Austfish International P/L v Comptroller-General of Customs

Re: AUSTFISH INTERNATIONAL PTY LIMITED
And: COMPTROLLER-GENERAL OF CUSTOMS
No. W G127 of 1989
FED No. 191
Customs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Customs - Commerce Trade Descriptions Act 1905 (Cth) - "false trade description" - relevance of certain policy considerations - meaning of the word "false" - whether or not the description of a certain species of fish as "Kenyan or African barramundi" is objectively incorrect - whether or not such description is "likely to mislead in a material sense".

Commerce Trade Descriptions Act 1905 (Cth) - s.3, s.9(1), s.9(2)

Given v C.V. Holland (Holdings) Pty Limited (1977) 29 FLR 212

Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited (1981-1982) 149 CLR 191

HEARING

PERTH

#DATE 11:4:1991

Counsel for the Applicant: Mr R.J. Meadows with Mr A.G. Castledine

Instructed By: Freehills Hollingdale Page

Counsel for the Respondent: Mr D.R. Williams QC with Mr P.R. MacLiver

Instructed By: Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondent's costs subject to any appropriate allowance which should be madein respect of the late filing of affidavits.

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

JUDGE1

The applicant, Austfish International Pty Limited, is an importer of fish into Australia. It seeks to import from Kenya, in frozen form, a species of fish known scientifically as Lates Niloticus, under the names "Kenyan barramundi" or "African barramundi".

The respondent has asserted that such an importation would be a breach of s.9(1) of the Commerce Trade Descriptions Act 1905 (Cth) (the "Act") in that those names, when applied to that fish, would amount to a "false trade description" within the meaning of the Act.
By this application the applicant seeks that the Court make the following declarations:

(1) that the importation from Kenya into Australia of the species of fish known as Lates Niloticus under the names "Kenyan barramundi" or "African barramundi" does not constitute an importation of goods in contravention of s.9(1) of the Commerce Trade Descriptions Act 1905 (Cth); and

(2) that the description of the species of fish known as Lates Niloticus as "Kenyan barramundi" or" African barramundi" is not a "false trade description" within the meaning of the Commerce Trade Descriptions Act 1905 (Cth).

It has not been suggested that the Court does not have the power to make the declaration sought and I proceed on the basis that it does. It is very plain that the parties, as well as interested Government instrumentalities and industrial organisations, are anxious to obtain the Court's ruling on the questions raised in this case.
The relevant statutory definitions are to be found in s.3 of the Act. "Trade description" is defined so far as relevant as follows:

"trade description in relation to any goods means any description, statement, indication or suggestion, direct or indirect:

(a) as to the nature, ... quality, ...; or

(b) as to the country or place in or at which the goods were made or produced.

