TRADE PRACTICES - Fair Trading Acts - misleading and deceptive conduct - whether statements in public lectures and in tapes of the lectures were made “in trade and commerce” - lectures promoted by a non-profit unincorporated association - whether association conducted a “business” - whether sale of merchandise and charging of entry fees incidental to the association’s non-commercial activities - whether conduct bore a trading or commercial character - application of the test formulated by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.
TRADE PRACTICES - misleading and deceptive conduct - whether statements in the lectures and in publications conveyed representations alleged - whether representations were false.
REMEDIES - whether person not relying on false representations can claim damages - whether an injunction should be granted to restrain repetition of misleading statements made in public lectures.
COPYRIGHT - diagrams of archaeological or geological site contained in book - copyright held in the United States - whether sufficient causal connection with the original work - whether the material reproduced was a substantial part of the original work - whether the respondents authorised the reproduction.
COPYRIGHT - breach of copyright - assessment of damages on a “jury basis”- whether additional damages should be awarded.
WORDS AND PHRASES - “in trade or commerce” - whether conduct bears a trading or commercial character.
WORDS AND PHRASES - “business” - particular statutory context - relevance of system and continuity.
A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd(1996) 143 ALR 543. Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd(1991) 27 FCR 149.
Durant v Greiner(1990) 21 NSWLR 119. Edgelow v MacElwee[1918] 1 KB 205. Federal Commissioner of Taxation v Whitfords Beach Pty Ltd(1982) 150 CLR 355. Fenning Film Services Ltd v Wolverhampton, Walsall and District Cinemas Ltd[1914] 3 KB 1171. Francis Day Hunter Ltd v Bron [1963] Ch 587. Glorie v…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Fasold v Roberts [1997] FCA 439
Case
[1997] FCA 439
Decision Date
CaseChat Overview and Summary
The applicants in this case are Professor Ian Rutherford Plimer and Mr David Fasold, while the respondents are Dr Allen Roberts and Ark Search Association Incorporated. The applicants have brought proceedings against the respondents on the basis of alleged misleading and deceptive conduct in trade or commerce and copyright infringement. The applicants contend that Dr Roberts, in the course of public lectures and in publications and tapes of those lectures, made false representations about his qualifications and the extent of his investigations at the Site. They seek relief under the Fair Trading Acts of the States and of the Australian Capital Territory, and under the Trade Practices Act 1974 (Cth). The applicants also claim that Dr Roberts and Ark Search Inc infringed copyright in a book and diagram held by Mr Fasold. The respondents have filed a defence and a cross-claim for relief in relation to what was said to be unjustifiable threats by the applicants to pursue claims of breach of copyright. The applicants have filed a reply to the cross-claim. The applicants' case, insofar as it is based on the TP Act or Fair Trading Acts, fails. Mr Fasold succeeds in his claim for infringement of copyright against Dr Roberts, but he should be awarded damages only in the sum of $2,500. Mr Fasold's claim against Ark Search Inc should be dismissed. The cross-claim should be dismissed.