Fasold v Roberts
[1997] FCA 439
•2 JUNE 1997
CATCHWORDS
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.
Copyright Act 1988 (Cth), ss 14(1), 31(1), 32(2), 32(4), 36(1), 38(1)(a), 84, 115(4).
Fair Trading Act 1985 (Vic), ss 5(4), 11(1), 34(4), 39.
Fair Trading Act 1987 (NSW), ss 4(1), 42(1), 65, 68.
Fair Trading Act 1987 (SA), ss 3(1), 56(1), 83(5), 84.
Fair Trading Act 1990 (Tas), ss 3, 14(1), 46(1).
Fair Trading Act 1987(WA), ss 5, 10(1), 74(2), 77.
Fair Trading Act 1989 (Qld), ss 5, 38(1), 98(5), 99.
Fair Trading Act 1992 (ACT), ss 5, 12(1), 44(5), 48.
Trade Practices Act 1974 (Cth), ss 4(1), 52, 80(4), 82(1).Federal Court Rules, O 6, r 2; O 10A, r 5(1).
Copyright (International Protection) Regulations 1969 (Cth), regs 4(1), (4); Schedule 1.
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.Autodesk Australia v Cheung (1990) 94 ALR 472.
Autodesk Inc v Dyason(No2) (1993) 176 CLR 300.
Avel Pty Ltd v Multicoin Amusement Pty Ltd (1990) 171 CLR 88.
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.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 WA Chip and Pulp Co Pty Ltd (1981) 55 FLR 310.
Grieve v Commissioner of Inland Revenue [1984] 1 NZLR 101.
Hanfstaengl v H R Baines & Co Ltd [1895] AC 20.
Hope v Bathurst City Council (1980) 144 CLR 1.
Hungier v Grace (1972) 127 CLR 210.
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FLR 248.
Jansseg-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526.
Re Ku-Ring-Gai Co-Operative Building Society (No 12) Ltd (1978) 22 ALR 621.
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465.
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506.
Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd [1994] ATPR (Digest) 40-130.
Nationwide News Ltd v Copyright Agency Ltd (1996) 136 ALR 273.
O’Brien v Smolongov (1983) 53 ALR 107.
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191.
Prestia v Aknar (1996) 40 NSWLR 165.
Raben Footwear Pty Ltd v Polygram Records Inc, 16 May 1997, FCA, Full Court, unreported.
State Superannuation Board (NSW) v Federal Commissioner of Taxation (1988) 82 ALR 63.
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1.
Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559.
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177.
Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272.
University of New South Wales v Moorehouse (1975) 133 CLR 1.
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.DAVID FASOLD & ANOR v ALLEN ROBERTS & ANOR
NG 942 of 1992Sackville J
Sydney
2 June 1997IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 942 of 1992
GENERAL DIVISION )
BETWEEN:
DAVID FASOLD
First ApplicantIAN RUTHERFORD PLIMER
Second Applicant
AND:
ALLEN ROBERTS
First RespondentARK SEARCH ASSOCIATION INCORPORATED
Second Respondent
AND:
ALLEN ROBERTS
First Cross ClaimantARK SEARCH ASSOCIATION INCORPORATED
Second Cross Claimant
AND:
DAVID FASOLD
First Cross Respondent
IAN RUTHERFORD PLIMER
Second Cross Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 2 JUNE, 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1.Judgment in favour of the first applicant against the first respondent in the sum of two thousand five hundred dollars ($2,500).
2.The application otherwise be dismissed.
3.The cross-claim be dismissed.
4.Direct the respondents to file and serve any submissions on costs within 14 days.
5.Direct the applicants to file and serve their submissions on costs within 14 days from receipt of the respondents' submissions.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 942 of 1992
GENERAL DIVISION )
BETWEEN:
DAVID FASOLD
First ApplicantIAN RUTHERFORD PLIMER
Second Applicant
AND:
ALLEN ROBERTS
First RespondentARK SEARCH ASSOCIATION INCORPORATED
Second Respondent
AND:
ALLEN ROBERTS
First Cross ClaimantARK SEARCH ASSOCIATION INCORPORATED
Second Cross Claimant
AND:
DAVID FASOLD
First Cross Respondent
IAN RUTHERFORD PLIMER
Second Cross Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 2 JUNE, 1997REASONS FOR JUDGMENT
"Among the scenes which are deeply impressed on my mind, none exceed in sublimity the primeval forests undefaced by the hand of man; whether those of Brazil, where the powers of Life are predominant, or those of Tierra del Fuego, where Death and Decay prevail. Both are temples filled with the varied productions of the God of Nature: - no one can stand in these solitudes unmoved, and not feel that there is more in man than the mere breath of his body."
Charles Darwin, The Voyage of the Beagle (1839, Heron Books Edition), 503.
INDEX
I.THE PROCEEDINGS 1
The Parties 1
The Issues 2
Conduct of the Proceedings 4
II.THE EVIDENCE 6
The Extent of Factual Disputes 6
Dr Roberts' Evidence 7
Professor Plimer's Evidence 9
Mr Fasold's Evidence 11
Mr Wyatt's Evidence 11
Mr Midgley's Evidence 12
III.THE FACTS 12
Dr Roberts' Background 12
Mr Fasold's Visits to the Site and his Diagrams 15
Dr Roberts' 1990 Visit to the Site 20
Noah's Ark Research Foundation 20
Dr Roberts' 1991 Trip 23
NARF's First Newsletter 24
The Brochure 25
Preparation of the Drawing 28
NARF's Second Newsletter 29
The Public Meetings 30
Income and Expenditure of NARF and Ark Search Inc 33
Additional Findings 34
IV.APPLICATION OF THE TRADE PRACTICES ACT AND FAIR TRADING ACT 36
The Trade Practices and Fair Trading Legislation 36
In Trade or Commerce - The Contentions 38
Did NARF Conduct a Business? 40
"In Trade or Commerce?": The Authorities 43
Did Dr Roberts Make Statements in Trade or Commerce? 50
An Alternative Argument 51
Ark Search Inc 52
Prestia v Aknar 53
Summary of Conclusions on Trade and Commerce 53
V.MISLEADING AND DECEPTIVE CONDUCT 54
The Principles 54
The Representations Relied On 55
Were the Representations Made and Were they Misleading or Deceptive? 64
Remedies 73
Summary of Conclusion on Misleading and Deceptive Conduct 76
VI.COPYRIGHT 76
The Case for Infringement 76
Did Mr Fasold have Copyright in the Book and Diagram? 77
Was Mr Fasold's Copyright Infringed? 79
Did the Respondents Authorise the Infringement? 82
Damages? 84
Summary on Copyright 86
VII.CONCLUSION 86
I.THE PROCEEDINGS
The Parties
The principal antagonists in this case, although not the only parties to the litigation, are the second applicant ("Professor Plimer") and the first respondent ("Dr Roberts"). Professor Plimer is a Professor of Geology and Head of the School of Earth Sciences at the University of Melbourne. He is a member of an organisation known as the Australian Skeptics, which, at least since 1995, has provided him with financial support in connection with these proceedings. Dr Roberts is an ordained Christian minister whose career includes a period as the principal of a Bible College in Sydney. He described himself in an affidavit as "an historical researcher in archaeological work as it relates to the boat-shaped formation in Turkey...which I believe may be Noah's Ark".
Professor Plimer claims to have been affronted by what he says were misleading or deceptive statements made in the course of public lectures given by Dr Roberts throughout Australia in April and May 1992. Professor Plimer also complains about statements made or authorised by Dr Roberts in certain publications and in video and audio tapes of the lectures. The lectures and publications of which Professor Plimer complains advance the hypothesis that a boat-shaped geological formation at a place known as Akyayla, near Mt Ararat in Eastern Turkey (to which I refer as "the Site") is or could contain the remnants of Noah's Ark, thereby providing tangible evidence of the literal truth of the account of the great flood in Genesis, 6:13 - 8:19. It is important to appreciate that Professor Plimer's case, as presented on his behalf, is not directed to establishing the invalidity of the hypothesis put forward by Dr Roberts. Rather, Professor Plimer relies on what he says is the falsity of particular statements made by Dr Roberts in the lectures and in the publications.
There are two other parties to the litigation. The first applicant ("Mr Fasold") is a citizen of the United States, who has worked (among other roles) as a merchant seaman, salvage master and marine consultant. Mr Fasold is the author of a book, published in 1989 in the United States, entitled "The Ark of Noah". The book contains a diagram of what is said to be the remains of Noah's Ark at the Site. Mr Fasold claims that his copyright in the book has been infringed by what he says are reproductions of this diagram in the publications. Mr Fasold's role as an applicant in these proceedings has been supported financially by Professor Plimer, and more recently, by the Australian Skeptics.
The second respondent, Ark Search Association Incorporated ("Ark Search Inc"), was incorporated
on 25 June 1992 as an association under the Associations Incorporation Act 1991 (ACT). Ark Search Inc, according to its Treasurer, receives support primarily from members of the Christian community to further its purposes, which include investigating the Site to determine whether it contains the remnants of Noah's Ark. There was evidence that, on 10 March 1997, about one month before the hearing was scheduled to commence, the committee of Ark Search Inc resolved to wind up the company, in accordance with the procedures for the voluntary winding up of a company contained in the Corporations Law. It is not entirely clear what effect that resolution was intended to have (see Corporations Law, s.583(b)), but the parties were agreed that the resolution did not have the effect of staying the proceedings against Ark Search Inc. Accordingly, it was common ground that the applicants did not require leave to continue the proceedings against Ark Search Inc.It is of some importance to the legal issues in this case that Ark Search Inc was not incorporated until 25 June 1992, after the most important events of which the applicants complain had occurred. The incorporation of Ark Search Inc was preceded by the establishment, in March 1991, of an unincorporated association known variously as the "Noah's Ark Foundation", "Noah's Ark Research Foundation", "Noah's Ark Research Project" and "Ark Search". The public meetings addressed by Dr Roberts, at which publications and tapes were sold, were conducted under the auspices of this unincorporated association, to which I shall generally refer as "NARF". Dr Roberts was described on NARF's letterhead and in other documentation produced by it, or with its authority, as the organisation's "Archaeological Research Consultant". Dr Roberts denied that he was a member of NARF. If this evidence is accepted, as I think it should be, it follows that no member of NARF is a party to these proceedings.
The Issues
The litigation has attracted considerable public attention, doubtless because it has been thought by some to be yet another contest in the legal arena between science and what is sometimes referred to as "creation science". References were made during the hearing to the famous Scopes trial, which took place in Dayton, Tennessee in July 1925. In that case, a local schoolteacher was convicted of violating the so-called Anti-Evolution Act of Tennessee, passed in 1925. That Act prohibited the teaching in public schools of "any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals". (The proceedings of the trial are reproduced in L.W. Levy (ed), The World's Most Famous Court Trial: State of Tennessee v John Thomas Scopes (Di Capo Press, New York, 1925)). The appeal to the Supreme Court of Tennessee, which upheld the constitutionality of the Anti-Evolution Act but overturned Scopes' conviction, is reported: Scopes v Tennessee 154 Tenn 105; 289 SW 363 (1927).
In more recent times, the Supreme Court of the United States has struck down State laws prohibiting the teaching of evolution in schools, or requiring the teaching of the theory of evolution to be accompanied by instruction in "creation science". The Supreme Court has regarded such statutes as violations of the Establishment Clause of the First Amendment to the United States Constitution, which forbids the enactment of any law "respecting an establishment of religion": Epperson v Arkansas 393 US 97 (1968); Edwards v Aguillard 483 US 578 (1986) (note that the Establishment Clause has been held to apply to the States). See also McLean v Arkansas Board of Education 529 F.Supp. 1255 (1982) (containing a brief history of "scientific creationism" in the United States); J A Villarreal, "God and Darwin in the Classroom: The Creation/Evolution Controversy" (1988) 64 Chicago-Kent LR 335; J F Francis, "Creationism v Evolution: The Legal History and Tennessee's Role in that History" (1996) 75 Tenn LR 753. Of course, the constitutional structure in Australia is different from that in the United States, although s.116 of the Constitution forbids the Commonwealth (but not the States) making any law for establishing any religion or for prohibiting the fair exercise of any religion.
