(d) Authorisation - factual analysis
397 There is a dispute regarding whether Saint authorised AUG's infringing conduct such that he personally infringed the Patents.
398 The matrix of facts regarding Saint's conduct in this context are mostly not in dispute.
399 Saint was at the relevant times the general manager and a director of AUG and the general manager of the predecessor business division of Artcraft Pty Ltd. In performing this role, his responsibilities included management of orders, customers and sales as well as development of AUG's T5 luminaires.
400 Sometime in 2006, Rodney Wellington (Wellington) initiated discussions with Saint about a prototype T5 luminaire developed by Artcraft's New Zealand office.
401 On 7 October 2009, Saint attended an AUG board meeting with Wellington, Ronald Slabak (Slabak) and Tania Entwisle (AUG's company accountant) where a budget for development of a T5 luminaire was discussed. Saint told the board that the T5 "was taking the market by storm". Wellington responded that the T5 development should be "given priority".
402 After the meeting, Saint told Godfrey to commence work on the design of a new T5 luminaire for AUG. Saint was involved in the design of the AUG T5 and Godfrey reported to him.
403 Sometime before 7 December 2009, Saint gave Godfrey a briefing for the design of the T5, requesting that it be designed to "get around using internal aluminium reflectors like the Pierlite, because [of] copyright issues" and to overcome three "failings" of the Pierlite being that the terminal cover was easily dislodged, the visor retention clips constantly failed and the inner reflectors were too sharp. Godfrey was not called as a witness in the proceeding.
404 On 7 December 2009 a meeting took place between Saint and Sue Korver (Korver) (a sales person) of AUG, Vincent Calvi (Director of Streetworx), Joe Calvi (project manager of Ace Energy Services Pty Ltd) and Marion Hamilton (Hamilton) (a senior executive officer of Streetworx) at Streetworx's business premises at 185-191 Liverpool Rd, Kilsyth, Victoria (the Kilsyth meeting) regarding a potential purchase by AUG of the Streetworx T5 development. The exact discussions that transpired at the Kilsyth meeting are contested. It is noted that Vincent Calvi, Joe Calvi and Korver did not give evidence in the proceeding.
405 Hamilton, a senior executive officer of Streetworx, gave evidence summarised as follows:
Vincent Calvi (Calvi) asked Hamilton to attend the Kilsyth meeting a few days prior to the meeting occurring;
Calvi told Hamilton that Saint had initiated the Kilsyth meeting;
Calvi directed Hamilton to mention "the Patents" at the Kilsyth meeting;
at the meeting Hamilton said words to the effect that the meeting was "commercial in confidence";
Saint said words to the effect that AUG wanted to use and sell Streetworx's T5 lantern, and that AUG needed a T5 product available to it so it could get a foot in the market;
Hamilton said words to the effect "you do understand that our T5 is covered by Patents?";
Hamilton did not recall exactly what Saint said in response, but said that Saint questioned whether Streetworx could patent a street light, to which Hamilton responded words to the effect of "well we have"; and
Hamilton understood at the conclusion of the meeting that AUG would put forward a proposal in writing if they wished to continue discussion of any proposed acquisition of Streetworx's T5 product.
406 AUG and Saint deny this version of what was said, claiming that at that time and until May 2013 Saint and AUG had no knowledge of the Patents. Saint said that Korver had informed him that Streetworx had developed or was developing a T5 luminaire. Saint then asked Korver to set up a meeting with Streetworx. Saint gave evidence about what occurred at the Kilsyth meeting summarised as follows:
Saint told Streetworx that AUG had started developing a T5 luminaire but that AUG was interested in purchasing Streetworx's T5 development;
Saint told Streetworx that AUG was in a better position to market street luminaires and questioned whether it would be viable for Ace to get into the lighting business (appearing to refer to marketing and selling products rather than installation and maintenance);
Calvi said to Saint that Streetworx would be "ready for approval submissions early in the new year" (meaning 2010);
Saint stated that AUG could take over the Streetworx development and would pay for the work done to date including tooling and development costs, and that in return AUG would provide the product back to Streetworx at a good price;
Hamilton asked Saint for "a price", appearing to mean a purchase price for the Streetworx T5 development;
Saint said he would need some indication of how much money Streetworx had spent and what stage of development the Streetworx T5 was at;
Saint said he would need to go back and talk to Wellington and have a discussion about any proposal;
Hamilton said that she would inform Saint of the development costs;
Calvi and Hamilton said words to the effect that any proposal made by AUG would be considered;
Saint questioned alleged rumours of an action by Pierlite against Ace for patent infringement; Calvi replied that there was no such action; and
At no stage did Calvi, Joe Calvi or Hamilton state that Streetworx had patent/s on its T5 development or had applied for a patent; no dollar figures were discussed at the meeting and there was no discussion about a date that AUG's proposal would be provided.
