NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd

N.V. PHILIPS GLOEILAMPENFABRIEKEN and PHILIPS LIGHTING PTY LIMITED v.
MIRABELLA INTERNATIONAL PTY LIMITED
No. G549 of 1992
FED No. 583
Number of pages - 58
Patents
(1993) AIPC 91-025
(1993) 117 ALR 79
(1993) 44 FCR 239

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Lockhart(2) and Burchett(3) JJ

CATCHWORDS

Patents - Compact low-pressure mercury vapour discharge lamp - infringement of patent - construction of "contains a luminescent material" in patent specification - validity of patent - sufficiency of description - fair basing - invention or manner of manufacture - want of novelty - utility - effect of Patents Act 1990 on patents granted under Patents Act 1952 - revocation of patents granted under 1952 Act using provision of 1990 Act.

Interpretation Act 1901

Patents Act 1952

Patents Act 1990

HEARING

SYDNEY, 17-20, 26 November 1992

#DATE 26:8:1993

Counsel for the Appellants : R J Ellicott QC

D Ryan

Solicitors for the Appellants : Sly and Weigall

Counsel for the Respondent : D K Catterns QC

Dr A C Bennett

Solicitors for the Respondent : Williams Niblett

ORDER

The court orders that:

1. The order for costs made by Wilcox J be varied by ordering the appellants to pay two-thirds of the costs of the respondent of the principal proceeding and the cross-claim;

2. Otherwise, the appeal be dismissed;

3. The appellants pay two-thirds of the cost of the respondent of the appeal.

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

JUDGE1

NORTHROP J I agree with the orders proposed by Lockhart J and concur with his Honour's reasons for making those orders.

JUDGE2

Introduction

LOCKHART J This appeal from the judgment of a judge of the Court (Wilcox J) concerns a patent for a "low-pressure mercury vapour discharge lamp". The patent enables the manufacture of a compact fluorescent lamp which saves energy and has a long life. It represents the development from fluorescent lamps with tubes of various lengths with which we are familiar. The patent was granted to the first appellant under the Patents Act 1952 ("the 1952 Act") on 27 January 1983 for a term of 16 years commencing on 21 August 1978. The priority date is 23 August 1977. The first appellant is a Netherlands corporation and the second appellant is an Australian subsidiary of it. The appellants manufacture and distribute lamps, including compact lamps, known as Philips' lamps.

The respondent distributes in Australia compact lamps which are known as Mirabella PLC-E type lamps ("Mirabella lamps"). These lamps, apparently imported from China, are similar in appearance to Philips' compact lamps. The appellants claimed that the Mirabella lamps infringed the first appellant's patent. They sought a declaration to that effect together with an injunction restraining the respondent from making, causing to be made, importing, selling, offering for sale, or distributing Mirabella lamps in Australia. They also sought an order for the delivery up or destruction of all Mirabella lamps in the possession or control of the respondent, together with damages or an account of profits. The respondent disputed these claims and denied infringement. By its cross-claim it challenged the validity of the patent in suit and sought its revocation. Five grounds were mentioned in the cross-claim of the respondent: failure to comply with the requirements of s. 40 of the Patents Act 1990 ("the 1990 Act"), want of novelty, that the subject of the patent is not an invention or manner of manufacture, obviousness and lack of utility. Obviousness was abandoned at the commencement of the trial, but the other grounds have been maintained throughout the proceeding.
The learned primary Judge found that there was no infringement by the respondent of the patent in suit and that it was invalid. His Honour ordered that the application be dismissed and that the patent be revoked. He found that the specification did not comply with s. 40 of the 1990 Act and that the invention claimed in the patent was not an invention or a manner of new manufacture; but he found in favour of the appellants on certain of the issues raised by the respondent's cross-claim. He held that the patent sufficiently or fully described the invention; that claims 1 to 5 were fairly based on the matter described in the specification; and that the invention disclosed in the patent was useful and novel. On appeal to this Full Court the parties challenged all findings of his Honour adverse to them.

The compact low-pressure mercury vapour discharge lamp
4. It is necessary to describe a compact low-pressure mercury vapour discharge lamp of the kind with which this case is concerned.

