registered, published or used in

Australia in respect of the same

article; or

(b) is an obvious adaptation of a design

that, before the priority date in

respect of the application for

registration, was registered, published

or used in Australia in respect of any

other article."

"18. An application for registration of a

design shall not be refused, and a registered

design is not invalid, by reason only that

the design consists of, or includes, features

of shape or configuration that serve, or

serve only, a functional purpose."

11. Subsection 20(5) of the Act provides that, upon lodgment of an application for registration of a design, the Registrar may request the applicant to furnish a statement of novelty in respect of the design to which the application relates and also, in the circumstances mentioned, a statement of monopoly. It will be recalled that the appellants' design was not accompanied by any statement of novelty; no such statement was requested by the Registrar.

12. Section 21 of the Act provides for the priority date. Subject to the Act, the priority date in respect of an application for registration of a design is the date on which the application was lodged under the Act. Section 21 should be read in conjunction with s. 49 which provides for situations where what is described as the basic application has been made in a convention country. In such cases, subject to the conditions which are provided for in the section, the priority date in respectof the application is the date of the making of the basic application.

13. Section 25 of the Act provides that, subject to s. 25A, the owner of a registered design has a monopoly in that design. It is unnecessary to refer to s. 25A.

14. Section 27A of the Act provides for the period during which registration is in force. Subsection (1) is as follows:-

"27A. (1) The registration of a design shall

be deemed to have come into force on the date

on which the application for registration of

the design was lodged under this Act and,

subject to this Act, shall cease to be in

force on the expiration of a period of 12

months commencing on the date on which the

registration was made in the register."

The later subsections of s.27A provide for the manner in which extensions of the period referred to in subsec. (1) may be obtained.

15. Section 30 of the Act is in Part V of the Act which is entitled, "Infringement of Monopoly in Designs". The section is as follows:-

"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) imports into Australia for sale, or for

use for the purposes of any trade or

business, any article in respect of

which the design is registered and to

which the design or any fraudulent or

obvious imitation of it has been applied

outside Australia without the licence or

authority of the person who was the

owner of the registered design at the

time when the design or imitation was so

applied;

(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) in respect of which the

design is registered and to

which the design or any

fraudulent or obvious

imitation of it has been

applied outside Australia

without the lience or

authority of the person who

was the owner of the

registered design at the time

when the design or imitation

was so applied.

(2) If any person infringes the

monopoly in a registered design, the owner of

the design may bring an action or proceeding

against him for infringement of the monopoly

in the design."

The paragraph of subsec. 30(1) upon which the appellants have sued is para. (b).

16. Section 32B of the Act, which is also in Part V, provides for remedies for infringement. The Court has a discretion to refuse to award damages or to make an order for an account of profits if the defendant satisfies the Court that, at the time of the infringement, he was not aware that the design was registered and that he had, prior to that time, taken all reasonable steps to ascertain whether a monopoly in the design existed.

17. Part VI of the Act provides for the Register of Designs. Section 33 provides that there shall be kept at the Designs Office a Register of Designs wherein shall be entered particulars of registered designs, the names and addresses of their owners and the date of registration and expiry thereof.

18. It should be mentioned that the Act was extensively amended in 1981 by the Designs Amendment Act 1981. The amendments occurred as a consequence of a report by the Designs Law Review Committee (the Franki Committee) on the law relating to designs published in 1973. It does not appear that the amendments then made have substantial consequences for this case, but many of the authorities referred to in argument were decided in relation to the Act as it was before the 1981 amendments were made. Until the amendments, the Act contained Part III which was entitled, "Copyright in Designs". Section 12 provided that copyright in a design meant the exclusive right to apply the design to the articles in respect of which it was registered and that copyright was to subsist in every design registered under the Act. Since the amendments the notion of there being copyright in a design has disappeared from the Act. This concept has been replaced by the concept of monopoly in the design which is provided for in s.25.

19. In a case which involves an allegation of the infringement of a design one must have firmly in mind what the nature of a design is. The editors of Intellectual Property in Australia (Lahore, Dwyer, Garnsey and Dufty) say (Vol. 1, para. 2.1.002, p 1511) that the protection of designs used in the manufacture in quantity of articles which may be said to come within the category of applied art or in the mass production of functional and utilitarian articles, has been an especially complex and obscure area of intellectual property law. They refer to Mangraviti v. Vardi (1976) 2 NSWLR 225 where Wootten J. emphasized that the Designs Act is concerned, not with ideas or inventions, but with design, that is, features of ornamentation, or pattern, or shape, or configuration, which may be applied to an article and which give it individuality to the eye. He referred to the decision of the High Court in Malleys v. J.W. Tomlin Pty. Limited [1961] HCA 77; (1961) 35 ALJR 352 and went on to say that the plaintiff's registration, being based on shape and configuration, the plaintiff could not acquire a monopoly of a method of construction, or of the use of a particular material, or of a method of achieving an end, which permit differences of shape. The only monopoly he could acquire was for the particular appearance represented by the drawings.

20. Wootten J., was, of course, dealing with a case when the Act was in its earlier form. In this respect it may be observed that ss. 17 and 18 were not then part of the Act. Some reliance was placed upon these provisions by counsel for the appellants, but we are of opinion that they do not affect the substance of what Wootten J. said.