407 Both Saint and Hamilton attempted to give their honest recollections as to what was said at the meeting. Neither witness had contemporaneous notes. Moreover, both witnesses were seeking to give their recollections of a meeting over 5 years ago. The reality is that neither witness could recall precise words or be credible to the extent that they asserted that they could recall precise words. Moreover, the email communications that followed made no reference to such patents; it might be expected that they would have if they had been referred to at the meeting. There was reference to "intellectual property" in Saint's email to Hamilton at 1.25 pm on 28 May 2010, but this has been explained by Saint (see below). Further, Saint's later conduct is not consistent with being so put on notice. If the patents had been mentioned at the meeting (or Saint had recalled this), one might have expected after the 23 June 2010 Board meeting that Saint would have contacted Jeffrey Winch of Callinans Patent and Trade Mark Attorneys (Winch), a registered patent attorney used by Artcraft Pty Ltd, not only about the Pierlite application but also about the Patents; but he did not do so. Further, if Saint knew about the Patents, then the Minutes of the Board meeting on 23 June 2010 would not have been expressed as they were; they refer to the proposition that "We believe Ace had a major patent issue [with Pierlite]"; if Saint knew that Streetworx had the Patents, such a statement was not aptly focused. Further, the Product Development Submission dated July 2010, which went to the Board, discussed the Pierlite product and "any possible patent issues", in context, with that product. Further, if Saint knew about the Patents at an earlier point in time, then one might have expected the Modified Artcraft Luminaire to have been developed earlier. As it is, this was only developed after Streetworx's letter of demand dated 7 May 2013 through Streetworx's patent and trade mark attorneys. In my view, the probabilities are that:
Hamilton did not make specific reference to the Patent.
If she made reference to the Patents, she was indirect or cryptic and it was not so understood.
Alternatively, if she made reference to the Patents, Saint may have not been paying attention.
At all events, I am not prepared to find that Saint was consciously aware that Streetworx had the Patents at any time prior to 7 May 2013.
408 After the Kilsyth meeting and until about the first half of 2010, Hamilton and Saint exchanged emails and had phone conversations regarding AUG's potential purchase of Streetworx T5 luminaire development. In particular, Hamilton emailed Saint numerous times seeking AUG's proposal.
409 Calvi, Joe Calvi and Saint met informally on a few occasions, including in or about April 2010 when Calvi and Joe Calvi attended a football game with Saint as guests of AUG. There were some discussions about Streetworx's T5 development.
410 Soon after the Kilsyth meeting, Saint met with Wellington to discuss Streetworx's likely development costs. Wellington worked out some figures in relation to estimated development costs likely incurred by Streetworx.
411 On 21 December 2009, Saint attended an AUG Board meeting where general product development was discussed. With respect to the Streetworx T5, Saint told the Board that informal discussions had been had with Ace regarding purchase of their development. Saint stated that the four options were buying Streetworx's T5, entering into an exclusive sales agreement with Streetworx, entering into a preferred customer arrangement with Streetworx or competing against Streetworx.
412 From about October 2009 to mid-2012, Saint had discussions with the AUG Board regarding the development of AUG's T5 product and the progression of Streetworx's development.
413 At a Board meeting on 19 May 2010, patent issues arose in the context of discussing a Pierlite patent "pending on the [Pierlite] visor". Wellington told Saint to contact Winch to "assist with a Pierlite patent search".
414 On 28 May 2010, Saint sent an email to Hamilton stating "I have spoken with the other two Directors of Artcraft Urban and we are very keen to pursue the possible outright purchase of the Enviro T5 development. This would include design & development costs, tooling and intellectual property". Under cross-examination Saint said that Wellington gave him the words "intellectual property". Wellington did not have this recollection, but I accept what Saint says.