Despite the historical comparisons and indeed the passions which the present case has plainly aroused, the issues to which it gives rise are relatively prosaic. There are two principal questions to be decided:
•The first major question is whether Dr Roberts has contravened the Fair Trading Acts of the States and of the Australian Capital Territory ("ACT"). These Acts provide that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive. The applicants contend, in substance, that Dr Roberts misrepresented his qualifications and the nature and extent of his investigations at the Site. I set out later in this judgment the particular passages in the lectures, tapes and publications on which the applicants rely to support their claims. The applicants say that Dr Roberts' conduct took place "in trade or commerce" within the meaning of the Fair Trading Acts, and that they are entitled both to damages and to orders restraining Dr Roberts from repeating the misrepresentations in trade or commerce. The claim against Ark Search Inc is based on the sale and distribution by it of the publications and tapes containing the alleged misrepresentations. Ark Search Inc is said to have infringed s.52(1) of the Trade Practices Act 1974 (Cth) ("TP Act"), which prohibits a corporation, in trade or commerce, engaging in conduct that is misleading or deceptive, or likely to mislead or deceive. Ark Search Inc is subject to the TP Act because it is a corporation incorporated in the ACT.
•The second question is whether Mr Fasold is entitled to relief under the Copyright Act 1968 (Cth) ("Copyright Act") in respect of what he claims is an infringement of his copyright in his book. Mr Fasold claims that Dr Roberts and Ark Search Inc infringed his copyright, by reproducing or authorising the reproduction of the diagram in a brochure and a newsletter and by distributing or authorising the distribution of copies of the brochure and newsletter. Mr Fasold contends that he is entitled to damages for the infringement of his copyright.
The respondents filed a defence and cross-claim. In the cross-claim they seek relief in relation to what was said to be unjustifiable threats by the applicants to pursue claims of breach of copyright. Since nothing was said in the respondents' submissions to support the granting of any relief on the cross-claim it is not necessary to consider it further.
Conduct of the Proceedings
Three further matters should be noted at the outset. First, these proceedings were commenced by the filing of an application by Mr Fasold and Professor Plimer on 21 December 1992. Therefore, a period of some four years elapsed before the proceedings were ready for trial. Moreover, the evidence suggests that the parties incurred very substantial costs in preparing the case for hearing.
I do not have complete information on the reasons for the delay or for the apparently unusual level of costs incurred by the parties. Even so, I think it fair to say that some of the delay and a significant proportion of the costs are attributable to the propensity of each side to prepare and file affidavits and voluminous documentary evidence, without always paying careful attention to relevance or to matters of form. A consequence of this approach was that much of the affidavit material was ruled inadmissible at the trial, or was simply not read by counsel. This had the advantage of shortening the hearing. Instead of continuing for the period of four weeks initially estimated by the parties, the trial lasted for seven hearing days. However, the rejection of a large volume of affidavit material does not eliminate the expense and delay associated with its preparation.
It is proper to record that I do not necessarily lay these difficulties at the feet of counsel or solicitors appearing or instructing at the trial. Some of the legal representatives only came into the proceedings at a late stage, and are not responsible for the affidavit evidence filed before their involvement. Moreover, counsel appearing at the hearing readily accepted that the issues had to be confined to the
case as pleaded. Indeed, as the case progressed, the issues were narrowed. In particular, the way in which the applicants put the case based on misleading and deceptive conduct was considerably narrower than the affidavits filed in the proceedings might have suggested. Nonetheless, the parties must bear the primary responsibility, albeit not necessarily in equal proportions, for the unusual delay and expense in bringing these proceedings to finality.
Secondly, it should be apparent from what has been said thus far that the application seeks relief in respect of two quite distinct causes of action. The cause of action for breach of copyright is available (if at all) only to Mr Fasold. The cause of action founded on the Fair Trading Acts and the TP Act, although said to be brought on behalf of both applicants, in substance seeks relief that can only benefit Professor Plimer. While there is some overlap in the evidence relevant to each cause of action, it is not entirely clear that the test provided by the Federal Court Rules ("FCR") for the two claims to be joined in the one set of proceedings is satisfied: see FCR, O 6, r 2. However, the respondents did not suggest that the two claims should be heard separately and, in the event, they were heard together.
Thirdly, the principal claim made by the applicants, in relation to misleading and deceptive conduct, was based on the Fair Trading Acts of the States and of the ACT. Each of the Fair Trading Acts of the States confers jurisdiction on the Supreme Court of the State (or some other specified State court) to grant injunctive relief to restrain a contravention of the legislation. Although no reference was made to the point in the pleadings or in submissions, presumably the applicants invoke the jurisdiction conferred on the Federal Court by the Cross-vesting legislation of the States: see, for example, Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 4(1).
If a party to a proceeding in the Federal Court proposes to invoke the jurisdiction arising under a Cross-vesting law, the pleadings should identify the particular provision on which the party relies and the grounds on which the Cross-vesting law is invoked: FCR, O 10A, r 5(1)(a). Moreover, the party must seek directions as soon as practicable on whether the proceedings should be transferred under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): FCR, O 10A, r 5(1)(b). As far as I am aware, in the present case the requirements of the FCR were not complied with. Had they been, this may well have been a case which, by reason of its somewhat tenuous "federal" aspects, the Court might have considered appropriate to transfer to the Supreme Court of a State.
I should add that the High Court is currently considering the constitutionality of the Cross-vesting scheme, in a case in which special leave was granted to appeal from a decision of the Full Court of the Federal Court: see BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; special leave to appeal granted on 15 November 1996. In view of the conclusions I have reached, I need not address the consequences for the present proceedings should the High Court hold the whole or part of the Cross-vesting scheme invalid.
II.THE EVIDENCE
The Extent of Factual Disputes
As might have been expected, the evidence made it clear that there is an unbridgeable gulf between Professor Plimer and Dr Roberts, on what might be described (no doubt loosely) as philosophical issues. It is equally clear that there is considerable personal antipathy between them. In 1992, Dr Roberts commenced defamation proceedings against Professor Plimer that have not yet been resolved. The antipathy between Professor Plimer and Dr Roberts may account for the immoderate tone of some of the affidavit evidence, especially that filed on behalf of the applicants. In the event, as I have already indicated, a good deal of the affidavit evidence was ruled inadmissible.
Despite this background to the litigation, much of the evidence was ultimately not disputed. In part, this was because a good deal of the evidence was in documentary form. For example, the material containing the alleged misrepresentations was either in documentary form (the brochure and newsletter), or was recorded on videotapes or audio cassettes and thus could be transcribed accurately. Moreover, the financial records of NARF and of Ark Search Inc were in evidence, including its cash book and its statements of income and expenditure. There was no challenge to the accuracy of those records and, indeed, the accounts appear to have been kept meticulously by Mr Hannaford, the Treasurer of NARF and of Ark Search Inc. Accordingly, I am satisfied that the records and accounts accurately record the financial affairs and transactions of the two organisations.
It is nonetheless appropriate to say something about the evidence of the principal witnesses, notably Dr Roberts and Professor Plimer. Mr Walmsley, who appeared with Mr Vincent for the applicants, submitted that I should reject certain evidence given by Dr Roberts relating to his involvement with NARF, which organised the public meetings he addressed. (As I have noted, those meetings took place before Ark Search Inc was incorporated on 25 June 1992.) This evidence was material to the question of whether Dr Roberts had engaged in misleading or deceptive conduct "in trade or commerce", within the meaning of the Fair Trading Acts. Mr Walmsley also challenged certain of Dr Roberts' evidence relating to the claim for infringement of copyright. For his part, Mr Duncan, with whom Mr Radojev appeared for the respondents, submitted that I should take account of Professor Plimer's motives in instituting and continuing these proceedings. It was suggested that I should find that Professor Plimer's objective was in essence to "put creationism on trial" and that this is a reason to deny him any injunctive relief to which he might otherwise be entitled. I also make brief observations about the evidence of some of the other witnesses.
Dr Roberts' Evidence
The initial impression created by Dr Roberts in the witness box was that he was attempting to be careful and measured in his responses. He gave the appearance of being at pains to provide precise answers and took particular care to read closely documents about which he was being questioned. However, having had the opportunity to observe him throughout his evidence, I formed the view that his evidence on certain issues should be treated with caution. This does not mean that Dr Roberts' evidence should necessarily be rejected; rather, it is necessary to take into account what I regard as a propensity to filter his recollection or interpretation of events through his own perception of the issues in the case.
I think that Dr Roberts had identified what he saw as the critical issues in the case and, whether consciously or unconsciously, tailored some of his answers to advance his own interests on those issues. This was particularly noticeable in his attempts to distance himself from the activities of NARF. His reluctance to acknowledge a leading role within that group (even if not as a "member") in my view derived from his appreciation that the fund-raising activities of the group were likely to bear on the "in trade or commerce" point.
An example of Dr Roberts' reluctance on this issue can be given. He gave evidence that he had made no inquiries about the door receipts or sales at the public meetings he addressed. Indeed, he said that he had shown absolutely no interest in the subject. Yet he acknowledged that one of the objectives of NARF was to raise funds for investigations at the Site and that he wished to do his best to foster the project. The brochure itself, which was on sale at the Sydney meetings, stated that the "Ark Search project" was supporting the "work of archaeological research being undertaken by Dr Allen Roberts". Moreover, he had received a grant from a supporter in 1991 to meet expenses of his trip that year, and he was clearly a potential recipient of funds from NARF for the purpose of enabling him to undertake further investigations at the Site in 1992 and later years. Tapes of his presentations were on sale at the meetings, in addition to copies of the brochure and newsletter,
portions of which he had written. In these circumstances, even allowing for the fact that Dr Roberts was not particularly interested in maximising his own financial rewards, I think it inherently improbable that Dr Roberts would have evinced no interest at all in the financial success of the meetings.My impression of Dr Roberts' was reinforced by his unwillingness to acknowledge fully the role he had played in using or encouraging the use of the title "Dr". He was asked questions on this issue:
"And you were using the title, Doctor, throughout the course of giving these lectures, were you not?---It was used of me by others.
And it was used by you of yourself, was it not?---I don't remember calling myself Dr Roberts, Mr Walmsley."
Yet Dr Roberts had assisted in the preparation of the newsletter and brochure and he accepted that he had consented to his photograph appearing on the front of the newsletter. Advertisements were placed in newspapers to publicise the public meetings and these, too, contained Dr Roberts' photograph. Each of these documents - the brochure, the newsletter and the advertisements - described him as "Dr Allen Roberts" or "Dr Allen S Roberts", with the title "Dr" being prominently displayed. The inference is irresistible that Dr Roberts knew that he was to be so described and encouraged the use of the description. Moreover, as part of his presentation, recorded on the video and audio tapes, Dr Roberts gave an account of an event in which he referred to himself as "Dr Roberts":
"And a lady in England, when I was lecturing there to quite a large number of people, came up and said, `Dr Roberts, would you like to hear something?' It's amazing how ordinary, everyday people can bring things to your mind often way ahead of the academics. We academics sometimes get a bit myopic, you know."
None of this necessarily indicates that the use of the title "Dr", whether by NARF or Dr Roberts, was misleading or deceptive. However, I think that Dr Roberts' reluctance to acknowledge his own role in the use of the title was influenced by his knowledge that an issue in the case was whether the title had been used in a manner that was misleading or deceptive.
In assessing Dr Roberts' evidence, I have borne in mind my strong impression that he is prone to interpret events or information consistently with his own belief system. For example, it is clear that Dr Roberts has long accepted what the Doctrinal Statement of his Church describes as the "inerrant" character of the Holy Scripture. In particular, he has long held the belief that the account in Genesis should be accepted as literally true. I am not concerned with Dr Roberts' beliefs as such; he is of course entitled to hold and express them. But the evidence shows that he is apt to rely on conclusions on factual matters reached by like-minded people in circumstances where a more inquiring mind would investigate the matters more critically.
