Little, Colin v Hibberd, Jack

[1995] FCA 1113

IN THE FEDERAL COURT OF AUSTRALIA  )

VICTORIA DISTRICT REGISTRY        )        No VG 946 of 1995

GENERAL DIVISION                 )

BETWEEN:COLIN LITTLE

(Applicant)

AND:JACK HIBBERD

(First Respondent)

AND:WELLINGTON POINT PTY LTD

(Second Respondent)

AND:SOUTHERN MEDIA CORPORATION PTY LTD

(Third Respondent)

AND:BOOKMAN PRESS PTY LTD

(Fourth Respondent)

REASONS FOR JUDGMENT

CORAM:    RYAN J

PLACE:    MELBOURNE

DATE:     22 DECEMBER 1995

RYAN J:   This is an application for an interlocutory injunction to restrain the printing, selling, offering for sale or distribution of a book by the first respondent, Jack Hibberd, entitled "The Great Allergy Detective Book" ("the Book").

The applicant, Dr Little, alleges that substantial passages of the book are colourable adaptations or reproductions of passages from earlier publications of his own.  Those earlier
publications include a 78 page booklet entitled "A Guide to Allergy and Related Disorders" originally published in 1985 and of which second and third editions were published in 1989 and 1990.

Dr Little's other publications have been in the form of printed or mimeographed handouts, some of them under Dr Little's letterhead, which have been distributed to patients of his practice and to other persons working in, or interested in, medical allergies and related fields.  The Book was apparently published early in November 1995 and a copy first came into the hands of the applicant on 23 November 1995.  It has been extensively promoted by Dr Hibberd on radio and television.

There is evidence that approximately 3000 copies of the book have so far been distributed and are on sale in over 400 shops throughout Australia.  The evidence does not disclose how many copies are comprised in the first print run.  I have been told from the Bar table that some 2000 copies remain in the respondents' hands in addition to the 3000 which have so far been distributed.

The book contains a dedication to the applicant in these terms:

"This book is dedicated to Dr Colin Little, without whose profound knowledge and generous help, it would not have been feasible."

There is also the following acknowledgment:

"Major acknowledgment is due to Dr Colin Little who unstintingly provided access to his enormous clinical expertise and suggested numerous scientific papers."

As well certain tables have been reproduced, like that on page 128 of the book which is followed by this acknowledgment:

"Source:These figures derived from several years ago, and have been reproduced with the permission of Dr C.H. Little from his invaluable A Guide to Allergy and Related Disorders, Vaba Publishing, 1990."

The applicant asserts, and the respondents have so far not denied, that no permission to reproduce those tables was in fact given by Dr Little.  I consider, on the present necessarily limited state of the evidence, that there is a serious question to be tried as to whether passages from the book infringed the applicant's copyright in his earlier publications.  However, the trial of that issue will involve a protracted examination of several conplex questions.  An examination of that kind could not even be commenced today.

The applicant has, I consider, demonstrated a prima facie case of contravention of the Fair Trading Act 1985 by representing knowledge or approval by the applicant of at least part of the contents of the book and by representing that he had consented to the reproduction of at least the tables to which I have referred earlier. However, I am not persuaded on the present state of the evidence that the balance of convenience favours a complete interlocutory prohibition on further sales or distribution of the book. Among the considerations which have led me to this conclusion are that a strong prospect remains that damages, including exemplary or aggravated damages or an account of profits, will be found, after investigation of all the issues going to liability, to be an adequate remedy.

I have also taken account of the delay, albeit short, which occurred between 23 November 1995 and the issue of these proceedings on 18 December 1995 and the risk that the pecuniary loss and harm to their reputation which will be incurred by the respondent in the event of a total prohibition on further distribution of the Book may not be in the same proportion which the offending passages, if ultimately proved to be infringing, bear to the contents of the Book as a whole.

Doing the best I can on the limited examination of the issues of fact and law which I have been able to undertake today, I propose to order, upon the applicant giving the usual undertaking as to damages:

1. That the respondents be restrained until the hearing and determination of this application or further order:

(a)from selling, offering for sale, or otherwise distributing any copies of the Book now in their possession or control without affixing in a prominent place on the cover or a fly leaf of each such copy a disclaimer to the effect that Dr C.H. Little has not been consulted about, has not approved, and is not responsible for, any expressions of fact or opinion contained in any part of the contents of the Book;

(b)from printing and offering for sale any further copies of the book in excess of the 5000 already printed without deleting therefrom any dedication, acknowledgment or other reference to the applicant and inserting in a prominent place therein a disclaimer to the effect set out in sub‑paragraph (a) above.

1. That the directions hearing be adjourned to 9 February 1996 for consideration of, amongst other things, the directions which should be given to procure a speedy trial of the action.

1. That the costs of all parties of this day be reserved.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of His Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicant     :    Mr I G Waller

Solicitors for the Applicant  :    Andrew Cox

Counsel for the First,       :    Mr A J Maryniak

Second, Third and Fourth
Respondents

Solicitors for the First,     :    Roth Warren

Second, Third and Fourth
Respondents

Date of Hearing             :    22 December 1995

Date of Judgment            :    22 December 1995