415 Sometime in early June 2010, after 4 June 2010, Hamilton informed Saint that Streetworx was not going to sell the T5 product development to AUG. Hamilton stated that there was a large gap between AUG's estimation and Streetworx's estimation of what the research and development recovery would be as well as compensation for future income.
416 In June 2010, the Enviro T5 was launched by Streetworx to the market. On or about 16 June 2010, Saint purchased four Streetworx Enviro T5 luminaires.
417 From about February or March 2010, Godfrey's role was more concentrated on product development, review and improvement. By June 2010 Godfrey had allegedly prepared preliminary concept designs for an AUG T5 luminaire. Saint sent one Streetworx T5 luminaire and one Pierlite luminaire to Godfrey in Adelaide on 19 June 2010 so that Godfrey could "review those two competitor products". Around this time AUG developed a development cost estimate for an AUG T5.
418 At an AUG board meeting on 23 June 2010, Saint stated in the context of discussing product development for the T5 "I believe that ACE had a significant patent issue. There is no doubt that ACE copied the [Pierlite] light fitting. I am confident ours won't compete with the Pierlite patent the way the Streetworx product did". Slabak responded that it was worth getting Winch to "look at this and get his professional opinion" before proceeding with the AUG T5 development. Saint stated that he would discuss with Winch "next week".
419 Saint claims that this occurred and that he contacted and had a discussion with Winch about the Pierlite patent. Winch's evidence was that he did not recall this discussion; Winch did not produce any documents recording communications between his firm Callinans Patent and Trade Mark Attorneys and AUG or Saint regarding patent applications in the name of Streetworx or Pierlite prior to 7 May 2013. I accept what Saint says about the matter. Slabak was not called as a witness in the proceeding.
420 Sometime prior to 22 July 2010, Saint circulated a product development proposal for the T5 to the AUG Board. At an AUG Board meeting on 22 July 2010, after examining the Pierlite patent to allegedly ensure no infringement occurred, Saint may have told the Board that "Pierlite did have a patent, but there were no issues and that Pierlite had given up on enforcing their rights", although Saint's recollection is that this was said at a later time.
421 Between about July-October 2010, the T5 project was put on hold by AUG. On or about 14 October 2010 (or at a later date for the purpose of giving the manufacturer instructions as to how to manufacture the AUG T5 product), Saint sent an email with attachments, allegedly concept drawings and 3-dimensional "photos" of the Streetworx product, to the Chinese manufacturer. The Chinese manufacturer responded on the same day with a quote for production. AUG continued to refine its T5 product development.
422 On 2 December 2010, Godfrey emailed Saint stating "[t]he design philosophy has been to incorporate all the good bits from the competition and keep it as simple as possible". There was no mention of the Streetworx Enviro T5 specifically.
423 Godfrey corresponded with the Chinese manufacturer to discuss specifications and tooling. Godfrey subsequently travelled to China on several occasions to liaise with the manufacturer as development and testing continued.
424 At an AUG Board meeting on 16 December 2010, Saint reported that Godfrey had finalised the product design drawings and was working with the manufacturer on design and production of tooling, and allegedly showed the Board renderings of the luminaire. Saint left the meeting with the understanding that Slabak and Wellington had approved the design.
425 On 11 March 2011, the Chinese manufacturer sent AUG invoices which included photographs of the Streetworx product.
426 On 30 August 2011, Godfrey sent Saint an email in which he stated that "[t]he toolmaker here is suggesting that we add two extra clips the same as ACE have done". Saint said that this did not ultimately occur as AUG instead modified the sealing.
427 On 19 January 2012, Saint placed AUG's first production order with the Chinese manufacturer.
428 Testing took place between February 2012 and August 2012, with formal approval ultimately being provided by the Municipal Association of Victoria (MAV).
429 On 26 February 2013, AUG secured its first order of T5 luminaires from Powercor. On or about 1 May 2013, AUG was approved by the MAV as a preferred supplier of T5 luminaires.
430 Throughout the development, testing, approval, production and sale processes, Saint regularly reported on developments to the AUG Board through board meetings, meetings with Wellington and general manager's reports. Streetworx allege that the "design" and "ongoing development" of the AUG T5 was "never formally approved by the board", and that the T5 product was not made available to Wellington or Slabak during the design process. Saint said that samples of the Streetworx Enviro T5 product had been "left in the board room… for quite some time". Wellington could not recall the first time he saw the Streetworx Enviro T5 product.