A rather striking example is that at the public meetings Dr Roberts said that certain petrified wood, said to be found at the Site, had been carbon dated to 5,700 years, plus or minus 200 years. When asked about the carbon dating, he replied that Mr Wyatt, the author of a book on Noah's Ark, had conducted the testing. Mr Roberts continued:
"Yes, Mr Wyatt did have this carried out and he gave to me, and this was verbally done, an indication of the number of years, it was just a few thousand years, plus or minus as is often used, I understand, as a layman, and I was simply recounting to Mr Reinhardt Stark, the young man interviewing me, since he asked about it, that there had, as I understood it, been something of this kind carried out....
So you say that Mr Wyatt told you that the petrified wood had been carbon dated and that he told you that it was a few thousand years, is that right?---I'm not sure whether he said it was the petrified wood that he brings forward and is in several exhibits here, but it was on the front section, I understood, of the formation."
The reference to Mr Stark in this extract is to an interview given by Dr Roberts in late 1991, in which he had also stated that carbon dating had yielded a result of 5,700 years. It is true that Dr Roberts expressed reservations about carbon dating, but it is hard to see how what he had been told objectively supported his statements, either in the public meeting or in the interview.
The point is not whether Dr Roberts holds the beliefs he has put forward in his public presentations. I think he does. The point is that his interpretations of events are apt to be coloured by his own beliefs and attitudes. As I have said, this does not necessarily imply that Dr Roberts' evidence should be rejected. But it does suggest that some of his evidence should be viewed cautiously.
Professor Plimer's Evidence
Professor Plimer holds high academic qualifications, including the degree of Doctor of Philosophy from Macquarie University. He has taught geology and conducted research in that discipline in Australian universities since 1969. He has undertaken numerous consultancies and has an international reputation in his field. He has published over 100 scientific books and papers.
It is clear that Professor Plimer holds passionately to the belief that Dr Roberts’ views are scientifically insupportable and that he (Professor Plimer) has a public duty to refute them. For this reason, Professor Plimer attended three of the public meetings addressed by Dr Roberts. He was asked to leave two of them. It is unnecessary to recount the circumstances in which he was asked to leave, beyond noting that he insisted on asking questions from the floor despite being told that he could submit written questions. When asked in cross-examination why he chose not to avail himself of that opportunity, Professor Plimer replied as follows:
“I chose not to because I was very concerned that the audience were being misled and deceived by the science presented at that meeting and as a senior academic I felt it was my duty to maintain a standard of scholarship and make a statement at that meeting.”
Professor Plimer’s zeal on the subject of “creation science” is reflected in his reply, when asked whether he attended his first public meeting (on 4 April 1992, in Melbourne) with an open mind. His response was that he went “to hear a totally new creationist on the block” and “to see how the audience was going to be misled and deceived”. His zeal is also reflected in his actions. In April 1992, he registered in his own name the business name “Noah’s Ark Research Project Services”. He later instructed his solicitors to write to NARF, demanding that they not use the name Noah’s Ark Research Project. He said that he took this step because he wanted to “stop obvious scientific misleading and deceptive behaviour”.
Having regard to the way in which the issues were ultimately framed in this case and the conclusions I have reached, it has not been necessary for me to decide whether I should accept Professor Plimer’s evidence on all matters addressed by him. Had it been necessary to do so, I would have had to consider whether Professor Plimer's zeal for his cause coloured his evidence. I should note, however, one matter. Professor Plimer said in cross-examination that Dr Bayruktutan, a geologist at Ataturk University in Turkey, had expressed certain views in private conversations that were at odds with what he (Dr Bayruktutan) had said publicly. Professor Plimer was not challenged on the accuracy of his account of these private conversations. Dr Bayruktutan did not give evidence in the proceedings, and thus had no opportunity to give his version of events. Whether the conversation took place in the terms recounted by Professor Plimer or not is not relevant to any issue in these proceedings and I make no finding concerning that conversation.
Mr Fasold's Evidence
Mr Fasold's role in this litigation is a little curious. On his own account, for a number of years he was "obsessed with [the Site]". He later became convinced "beyond a shadow of a doubt that [the boat-shaped formation at the Site] was Noah's Ark". Indeed, this was his position when the litigation commenced in 1992 and when he swore his principal affidavits in the proceedings during 1994.
Yet, by February 1995 Mr Fasold had discarded the beliefs he held so fervently and for so long and that had formed the basis for his book, first published in 1989. His change of heart came about shortly after he met Professor Plimer in 1994, first in the United States and later when they met in Turkey at the Site. Mr Fasold was paid by a German magazine, Stern, to participate in the visit to the Site. However, the motivation for his change of mind was not explored in the evidence, doubtless because it is irrelevant to the issues in the case.
I formed the strong view that Mr Fasold, who has experienced financial difficulties in recent years, has a strong commitment to maximising the returns from his book and from other endeavours associated with the Site. However, most of Mr Fasold's evidence was either non-contentious or was supported by contemporary documentation. I think his financial interest in the litigation provides a reason to scrutinise his evidence on disputed matters (such as the effect of his application under United States bankruptcy laws) carefully. In general, however, I have formed the view that Mr Fasold's account of events is broadly accurate and I have therefore accepted his evidence in relation to several matters on which he was challenged.
Mr Wyatt's Evidence
Ronald E. Wyatt is the author of a book entitled "Discovered: Noah's Ark!" published in 1989 by the World Bible Society of Nashville, Tennessee. This book, which is 91 pages in length and replete with biblical references, claims that there are reasons to "positively identify the remains of the large ancient boat within the boat formation [at the Site] as those of Noah's Ark" (p.12).
Mr Wyatt, who is apparently trained as an anaesthetist, filed two affidavits in the proceedings. I was informed by counsel that there were difficulties in securing Mr Wyatt's attendance for cross-examination, whether in person or by means of a video-link with the United States. It was agreed between counsel that Mr Wyatt's affidavits could be read, but that no point would be taken by the respondents about the absence of cross-examination.
Mr Wyatt's evidence principally relates to the investigations he claims to have made during the course of, or in consequence of, his numerous visits to the Site before and after writing his book. The significance of these investigations is that Dr Roberts, at the various public meetings which he addressed in 1992, referred to them, although there is a dispute whether Dr Roberts claimed to have personally undertaken investigations that had in fact been carried out by Mr Wyatt. In substance, it was not disputed for the purposes of these proceedings that Mr Wyatt had carried out the investigations referred to in his affidavits. The accuracy or significance of his findings are not matters that need be resolved in these proceedings.Mr Midgley's Evidence
Mr Midgley attended the meeting at which the establishment of NARF was first discussed and on 27 April 1991 was asked by Dr Roberts to build a model to depict Noah's Ark. In consequence of the request Mr Midgley prepared a series of drawings, one of which was reproduced in a brochure and newsletter published under the auspices of NARF. It is this drawing, including the annotations to it, that is the subject of Mr Fasold's claim to copyright.
I recount later the circumstances in which Mr Midgley prepared his drawings. I formed the view that, although I do not think Mr Midgley was deliberately attempting to mislead the Court, some of his evidence was not reliable. In particular, I have been unable to accept his statement that he did not take much notice of the diagram appearing at p.291 of Mr Fasold's book when preparing his own drawings.
III.THE FACTS
Dr Roberts' Background
One of the issues in this case was whether Dr Roberts misrepresented his qualifications and training in the lectures and the tapes of those lectures. It is therefore necessary to consider his educational background and career. Dr Roberts was born in 1932 and is now 65 years of age. He trained at Wagga Teachers' College as a primary school teacher, graduating in 1951. He completed a Bachelor of Arts degree in 1962 at the University of New England, in Armidale, N.S.W. He completed ten units while qualifying for that degree, majoring in English and History, with a sub-major in Geography and single units in Psychology and Education.
In 1964, Dr Roberts completed a Master's degree at the University of New England. According to his affidavit evidence, the degree was subsequently renamed as a Master of Letters in 1992, but the evidence did not make clear its original designation. In 1976, Dr Roberts was awarded a Master of Education degree, with special merit, from the University of Sydney. He is a member of the Australian College of Education.
In February 1977, Dr Roberts was admitted as a candidate for the Doctor of Christian Education program offered by an institution then known as Freedom University, located in Orlando, Florida. (The Institute in 1992 had a letterhead which suggested that it had then become known as "Freedom Seminary • Freedom University • Freedom Institute".) Dr Roberts said in evidence, and I accept, that the essential purpose of Freedom University was to train ministers, missionaries and Christian educators and counsellors. In order to obtain the degree of Doctor of Christian Education, according to the records of Freedom University in evidence, a candidate enrolling in 1977 had to complete the equivalent of at least 30 semester hours in the program.
Dr Roberts was assigned to a "doctoral internship", given a weighting of twelve semester hours. This work was satisfactorily completed, and he was then assigned a doctoral dissertation, with an approved subject entitled "The Teaching of Absolute Christian Values in Australian Primary Schools". His dissertation was reviewed by a committee of five doctoral faculty members. The dissertation, which was accorded a weighting of six semester hours, was ultimately graded and approved in December 1978. According to Dr Roberts, the thesis was related to similar work for which he had previously been allowed credit at Sydney University. The remaining twelve semester hours (required to complete the total of 30 hours) comprised a "doctoral personalised study project in Christian Education".
During Dr Roberts' 22 month period of enrolment at Freedom University, he provided monthly reports of both his internship and the progress of his dissertation. According to the records in evidence, Dr Roberts completed the required semester hours with honours. The degree of Doctor of Christian Education was conferred on him on 20 January 1971, although he was not present at the conferral ceremony.
Material was in evidence from the Department of Education, Florida, which indicated that religious schools in Florida, including Freedom University, are allowed to offer degrees, and graduates are permitted to use the academic titles conferred by those schools, provided the institution complied with the law of Florida. Freedom University falls within paragraph (e) of the relevant provision under Florida law:
"(e)A religious seminary, institute, college or university which offers only education programs that prepare students for a religious vocation, career, occupation, profession, or lifework, and the nomenclature of whose certificates, diplomas, or degrees clearly identifies the religious character of the educational program."
Accordingly, as far as the law of Florida is concerned, it appears that Dr Roberts is entitled to use the academic title of "Doctor", by reason of having been awarded the degree of Doctor of Christian Education by Freedom University.
Dr Roberts commenced his working career as a primary teacher. From 1952 until 1963, he taught primary and secondary school students in various areas of New South Wales. Among the subjects he taught was history. From 1963 until 1969, he taught at Wollongong Teachers' College. He was then appointed as the foundation head of the English Department at what was then known as Westmead Teachers' College. He remained in that position for about a decade, but took leave in order to complete his doctorate at Freedom University.
Dr Roberts was the founding principal of the Australian College of Christian Education, which he described in evidence as a "Bible College". He took up that position in 1982 and continued in the role until 1990. The Bible College was conducted from premises in Baulkham Hills, a suburb of Sydney. Its principal function was to train people who wished to study as missionaries. For some time, Dr Roberts has also been the Australian Honorary Director of a United States Christian Curriculum Organisation named "Accelerating Christian Education".
Dr Roberts has been continuously involved in Church activities since the age of nine, which he describes as "the time of [his] conversion". He has been a Sunday School teacher and preacher for over 40 years in Methodist, Anglican and Baptist Churches. Dr Roberts has been a Church and Christian Convention speaker in Australia and other countries and has undertaken a "teaching/preaching/lecturing ministry" on various religious subjects in New Zealand, the United States, Fiji, Great Britain and France. He is an ordained Christian minister and is the Pastoral Elder at the Hills Bible Church at Baulkham Hills, where he is the chairman of the controlling body of the Church. The Doctrinal Statement of the Church, which Dr Roberts annexed to one of his affidavits, includes the following statements:
"1.The Holy Scripture: We believe that the thirty-nine books of the Old Testament and twenty-seven of the New Testament, each book in its entirety, to be the Word of God, supernatural, unique, verbal and plenary in its inspiration; wholly without error (inerrant) and altogether sufficient as our only infallible and authoritative rule of faith and practice.