21. In Malley's case the High Court said (pp 352-3):-

"It is, of course, true that every shape is

not a design; there must be 'sufficient

individuality of appearance' to distinguish

it from what Russell-Clarke in Ch. 2 of his

book Copyright in Industrial Designs aptly

describes as 'the fundamental form' of an

article. Furthermore, the existence of that

sort of individuality is to be determined by

the eye and not by measuring dimensions. It

follows that a design need not have the

precision of a working drawing; it concerns

the shape or configuration of an article, as

it appears to the eye. If a design applied

by another has the features that are

characteristic of the registered design and

are so arranged that to the eye the resulting

shape is substantially the same, there is

infringement, whereas if the same features

are arranged so that to the eye the resulting

shape is different, there is, in the absence

of fraudulent imitation, no infringement. In

deciding one way or the other the proportions

of common features may be of the utmost

importance, but acceptance of this does not

involve deciding that to be registrable the

representation of the design must be

represented so that its proportions can be

accurately calculated; it is sufficient if it

shows a shape with enough individuality of

appearance to distinguish it and to enable it

to be determined by visual comparison whether

the shape of an article is either the same

as, or nothing more than an imitation of,

that disclosed by the registered design."

We refer also to Firmagroup Australia Pty. Limited v. Byrne & Davidson Doors (Vic.) Pty. Limited (1987) 61 ALJR 495 at pp 496-7; (1987) 73 ALR 321 at pp 323-4.

22. The questions which are in issue in this appeal are whether his Honour was correct in finding that the respondents' article was not an infringement of the appellants' monopoly because it was neither a fraudulent nor an obvious imitation of it. In the context of this case, which involved the importation of the respondents' article into Australia, what the appellants had to show was that the respondents had imported into Australia for sale, or for use for the purposes of any trade or business, an article in respect of which the design was registered and to which the design or any fraudulent or obvious imitation of it had been applied outside Australia without the licence or authority of the appellants at the time when the design or imitation was so applied; see para. 30(1)(b) of the Act above quoted. There is here no issue about the registration of the design nor about any licence or authority granted to the manufacturer of the respondents' article which was manufactured in Taiwan and came to Australia from that country. No such licence or authority was granted.

23. His Honour found that the respondents' design constituted a major development in the design of spray washers. He said:-

"The material before the Court shows that the

concept of design with respect to sprayers

whether of a washer or for other functions,

operated by a high pressure liquid force is

not novel. The idea of a reservoir

containing a liquid which can be mixed with

another liquid and expelled in a spray by the

application of a fluid at pressure to part of

the reservoir containing the active

ingredient is not new, but in the past the

reservoir containing the active ingredient

normally has been in the shape of a jar at

right angles to the fitting supplying the

fluid at pressure. The overall effect of the

design of such devices has been of a bulbous

shape extending below the hose like fitting

above that shape. The Registered Design has

created a new or novel shape in which the

reservoir is extended along the line of the

hose like fitting and appears as a barrel on

that fitting and not as a jar hanging from

that fitting. This, in my opinion, is a

major development in the concept of shape and

configuration and differences between the

Registered Design and the Taiwanese device

must be judged accordingly.

It is essentially the shape of the barrel in

conjunction with the wand and the inlet

fitting which gives the Turbo Tek device its

striking appearance."

24. In the submission of counsel for the appellants, the essence of the appellants' design is to be found in the appearance and proportion of the cylindrical barrel (which we have called the drum), the position, proportion and appearance of the extendable wand and the eccentric mounting of the wand on the drum. By eccentric mounting counsel means the fact that the wand does not pass through the centre of the drum or reservoir, but rather through the top portion of it.

25. Counsel for the appellants conceded the difficulty he faced in making out a case based on obvious imitation. Indeed, he initially said that grounds of appeal designed to challenge his Honour's conclusion that there was no obvious imitation were abandoned. However, he withdrew this concession when he learned that counsel for the respondents proposed to contend that the conclusions of Northrop J. that it was not necessary, in order to enable the appellants to establish fraud, that the Taiwanese manufacturer knew of the existence of the registered design and that it was irrelevant that it had not seen the representations contained in the certificate of registration, were erroneous. In counsel's submission, there was no evidence which would have supported findings that the Taiwanese manufacturer knew of the existence of the design or of the representations.

26. It is common ground that the evidence established that the Taiwanese manufacturer had available to it an article manufactured by the appellants, or one of their associated companies, in accordance with the design drawings. We shall say more of this evidence in due course.

27. We permitted counsel for the respondents to file a notice of contention. If the matters raised in the notice are correct, there could be no finding of fraud or fraudulent imitation with the consequence that counsel for the appellants would be driven to rely on there being an obvious imitation. That is why he withdrew his initial concession. We should mention at this point that one of the problems which confronts the appellants is that there is no satisfactory evidence of when the respondents' articles, that is the articles which had been imported into Australia, were actually manufactured. The importation appears to have occurred in July 1987. It will be remembered that registration of the design occurred on 6 May 1987. In the submission of counsel for the respondents there could be no question of fraudulent imitation in relation to articles manufactured prior to the date of registration. That submission was made notwithstanding the provisions of s.27A of the Act which deems the registration of a design to have come into force on the date on which the application for registration was lodged, in this case, 21 March 1985. This really involves a submission different from that raised by the notice of contention. It involves the question whether there can ever be a fraudulent imitation prior to actual registration, that is, in the period between the priority date and the date of registration. In this case that period is the period from 21 March 1985 to 7 May 1987.