431 On 7 May 2013, Saint received a letter of demand from patent lawyers acting for Streetworx. He claims that this was when he first became aware of the Patents. I accept that evidence; see my earlier discussion concerning the 7 December 2009 meeting.
432 In July 2013, Saint had discussions with the AUG Board and Godfrey regarding changes to be made to the AUG T5 design. In particular, Saint said to Godfrey that his preferred option for seeking to "avoid infringement" was to change the visor to comprise of two pieces with separate covers for the termination chamber and optical chamber. Godfrey responded that doing so would be very expensive and he could not guarantee that a two piece visor would achieve full sealing of the terminal cover area and might lead to other problems.
433 On or about 29 August 2013, Saint and Wellington discussed a plain to modify the AUG T5 design to a point where infringement of the Patents "could not even be raised or argued". In early September Godfrey allegedly devised a modified design to the AUG T5. Between 3 and 11 September 2013, AUG sought and obtained legal advice on a proposed visor modification to the Artcraft Luminaire. Generally, in terms of the development of the Modified Artcraft Luminaire, according to Saint's evidence three changes were contemplated, namely:
(a) re-tooling the visor to make it a two piece visor (not proceeded with);
(b) putting the PE cell through the visor (implemented);
(c) using rougher frosting (implemented).
Originally it was intended as to the last matter that the section of the visor covering the termination chamber was to be heavily etched to achieve the result whereby it was impossible to view or inspect the internal components of the termination chamber. Around late 2013, AUG introduced the Modified Artcraft Luminaire to the market.
434 On 19 December 2013, Saint sent letters to AUG customers stating that the Modified Artcraft Luminaire had only one change, being a modification to the mounting position of the PE-cell to expose it through the aperture.
435 In summary, with respect to authorisation, Streetworx has submitted that since at least 7 December 2009, Saint with respect to the Artcraft Luminaire and Windowless Artcraft Luminaire:
(a) sourced the manufacturer for the Artcraft Luminaire [including the Windowless Artcraft Luminaire] and instructed the manufacturer on the specifications for the Artcraft Luminaire;
(b) kept the AUG Board abreast of the development of, and production timelines and delivery dates for, the Artcraft Luminaire;
(c) oversaw the activities of Godfrey, who was primarily tasked with communicating with the manufacturer of the product regarding the production of the Artcraft Luminaire;
(d) negotiated with and entered into agreements on behalf of AUG with the proposed manufacturer of the Artcraft Luminaire, including negotiating the price of the manufacture of the Artcraft Luminaire and its components;
(e) placed orders for the manufacture of the Artcraft Luminaire;
(f) suggested changes to the design of the Artcraft Luminaire and approved proposed changes to the design of the Artcraft Luminaire proposed by third parties including Ironbark Sustainability and directed Godfrey to make such changes;
(g) decided upon (and signed off on) the final look and construction of the Artcraft Luminaire;
(h) raised concerns with the manufacturer about the manufacturing process or quality of the Artcraft Luminaire;
(i) communicated with the manufacturer and component suppliers in order to broker supply of components;
(j) sought, on behalf of AUG, accreditation of the Artcraft Luminaire with Ironbark Sustainability, and in particular, was the point of contact with Ironbark Sustainability with respect to the accreditation process for the Artcraft Luminaire;
(k) was the point of contact for Australian Customs concerning the import of the Artcraft Luminaire into Australia;
(l) communicated with power companies in Australia (including Jemena and Powercor) to obtain their approval of the Artcraft Luminaire and deal with changes they proposed or concerns they had with the product during its design. In particular, in October 2012, Saint corresponded with Steven Timms, technical standards engineer of Electricity Networks for CitiPower Pty & Powercor Australia Ltd regarding their concerns about the design and/or manufacture of the Artcraft Luminaire; and
(m) communicated with customers or potential customers about AUG's involvement in, and position in respect of, this proceeding, including advising that the litigation would have no effect, now or in the future, on AUG's ability to supply the Artcraft Luminaire.
436 In my view, and based upon the summary of the evidence set out earlier, each of these factual propositions has been made good. But whether they establish authorisation is another matter.