...
6.Creation: We believe in the Genesis account of creation, that it is to be accepted literally, and not allegorically or figuratively; that man's creation was not a matter of evolution or evolutionary change of species, or development through interminable periods of time from lower to higher forms; that all animal and vegetable life was made directly and God's established law was that they should bring forth only `after their kind'. (Gen. 1:1; Ex. 20:11; John 1:3; Col. 1:16,17; Gen. 1:26,27; 2:21-23; 1:11; 1:24)."
Dr Roberts stated that he became interested in the "religious background, philosophy and geographic setting of Noah's Ark" in about 1960. Since then, he has read a large number of books and articles on the Ark and its possible location, including biblical sources and commentaries on these sources. He has spoken on the subject of the Ark and the "scriptural basis" for its possible location in Churches in Australia as well as some Bible colleges and schools. Dr Roberts described the significance, as he sees it, of the possible existence of Noah's Ark as follows:
"The implications of the Ark's existence and the flood's occurrence are important not only for religion but for science and history generally but also for the authenticity of the Old and New Testaments. The implications of the Flood and the Ark and their relationship to the Gospel and the Second Coming of Christ are important to the belief of the Hills Bible Church which are brought out in the New Testament."
It was not suggested to Dr Roberts that he did not sincerely hold these views and I accept that he does. Of course, this does not mean that everything he might say in pursuance of those beliefs is well-founded.
Mr Fasold's Visits to the Site and his Diagrams
Mr Wyatt, the author of the book "Discovered: Noah's Ark!", first visited the Site in 1977. In 1984, he again visited the Site, in company with Colonel James Irwin, a former astronaut. During this visit Mr Wyatt used a metal detector to undertake scans of the formation and estimated its length at 512 feet. Mr Wyatt formed the view that this roughly corresponded to the biblical length of 300 cubits for Noah's Ark, referred to in Genesis, 6:15.
In late 1984 or early 1985, Mr Fasold made telephone contact with Mr Wyatt. There was some disagreement between Mr Fasold and Mr Wyatt as to the content of their conversations, but it is not necessary to resolve the conflict. It is common ground that in March 1985, Mr Wyatt and Mr Fasold travelled to Turkey to visit the Site. On this occasion some tests were done using a metal detector and further measurements were taken of the formation. In May 1985, Mr Fasold prepared a drawing incorporating some of the measurements that had been taken at the Site.In June 1985, Mr Fasold made a second visit to the Site. Again, he was accompanied by Mr Wyatt and, indeed, met Mr Wyatt's expenses. They were joined by Dr John Baumgardner who, according to Mr Fasold, was a geophysicist from the Las Alamas National Laboratory in New Mexico. On this occasion, Mr Fasold used a frequency generator and a metal detector. He obtained readings which, according to his evidence, suggested "regularly spaced iron fittings in a vertical structure". According to Mr Fasold, the lines he detected were ferrous elements and not simply soil alloys.
During the period from June 1985 to August 1985, Mr Fasold raised funds to finance his next expedition to the Site. His expenses included USD10,000 for the hire of what was described as an SIR System - 3 radar. At about this time, Mr Fasold began writing the text for a book, which was ultimately published in the United States in 1989 under the title "The Ark of Noah".
In June 1985, Mr Fasold prepared a diagram on tracing paper, which he entitled "Preliminary Survey of Remains - Wyatt/Fasold Expedition" (Ex H). He had prepared a very rough drawing in his notebook during his visit to the Site in March 1985. He prepared the diagram using measurements he had made on site. The diagram was endorsed with a notation that Mr Fasold claimed copyright in it and included notes in English, together with some words in Turkish. Mr Fasold subsequently prepared some blue-print copies of this diagram, making some changes and additions to this version (Ex A). Mr Fasold then made a further copy of the blueprint version, reducing it to A4 size, and traced the reduced copy onto another sheet (Ex DFF19). This tracing reproduces the diagram appearing on the blueprint copy, and has different notations including some additional words in Turkish.
At about this time, Mr Fasold prepared a report for submission to the Government of Turkey, apparently because the permit issued to him by the Turkish authorities to conduct investigations at the Site required him to provide copies of any reports resulting from his investigations. Mr Fasold prepared the text of the report in English and had it translated in Turkish. The English version was not in evidence, although the Turkish version was (Ex B). The report had attached to it a plan in the form of the reduced tracing (Ex DFF19), to which I have previously referred. The following is a reproduction of the diagram annexed to the report:
Mr Fasold delivered nine copies of the report to various ministries in Turkey. He forwarded another four copies to Turkish archaeologists. The evidence does not disclose what responses, if any, Mr Fasold received from the ministries and the Turkish archaeologists.
Mr Fasold again visited the Site in August 1985 and May 1986. However, on each of these occasions he was unable to make any further investigations using instruments, because of disturbances in the area involving the Kurdistan National Liberation Front. He returned to the Site in June 1986 and performed a radar survey, having previously undertaken an eleven day course in the use of certain radar equipment he had arranged to hire.
On 20 June 1987, the Turkish Government dedicated the Site as part of Noah's Ark National Park. Mr Wyatt attended the ceremony at the invitation of the Governor of Agri Province. At about this time Mr Wyatt conducted a radar scan at the Site. Later in the year construction began on a visitors' centre near the Site.
Prior to the institution of the present proceedings, Mr Fasold made further visits to the Site. These included visits in November 1987 (with Professor Bayraktutan of Ataturk University in Erzurum, Turkey), July - August 1988 (in company with Dr Baumgardner and Professor Bayraktutan), June 1990 and June 1991. He does not appear to have conducted investigations on these occasions, although he provided advice in relation to an extensive core drilling program undertaken during the 1988 expedition by Professor Bayraktutan and Dr Baumgardner.
In 1988, Mr Fasold completed the manuscript of his book. It was first published in the United States on 13 March 1989, by Wynwood Press, New York, under the title "The Ark of Noah". The book was also published in 1990 in the United Kingdom by Sedgwick & Jackson, under the title "The Discovery of Noah's Ark". The UK edition of the book records that copyright is held by Mr Fasold. The text of each publication is identical and includes, at p.291 of the text, a diagram which is derived from the diagram included in Mr Fasold's 1985 report to the Turkish government. Mr Fasold stated (and I accept) that he prepared the diagram which appears at p.291, by undertaking the following steps:
•he photocopied the diagram appearing in the report and blanked out some of the writing on the bottom of the copy and certain other details;
•he then made a photocopy of this version of the diagram and typed in some additional lines at the bottom of the document and added some further details; and
•he then photocopied the amended document and included it in the manuscript, which is reproduced in the published work.
The following is the diagram as it appears at p.291 of the published work, together with a note by the author:
According to Mr Fasold, the Turkish words "Nuh' Un Gemisi", appearing in the top left-hand corner of the diagram, mean "Noah's Ark".
Dr Roberts' 1990 Visit to the Site
In late 1989, Dr Roberts telephoned Mr Wyatt to express his interest in the latter's work at the Site. Mr Wyatt later sent to Dr Roberts copies of the results of his sub-surface radar studies, metal detector work and laboratory analysis of specimens. In due course, arrangements were made for Dr Roberts and Mr Wyatt to meet at the Site in August 1990. The planned meeting did not take place, but Dr Roberts spent several days at the Site in that month.
During his stay, Dr Roberts made some measurements of spaces between the rock formations, examined rock samples and took photographs. He noticed deposits of "what appeared to be pitch", which he regarded as "primary evidence confirming the description of Noah's Ark in the book of Genesis". He also visited an area near the Site, containing "drogue stones", which Dr Roberts considered could have been anchor stones from a large boat. In March 1991, Dr Roberts arranged for the "pitch" samples to be tested by an industrial chemist, apparently with inconclusive results.
Noah's Ark Research Foundation
In the first part of 1991, a number of people to whom Dr Roberts had spoken about his activities in Turkey arranged to meet. According to Mr Ronald Edwards, who later became the chairman of NARF, these people shared the aim of publicising the existence of the boat-shaped object at the Site in Eastern Turkey, which might be the remains of Noah's Ark and to encourage further investigation into the Site and its conservation and development. (Mr Edwards swore an affidavit, but was not cross-examined. He resigned as chairman of NARF in August 1992 because, by that date, he had formed the opinion that the boat-shaped object at the Site was a natural formation, and not a man-made object.)
On 21 March 1991, the inaugural meeting of what the minutes described as "The Noah's Ark Foundation" took place in a building located at the Bible College in Baulkham Hills. Dr Roberts chaired the meeting, which was attended by about 20 people. He gave a presentation, with slides, of his observations at the Site. The participants at the meeting, some of whom were previously known to Dr Roberts, agreed that it would be necessary to form some kind of association to carry out their aims. The result was the formation of the Noah's Ark Foundation Steering Committee, which met on 18 April 1991 and established a number of sub-committees, each with its own Chairman.
On about 23 April 1991, Dr Roberts prepared an itinerary for his proposed visit, to the United States, the United Kingdom, and Turkey in June 1991. The stated purposes of Dr Roberts' visits were to meet Mr Wyatt in Nashville, Tennessee, to review, plan and examine research samples; to meet in London with Mr Wyatt and representatives of a British corporation to encourage the corporation to consider providing financial assistance for development of the Site; to attend the Site with Mr Wyatt for a "summit conference" with representatives of the Turkish Government and Turkish Universities; and to undertake research and preparation for a dig, leading to a publication by Mr Wyatt and himself.
The Public Relations Committee of NARF, chaired by Mrs Valerie Hill, met on 26 April 1991. At that meeting, attended by about 10 persons, Dr Roberts outlined his plans for his trip to Turkey which, according to the minutes, was designed to clear the way for a dig the following year. There was discussion at the meeting concerning a lecture tour to publicise work on the Site and the desirability of preparing a video. The Public Relations Committee also decided that an information folder should be prepared. According to Mrs Hill, the intention was to provide information on the objectives of NARF and on proposals for investigation of the Site.
A document was prepared, although a number of versions were apparently brought into existence. One of the versions was in evidence (annexed to Mr Midgley's affidavit). This document refers to "exciting information" having been received regarding the formation at the Site. It specifies the objectives of the Noah's Ark Research Foundation as follows:
"a)To establish, wherever possible with independent technical analysis, whether the `formation' at the Akyayla Site Eastern Turkey, IS or IS NOT the NOAH'S ARK of the scriptures.
This may involve investigation and analysis of other artefacts and/or formations in the surrounding locale or elsewhere.
b)To bring out the significance of this discovery and research as relating to history, science and religion.
c)To make the findings widely known for the benefit and promotion of Research and Education in the above disciplines of knowledge in local, national and international communities."
The page containing the objectives bears a notation "© COPYRIGHT. ALLEN S. ROBERTS 1991". The evidence does not make clear to what extent, if at all, this document was distributed. However, the statement of the objectives is consistent with other evidence and in my view reflected the general understanding of the founders of NARF.
The steering committee met again on 10 May 1991. Once more Dr Roberts was present, and on this occasion gave a report on the investigations at the Site that had been undertaken by Mr Wyatt. He defended Mr Wyatt against criticism that had been made of his (Mr Wyatt's) work. Later in the meeting, Mr Edwards raised the question of a budget for Dr Roberts "for the coming trip". Dr Roberts gave details of his proposed trip and suggested a budget, including air fare and materials, of $10,000. The meeting discussed the possibility of donations to the association becoming deductible for income tax purposes. Arrangements were made for business cards to be printed, so that Dr Roberts could take them on his forthcoming trip.
On 14 May 1991, Mr Edwards forwarded a letter on behalf of NARF for circulation to people who might be interested in the project. The letter was as follows:
"Dear FRIEND OF THE FOUNDATION,
We have come to the stage of forming the Foundation where funds are needed if we are to proceed further.