A fluorescent lamp is a gas discharge tube, the inner surface of which is coated with a luminescent material comprising a given mixture of fluorescent salts, also known as phosphors. The tube is filled with an inert gas, normally argon, with a small amount of mercury. A gas which is suitable for use in fluorescent lamps is mercury vapour. Discharge lamps using mercury vapour can be of the high pressure type, where the lamp is operated with the mercury vapour at a pressure in the region of 25 kPa or one quarter of atmospheric pressure, or even at far higher pressure. Fluorescent lamps of the kind with which the patent in suit is concerned are of the low pressure type in which the mercury vapour pressure during operation of the lamp is of the order of O.8 kPa, which is eight one-millionth parts of atmospheric pressure. The gas used in the lamp is enclosed within a sealed glass envelope and at each end of the envelope there is an electrical conductor called an electrode which looks rather like the filament of an incandescent lamp. Each electrode has an electrical connection through the wall of the envelope for the supply of electric current to the lamp. During operation of the lamp with alternating current the electrodes are alternately supplying electric current to the lamp and drawing current from it. The electrode which is supplying current is called the anode and the other electrode is called the cathode.
When an electric voltage is applied between the electrodes in the tube an electric discharge is struck, initially in the inert gas. The heating of the tube which results from the discharge vaporises the mercury. Energy is then transfered from the free electrons of the gas discharge to the atoms of mercury vapour. Free electrons excite high energy levels of the mercury atoms which, on relaxing, emit radiation at a number of discrete wavelengths. This radiation consists for the most part of invisible ultraviolet rays. The ultraviolet radiation is absorbed by the phosphor which in turn emits radiation with longer wavelengths in the visible region of the spectrum, and, depending on the given mixture of phosphors, different "colours". Speaking generally, it is desirable to have a white light rather than one that is bluish or pinkish in hue. The use of a blend of phosphors has been common industry practice since about 1972. Often a phosphor component is chosen to emit primarily in one colour. By combining phosphors which emit in the red, green and blue portions of the spectrum, a combined emission which appears as white light is obtained. Fluorescent lamps in relatively tubular forms have been known for many years as efficient sources of light; they are more efficient than normal incandescent lamps.
The first fluorescent lamps to become widely used in domestic and commercial applications were developed in Europe and the United States during the period 1945-50. These lamps used luminescent materials which provided light emission over a broad region of the visible spectrum. The fluorescent tube used throughout the world during the 1960's had a tubular glass envelope of 38 mm diameter which has as its luminescent material a calcium halophosphate crystalline powder, using various activators such as manganese and antimony, chosen to give a broad spectrum radiation of the required colour temperature. During that period 38 mm was considered to be the diameter which gave optimum efficiency from the gas discharge.
About 1970, Westinghouse in the USA and the first appellant in the Netherlands independently arrived at a new approach to the choice of luminescent materials. Instead of employing a single luminescent material capable of emitting light over a broad portion of the visible spectrum, it was found to be more efficient to employ three materials, each of which was an efficient emitter of light in a narrow wavelength band. By choosing the three materials so that their respective emission bands (that is to say, the colours of their emitted light) complemented each other, the eye mixed these three colours to see white light. By using three narrow band phosphors no energy was wasted through radiation at wavelengths to which the eye is relatively insensitive, and the colour of the lamp could be finely tuned by the adjustment of the relative quantities of the three luminescent materials used. This became known as the "three band principle".
During the early 1970's luminescent materials, based on crystal lattices of aluminium oxide, and using as activators the rare elements europium, cerium and terbium, emerged from work conducted by the first appellant in the Netherlands as the most suitable green and blue emitting phosphors for use in a commercial lamp employing the three band principle. The most suitable red emitting phosphor appeared to be yttrium oxide. Lamps employing these phosphors were introduced in Europe in 1974. Although these three band luminescent materials were expensive, they enabled greater lamp efficacy to be achieved, with good colour rendering.
Luminescent materials or phosphors are materials which have the property of emitting visible light when irradiated with ultraviolet radiation. The ability of a material to do this depends on the energy levels of the material in its solid state. High energy photons of ultraviolet light are absorbed by the phosphor, which then emits less energetic photons of visible light. (A photon of light is analogous to an atom of matter). The early known phosphors involved compounds of barium, magnesium and calcium. There are many hundreds of phosphors, including some natural minerals and biological compounds. New phosphors are constantly being discovered or synthesised; but at any one time less than one hundred phosphors are commercially manufactured on a large scale.
Phosphors for use in fluorescent lamps must be efficient, maintain their properties in the atmosphere of the mercury discharge and have their emission in desirable regions of the visible spectrum, so that the total light emitted is "white", rather than looking bluish or pinkish. A range of phosphors having these basic properties was well known for many years prior to 1977. Other considerations such as cost and ease of manufacture further limit the choice of phosphors.