"False trade description" is defined, so far as relevant, as meaning "a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a material respect as regards the goods to which it is applied...".
It is accepted by the respondent that the fish sought to be imported are in fact produced in Kenya or elsewhere in Africa. The relevant falsity or misleading quality is claimed to reside in the description of the fish as "barramundi".
I note also that there is no contest between the parties that the word "false" in this definition carries no connotation of deliberate falsehood. It is clear, in my view, that the provisions of s.9(2) require this result. "False" accordingly means factually or objectively incorrect (Given v C.V. Holland (Holdings) Pty Limited (1977) 29 FLR 212).
It is necessary to consider the two fish types that are involved in these proceedings. The second, not yet referred to, is accurately identified and described by the branch of biological science known as taxonomy as Lates Calcarifer. This fish, like Lates Niloticus, is commercially caught, processed and marketed. It is to be found in the estuarine waters of Northern Queensland and in similar areas of other parts of the north of Australia. It is also caught in similar waters in South East Asia, South China, India and Sri Lanka. Its taxonomic description indicates that it is a species of the genus Lates, as is Lates Niloticus.
The evidence clearly establishes what is, after all, a well-known fact, that most fish have, besides their scientific names, common names and, in the case of fish which are part of commerce, also commercial names which may or may not coincide with their common names. These common and commercial names may vary with usage and the passage of time.
It is clear that Lates Calcarifer in Australia has had a variety of names over the years. It has been known for instance as the "Giant Perch", the "Palmer" and the "Cock-up" and also as "barramundi". The last name is of Aboriginal origin. I find on the evidence that it is most likely that the name meant "large scales" and applied in the relevant Aboriginal language to this fish and to other fish in the same waters that had this characteristic. I am satisfied that, with the passage of time and with the increasing fishing of this species for commercial purposes, that all names other than "barramundi" have dropped from use with the result that this fish is known in Australia, both in common and commercial parlance as "barramundi". I am satisfied also that the same species has various common names in the areas outside Australia to which I have made reference. However, when these fish are imported into Australia which, as the evidence establishes, is a frequent occurrence, they are described in Australia as "barramundi" coupled, usually, with the reference to their country of origin.
There are photos of this fish in evidence. It is clearly identifiable from its appearance which, I am satisfied, does not vary significantly from one place of origin to another.
The Lates Niloticus is currently described as another species of the genus Lates. It is to be found in lakes and river systems associated with the Nile River in Africa. It is extensively caught for commercial purposes in Kenya as well as other African countries. It has names in the indigenous tongues of the regions in which it is caught. Its common name in the English language is "Nile Perch". There is apparently some controversy as to whether it should be referred to as a perch but this has no bearing, in my view, on the issues posed for determination in this case. It has been imported into Australia in importations other than those made by the applicant. In such importations it has been described as "Lates Niloticus", or "Nile Perch". It is reasonable to assume that there is some degree of acceptance of the fish in Australia by that name, at least in the higher levels of the distribution chain. It is not referred to as "barramundi" in any part of the world where it is dealt with in commerce or otherwise. This is, of course, not surprising having regard to the Australian Aboriginal origin of that name.
There is clearly a commercial background to this litigation. The applicant acknowledges that it sees commercial advantage in having the word "barramundi" as part of the name under which the African fish is imported into Australia. It wishes to make use of the acceptance that that name already has in the Australian market. The imported fish sells at a significantly lower price than the Australian fish. Equally, there is opposition to the applicant being permitted to take this course through fear of ensuing adverse effect upon the established consumer perceptions of barramundi as being a highly prized Australian fish eagerly sought after in the higher price ranges of the market. There are, quite obviously, policy considerations involved with which the court is not concerned, a fact amply demonstrated by the number of rulings which have necessarily been given in the course of this hearing, excluding from evidence statements of existing policy as to the naming of Lates Niloticus or as to claims as to what that policy should be.
The Court is concerned only to decide whether the importation of Lates Niloticus under the names "Kenyan or African barramundi" would breach the Act. It must decide whether the use of those names would amount to "a false trade description" by reason of their being false or likely to mislead in a material respect.
The respondent's case is that in Australia the name "barramundi" has come to apply quite definitely in common and commercial parlance to one type of fish only, being the fish that is scientifically described as Lates Calcarifer. Accordingly it is submitted that to use that name in respect of a fish not of that species, even if it be coupled with a word indicating that the fish is not of Australian origin, is necessarily false in the sense of being incorrect, and also misleading to potential consumers in the market place.
In so far as it is contested that the name is so confined in Australia, I find on the evidence that it is. Whilst it is true that the word "barramundi", no doubt because of its original broad descriptive use by Aboriginal people, has been applied to other fish such as those known as the "Barramundi Cod" and the "Reef Barramundi", neither of which are even closely related to Lates Calcarifer, the evidence satisfies me that those fish are not taken commercially and are not in any way known as "barramundi" in the market place. No fish other than the Lates Calcarifer answers to that description in Australia. This is really acknowledged by the applicant in the making of a concession that to import Lates Niloticus under the simple name "barramundi" would be a breach of the Act.