There is unanimous agreement amongst the Steering Committee that we should not go to the public (Christian or Secular) until Dr Allen Roberts returns from his overseas trip. Any public announcement should include a programme for further excavation of the Akyayla site which will provide conclusive evidence, that the object is or is not Noah's Ark.
Approval from the Turkish Government for a comprehensive transverse `dig' is being sought by Allen and Ron Wyatt on his coming trip. This `dig' would provide the needed conclusive evidence.
The transverse dig and all it involves would form the basis of our appeal to the public for funds. It would be a positive and specific proposal that even the sceptics would find hard to criticise.
To cover the costs of Allen's trip and the incidental expenses incurred so far, and planned, we ask you to give what you can.
All donations will be kept confidential at this stage.
Once the Foundation is approved and Membership Fees have been finalised I will discuss with each of you personally the level of financial involvement you would like to maintain.
We are confident that funds will be forthcoming to cover Allen's trip (approx $10,000:00) but are hoping we can raise $15,000:00 at this stage."
On 17 May 1991, Dr Roberts wrote to the Turkish Consul-General in Sydney and to the Turkish Ambassador in Canberra. Each of these letters was written on the letterhead of "Noah's Ark Research Foundation Project". The letterhead identified Mr Edwards as chairman of the foundation steering committee and referred to Dr Roberts as "Archaeological Research Consultant". The return postal address printed on the letterhead was Dr Roberts' home address. The letters sought assistance in developing "an archaeological site which could be one of the most important in the world today."
On 29 May 1991, a member of the initial group, a Mr Russell, made a donation of $10,000 for the purposes of providing financial assistance for Dr Roberts' planned trip to the United States and Turkey. The gift was deposited in the NARF's bank account and recorded in the cash book maintained by Mr Hannaford, the Treasurer. The sum was immediately paid out to Dr Roberts by cheque from the NARF's account.
Dr Roberts' 1991 Trip
In June 1991, Dr Roberts flew to the United States and visited Mr Wyatt in Nashville, Tennessee. While in Nashville, Dr Roberts examined objects which Mr Wyatt claimed to have found at the Site. These included objects which appeared to Dr Roberts to be petrified laminated wood, animal hair and fossilised animal dung. Mr Wyatt provided Dr Roberts with copies of laboratory tests which had apparently been performed on certain items.
Thereafter, Dr Roberts flew to the United Kingdom, where he was met by Mr Wyatt. As I have noted, Dr Roberts intended to hold discussions with a large British corporation with a view to securing funds for further investigations of the Site. It is unnecessary to deal with the evidence on this topic in detail. It is curious, however, that despite the somewhat optimistic tone of letters written by Dr Roberts to the corporation and to others (including his supporters in Australia), no letters from the corporation were adduced in evidence and there was no independent evidence to suggest that the corporation was seriously entertaining the prospect of supporting the investigations.
Dr Roberts travelled to Turkey and to other places later in June 1991. He seems to have spent several days at the Site, during which he took photographs and collected samples of what he described as "artefacts". He also found an object which appeared to him to be the tip of an animal antler. He did not use any equipment on this visit.
Meeting with no success in his efforts to persuade the Turkish Government to allow him to excavate the Site, Dr Roberts returned to the United Kingdom. In late August 1991, he was notified by the Turkish Embassy that a meeting had been arranged with officials in Ankara. Dr Roberts and Mr Wyatt travelled to Turkey and attended meetings on 28 and 29 August 1991. On 30 August 1991, Dr Roberts and Mr Wyatt set out by bus from Erzurum in eastern Turkey to visit an archaeological site (not the Site itself). En route to Bingal, they were kidnapped by the Kurdish Liberation Army and held hostage in the mountains for three weeks. Following his release in late September, Dr Roberts returned to Australia to considerable media interest in his kidnapping.
NARF's First Newsletter
In December 1991, NARF distributed a newsletter to its members and, I infer, to others. The newsletter invited interested persons to provide financial support for the work of the Noah's Ark Research Project. It described the project as
"an Australian initiative to support further scientific and historical investigation of the great boat-shaped formation in the mountains of Ararat, and the publishing of the findings of the investigation across the world."
The newsletter stated that a great deal of preparation was required for "the return trip being planned by Allen Roberts and Ron Wyatt and their team of specialists in June 1992". It also stated that "[a] speaking tour is being planned in centres across Australia in the early months of 1992 when Dr Roberts is looking forward to sharing current information". The newsletter included a photograph of Dr Roberts under the heading "MAN WITH A MISSION". He was identified on the cover of the newsletter as the project's "Archaeological Research Consultant" and his degrees, in abbreviated form, were listed beside his name.
A letter dated 12 December 1991, signed on behalf of Mr Edwards as Foundation Project Chairman by the Deputy Chairman, Reverend Farr, was also sent to members and others. The letter included the following passages:
"We wonder in awe if God is allowing the Ark to be properly researched and displayed to an unbelieving world, which is caught up in sin `as in the days of Noah'.
...
It is planned that Allen Roberts and Ron Wyatt and their team will return to the site in June 1992 to initiate a preliminary dig, hopefully on the upper end of the structure, the prow end. It is deteriorating rapidly and the first job is to protect it with a covering structure. They will then take some of the veneer of mud off and see what they can find between the timber ribs."
The Brochure
At about this time, a suggestion was made by one of the members - the evidence does not establish which of them - that NARF should prepare an information booklet. The first draft of this document, which was referred to at the hearing as the "brochure", was prepared by a Mr Greatbatch, described in the document as a member of the executive of Ark Search. The first draft was given to Dr Roberts and to Mrs Hill. Each rewrote portions of the text. The brochure was in the final stages of preparation in April and early May 1992. At that time, Dr Roberts was out of Sydney on the lecture tour, which had commenced in Adelaide on 1 April 1992. On two occasions Mrs Hill faxed Dr Roberts' drafts of the brochures and had conversations with him about the drafts. Mrs Hill collected printed copies of the brochure on 15 May 1992 and immediately took the print run to a hall in Baulkham Hills, where Dr Roberts was speaking to a public meeting. Copies of the brochure were sold at that meeting and at a meeting held the following evening in Sydney.
A copy of the brochure (but not an original) was tendered. The brochure is 28 pages in length. Its title is "IF THIS IS NOT NOAH'S ARK, THEN WHAT IS IT?", and the words "Ark Search" appear on the cover. The cover also has a photograph of Dr Roberts, next to a photograph of the Site. A second photograph of Dr Roberts appears on the first page. He is described on the first page as "Dr Allen Roberts, archaeological research consultant for ARK SEARCH". The second page has the following notation:
"Compiled by
ARK SEARCH*
1992
Published in conjunction with an
Australia-wide speaking tour
by Dr. Allen Roberts.
ARK SEARCH
Box 299
Sans Souci NSW 2219
©Copyright Allen S. Roberts
All text and illustrations in this
book are the property of, or are used here
by permission to Allen S. Roberts. No part
may be reproduced without written permission
*ARK SEARCH is the registered name of
the body which formerly worked under
the interim title of The Noah's Ark
Research Project. All lectures and related
material presented under the interim title
remain the property of ARK SEARCH or its
representatives."
It is sufficient at this stage to note several features of the brochure, although it will be necessary to refer to portions of the text later. On p.11 a drawing is reproduced as follows:
The text at p.11 is as follows:
"Diagram shows iron readings from the Eastern Turkey site. Measurements were detected by sub-surface interface radar scan; molecular frequency scanner and pulse induction readings used by Fasold, in 1985/6 and reported to the Government of the Republic of Turkey.8 Diagram above drawn by W.B. Midgley, 1992 using published data."
Footnote 8 refers to Mr Fasold's 1985 report to the Turkish Government which was, of course, in Turkish. Other footnotes in the brochure refer to Mr Fasold's book,"The Ark of Noah".
Page 24 of the brochure contains a summary, including the following passage:
"This publication records succinctly what has been done and what has emerged as evidence at the Akyayla site. It is a kind of history of the site. Whilst Dr Roberts has been personally engaged in the recent on-site research, this publication presents evidence which has been derived from the work of many people over a number of years."
The summary is followed by an "Academic profile [of] Dr Allen S. Roberts B.A., B.Litt., M.Ed., D.C.E., M.A.C.E.". The "profile" includes the following passages:
"The following overview of Dr. Robert's academic background indicates something of the intellectual discipline his involvement is contributing to the search and to his particular role in carefully recording the investigations and findings. To those who have enquired, however, Dr Robert's response has been that academic qualifications are not really the issue - he points out that the evidence speaks for itself - as he says, `A goat herd discovered the Dead Seas Scrolls'.
...
Dr. Roberts chose to complete his doctoral studies with Freedom University, Florida U.S.A. His dissertation involved Australian educational history focussing on the analysis and implication of values endorsement in government and non-government primary education from early colonial times to the 1970s, sections of which have been published several times.
...
Further information may be helpful to those unfamiliar with the wide choices offered by the American system of education - Freedom University is one of the many independent institutions of high standards across the United States which are deemed officially acceptable, without the kind of registration that brings government control. Two of the most prestigious of these are Yale and Harvard. Freedom University has
this independent status under Statute 245 of the Florida State Board of Independent Colleges and Universities."
The errata in the brochure correct the reference to "B.Litt.", stating that it should read "M.Litt.". The initials "M.A.C.E." stand for Member of the Australian College of Education.
I infer that Dr Roberts either wrote or specifically approved the text of the academic profile. It is to be noted that the text does not specifically refer to the Christian education component of Dr Roberts' dissertation. Moreover, on one view of it, the text implicitly makes a not unfavourable comparison between the academic standards at Freedom University and those prevailing at Yale University and Harvard University.
Finally, the brochure invites readers to assist the work of Ark Search by making donations. It also invites them to purchase a "[v]ideo update Lecture tour 92...summarising findings and developments to date" and an audio cassette of the "Australian Tour Lecture" of Dr Roberts.
Preparation of the Drawing
It will be seen that the drawing reproduced in the brochure closely resembles the diagram appearing at p.291 of Mr Fasold's book. The drawing appearing in the brochure was prepared by Mr Midgley, who had attended the first meeting at which the establishment of NARF was discussed. On 27 April 1991, Mr Midgley was asked by Dr Roberts to design and build a model "to depict what might have been Noah's Ark". Dr Roberts gave Mr Midgley, who had never been to the Site, photographs of the Site.
Mr Midgley went about his task by consulting a number of books and articles, including the books written by Mr Wyatt and Mr Fasold. It is not entirely clear whether Mr Midgley used the UK edition or the US edition of Mr Fasold's book, although it would seem from his affidavit that it was the UK edition that was made available to him. Nothing appears to turn on this and, indeed, in Mr Midgley's cross-examination, he was referred only to the US edition. In any event, Mr Midgley, when contemplating constructing a model of Noah's Ark, formed the view that Mr Fasold's book provided, over about 35 pages, the most detailed measurements of the features at the Site, including details of the "internal structure" of the Ark. Mr Midgley decided to use Mr Fasold's measurements as the basis for a drawing, which in turn would be used for a model.
Mr Midgley initially prepared two versions of his drawing. He claimed that he "did not take much notice of [Mr] Fasold's diagram [on p.291]" because it presented only a few, incomplete measurements. Mr Midgley gave a copy of the second draft of his diagram to Dr Roberts and Mrs Hill. He then offered to prepare a further drawing for inclusion in the "folder" which was being prepared for the lecture tour. He went about this task by preparing a series of additional drawings, each varying in some respects from its predecessor. One of these drawings (not the last in the series) was sent to Dr Roberts and Mrs Hill. It was the version which was reproduced in the brochure and newsletter. The version reproduced in the brochure and newsletter was accompanied by printed notations which had been handwritten by Mr Midgley on his various drafts.
