Mr Klimis
148 Paragraph 80(1)(a) of the Act authorizes the grant of an injunction against any person who has engaged in, or proposes to engage in conduct which constitutes, or would constitute "being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention" of any provision of Part V, which contains s 52. In par 22 of the amended statement of claim it is alleged that Mr Klimis was so involved in Sydneywide's alleged misconduct. In par 33 of the notice of appeal the appellants submit that:
"Having held that the evidence and findings as to the second appellant's conduct were not sufficient to render him liable at common law as a joint tortfeasor, and having held that the first appellant was not 'a one-man company', and having failed to make any finding that the second appellant contravened the provisions of section 75B of the Trade Practices Act, His Honour erred in finding that relief should be granted by way of appropriate orders against each of the appellants, and erred in making orders against the second appellant."
149 In par 4(l) of the revised grounds of appeal it is alleged that:
"His Honour erred in finding that the Second Appellant contravened section 75B having regard to his Honour's erroneous findings as to the Second Appellant's intentions."
150 The references to s 75B of the Act are probably erroneous. That section defines the meaning of the expression "a person involved in a contravention" of various provisions of the Act. Some of the remedies prescribed in Part VI of the Act are available against such a person. Section 75B prescribes that the expression includes a person who "has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention". However, as we have demonstrated, injunctive relief is available pursuant to s 80. Paragraph 80(1)(e) expressly authorizes injunctions against such a person. Thus recourse to s 75B is unnecessary where injunctive relief is sought. That is the only relief granted in this case, other than costs. We will treat the appellants' references to s 75B as referring to par 80(1)(e).
151 Mr Klimis submits that the finding that he was knowingly concerned in Sydneywide's breach of s 52 cannot stand with the dismissal of the claim that he was liable for Sydneywide's passing off. He also submits that, for reasons previously discussed, Conti J should not have concluded that he intended to copy aspects of the Red Bull get-up. His Honour found at [70] that Mr Klimis had decided that it was desirable that Sydneywide adopt certain aspects of the Red Bull get-up and was active in designing the LiveWire get-up. Conti J found at [75] that:
"The evidence … and the findings … demonstrate that Mr Klimis, as the self-styled Managing Director, and, I would infer, the decision-maker or ultimate decision-maker of Sydneywide at all material times and in all material respects, was personally involved in such capacity in the process of design, and the ultimate choice of design, of the packaging for the LiveWire can, and that he had sufficient knowledge of the risks to which Sydneywide was exposed, if Sydneywide's conduct subsequently complained of did in fact and reality 'sail too close to the wind'."
152 His Honour considered that Mr Klimis was "closely, as distinct from remotely, involved in Sydneywide's contravention of s 52 … ." We cannot see that any other view was open on the evidence. Some insight into the conduct proscribed by par 80(1)(e) can be derived from the decision of the High Court in Fencott v Muller (1982 - 1983) 152 CLR 570. Gibbs CJ said at 583:
"Once it is conceded that it is within the power conferred by s 51(xx) of the Constitution for the Parliament to provide, as it has done by s 52, that a trading corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or to deceive, it must follow that it is also within the power of the Parliament to adopt a means of enforcing compliance with the prohibition which it has directed to the corporations. … Since corporations must necessarily act through human agencies, it is open to the Parliament to provide for sanctions against natural persons whose conduct brings about the contravention of the law by the corporation."
153 At 598 - 599, Mason, Murphy, Brennan and Deane JJ said:
"Once it is accepted, as it now is, that the corporations power extends to the regulation of the trading activities of trading corporations, it necessarily follows that, in some circumstances at least, the power must extend to the imposition of duties on natural persons. Two considerations combine to sustain this conclusion. The first is that corporations act through natural persons. The second - and it is a consequence of the first - is that, in order to be effective, a regulation of the activities of corporations calls for the imposition of duties on those natural persons who would, or might, in the ordinary course of events, participate in the corporate activities, the subject of the intended regulation. Accordingly, when in the legitimate exercise of the corporation's power duties are imposed on corporations in relation to their trading activities, breach of which creates a civil liability, the power extends to the imposition of duties on natural persons, breach of which also creates a civil liability, not to engage in conduct which assists or facilitates a contravention by a corporation of duties thus imposed upon it. …
Another way of expressing this approach is to say that where a law prescribing the way in which corporations shall conduct their trading activities is supported by the corporations power, an ancillary provision reasonably adapted to deter other persons from facilitating a contravention of the law by a corporation is supported by the same power."
154 These extracts deal with the constitutional power to impose liability upon a natural person as an incident of the corporations power. However their Honours' reasons also indicate the likely ambit of operation of any such provision. At a practical level, the following passage from the judgment of Wilcox J in Trade Practices Commission v Australian Meat Holdings Pty Ltd (1988) ATPR 40-876 at 49,512 demonstrates the relevant considerations:
"The words 'knowingly concerned' are commonly found in statutory provisions creating criminal offences. In that context the word 'concerned' has been read as requiring facts connecting the accused with the commission of the relevant offence. … In Ashbury v Reid, the Full Court of the Supreme Court of Western Australia, after quoting the Oxford Dictionary definition of 'concerned', said at p 51:
'The question which a court should ask itself in determining whether an act or omission on the part of an individual comes within the terms of s 54 is whether on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connexion between him and the offence.'
(R v Tannous) is an interesting case, in the present context. The appellant had agreed with two other persons that certain money owing to him could be used in the importation of cannabis, in the sale of which he was to become a participant. He took no other part in the enterprise. In fact his money was not used so that there was no causal relationship between the involvement of the appellant and the actual importation. Notwithstanding this, the Court held that there was evidence upon which he could be convicted of being knowingly concerned in the importation. At pp 308 - 309, Lee J said:
'The 'concern' to which the section speaks is not a concern personal to the appellant in the sense of being in his mind, but it is a concern which can be demonstrated objectively by reference to his association, whatever it may be, with the importation. It must be shown that he is 'concerned in' not just 'concerned about the importation'. A father, learning that his son had made arrangements to import narcotic drugs into this country, might well be anxious about, interested in or concerned about the fact and he might evince that anxiety, interest or concern to others. But he would not be guilty of the offence of being knowingly concerned merely from his knowledge of the importation and his state of mind arising therefrom. Before he could be convicted under the section he would have to do something to connect himself with or involve himself in the importation.'
The Borthwick respondents were more than concerned about the acquisition of Borthwick by AMH. They were concerned in that matter. They took active steps to bring it about. Part of that activity took place in Australia. It matters not that a part of the Australian conduct, the visit to Mr McComas, not only failed of its purpose but, as events turned out, proved to be unnecessary."
155 Once it is accepted that Mr Klimis was active in bringing about Sydneywide's adoption of the get-up and in the marketing of the product, it follows that he was knowingly concerned in the contravention. Whether that involvement was direct or indirect may be a matter for debate, but it does not matter for present purposes. This aspect of the appeal must also fail.