28. Notwithstanding strong submissions made by counsel for the appellants that there was an obvious imitation of the appellants' design, we have reached the clear conclusion that there was not. In this respect we share his Honour's view that a distinctive feature of the shape or configuration of the respondents' washer is the pistol grip and that this differentiates the respondents' washer from washers which are depicted in the appellants' drawings. Like his Honour, we think that the appellants also faced difficulties because of the differences in detail which there are between what we may call the protrusions and the positioning of them on each of the drums. We have described these earlier and we shall not refer to them again. If those had been the only differences, the significance of them may not have been of consequence, but when one takes into account the difference brought about by the existence of the pistol grip forming part of the respondents' washer and also takes into account the other differences, we are unable to conclude that the respondents' article is an obvious imitation of the appellants' design. We confess that one matter which is striking is the similarity in colour of the respondents' washer with embodiments of the appellants' design which are in evidence. The principal parts of each article are black and the ancillary parts, red. But the appellants' design specification does not mention colour. It is based on shape and configuration. It would be as open to the appellants as it would be to the respondents to make embodiments in different colour schemes. If that were done, we think the difference in appearance between the two embodiments would be far more marked than it is. The absence of any mention of colour in the appellants' design registration leads to the conclusion that colour can play no part in the determination of the question. See Lahore (ibid.) at pp 1611-2 and the judgment of Beaumont J. in Dalgety Australia Operations Limited v. F.F. Seeley Nominees Pty. Limited (1986) 64 ALR 421 at p 435; (1986) 6 IPR 361 at p 376. For the reasons we have given we are satisfied that his Honour was correct in rejecting the appellants' case insofar as it was based on obvious imitation.

29. Counsel for the appellants relied on statements in the authorities to the effect that design features that are susceptible of protection by registration are those features which give the design its unique shape and configuration. We refer to the Firmagroup case at pp 496-7 (ALJR); pp 323-4 (ALR) and to L.J. Fisher & Co. Limited v. Fabtile Industries Pty. Limited (1979) O.JP 3611 at pp 3617, 3619, 3620 and 3622. Counsel submitted that the essence of the appellants' registered design was to be found in the appearance and proportion of the cylindrical barrel (the drum), the position, proportion and appearance of the wand and the eccentric mounting of the wand on the barrel. We have earlier referred to this, but not in the context of the particular submission now under consideration. It was counsel's submission that so long as the article said to be an obvious imitation had these features, that was enough to constitute infringement. We do not accept the submission. On the assumption upon which we are presently proceeding, namely, that there is no fraudulent imitation, we find it impossible to conclude that a design of a washer which incorporates a pistol grip is an obvious imitation of one which does not. If that were not the case, the appellants would have a monopoly in respect of all designs of spray washers which used cylindrical reservoirs or drums mounted in conjunction with the wands. The authorities to which we have referred make it clear that design protection is not as extensive as would need to be the case if counsel's submission were correct.

30. The question of fraudulent imitation is more difficult. In order to determine the outcome of that issue, it is first necessary to refer to findings made by his Honour about the question and to some further evidence upon which counsel for the appellants relies. His Honour made findings about fraud which were very much in the appellants' favour.

31. His Honour said that, during the hearing at first instance, counsel for the respondents had admitted on their behalf that the Taiwanese manufacturer, Hung Mei Brush Co. Limited ("Hung Mei"), had access to what is Honour described as the Turbo Tek device (that is, an embodiment of the appellants' design) before it designed the washer imported by the respondents. His Honour said that that admission, of itself, did not constitute an admission that in designing the respondents' washer, Hung Mei had made use of the appellants' design. However, his Honour continued:-

"An inference can be drawn from the

admission, and I so infer, that in designing

the Taiwanese device, the Taiwanese Co.

through its servants and agents, made use of

the Turbo Tek device."

32. His Honour went on to describe the method by which, in each washer, detergent is fed into the water stream for the wash function and the differences in those methods. This was irrelevant, as his Honour said, because the issue is limited to the concept of the shape and configuration of the registered design, being the features of shape or configuration depicted in the representations contained in the certificate of registration, they being, in substance, the words used by the appellants in their statement of monopoly set out in the certificate. His Honour continued:-

"These include the shape and configuration of

each feature of the representation which

together constitute the whole. On the

admission made, I draw the inference that the

Taiwanese Co. made use of some of the design

features of the Turbo Tek device in designing

the shape of the Taiwanese device. This of

itself, however, is not sufficient to support

a finding of fraudulent imitation."

33. His Honour next referred to the evidence of Mr. J.N. Barlow, the International Sales Manager of the first appellant, who recounted conversations he had had with two employees of Hung Mei. There was an objection to this evidence on the ground that it was hearsay. His Honour overruled the objection and admitted the evidence. There was not made to us any submission challenging the correctness of his Honour's conclusion in this respect. Of Mr. Barlow's evidence, his Honour said:-

"In May 1987, Mr. Barlow went to Taipei,

Taiwan, to meet with officers of the

Taiwanese Co. to discuss alleged

infringements by the Taiwanese Co. of Turbo

Tek's rights in relation to the Turbo Tek

device. He met with two officers of the

Taiwanese Co., Mr. T.C. Kao, a director of

the Taiwanese Co. mainly on the manufacturing

side, and Mr. Kang, the Taiwanese Co.'s

marketing director. A Mr. Winkler, of the

Taiwanese International Patent and Law

Office, was present. When necessary, Mr.

Winkler acted as the interpreter. Most of

the conversation took place between Mr. Kang,

who spoke English, and Mr. Barlow. Mr. Kang

knew that Turbo Tek had obtained an

injunction in West Germany with respect to a

washer manufactured in Taiwan by a competitor

of the Taiwanese Co. That washer had been

manufactured from a design which was a copy

of the design of the Turbo Tek device. That

washer was a replication of the Turbo Tek device.

Mr. Kang said that the Taiwanese Co. had spent

a lot of time, research and money in developing

the Taiwanese device, that the Taiwanese Co.

had copied the barrel, the extendible wand,

tips, control knobs and the general configuration

of the Turbo Tek device and that the addition

of the handle was designed to make for ease of

holding and was an attempt to differentiate

the Taiwanese device from the Turbo Tek device

by adding a festure of the Turbo Tek design.