437 Streetworx has also submitted that since at least October 2013, Saint with respect to the Modified Artcraft Luminaire:
(a) decided that changes ought to be made to the design of the Artcraft Luminaire as a result of this proceeding;
(b) instructed, and directed that Godfrey instruct, the manufacturer of the Modified Artcraft Luminaire on changes required to be made to the design, specifications and manufacture used for the original Artcraft Luminaire;
(c) kept the Board of AUG abreast of the development, production timelines and delivery dates for the Modified Artcraft Luminaire;
(d) oversaw the activities of Godfrey, who was primarily tasked with communicating with the manufacturer of the product regarding the production of the Modified Artcraft Luminaire, and who informed Saint of any unilateral communications with the manufacturer;
(e) negotiated the price for the manufacture of the Modified Artcraft Luminaire and its components, and the timing for supply of the Modified Artcraft Luminaire;
(f) dealt with issues arising from the tooling upgrade required to manufacture the Modified Artcraft Luminaire;
(g) placed orders for the manufacture of the Modified Artcraft Luminaire;
(h) approved proposed changes to the design of the Modified Artcraft Luminaire;
(i) signed off on the final look and construction of the Modified Artcraft Luminaire;
(j) raised concerns with the manufacturer about the manufacturing process, quality, production and, in particular, delivery timetable for the Modified Artcraft Luminaire;
(k) was the point of contact for Australian Customs concerning the import of the Modified Artcraft Luminaire into Australia;
(l) communicated with power companies in Australia (including Jemena and Powercor) to obtain their approval of the Modified Artcraft Luminaire and to deal with concerns they had with the product;
(m) promoted to customers or potential customers, including the MAV and local Government authorities, the existence of the Modified Artcraft Luminaire, including making available samples of the product; and
(n) negotiated and reached agreement on the commercial terms for supply of the Modified Artcraft Luminaire to local Government authorities.
438 In my view, each of these factual propositions are made good. But whether they establish authorisation is another matter.
439 Streetworx also said that Saint concealed from, or failed to disclose to, the Board relevant information about the existence or potential existence of intellectual property rights in the Streetworx product, the extent to which he had complied with the Board's direction to obtain patent advice about the development process of the AUG luminaires (in the sense that they were relevantly copied from the Streetworx product) and the actual design of the AUG luminaires, and that whether or not Saint intended to procure infringement, he had sufficient knowledge that Streetworx had or potentially had intellectual property rights in the Streetworx product and actual knowledge of the design similarities between the products, such that any necessary mental element has been satisfied. I disagree that any such mental element was established on the facts. But in any event, no such mental element needs to be shown to establish authorisation.
440 The respondents have submitted that the personal involvement of Saint in developing AUG's T5 luminaires was in the course of performing his employment obligations. Further, that Saint did not have the power to prevent AUG from developing and selling its T5 luminaire. It is also submitted that any similarities between AUG's products and Streetworx's Enviro T5 luminaire were attributable to Streetworx's product being similar to Pierlite's Greenstreet product, which also influenced the design of the AUG T5 luminaires. I agree with these submissions.
441 The respondents have submitted that Saint acted at all times with the approval, sanction and authority of the Board of AUG, with no intention to infringe the Patents, but they accepted that he:
(a) directed and supervised employees of AUG to negotiate, and also negotiated himself, with third parties to sell and supply them with luminaires;
(b) was involved, to the extent that he supervised Godfrey of AUG, in matters regarding the design, the tooling, tooling upgrades, the production and manufacture of the luminaires;
(c) directed employees of AUG to implement changes to the design of the Artcraft Luminaire that resulted in the Modified Luminaire·
(d) was involved in commercial negotiations regarding the production and manufacture of the luminaires, including in relation to invoicing, payment, delivery schedules, shipping arrangements and quality issues;
(e) directed others to obtain all necessary approvals as required from the MAV, Ironbark Sustainability, National Association of Testing Authorities (Australia) (NATA) approved testers, or International Testing and Certification Services (ITACS) approved or authorised testers in relation to the luminaires;
(f) was involved, together with AUG personnel, in obtaining from Distribution Networks, including amongst others, Powercor, Jemena, SPAusnet and United Energy, approval of the luminaires; and
(g) was involved together with others in communicating and promoting to customers the existence of the luminaires.
I also agree with these submissions.