The applicant however submits that the composite description "Kenyan or African barramundi" takes the importation out of the statutory prohibition. It submits that although the African fish is not Lates Calcarifer it is nevertheless a species of the same genus and so closely related to it as to render the composite description not false or misleading. It asserts, on the evidence, that the barramundi of Australia is the fish in Australian waters most closely related to the African fish, with the result that if one were to seek a name to be used in Australia which would most closely convey to an Australian consumer the characteristics of the imported African fish that name would be "barramundi". The addition of the country of origin to the nomenclature, it is submitted, removes any element of falsity or any misleading quality.
Considerable evidence has been put before the Court through witnesses eminent in the fields of ichthyology, biological taxonomy, the fishing industry, marketing and linguistics. I do not propose to discuss this evidence in detail. So far as the scientific aspects of the case are concerned the question for the Court is whether it is established that the two fish are so similar as to reasonably permit the word "barramundi" to be used in Australia as part of the name of the African fish.
Much evidence was directed to the similarities and differences between the two fish. It is clear, of course, that biologically they are not the same. At best they are species of the one genus, although some doubt has been cast on this by the evidence of Mr McKay whom I found to be a very impressive witness. As a result of thinking, stimulated apparently in the course of his testimony in this case, he expressed the view that the fish may indeed belong to different subgenera because, as I understand him, the African fish is entirely a fresh water fish and is not hermaphroditic, whilst the Australian fish inhabits both fresh and salt water, breeds in salt water, and undergoes a sex change during its life cycle.
Although it is said in some of the evidence that differences in the physical appearances of the fish are detectable only to the trained eye, I find this not to be so, at least where direct comparison of two specimens is possible as is the case with photographs tendered in evidence. The African fish clearly has a larger and more prominent eye and a different profile in the area of the snout.
There are also morphological differences clearly demonstrated by evidence of scientific measurements relating to the distances between the eyes and the spines of the fish and the number and distribution of scales. Indeed the size difference in the scales is visible to the eye and constitutes a distinguishing feature to direct observation. It is clear also that the African fish can grow to a substantially greater size than the Australian.
The African fish is imported into Australia in processed and frozen form so that comparisons of the type just referred to are not to be made at the importing or marketing level. Nevertheless the fillets of the fish are by no means, in my view, identical. Because of its fresh water habitat the flesh of the African fish is, I am satisfied, noticeably more oily than that of Lates Calcarifer. This fact I find is productive of noticeable taste differences between the flesh of the two fish when cooked. The difference between the characteristics of the flesh is also scientifically demonstrable by electronic techniques described in the evidence which point to significant differences in the protein structures of the tissues of the two fish.
The effect of this evidence is to satisfy me that, although it may be correctly said that Lates Calcarifer is the most similar Australian species to Lates Niloticus, the two fish are not so closely related biologically or so physically similar as to warrant the application of the term "barramundi" to the African fish, in the circumstances that that name has in Australia come to apply only to Lates Calcarifer. Nor, in my view, does the addition of the country of origin produce a different result. The fish is simply not a barramundi and is cannot properly be described by that name. In so saying I have not overlooked the evidence of Professor Dixon. I feel that that evidence does not take into account the fact that the name "barramundi" has been fixed by usage to apply only to Lates Calcarifer. Indeed the professor has accepted that it applies to a range of fish because of his recourse to dictionary definitions which I find, on the evidence, no longer reflect the true position.
I am therefore of the view that the description "Kenyan or African barramundi" is objectively incorrect in a material respect and is therefore a false trade description within the meaning of the Act.
I also find that the use of these names would breach the section in that each would be "likely to mislead in a material respect as regards the goods to which it is applied." In so finding I have had regard to the perceptions of the average consumer (per Gibbs CJ, Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited, (1981-1982) 149 CLR 191 at 199). Such a consumer would, of course, not have anything equivalent to the amount of information which the Court has been given during this hearing. However, in so far as he or she were interested in purchasing barramundi, he or she would, in my view, have a conception of that name as applying to a particular fish with highly desirable edible qualities which positioned it in a fairly high price range, and which came from northern Australian waters. That consumer might learn, with chagrin and with a degree of cynical resignation, that the fish sought to be purchased in fact was a product of South East Asian or adjacent waters. That would depend upon whether an appropriate question was asked and received an honest answer. Nevertheless the consumer would expect to receive a particular fish, or a fillet of it, which would be in fact Lates Calcarifer. The consumer would not know it by that name but would know it by the name "barramundi".
What would such a consumer expect if he or she were offered "Kenyan or African barramundi"? Whilst some consumers of above average sophistication or educational background might think that the fish would be merely some relation of the fish they knew as "barramundi" and would consequently be a different fish but with similarities, I am satisfied that the great majority of consumers would assume that they were receiving the fish known to them in the market place as "barramundi" but which happened to be caught in African waters. They would not be receiving such a fish. Their market expectations would be met only if they received a fish which was in fact Lates calcarifer. They would accordingly be misled and the description Kenyan or African barramundi would be a false trade description within the meaning of the Act.
Accordingly, I refuse the declarations sought.
I dismiss the application. I order the applicant to pay the respondent's costs subject to any appropriate allowance which should be made in respect of the late filing of affidavits. I leave this latter question to the registrar.

[1991] FCA 191

11 APRIL 1991