Mr. Kang offered to show Mr. Barlow over the

Taiwanese Co.'s factory where the Taiwanese

device was being manufactured. This offer was

not accepted."

34. His Honour said that his conclusion that Mr. Barlow's evidence of his conversations with the employees of Hung Mei was admissible was not determinative of the outcome. The critical question was whether, notwithstanding the fraudulent conduct which he had found, there was a fraudulent imitation. His Honour's reasons for concluding that there was not were as follows:-

"Turbo Tek has to establish that the design

of the Taiwanese device is 'a copy with

differences which are both apparent and not

so slight as to be insubstantial but which

have been made merely to disguise the

copying' of the registered design. Having

found that the Taiwanese co. made use of the

Turbo Tek device in designing its device, it

is necessary to look further to determine

whether the differences are 'not so slight as

to be insubstantial but which have been made

merely to disguise the copying'.

The features of the Registered Design fitted

to the rear of the barrel form an important

part in the design of the shape and

configuration of the Turbo Tek device. They

emphasise the machine gun like appearance of

the whole design. The eye is drawn to them

as being an essential part of the design.

They do not form part of the features of the

design of the Taiwanese device.

The handle forming part of the Taiwanese

device forms an essential and important part

in the shape and configuration of the design

of the Taiwanese device. It changes the

appearance of the design of the device from

being machine gun like to being pistol like.

The concept of the shape has been changed.

This change is highlighted by the position of

the collar being placed towards the rear of

the barrel.

The similarity of the features being the

barrel, the fittings to the front of the

barrel, the wand and the tips to the wand are

not sufficient to overcome the difference in

appearance and concept arising from the

difference in the fittings at the rear of the

barrel and the presence of the handle. These

differences are apparent and are substantial.

To adapt the words used by King J. as quoted

in the Firmagroup Case, my conclusion is that

although there are common features of

construction in the compared designs, it must

appear, to find fraudulent imitation, that

the overall distinctive appearance of the

registered design has been taken. In this

case, salient features of construction are

taken, but the whole unit of the Taiwanese

device has been so redesigned to incorporate

them that a different design has been

produced. Thus, the change in the features

to the rear of the barrel and the presence of

the handle are not mere disguises but are

themselves salient features of the Taiwanese

Co.'s design which are novel and unique in

that design."

35. The words which his Honour has quoted in the first paragraph of the above citation from his judgment come from Malley's case (supra) at p 354. The Firmagroup case referred to in the last of the quoted paragraphs is a reference to the Firmagroup case earlier cited. There the High Court said that the primary Judge, King J., correctly summed up the position in that case when he said (p 497-8 (ALJR); p 325 (ALR)):-

"My conclusion is that although there are

common features of construction in the

compared designs, it must appear, to find

fraudulent imitation, that the overall

distinctive appearance of the registered

design has been taken. In this case salient

features of construction are taken, but the

whole unit has been so redesigned to

incorporate them that a different design has

been produced. Thus the change in balance of

the features and the lengthening of the article

are not mere disguise but are themselves salient

features of the defendants' design which are

novel and unique in that design."

36. Counsel for the appellants took us to much of the detail of the evidence which, so he said, supported his Honour's conclusion that Hung Mei used an embodiment of the appellants' design to design its product. Since his Honour's finding was not challenged by counsel for the respondents, except insofar as concerns the matters raised by his notice of contention, it would not normally be necessary for us to go to the detail of this evidence. But counsel went further and said that the evidence enabled the inference to be drawn that Hung Mei in fact knew of the design application by the appellants. For this purpose he referred us to much of the evidence which had been given by the second respondent, Mr. Sperling, who was the Managing Director of the first respondent.

37. Apparently Hung Mei had had some discussions about exporting spray washers to Australia with representatives of a retail group referred to in Mr. Sperling's evidence as the K-Mart/Coles group. Each of these companies has chains of stores in many parts of Australia. Counsel relied on the following evidence:-

"In June and July, when you were there, you

were concerned, were you not, at the

possibility that if you imported that product

into Australia and tried to market it in

Australia, you would be infringing

Turbo-Wash's patent rights? ---Absolutely

not, no, because I was assured by the K-

Mart/Coles group that their patent attorneys

had looked at it and had given both companies

the green light to bring it in themselves, so

I had no fears whatsoever. And supported by

that was the Taiwanese attitude and they

showed me various registrations around the

world where they have applied for designs for

patent, and I had no qualms at all.

.............................................

Did you get an assurance from the Taiwanese

manufacturer or this trading company, ACP?

---I had an assurance from a retail - as I

say, a contact in Myer/Coles in Australia,

and I had it also from both the manufacturer,

who came from the trading company's office in

Taiwan, and the trading company. As I have

dealt with them for many years, I had no

reason to disbelieve what he tells me. He

has never led me astray before.

You sought that assurance, did you not?

---Yes, we did because when I was there in

February, when I mentioned they had

prototypes, the patent rights were mentioned

because they were guns without the

modifications these have. They were

certainly complete look-a-likes to the

original Turbo-Wash."

38. Mr. Sperling said that he did not see any prototypes with a handle when he was in Taiwan in February 1987. He agreed that when he returned in June and July 1987 he was concerned about the possibility of the infringement of the appellants' rights. Later questions and answers suggest that he was speaking of his anxiety in the context of possible infringement of patent rather than design. He said that he knew there were patents pending. He had read words to that effect on one of the units. He made no search at the Patents Office. Eventually his evidence turned to the question of design. He said:-

"I did make enquiries and I have been shown

certain things. I had a design - it has been

registered. A design application has been

registered in Australia, or applied for in

Australia, in May. That gave me all the

feelings to believe it is all what I call above

board. They were selling it freely overseas.