NARF's Second Newsletter
NARF published a second newsletter for distribution and sale during the lecture tour arranged for April and May 1992. The document, which was referred to at the hearing as "the newsletter", is headed "Noah's Ark Research project newsletter" and is dated 30 March 1992. It is four pages in length. The first page has a photograph of Dr Roberts and a heading in bold letters as follows:
"Do YOU think that this huge mud-covered, boat shaped formation in Eastern Turkey is the ark of Noah described in the Old Testament?"
The front page of the newsletter also includes the drawing reproduced in the brochure, with two modifications. First, the notes to the drawing have been rearranged, presumably for ease of presentation. Secondly, an additional note has been added as follows:
"This diagram was drawn for the Project by W.B. Midgley from sub-surface interface radar scan data from the Eastern Turkey site. The readings were taken by marine salvage expert and former merchant navy officer, David Fasold. All measurements taken from Molecular Frequency Scanner and Pulse Induction readings - 1986."
Much of the material contained in the first two pages of the newsletter is identical to that contained in the brochure (which was actually printed later). Mrs Hill gave evidence, which I accept, that this material was given to her by Dr Roberts, although she said that some of it was taken from an information folder prepared in 1991 with Dr Roberts' assistance. Mrs Hill wrote or compiled most of the material appearing in the third and fourth pages of the newsletter, except for a report by Mr Edwards, as Chairman of NARF. Mr Edwards (whose photograph appears on p.3) notes in the
newsletter that NARF is expecting approval of its application for incorporation of the association in the ACT and requests donations for the exploration work of the Foundation to be undertaken at "what is perhaps the most dramatic archaeological site in the world". Mr Edwards expresses his belief that membership fees and donations will be tax deductible, presumably after incorporation. The newsletter includes a form to be completed by those wishing to donate to NARF.The final page is headed "NATIONAL SPEAKING TOUR" and states that "Dr Roberts and Chairman, Ron Edwards will tour the capital cities of Australia prior to Dr Roberts' return to the mountains of Ararat". The newsletter gives the proposed dates and venues of meetings in Adelaide (1, 2 April 1992), Melbourne (3, 4 April 1992), Hobart (9 April 1992), Brisbane (29, 30 April 1992), the ACT (1, 2 May 1992), Perth (8, 9 May 1992) and Sydney (15, 16 May 1992).
The Public Meetings
The public meetings, at which Dr Roberts made presentations, took place on the dates referred to in the newsletter. In addition, a meeting took place at Parkes in New South Wales on 8 June 1992. Much of the organisation for the tour was undertaken by Mr Edwards, in conjunction with co-ordinators resident in each city.
A videotape of Dr Roberts' presentation at the first Adelaide meeting was in evidence, as was a transcript of that presentation and the question time that followed. An audio cassette, together with a transcript of what was recorded on the cassette, were also in evidence. Dr Roberts' prepared presentation recorded on the videotape is in substance the same as that recorded on the audio cassette. However, the questions and answers are different, indicating that the audio cassette records proceedings at a different meeting, probably the second Adelaide meeting. In any event, no videotapes, audiotapes or transcripts of presentations at other meetings were tendered, although reference was made to their existence at the hearing. Professor Plimer attended three meetings (Melbourne, 4 April 1992; Hobart, 9 April 1992; and Sydney, 16 May 1992). His evidence was that Dr Roberts' prepared presentation on each occasion was essentially the same and that any variations were very minor. Dr Roberts did not give evidence to the contrary. Accordingly, I find that the presentations made by Dr Roberts at the Adelaide meetings were repeated, with very minor variations, at each of the subsequent meetings.
The meetings were advertised in the press. The financial records of NARF showed that the sum of $7,779 was spent on advertising and publicity during the period 29 May 1991 to 30 June 1992. The
bulk of this amount was spent on newspaper advertising for the meetings. The only advertisement in evidence was that for the Sydney meeting, which appears to have been placed in the Telegraph Mirror. It is important to stress that the applicants do not allege any misleading conduct in relation to the advertisements. However, the advertisement shows the way in which the Sydney meeting was presented to the public and the admission charges that were to be paid by those attending. The version in evidence cannot be satisfactorily photocopied, but the text was as follows:
“ARK SEARCH
is proud to present
Dr. Allen Roberts
B.A., B.Litt., M.Ed., D.C.E., M.A.C.E.·. Large boat-shaped object found in Turkey
·. Is this Noah’s Ark?
·. The Implications!
·. Dramatic evidence!
Hear Dr. Roberts in Sydney
Friday 15th May 7:30 pm
Cropley House, Watkins Rd., Baulkham Hills
Saturday 16th May 7:30 pm
Lyceum Theatre, 220 Pitt St., Sydney
Representation 14
The representation alleged is not supported by the extract from the lectures. The context makes it quite clear that Mr Fasold's work was carried out in the 1970s and 1980s. Shortly after referring to Mr Fasold's work, Dr Roberts mentions his own trip to Turkey in 1990, implying (correctly) that it was his first visit to the Site. Listeners to the lecture could not reasonably have understood the reference to Mr Fasold as implying that he and Dr Roberts had worked together at the Site. There is therefore no reason to consider the issue of falsity.
Representation 15
This aspect of the applicant's case involved, in my view, some confusion probably reflecting
Professor Plimer's (erroneous) belief that Freedom University simply handed out degrees more or less on request, subject to payment of fees. The evidence established that, in order to obtain his degree in Christian Education, Dr Roberts undertook studies over a period of about 20 months, including the preparation under supervision of a dissertation. Judging from some of the applicants' evidence on this issue (most of which was disallowed) it may have been intended to make out a case that Dr Roberts did not undertake any systematic studies in order to earn his doctorate. However, this was not the way the case was put in final submissions.
The representation alleged is not that Dr Roberts stated or implied that he had qualifications as an archaeologist, geologist or scientist, but that he had "a high academic qualification which lent credibility to his claims of archaeological and scientific expertise". There is no question that Dr Roberts repeatedly used and indeed stressed his title as "Doctor". I have referred earlier to his unwillingness to acknowledge in evidence the role he had played in using or encouraging the use of the title. There is also no doubt that Dr Roberts presented his qualifications in a manner calculated to add credibility to his presentations. This is shown most clearly in his "academic profile" in the brochure, which makes an incomplete reference to the subject matter of his dissertation and makes a dubious comparison with Yale and Harvard Universities. But the simple fact is that he was awarded a doctorate by Freedom University and according to the laws of Florida was entitled to describe himself as "Doctor". It has not been suggested that Australian law prevents him using the title to describe himself.
Moreover, both the newsletter and the brochure set out accurately the actual qualifications obtained by Dr Roberts (including his membership of the Australia Council of Education). They both refer to him as "B.A., B.Litt (corrected in the brochure's errata to M.Litt), M.Ed., D.C.E., M.A.C.E.". These references were correct. Unless it can be said that his use of the title "Doctor", in context, implied that he had archaeological, geological or scientific qualifications, I do not think that it has been shown that he made any false representations.
It is appropriate to add that I am not satisfied that Dr Roberts represented that he had academic qualifications in any of these fields. Had he simply described himself as an archaeological research consultant, the conjunction of the title Dr might well have conveyed the impression that he held a doctorate in archaeology. However, the brochure contained the academic profile which, whatever its deficiencies, made it clear to anybody reading it with any degree of care that he held no scientific qualifications. The newsletter comes closer to misrepresenting the position, but it, too, sets out Dr Roberts qualifications although they are not accompanied by a detailed "academic profile".
Obviously not every reader - particularly those unfamiliar with academic qualifications - understands abbreviated references to degrees. But none of the abbreviations suggests that Dr Roberts has qualifications in a scientific field. Accordingly, I do not think that the newsletter, as a whole, conveys the impression that Dr Roberts had academic qualifications as an archaeologist.
I note that no submission was made that the phrase "archaeological research consultant" impliedly represented that Dr Roberts had expertise as an archaeologist.
Representation 16
Mr Walmsley, as I understood him, conceded that this alleged misrepresentation could add nothing significant to Mr Fasold's claim for infringement of copyright. I do not think it necessary, in these circumstances, to consider whether the representation alleged is made out and, if so, whether it is false.
Remedies
I have found that some of the representations made by Dr Roberts were false. In particular, I have found that his representation that he had personally undertaken or participated in systematic investigations at the Site and had personally carried out scientific tests on objects retrieved from the Site, was false. Even so, the applicants are not entitled to any relief under the Fair Trading Acts or the TP Act because of the conclusion I have already reached that none of the representations was made in trade or commerce. It follows that it is not necessary to consider the nature of the relief, if any, to which the applicants would be entitled in respect of the misrepresentations I have identified. Nonetheless, I shall briefly address this question. Again, I do so on the assumption (contrary to the conclusion stated earlier) that Dr Roberts made the representations found to be false in trade or commerce.
Mr Walmsley submitted, albeit without elaboration, that the applicants in these circumstances would have been entitled to damages against Dr Roberts under s 68 of the FTA (NSW) and equivalent provisions in the other Fair Trading Acts. In order for a party to recover damages under these provisions, it is necessary to show that the contravention of the relevant Fair Trading Act caused that party damage or loss: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, at 515, per Mason CJ. Causation is a question of fact, to be determined by reference to common sense and experience: March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506. In some circumstances, a person who has not relied on representations may still be entitled to claim damages under the Fair Trading Acts for loss or damage caused by misleading or deceptive conduct. The clearest example is a claim for damages by a competitor of a party making false claims to consumers about that party's products: Jansseg-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 (FCA/Lockhart J).
In this case, the applicants do not claim that they relied on any representations made by Dr Roberts. Nor do they suggest that they have suffered financial loss by reason of any misleading or deceptive conduct. Professor Plimer claims to have been affronted by Dr Roberts' conduct. In assessing their claim for damages, I am prepared to assume, without deciding, that an applicant who has not relied on misleading or deceptive conduct, nonetheless may be entitled to damages for non-economic loss that can be shown to have been caused by that conduct. Even so, the evidence in this case simply does not establish any causal relationship between the particular representations that I have found were made falsely by Dr Roberts and any affront Professor Plimer may have experienced. To the extent that Professor Plimer was affronted, it was because of his general distaste for what he regarded as Dr Roberts' "pseudo-science" or, perhaps, because he was excluded from two of the meetings organised by NARF. It was not because of any representations made by Dr Roberts that I have found to be false. Mr Fasold is in a similar position. Accordingly, I would not have been prepared to award damages to either of the applicants under the Fair Trading Acts.
The applicants claimed injunctive relief, but did not formulate the precise terms of any proposed order restraining Dr Roberts from future conduct in contravention of the Fair Trading Acts. In fairness, it should be said that it is not easy to draft such orders until findings of fact have been made and the conduct in breach of the Fair Trading Acts identified. In the absence of such a draft, I shall limit myself to expressing tentative views as to whether I would have been prepared to grant injunctive relief had the applicants established that Dr Roberts had infringed the Fair Trading Acts.
The principles governing the award of injunctions under s 80 of the TP Act have been discussed by the Full Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, and in Tobacco Institute v AFCO, at 16-19, 65-66. There is no reason why those principles should not apply to claims brought under the Fair Trading Acts. The remedy is discretionary. There is no rule that, if a contravention of Part V of the TP Act is established, an injunction should be granted unless the Court is of the view that it should be refused: ICI, at 257; Tobacco Institute v AFCO, at 18. While s 80(4) of the TP Act allows the Court to grant an injunction whether or not there is a likelihood of future contravention, the likelihood of future contravention is a relevant factor in the exercise of the Court's discretion: ICI, at 256. The remedy is granted in the public interest
and the requirements of public interest must carry considerable weight with the Court: Tobacco Institute v AFCO, at 18. Having regard to the contempt sanctions available for breach of injunctions, any orders should be made only in clear and unambiguous terms: ICI, at 259.