442 Streetworx has invited me to make adverse credit findings against Saint. In my view, such findings are not justified. The only significant credit contest in my view arose concerning the differing versions of what was said at the meeting in December 2009 as between Saint and Hamilton. But as I have said, I have not disbelieved Saint as to his version of what he recalled. As for the broader chronological sequence of events, I have no sound reason to disbelieve Saint on any aspect of his version of the chronological sequence, including his communications with Godfrey and the Board. It is true that from time to time, Saint's version of events differed from Wellington's version of events. But on the whole, that did not disincline me from accepting Saint's credibility generally or his version of events. In my view, he sought to give frank and truthful evidence and he was, of course, closer to the particular events and expected to have a more detailed recall than Wellington. Slabak was not called and Streetworx sought to rely upon a Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) inference accordingly. But in my view this does not take Streetworx far. Slabak was not involved in many of the significant meetings or events. At most, Slabak may have been expected to have given a similar version to Wellington; but even so, that does not carry Streetworx any further on issues where Saint could have been expected to have had better recall than either Wellington or Slabak. There is a further Jones v Dunkel issue that arises. Vincent Calvi and Joe Calvi were present at the December 2009 meeting but not called by Streetworx. But equally, Korver was also present at the meeting but not called by the respondents. Any Jones v Dunkel inference sought to be drawn against one party for such a failure is in my view countered by such an inference against the other. Generally, resort to the refuge of such inferences adds little to my assessment of what was said and done at that meeting.
443 Streetworx has sought to demonstrate that Saint copied its products. But as the respondents rightly pointed out, there is nothing unlawful about copying a competitor's product per se as long as there is no infringement of any patent. Copying has the salutary advantage of increasing market efficiency and improving competition. Further, it would seem that Streetworx copied its optical system from Pierlite's Greenstreet product.
444 Streetworx asserts that Saint ought to have known of Streetworx's intellectual property rights prior to May 2013; Streetworx has put constructive knowledge as a fall-back position to actual knowledge, the latter assertion of which I have rejected. In addition to what I have said earlier, the respondents quite rightly point out that it would have been unrealistic to expect a person in Saint's position to be aware of innovation patents, with their lower level patentability requirements, and accordingly to conceive that commonplace features without any inventiveness could be patentable. Innovation patents were introduced in the early 2000s; many lawyers even in 2009 may not have been aware of such rights. I agree with the respondents. Streetworx's assertion of "ought to have known" should also be rejected. It is not made out on or to be inferred from the facts.
445 Finally, let me elaborate on the processes of AUG's Board. The evidence demonstrates that the design and approval processes for the new luminaires took more than two years, and was the subject of regular supervision by AUG's Board.
446 Both Wellington's and Saint's evidence demonstrates that the Board considered the AUG T5 luminaires on many occasions. Wellington's evidence referred to ten Board meetings at which the AUG T5 luminaire was discussed before it went on sale in 2012.
447 From October 2009 the AUG Board directed that Saint should have at the "top of his list" adding a T5 luminaire to AUG's product range. The Board minutes confirm Wellington's and Saint's evidence that there was regular reporting by Saint to the Board on the progress of that project. The Board was shown copies of the renderings of the proposed design, and had the features of the design explained during board meetings.
448 There was no challenge to Wellington's descriptions of the general processes of the Board, the Board's consideration of the T5 project during the course of its development, and the general division of responsibility as between the Board and Saint. Saint was not the personification of or guiding mind of AUG for relevant purposes. The Board exercised tight control over the affairs of AUG. Saint was required to obtain Board approval for new projects such as the development of the T5.
449 Moreover, Saint did not have the power to prevent AUG from developing and selling its T5 luminaire.
450 The relevant decisions were for the Board to make. Wellington pointed out for example that Saint was not in favour of the shift in emphasis from street furniture to street lighting products. Nevertheless, the Board made that decision and the shift in emphasis occurred. Similarly, the decision to proceed with the T5 development was a decision for the Board to make. Approval from the Board was required at each major stage of development. Saint may have been able to raise objection had he not favoured the project. But he could not necessarily have prevented it. The Board may have decided to proceed over his objection. I do not consider that Saint was in an analogous position to Dr Appanna, whose position was discussed by Bennett J in Inverness; moreover, comparison with fact intensive results in other cases is usually a sterile exercise.
451 Each of the acts (i.e. sale, importation etc) that were undertaken by AUG in relation to the luminaires was an act that was authorised by the Board. It was the Board that had the relevant "power to prevent" AUG from undertaking any of the acts constituting an exploitation. In summary, I do not consider that Saint "authorised" AUG's exploitation.