I mean, Taiwan now is a very respectable

country to deal with. There was no reason

for me to go and make further enquiries."

39. The design application to which Mr. Sperling referred in that answer was a reference, not to the appellants' application, but to an application made by Hung Mei. The application for registration of the design was lodged on 29 April 1987 and it was eventually registered on 21 April 1988. The article was described as a "Water Injecting Gun" and monopoly was claimed in the shape and configuration of a "Water Injecting Gun" as illustrated in the accompanying representations. The representations in Annexure B to these reasons are some of the representations which accompanied the certificate of registration of the Hung Mei design.

40. Further evidence given by Mr. Sperling was as follows:-

"What I am now asking you is: did you know,

as a general matter, prior to May, June, July

of this year (1987) that protection could be

obtained for a design by obtaining

registration? ---No, I did not.

You first found that out in Taiwan, did you?

---Yes.

Did it occur to you that Turbo-Wash (the

appellants) may have obtained similar

protection in respect of its design?

---Probably.

Did it occur to you? ---As a matter of fact,

I would have assumed so. I do know it was a

patented item, so I assumed the designs were

part of that.

So you assumed that Turbo-Wash had protection

for its design by registration and also for

its functioning operation by patent? ---I

would have imagined.

That is why you wanted to be satisfied that

the unit and packaging were such as not to

infringe those rights; is that right? ---Yes.

For that reason, you sought assurances that

there was no infringement? ---That is

correct.

The assurances were given to you in Taiwan by

the manufacturer and officers of the trading

company ACP; is that right? ---And in

Australia by the Coles organisation.

Let me deal firstly with Taiwan. The

assurances came from officers of this trading

company, ACP, is that so? ---And the

manufacturer, yes."

"Having obtained that assurance, and having

inspected the product for yourself, you

formed the view, did you, that there was no

risk of infringement of Turbo-Wash's rights?

---I did.

And you formed that view not knowing

precisely what Turbo-Wash's rights were?

---That is correct.

And not having taken the precaution of

searching registers at the Patents Office to

ascertain what Turbo-Wash's rights were?

---No, because I trust people.

Did they tell you that they knew what

Turbo-Wash's rights were in Australia? ---No,

they did not."

41. The difficulty, of course, is that it is for the appellants to establish fraudulent imitation by the manufacturer, Hung Mei. For the purposes of para. 30(1)(b) of the Act, fraud or questionable conduct on the part of the importer is of no relevance. Thus the effect of Mr. Sperling's evidence which was summed up by the cross-examiner somewhat later in the cross-examination by the question, "So you knew that Turbo-Wash in fact had certain rights by way of patent design or otherwise in Australia?" (to which Mr. Sperling assented), does not of itself prove that Hung Mei was aware of the application for registration by the appellants. But it was submitted by counsel for the appellants that the sum total of his evidence opened up an inference that Hung Mei either knew of the application or strongly suspected its existence and went about the manufacture of its own articles with the intention of making sufficient changes to its product to remove the likelihood of infringement. It did this by designing a washer of a different shape, notably by adding to it the pistol grip which is the feature which principally distinguishes it from the appellants' design. We agree with counsel's submission. The inference for which he contends is one which is open.

42. No representative of Hung Mei was called. The matter was not the subject of mention by his Honour in his judgment, but no explanation was given for the absence of this evidence. One understands that witnesses would have had to be brought from Taiwan or arrangements made for the taking of their evidence in that country. One recognizes that there may have been difficulty about this, perhaps because of the unwillingness of the appropriate Hung Mei employees to give evidence. But in the absence of any explanation along these lines, we are driven to the conclusion that the absence from the witness box of the Hung Mei representatives enables the Court more confidently to draw the inference which we think is open; Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298. In reaching this conclusion we have given weight to the fact that Hung Mei is a distinct and separate company independent of the respondents. Nevertheless, the two were in a business relationship and we do not think it is going too far to say that the circumstances were such as to oblige the respondents either to call the evidence or to provide some satisfactory explanation of why it was not available.

43. There is another factor. Both Mr. Barlow and Mr. Sperling have described the way manufacturing operations are carried out in Taiwan and the way business is done there. It is obvious that Hung Mei had precise replicas of an embodiment of the appellants' design. It not only used identical colours for its own product - black and a closely similar shade of red; it used those colours in precisely the same way - black for the wand and the reservoir and red for the ancillary components. It is obvious also that they were astute enough to avoid the possibility of infringing the appellants' patent. As his Honour found, they made sure that they used a method of construction which would not infringe it. But there is more.

44. His Honour found that Mr. Kang of Hung Mei knew that the appellants had obtained an injunction in West Germany with respect to a washer manufactured in Taiwan by one of Hung Mei's competitors. The washer had been manufactured from a design which was a copy of the appellants' design and was, in his Honour's words, "a replication of the Turbo Tek device". The finding was made upon the basis of evidence given by Mr. Barlow of a conversation he had had with Mr. Kang who was the Marketing Director of Hung Mei. Mr. Barlow referred to problems which had arisen in West Germany because of "a patent infringement by a company called Eaton Industrial" which Mr. Barlow said was also a Taiwanese company unrelated to Hung Mei. Mr. Barlow's evidence continued:-

"I said that I was aware of the infringement

with Eaton and he also was aware of this

infringement and whether or not we could

discuss it rationally and get some answers.