In the present case, on the assumptions previously identified, I am inclined to the view that I would have declined to grant injunctive relief to the applicants or either of them. There was no attempt by the applicants to prove that a repetition of any misleading or deceptive conduct would occur in the absence of such relief. I am not prepared to infer that such repetition is likely. The conduct that I have found to be misleading and deceptive is, in substance, limited to Dr Roberts' representations that he had personally undertaken investigations at the Site or arranged testing of objects found at the Site. It can hardly be suggested that these representations, if repeated, are of themselves likely to sway the minds of those who interest themselves in the questions posed by Dr Roberts. Moreover, in my view, considerable care must be exercised before making orders restraining statements made in the course of public discussion on issues regarded by many people as important to their religious or ideological beliefs, at least where the motivation for making such statements is not primarily commercial in character. Unless caution is exercised, there is a serious risk that the courts will be used as the means of suppressing debate and discussion on issues of general interest to the community. It is no answer to the concern I have identified that any orders made by the Court will restrain only representations that have been shown to be false. The very task of having to justify impugned representations may deter those with limited resources (both financial and emotional) from engaging in discussion of matters of wide community interest. If the views they put forward are ill-informed or plain wrong, a democratic society offers ample opportunity to rebut those views. As the publicity preceding this case (of which there was evidence) demonstrates, there are means available to counter what are said to be misrepresentations or errors made in public presentations on issues of general interest, without invoking the TP Act or the Fair Trading Acts.
I prefer to express no view on whether I would have been prepared to grant declaratory relief had the applicants established that Dr Roberts contravened the Fair Trading Acts. I would have invited further argument, had it been necessary to decide the point.
Summary of Conclusion on Misleading and Deceptive Conduct
Because I have held that none of the representations made by Dr Roberts was made in trade or commerce, it is not necessary for me to consider whether Dr Roberts made statements that were misleading or deceptive or likely to mislead or deceive. However, I have addressed that question and have reached the following conclusions:
• The brochure and newsletter did not contain representations that were misleading or deceptive, or likely to mislead or deceive.
• In the lectures, Dr Roberts represented that he had personally undertaken or participated in systematic investigations at the Site designed to determine whether it contained the remnants of Noah's Ark and had personally carried out or caused to be carried out scientific tests on objects retrieved from the Site. This representation was false and, had the Fair Trading Acts applied, would have constituted misleading or deceptive conduct on his part.
• Several other statements made by Dr Roberts conveyed representations that were not true, but they do not add anything of substance to the representation to which I have already referred.
• Other representations relied on by the applicants were either not made by Dr Roberts or were not shown to have been false. In particular, I do not think that Dr Roberts' references to his academic qualifications or expertise constituted misleading or deceptive conduct.
Had it been necessary to consider whether relief should be granted to the applicants under the Fair Trading Acts, I would have concluded that neither applicant is entitled to damages by reason of any misleading or deceptive conduct on the part of Dr Roberts. I would also have been inclined to the view that no injunctive relief should be granted to the applicants to restrain Dr Roberts from repeating any misrepresentations made in the course of his public lectures.
COPYRIGHT
The Case for Infringement
Mr Fasold's case for infringement of copyright is as follows. He held copyright in the book entitled "The Ark of Noah", published in the United States in 1989, including the diagram appearing at p.291, which has been reproduced earlier. This diagram was, in substance, reproduced in the newsletter and brochure. No licence had been given either to Dr Roberts or to Ark Search Inc to reproduce that diagram. The reproduction constituted a "substantial part" of Mr Fasold's book (Copyright Act, s 14(1)). Dr Roberts had authorised reproduction of the drawing (Copyright Act, ss 31(1)(a), 36) and thus was liable to Mr Fasold for infringing his copyright. Ark Search Inc had sold the brochure and the newsletter, thereby also infringing Mr Fasold's copyright (Copyright Act, s 38(1)(a)).
No reference was made in argument to the fact (as seems likely) that Mr Midgley actually used the UK edition of Mr Fasold's book when preparing his (Mr Midgley's) drawings. Both Mr Walmsley and Mr Duncan appeared content to argue the case on the basis that, if Mr Midgley copied Mr Fasold's work, it made no difference whether it was the UK or US edition that had been used as the source. I shall approach the matters on the same basis.
Did Mr Fasold Have Copyright in the Book and Diagram?
Under the Copyright Act, s 32(2), where an original literary or artistic work has been published, copyright subsists in the work if (inter alia) the author of the work was a "qualified person" at the time the work was first published. A "qualified person" is defined to include a person resident in Australia: s 32(4). However, the Copyright Act, s 184 contemplates that regulations may be made applying the provisions of the Act to countries other than Australia. The Copyright (International Protection) Regulations 1969 (the "Regulations"), reg 4(1), applies the provisions of the Copyright Act in relation to literary and artistic works first published in a country listed in relevant Parts of Schedule 1 to the Regulations:
"in like manner as those provisions apply in relation to literary...and artistic works...first published...in Australia".
Regulation 4(4) applies the provisions of the Act relating to works to persons who, at a material time, are resident in a country listed in a relevant Part of Schedule 1
"in like manner as those provisions apply in relation to persons who, at a material time, are resident in Australia."
The United States is listed in Part I of the Schedule. Accordingly, the Copyright Act applies in relation to the US edition of Mr Fasold's book in like manner as it applies to books first published in Australia. The provisions of the Act also apply to Mr Fasold as a resident of the United States, in like manner as they would apply in relation to an Australian resident.
The evidence clearly establishes that Mr Fasold was the author of the text of his book and of the diagram (including notations) appearing at p.291 of both editions of his book. Mr Duncan did not suggest to the contrary. Nor did he suggest that the diagram was not an original work, even though some of the measurements used in its compilation, notably the length, were in the public domain prior to publication of Mr Fasold's book: compare A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 143 ALR 543 (FCA/Drummond J), at 552 ff, and authorities cited there. Accordingly, pursuant to s 35(2) of the Copyright Act, Mr Fasold was the owner of the copyright in the text of his book, including the diagram, at the time the book was published. The documentary evidence supports this conclusion. A certificate of copyright registration, issued by the United States Copyright Office and dated 6 September 1989, was in evidence. This certificate, registration number TX 2-652-496, showed that Mr Fasold was the "Copyright claimant" in respect of the work entitled "The Ark of Noah", which had first been published on 13 March 1989. The certificate was lodged by a representative of Wynwood Press, the publisher of the Book, as Mr Fasold's authorised agent. The certificate is consistent with the publishing agreement between Mr Fasold and Wynwood Press, dated 9 March 1988. Clause 10 of the agreement required the publisher to register the copyright of the work, entitled "The Ark of Noah", in the name of the author in the United States Copyright Office.
The respondents rely on two matters to support a submission that Mr Fasold has not shown that he held copyright in his book at the time of the alleged infringements, in early 1992. They rely, first, on a letter dated 28 July 1992 to Mr Fasold from Baker Book House, of which Wynwood Press was, by then, a division. The letter stated that, on 6 September 1989, Wynwood Press "copyrighted as owner of the book "The Ark of Noah" under registration number TX 2-652-496". The letter further stated that the Baker Book House, by the letter itself, transferred copyright ownership to Mr Fasold. The respondents submit that the letter demonstrates that Mr Fasold was not the copyright owner of his book at any date earlier than 28 July 1992.
Mr Fasold gave evidence that in mid-1992 he had asked Baker Book House if it intended to republish his work. He was told that it had no such plans but that the company would be happy to let him off the contract. The letter was written in consequence of this conversation. Mr Fasold also gave evidence that, at the time he received the letter, he considered that it was simply mistaken as to the effect of the certificate of copyright registration. He said that no transaction had taken place whereby he had lost or assigned the copyright vested in him, as evidenced in the certificate of copyright registration. Mr Fasold's explanation is supported by the terms of the certificate of copyright registration, which are mis-stated in the letter of 28 July 1992. I accept his explanation. In my view, the letter does not show that Mr Fasold did not have copyright in his book at the time of the alleged infringements by the respondents.
The second matter on which the respondents rely is the fact that on 17 January 1992 Mr Fasold and his wife jointly and severally applied for what he described as "Chapter 7 bankruptcy" in the United States. However, the respondents adduced no evidence as to the effect of a Chapter 7 bankruptcy under the law of the United States, either in general or in relation to any copyright previously vested in Mr Fasold. Moreover, Mr Fasold gave evidence that at a court hearing in the United States, on about 24 April 1992 he had been "absolved" from the bankruptcy proceedings and that none of his assets had been transferred or assigned in consequence of his application under Chapter 7. He also gave evidence that he had taken legal action in about 1993 or 1994 in respect of alleged breaches of copyright and had received payments in settlement of his claims. This evidence suggests that the application for Chapter 7 bankruptcy did not affect his copyright in the book.
I accept Mr Fasold's evidence on these matters. In the absence of any contrary evidence, I conclude that Mr Fasold's application under United States bankruptcy laws did not result in the assignment or loss of his copyright in the book.
Was Mr Fasold's Copyright Infringed?
Mr Fasold's copyright in the book gave him the exclusive right to reproduce it in a material form: Copyright Act, s 31(1)(a)(i). Copyright is infringed if a person, without the licence of the owner, does or authorises the doing of any act comprised in the copyright: s 36(1). The reproduction of a work includes a reference to the reproduction of a "substantial part" of the work: s 14(1)(b). In the present case, there is no dispute that Mr Fasold did not licence Dr Roberts or Ark Search Inc to reproduce any portion of the book.
In order for an applicant to show that his or her work has been reproduced by another, it is necessary to establish that the reproduction is causally connected with the work of the original author: Francis Day & Hunter Ltd v Bron [1963] Ch 587, at 617-618, per Upjohn LJ. Reproduction means copying and does not include cases where an author or compiler produces a substantially similar result by independent work without copying: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465, at 469, per Lord Reid. What constitutes a copy is a question of fact, to be determined by the degree of resemblance between the work in which copyright subsists and the alleged copy: Hanfstaengl v H R Baines & Co Ltd [1895] AC 20, at 30-31, per Lord Shand.
In my opinion, the resemblances between the diagram (including notations) prepared by Mr Fasold, appearing at p.291 of his book, and the drawing (including notations) appearing in the newsletter and brochure are such that the latter should be regarded as copies of Mr Fasold's diagram. I have taken into account that the two are not identical in all respects. However, I think that there is more than mere similarity or resemblance in some leading features or certain details; the drawing prepared by Mr Midgley, which was reproduced in the brochure and newsletter, adopted the essential features and substance of Mr Fasold's diagram (compare the language of Lord Shand in Hanfstaengl, at 31).
Among the more important features in common are these:
• the shape and dimensions of the object portrayed (although Mr Midgley's is slightly more slender and narrower towards the pointed end and has a rounded rather than straight protrusion at the other end);
• the number, shape and dimensions of what Mr Fasold describes as the "bulkheads" (labelled as A-F in Mr Midgley's drawing);
• the transverse lines in each of the drawings are very similar;
• each has an area, of similar shape and located in a similar position, designated as "rock intrusion";
• each has a series of longitudinal lines, converging at each end;
• each has two series of dots, although Mr Midgley identifies them as "Protuberances - possibly anchor points?"; and
• each has a series of notations that are virtually identical (in one case - the reference to "This area wracked out" - Mr Midgley's notation appears to have been derived from another diagram prepared by Mr Fasold, appearing at p.119 of his book).
I am also satisfied that this is not a case of independent work, without copying. The drawing reproduced in the brochure and newsletters (including the annotations) is causally related, in the relevant sense, to Mr Fasold's work. I accept that Mr Midgley undertook considerable work of his own for the purpose of developing plans for a model of Noah's Ark. However, on Mr Midgley's own account, he paid close attention to, and relied on, detailed measurements and calculations appearing in Mr Fasold's book. Some of those were available from no other source. He readily
acknowledged that he had paid careful attention to some 35 pages of Mr Fasold's book, including a number of diagrams, before preparing his own drawing. He agreed in cross-examination that he might have taken a number of the annotations directly from Mr Fasold's diagram.