He said - that is Mr. Kang said to me - we

have copied the Turbo-Wash unit. We have

copied the wand, which, as you know, is in

various sections. We have copied the

controls. We have copied the design and we

have also copied the colour scheme, which is

black and red. We added the handle as a

convenience and also to slightly

differentiate it from your product. Mr. Kang

then said to me that with our success, this

is Turbo-Wash success on the world markets,

with our mass T.V. advertising and other

visual advertising, that this was going to

help him sell the Aqee."

45. Later Mr. Barlow said that Mr. Kang told him that Hung Mei had spent a lot of time, research and money developing its product. He said that the Eaton product was "a direct copy" of the appellants' product. It "was a facsimile ..." Mr. Barlow agreed that the only Hung Mei product, on the other hand, was the product which is in question in this case.

46. His Honour's finding was that Hung Mei, in designing its product, had access to an embodiment of the appellants' design. In the view that he took of the matter, he was not concerned with the question whether Hung Mei knew of the existence of the appellants' design nor with the question whether it had seen the representations forming part of the certificate of registration. Consequently, he made no finding about these matters or about the question whether Hung Mei knew or suspected that the appellants' product was manufactured in accordance with a design of which it was the owner or in respect of which it had applied for registration. There is not sufficient evidence to enable a finding to be made that Hung Mei saw the design application or the representations which formed part of it. And there is no evidence that it saw the certificate of registration, which, in any event, probably came into existence after the manufacture of its own product commenced.

47. Having considered the evidence upon which counsel for the appellants has relied together with the findings which were made by his Honour, we are of opinion, however, that the evidence does establish that Hung Mei had every reason to believe that the appellants were the owners of a design of which the appellants' product, which Hung Mei used in creating its own design, was an embodiment. We think the account of what Mr. Kang said at his meetings with Mr. Barlow and Mr. Sperling amply bears this out. We reject submissions made by counsel for the respondents that he was speaking of the matter only in the context of the patent or patents which he believed the appellants had for their product. It is plain, from a reading of the evidence as a whole, that Mr. Kang was as concerned about design as he was about patent. Originally Hung Mei made a product which must have closely ressembled the representations forming part of the appellants' application for registration. The design was altered. One of the important purposes of the alteration was to avoid the close similarity which was involved. This was achieved by the addition of the pistol grip and the placing of the water inlet at the base of it rather than at the back of the drum.

48. This then leads to the critical question. The appellants, not having established that the Hung Mei product was manufactured after 7 May 1987 when the appellants' design was registered, is it open to the Court to find fraudulent imitation in circumstances where it must be assumed that the respondents' manufacture took place after lodgment of the application for registration on 17 September 1985 but before registration itself on 7 May 1987.

49. In support of his submissions that it is not open to the Court to make such a finding, counsel for the respondents referred to a number of authorities which it is necessary now to consider. The first of these is Grafton v. Watson (1884) 51 LT (N.S.) 141 in which Cotton L.J. said (p 144):-

"Fraudulent imitation, to my mind, must mean

this: if a man, knowing that the pattern is a

registered design, goes and imitates and does

that with out any sufficient invention on his

own part, that would be a fraudulent

imitation, if in fact it is an imitation.

There may be an imitation which is

unconscious - that is to say, not an

imitation in the sense of copying - the

producing of the same effects without knowing

of the registered design; but when the

registered design is known, then, if there is

imitation, the burden of proving that the

registered design was not copied, is, to my

mind, thrown on the person who produces the

pattern like that which is imitated."

50. Counsel said that this was an indication that Cotton L.J. was of opinion that knowledge of registration was a necessary precondition before fraudulent imitation could be established. Further authority needs to be referred to, but at this point we say that it seems to us that his Lordship was dealing with the circumstances of the case before him and was referring to them rather than purporting to lay down any matter of general principle. The proceedings were interlocutory. This, of itself, provides a further reason why one would not lightly conclude that such a statement was thought to constitute some general principle which was then applicable to the law relating to designs.

51. The dictum from the judgment of Cotton L.J. in Grafton v. Watson has been applied in later cases. We refer to Sherwood & Cotton v. Decorative Art Tile Co. (1887) 4 RPC 207 in which must of what Cotton L.J. said was quoted (pp 210-211) by Manisty J. There is next the decision of Romer J. (as he was) in Rose v. J.W. Pickavant & Co. Limited (1923) 40 RPC 320 at pp 332-3. In neither the Sherwood case nor the Rose case was the Court concerned with the present problem. The evidence was that the defendent in each case knew of the plaintiff's design.

52. In the Fabtile Industries case earlier cited, Fullagar J. referred, with approval, to Grafton v. Watson and to the Sherwood and Rose cases (pp 3619-20). He cited (at p 3620) the dictum from the judgment of Cotton L.J. in Grafton v. Watson which we have quoted above. But, again, the facts of the Fabtile case established that the defendant knew of the plaintiff's design (p 3619).

53. The dicta to which we have referred are the principal statements of authority upon which counsel for the respondents relied for his proposition that there could not be fraudulent imitation unless the alleged infringer knew of the registered design. A corollary of this proposition was that there could be no fraudulent imitation by a person of another's design until the design was actually registered. This followed because a court could never find that a defendant who manufactured an article prior to registration knew of the registered design; ex hypothesi no design was registered.

54. The scheme of the Act as derived from the sections of it to which reference has earlier been made is that it provides in s. 20 for the making of an application for registration. Under s. 23, the Registrar is to consider the application, and if he is satisfied that the design is one which may be registered under the Act, and that the applicant is entitled to make the application, he may register the design. Pursuant to s. 25, the owner of the registered design has a monopoly in the design. Subsection 27A(1) provides that the registration of a design shall be deemed to have come into force on the date on which the application for registration was lodged.