I do not accept Mr Midgely's statement that "he did not take much notice of [Mr] Fasold's diagram" when preparing his own. In my view, this statement is extremely difficult to reconcile with the objective similarities between Mr Fasold's diagram and Mr Midgley's drawing and the admissions made by Mr Midgley. I found portions of Mr Midgley's evidence unconvincing, in particular his explanation of how he came to include the triangular shaped "rock intrusion" in his drawing. I also found unconvincing his insistence that he created his drawing after carefully considering Mr Fasold's measurements and calculations, but that he "largely disregarded" Mr Fasold's use of those same measurements and calculations in his diagram. I do not mean to suggest that Mr Midgley was consciously attempting to mislead the Court. He may well have come to believe over time that he paid little attention to Mr Fasold's diagram. Nor did Mr Midgley have any malevolent motive in utilising Mr Fasold's work. Nonetheless, in my view, Mr Midgley closely followed Mr Fasold's diagram when compiling his series of drawings, one of which appeared in the brochure and newsletter. Mr Midgley made some relatively minor changes to Mr Fasold's diagram, in the light of his own reading and opinions. However, these changes do not alter the conclusion that copying took place.
There was no real debate before me as to whether the material reproduced in the brochure and newsletter constituted a reproduction of a substantial part of the work in which Mr Fasold held copyright. It is generally accepted that the phrase "substantial part", as used in s.14(1)(a) of the Copyright Act, refers to the quality of what is taken rather its quantity: Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300, at 305, per Mason CJ. The reproduction of a part of a work which has no originality will not normally be a substantial part of the work in respect of which copyright exists: Ladbroke Ltd v William Hill, at 481, per Lord Pearce.
In the present case, only a small proportion of Mr Fasold's work was reproduced. However, as Mr Midgley's evidence made clear, the reproduction of Mr Fasold's diagram reflected and drew upon a considerable volume of other material in Mr Fasold's book. Whether or not the analysis and reasoning relied on by Mr Fasold in preparing his diagram could survive careful objective scrutiny (bearing in mind that he has discarded his once fervently held belief that the Site contains the remains of Noah's Ark) does not determine whether the work is original for the purposes of copyright law. In my view, having regard to the significance of Mr Fasold's diagram for his book as a whole, the
copying of the diagram constituted the reproduction of a substantial part of his work.
Did the Respondents Authorise the Infringement?
Section 36(1) of the Copyright Act refers to an infringement of copyright by a person who, without the licence of the owner, authorises any act comprised in the copyright. The High Court has construed the concept of "authorisation" in accordance with the dictionary meaning of "sanction, approve or countenance": University of New South Wales v Moorehouse (1975) 133 CLR 1, at 12, per Gibbs J, at 20-21, per Jacobs J (with whom McTiernan ACJ agreed). The concept has recently been considered by the Full Court in Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 136 ALR 273 (FCA/FC), at 294-296, per Sackville J. I do not repeat that analysis here.
Dr Roberts said in one of his affidavits that he did not suggest or authorise publication of the brochure. However, there is a considerable volume of evidence supporting the conclusion that he did sanction, approve or countenance publication of the brochure, including the reproduction of Mr Fasold's diagram. I have already found that Dr Roberts saw the first draft of the brochure and rewrote portions of it. Mr Midgley gave evidence, which I accept, that he showed Dr Roberts the version of his drawing ultimately reproduced in the brochure. Mrs Hill faxed Dr Roberts copies of the drafts of the brochures and Dr Roberts corrected and returned them. The brochure contains a notation that copyright is claimed by Dr Roberts and that all text and illustrations used are the property of or are used with his permission. Furthermore, Dr Roberts acknowledged his own responsibility for errors in the brochure. In a handwritten fax to Mr Fasold, dated 18 July 1992, written in response to a letter of complaint by Mr Fasold, Dr Roberts said that "I am prepared to take responsibility for what has been printed since my name is on it [the brochure]". In a subsequent telephone conversation with Mr Fasold, Dr Roberts said that he took "full responsibility for having erred in this matter", a reference to a failure to cite sources for certain material reproduced in the brochure.
I find that Dr Roberts was aware of the contents of the brochure, including the drawing prepared by Mr Midgley, prior to its publication. He encouraged the publication of the brochure by NARF and approved of its contents. Specifically he approved of the inclusion of the drawing in its final form. He knew that the brochure was to be sold and that his name and photograph would appear on it, along with the claim of copyright in his name. One important purpose behind Dr Roberts' making the claim to copyright over the brochure was to emphasise that he was responsible for its contents. In the circumstances, in my view, Dr Roberts was instrumental in arranging the preparation and
publication of the brochure.
The position with respect to the newsletter is different, because it contains no claims to copyright by Dr Roberts. However, as I have found earlier, much of the material contained in the first two pages of the newsletter is identical to that contained in the brochure. This material was given to Mrs Hill by Dr Roberts. On Dr Roberts' own account he assisted Mrs Hill to write and compile the newsletter for distribution and sale at the meeting. The question posed on the front of the newsletter in large type (referring to "this huge mud-covered, boat-shaped formation") can refer only to the drawing prepared by Mr Midgley which, of course, Dr Roberts had seen. In these circumstances, I think it is clear that Dr Roberts knew and approved of the inclusion of Mr Midgley's drawing in the newsletter and approved of the newsletter being distributed and sold by or through NARF. It follows, in my view, that Dr Roberts authorised both the publication of Mr Midgley's drawing in the newsletter and the distribution and sale of that newsletter.
Once again, the position of Ark Search Inc received very little attention in submissions. Section 38(1)(a) of the Copyright Act, on which Mr Fasold relied, provides that the copyright in a literary or artistic work is infringed if a person, without the licence of the owner, sells an article "if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright". The test of whether the person "ought reasonably to have known" that the making of the article constituted an infringement of the copyright is objective, but the test allows regard to be had to the knowledge, capacity and circumstances of the particular respondent: Raben Footwear Pty Ltd v Polygram Records Inc, FCA/FC, 16 May 1997, unreported, at 3-4, per Burchett J. The onus of proof is on the copyright owner: Avel Pty Ltd v Multicoin Amusement Pty Ltd (1990) 171 CLR 88, at 94-95, per Mason CJ, Deane and Gaudron JJ.
The evidence did not address the organisational structure or activities of Ark Search Inc in any depth, beyond recording the sale of four brochures and the distribution of up to 15 newsletters after the incorporation of the association. There was no evidence as to the circumstances in which the sale or distribution of the brochures and newsletters took place by Ark Search Inc. Nor was there any evidence of the knowledge available to office bearers of Ark Search Inc concerning the circumstances in which Mr Midgley's drawing came to be included in the publications. Dr Roberts was, of course, aware of the circumstances, but he was not a member of Ark Search Inc and there was no evidence that he communicated his knowledge to officers of Ark Search Inc. It is true that other persons involved in NARF must have been aware that Mr Fasold had complained about breach of copyright in July 1992, but it was not shown that any of them were office bearers in Ark Search Inc, or
acquired their knowledge before the sale of the brochure and newsletters by the incorporated association. Accordingly, I do not think it has been established that Ark Search Inc, or those acting on its behalf, knew or ought reasonably to have known that the publication of the brochure or newsletter constituted an infringement of Mr Fasold's copyright.
In any event, the sale and distribution of such a small number of brochures and newsletters, in my view, adds nothing to Mr Fasold's claim for damages in respect of infringement of his copyright. Even if Ark Search Inc were regarded as infringing Mr Fasold's copyright by the sale of the brochures and newsletters, I would not have held that Mr Fasold was entitled to any damages from Ark Search Inc additional to those awarded against Dr Roberts.
Damages?
There was nothing in the evidence to justify a finding that the unauthorised reproduction of Mr Fasold's diagram had caused a depreciation in the value of his copyright. Nor was there anything to support a finding that, if a licence fee had been demanded, Dr Roberts or NARF would have paid the licence fee, rather than chosen not to use the work. Doubtless for these reasons Mr Walmsley contended that the correct approach was to treat the damages "at large" and to award damages on the same basis as would a jury: Fenning Film Services Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171, at 1174, per Horridge J; Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 (FCA/Wilcox J), at 475-477. Mr Walmsley suggested, without elaboration, a figure of $30,000 was an appropriate award of damages against Dr Roberts for infringement of copyright.
Mr Walmsley pointed out that Mr Fasold had spent considerable sums - exceeding $50,000 - on his trips to Turkey prior to publishing his book. I think that this figure, even assuming it can be attributed exclusively to the writing of the book, is of limited, if any, relevance to the assessment of damages in the present case. Expenditure of this kind might be relevant in a case where the applicant contends that the value of the copyright is related to the pre-publication expenditure incurred by the author. It might also be relevant if it is established that a substantial licence fee could have been demanded and would have been accepted by the infringer. The present is not such a case. As I have noted, Mr Walmsley did not contend that the infringement had depreciated the value of Mr Fasold's copyright. Even if a licence fee could have been requested in this case, realistically Mr Fasold could have expected only a very modest sum. In assessing damages it is necessary to bear in mind that the total proceeds from the sales of the newsletter and brochure were unlikely to have
exceeded $1,500.
Other factors must also be taken into account. Dr Roberts himself obtained no financial benefit from the unauthorised reproduction of Mr Fasold's diagram. Furthermore, the brochure and newsletter each acknowledged that the diagram reflected measurements and work undertaken by Mr Fasold. The brochure itself specifically referred to Mr Fasold's book in footnotes.
I regard this case as involving a relatively minor infringement of copyright that has inflicted no significant financial loss on Mr Fasold. Accordingly, the damages should be modest. I think the appropriate award of damages against Dr Roberts is $2,500.
Mr Walmsley submitted, again without elaboration, that this was a case in which additional damages should be awarded under s 115(4) of the Copyright Act. Section 115(4) is cast in wide terms and confers "a discretion of the most extensive nature" on the Court: Raben Footwear v Polygram, at 24, per Tamberlin J. Additional damages can be awarded under s 115(4) even if an infringement cannot be described as flagrant, although the flagrancy (or otherwise) of the breach is an important factor to take into account.
Mr Walmsley conceded that there was no evidence of "flagrancy" occurring at or before publication of the brochure or newsletter. I do not think that Dr Roberts' failure to take corrective action after his conversation with Mr Fasold on about 18 July 1992 warrants an award of additional damages, having regard to the negligible distribution of brochures and newsletters after that date. As I have said, Dr Roberts obtained no commercial advantage from the infringement of copyright and the brochure and newsletter each gave an acknowledgment, albeit incomplete, to Mr Fasold's work. I see nothing in the circumstances of the case to warrant an award of additional damages.
Summary on Copyright
At all material times, Mr Fasold held the copyright in his book, "The Ark of Noah", published in the United States in 1989. The drawing appearing in the brochure and newsletter published by NARF was prepared by Mr Midgley but, in substance, reproduced the diagram appearing at p.291 of Mr Fasold's book. Dr Roberts authorised the reproduction of the diagram in the brochure and newsletter. Accordingly, he infringed Mr Fasold's copyright.
There is no evidence of significant financial loss to Mr Fasold in consequence of the infringement of copyright. Assessing damages on a "jury basis", a modest award should be made against Dr Roberts. That award should be in the sum of $2,500.
On the evidence, I cannot be satisfied that Ark Search Inc, which distributed only a few brochures and newsletters, knew or might have known that the publication infringed copyright. In any event, even if it did have the requisite knowledge, I would not have awarded any damages in respect of any infringement of copyright by Ark Search Inc additional to those awarded against Dr Roberts.
CONCLUSION
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.
I shall give the parties the opportunity to make written submissions on costs. In the light of those submissions I shall determine whether a further hearing is necessary.
I certify that this and the preceding 85 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated:2 June, 1997
Heard: 7,8,9,10,14,15 and 17 April, 1997.
Place: Sydney
Decision: 2 June, 1997
Appearances:
Counsel for the applicants: Mr S.L. Walmsley and Mr M.G. Vincent
Solicitors for the applicants: Blessington Judd.
Counsel for the respondents: Mr A. Radojev and Mr M.B. Duncan
Solicitors for the respondents: Bush Burke & Company.
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