55. Section 21, read in conjunction with the provisions of s. 49, provides for a priority date in respect of an application for the registration of a design. The priority date will usually be the date on which the application for registration was lodged. The priority date is the date in respect of which the novelty or originality of the design is to be reckoned; see Lahore (ibid.) at p 1576. In Glamagard Pty. Limited v. Enderslea Products Pty. Limited (1985) 1 NSWLR 138; (1985) 4 IPR 113 McLelland J. of the New South Wales Supreme Court held that prior to registration an applicant for the registration of a design has no monopoly rights capable of enforcement pursuant to the Act; see p 140 (NSWLR); pp 114-115 (IPR) and Lahore at p 1576.

56. Section 21, is, of course, dealing with priorities for the purpose of establishing which of two competing applications for registration of a similar design should prevail. It is difficult to see, therefore, what bearing it can have on the present problem. Similar considerations apply in relation to subsec. 32B(2) of the Act which is a provision dealing with remedies for infringement. It empowers a court to refuse damages and an account of profits where the defendant satisfies the court that, at the time of the infringement, he was not aware that the design was registered. Here, the infringement occurred upon the importation of the articles in July 1987 after registration had been effected. It would be open to a person in the position of the respondents, if the evidence available to him established the necessary facts, to rely upon the provisions of subsec. 32B(2) in opposition to a claim for an award of damages or an account of profits. But again that does not touch the present problem.

57. The directly relevant provision of the Act is para. 30(1)(b) thereof which is the provision upon which the appellants have sued. It provides that there will be an infringement if a person, without the licence or authority of the owner of the design, imports into Australia for the purposes mentioned, an article in respect of which the design is registered.

58. It might be thought at first sight that the words of the paragraph are such as to deny any right of action in respect of an importation which occurs prior to registration. But this ignores the effect of subsec. 27A(1) which deems the registration to have come into force on the date on which the application for registration was lodged. It appears to us that the subsection is not different in effect from subsec. 53(2) of the Trade Marks Act 1955 which provides that a trade mark shall be registered as of the date of the lodging of the application for registration and that that date shall be deemed to be the date of registration.

59. In Hunter Douglas Australia Pty. Limited v. Perma Blinds (1970) 44 ALJR 257 Barwick C.J. said (p 258) that what subsec. 53(2) of the Trade Marks Act did was notionally to alter a fact and to require that the principal provisions of the Act should be applied accordingly. We refer also to the judgment of Windeyer J. (p 261) and to Lahore (ibid.) at p 1614.

60. Subsection 27A(1) of the Act here does not in terms deal with the problem which confronts us. Its words do not necessarily compel the conclusion that there can be a fraudulent imitation before registration. Nor, for that matter, do they bear directly on the question whether it is open to a court to find such an imitation in a case where the alleged infringer did not have actual knowledge of the fact of registration. Nevertheless, the Act establishes a comprehensive code for the registration and protection of "new or original" designs (s. 17). The protection which the Act confers on the owners of such designs stems from registration, but subsec. 27A(1) of the Act, like subsec. 53(2) of the Trade Marks Act in relation to trade marks, evinces a clear intention to extend the protection which registration of designs confers back to the date of lodgment of the application for registration. Registration may be necessary before the owner of a design may sue, but the infringements of his rights for which he may sue will be those which have occurred between lodgment and registration as well as after registration. The fact that that is so suggests to us that it is unlikely that the legislature intended, when it enacted para. 30(1)(b), to leave the owner of the design unprotected against imitations which come into existence after lodgment of his application but before registration.

61. Fraud is a general concept with which the law is familiar and which it well understands. It has many aspects. There is no reason to think that the legislature, when it used the words, "fraudulent imitation", in para. 30(1)(b) of the Act, intended them to have any narrow or restricted operation. There is no apparent reason why the legislature should have intended the Act to apply in a restrictive way and, even then, only when the alleged infringer had actual knowledge of the fact of registration. To take any other view would give to would-be infringers the opportunity to avoid the consequences of the Act by a multiplicity of expedients. Deviousness would be encouraged. Opportunism and expediency would be rewarded. What is required is a realistic and practical approach which will allow for the fact that there will be an infinite variety of circumstances and that each case will depend on its own facts.

62. The question whether there is, or is not, a fraudulent imitation must of course be answered in the context of the legislation in question. In the end an applicant for relief must establish that there is a fraudulent imitation of a design which has been registered. The conduct of the maker of the alleged infringing article must be such as to involve him in having made an imitation. That fact itself confines the ambit of the conduct which will be seen as relevant to the inquiry. In these circumstances, we think that it is correct to say that it is open to a court to find that an imitation is fraudulent where the designer or manufacturer of an article, having reason to believe that another article is an embodiment of a design which is actually registered or in respect of which an application for registration is pending, imitates or copies the article. The findings which we think should be made about the evidence in this case bring it within that principle. The essence of this case is our conclusion that Hung Mei appreciated all along that it was likely that the appellants, or companies associated with them, had registered designs in countries which included Australia or strongly suspected that this was the case. The evidence plainly establishes that it did and that this was a factor in Hung Mei's decision to change the design of the appellants' embodiment by adding the pistol grip and changing the position of the water inlet. Consequently the circumstance that the articles were probably manufactured prior to the date of registration of the appellants' design is not a bar to the appellants' succeeding. Nor would the absence of actual knowledge of registration (in a case where registration had occurred) on the part of the infringer have provided, of itself, such a bar. All would depend on the circumstances of the particular case.

63. The authorities upon which counsel for the respondents relied do not, in our opinion, prevent this conclusion. The principal statement is in the judgment of Cotton L.J. in Grafton v. Watson, but what his Lordship there said was said, as we have mentioned, in the context of the circumstances of that case. The adoption of his Lordship's words in later cases does not take the matter further. For each of the later cases, the words were as apt as they were for the circumstances of Grafton v. Watson because, in each case, the alleged infringement occurred after the registration of the relevant design. Accordingly, the matter in question here is not covered by authority.

64. It follows from what we have said that the statements in his Honour's judgment which were challenged by the notice of contention are correct so long as it is understood that, for fraud to be imputed to the manufacturer, it must be shown that he knew, or had reason to suspect, that an article which he intends to imitate is an embodiment of a design which is the subject of an application for registration or which has actually been registered.

65. The determinative question to be decided in this appeal thus becomes whether his Honour was correct in applying the words used by King J. in the passage from his judgment at first instance, approved by the High Court in the Firmagroup case, to the circumstances of this appeal. Northrop J. said, in relation to this case, that there were common features of construction in the competing designs but that the overall distinctive appearance of the registered design had not been taken. His Honour concluded that salient features of construction were taken, "but the whole unit of the Taiwanese device has been so redesigned to incorporate them that a different design has been produced". His Honour said that the change in the features to the rear of the barrel or drum and the presence of the handle or pistol grip were not mere disguises but were themselves salient features of the Hung Mei design which were "novel and unique in that design".

66. Counsel for the appellants contested these conclusions saying that there was no design by Hung Mei. So much, he submitted, was established by the evidence earlier referred to. Furthermore, he contended that the Hung Mei design was neither novel nor original and was clearly part of the prior art, that art including the appellants' design. In short, his case was that Hung Mei had taken the appellants' design and disguised it by adding the pistol grip and changing the position of the water inlet. The other alterations were largely consequential upon the adoption of the disguise.

67. The resolution of the two sets of submissions involves a judgmental exercise in which the Court must bring to bear its own evaluation of what results from a visual comparison. But in making up its mind the Court must give proper weight to the finding of fraudulent intention. That finding is not, however, conclusive as the outcome of both the Fabtile and the Firmagroup cases demonstrates. In other words, an infringer may succeed because, although he has fraudulent intention, he does make an article, the shape or configuration of which is distinctly different from that in respect of which a design is registered.

68. The cases we have cited show that it is our eyes which must do the judging. Having performed that exercise, we are satisfied that the differences between the appellants' design and the respondents' article are not subtle. They are apparent and substantial. The question is, therefore, whether they are, nevertheless, mere disguises; see Malley's case at p 354 and the Fabtile case at p 3619. There is here no statement of monopoly identifying particular features of shape or configuration of the design as registered. The design thus applies to the appearance as a whole; cf. Jones and Altwood Limited v. National Radiator Co. Limited (1928) 45 RPC 71 per Tomlin J. at p 83, D. Sebel & Co. Limited v. National Art Metal Co. Pty. Limited (1965) 10 FLR 224 per Jacobs J. at p 228 and Russell-Clarke, Copyright in Industrial Designs (1930, pp 69-70). In this case the respondents' claim, despite findings of fraud against them, is that the differences alter the design as a matter of substance. As we have said, the differences are obvious and substantial, the shape and configuration of the two articles being to the eye very different. However, there are some close similarities, in particular the siting of the barrel in relation to the reservoir. In this regard however the same comment can be applied as in Malley's case at p 355, namely, that it is the idea which has been copied and not the design. Registration protects the design, that is, the shape and configuration of the article, and not the idea. The allegedly infringing article may take the idea but there is no infringement if there is a substantial difference of a material kind between the two shapes.

69. In this instance, even though there are considerable similarities, there is a most substantial difference. In Malley's case the primary judge found that it was an imitation because the evidence showed that it had been deliberately based on the registered design. An appeal against this conclusion was upheld by the High Court which was of the view that there was a substantial difference of a material kind. Thus the design applied by the alleged infringer was not an imitation of the registered design but a different design which embodied some of the features of the registered design. The High Court said (p 355), "There is, however, no copyright (it makes no difference if one says 'monopoly') in an idea, and it was the respondent's idea that the appellant took, not its design".

70. Fullagar J., whose reasoning in the Fabtile case has received general acceptance, stated the relative importance to be attached to fraudulent conduct on the one hand and production of a copy on the other when he said in substance (p 3619) that even if every feature of the defendant's design was adopted solely in order to disguise a taking from the plaintiff's registered design, it would not be sufficient to show fraudulent imitation if the resultant design was not truly an imitation. Even if every conceivable element of fraud was present, the fraudulent and disguised copying must result in a copy.

71. We think, upon analysis, that the evidence here reveals a situation in which, notwithstanding the findings of fraud against it, Hung Mei has taken the appellants' idea but not copied its design. It follows that the appellants have not demonstrated error in what his Honour has said. In this regard it is appropriate to refer to the judgment of Gibbs C.J. in S.W. Hart & Co. Pty. Limited v. Edwards Hot Water Systems [1985] HCA 59; (1985) 159 CLR 466 where his Honour said, in relation to a case under s. 71 of the Copyright Act 1968, (p 478):-

"The question whether a defence under s. 71

of the Act was made out was one of fact and

the onus of proving it lay on the respondent.

The nature of the issue, involving as it does

matters of impression, is one in which

particular respect and weight should be given

to the decision of the trial judge unless

some error in his judgment has been

demonstrated."

72. What his Honour said does not mean that in an appropriate case one may not find error in a case of this kind simply because one takes a different view from the primary judge. In the present case we have found the judgmental task not without difficulty, but we are obliged to give particular respect and weight to the primary Judge's assessment of the situation. Having done so, we are not persuaded that his Honour's decision discloses error. We would, accordingly, dismiss the appeal with costs.