A phosphor mixture is selected to meet the particular required criteria, for example, to produce spectral components of emitted light which together look white or withstand radiation at wavelengths of 185 nanometres (which has been known since at least 1963 to degrade some phosphors). (A nanometre is one millionth of a millimetre or 10-9 metres and is commonly abbreviated as "nm"). Since about 1974, for example, it was known that phosphors containing terbium (green/red) and europium (red) could be used to increase the red component of the emitted light to obtain a "warmer" light.
Appropriate phosphors and mixtures of phosphors have been selected largely by experimentation. Whether or not a particular phosphor or phosphor mixture has the desired characteristics is determined by standard laboratory techniques.
One of the most important characteristics of a phosphor is its efficiency in converting the ultraviolet radiation into visible light in given circumstances. The overall efficiency of a light source is expressed in terms of lumens per watt. (A lumen is the measure of radiant power evaluated according to the ability of the light source to produce the visual sensation of light.) Efficiency will be reduced if power is lost in heat or because of degradation of the phosphor. Most phosphors will have high efficiency, but degrade quickly; whereas others will be less efficient, but have a longer life. The light provided by a lamp is measured by luminous flux in lumens. If the phosphor of a fluorescent lamp is efficient with a high number of lumens per watt then the luminous flux will be high.
Compact fluorescent lamps are characterized by small size, energy efficiency and long life. As a consequence of their small size, the luminescent coating of these lamps covers a relatively small area, and therefore receives a high density of radiation from the discharge. The energy loading on the luminescent layer is measured by the "wall loading", which is the power (in watts) dissipated in the mercury vapour discharge column per square metre of luminescent material surface. Expressed another way, the term "wall-loading" is used to describe the ratio between the electrical power input to the lamp and the area of the inside surface of the lamp. Compact lamps, because of their smaller size, have a higher wall-loading than conventional lamps that use the same wattage. A lamp with a high wall-loading is often called a "high-loaded" lamp.
The problem addressed by the invention of the patent in suit is the inefficiency of known lamps having high wall loadings. The invention resides in the choice of luminescent materials employed in lamps having a wall loading of at least 400 W/m2. (There is some conflict in the evidence as to whether the minimum is 400 or 500 W/m2, but nothing turns on this.)
The most obvious differences between a compact lamp and a conventional fluorescent lamp are size and shape. Whereas the conventional lamp is long and thin (typically a metre or more in length and 3-4 cm in diameter), the compact lamp is small and comparatively squat. Sometimes it is straight, sometimes curved, like an incandescent light globe. But, regardless of shape and size, the principle behind a compact lamp is the same as that behind a conventional fluorescent lamp. The essence of its operation is its ability to convert electrical energy into light by the production of radiation lying within that part of the radiation spectrum which is visible to the human eye.
Using the same phosphors, a compact lamp is less efficient than a conventional fluorescent lamp. This is a result of the lamp's smaller size. There are two aspects to this: there is an increase in the proportion of energy which is expended at the electrodes to sustain the discharge and, thus, is lost as heat; and there is a greater proportion of ion recombination at the wall of the tube. The smaller the diameter of the tube, the more readily will ions diffuse to the walls and recombine. Their recombination energy is largely expended as heat, rather than used to produce visible light.
The radiation from a low-pressure mercury vapour discharge lamp occurs primarily at two wavelengths: 185 nanometres ("nm") and 254 nm. Radiation at 185 nm has a degrading effect on phosphors, leading to a loss of luminous flux. This loss is often called "short term decrease" or "STD", the name stemming from the fact that the loss occurs within the first few minutes after the lamp is switched on. STD is not cumulative. It persists whilst the lamp is illuminated and recurs, to about the same extent and from about the same base, when the lamp is next switched on. The effect of STD is to reduce the lamp's operating efficiency. Some phosphors are more resistant to STD than others; hence it is important to select phosphors whose characteristics include high STD resistance.
Radiation at 254 nm does not degrade phosphors. Indeed, it seems to have a beneficial effect by repairing colour centre damage resulting from the 185 nm radiation. Accordingly, it is desirable to design the lamp in such a manner as to minimise 185 nm radiation and maximise 254 nm radiation. A problem with compact lamps compared with conventional fluorescent lamps, is that their smaller size leads to an increase in the 185 nm/254 nm ratio, thus increasing the problem of phosphor degradation.
The phenomenon of electro-negativity ("e.n") was described by Professor Linus Pauling (who in 1945 compiled a list of the e.n of all known elements) as "the power of an atom in a molecule to attract electrons to itself". The combination of cations (the positively charged mercury ions) suitable for a compact lamp must have a relatively low electro-negativity in order to resist degradation of the phosphor by the mercury atoms.
Other expressions which require definition to understand the issues in the case shall be dealt with briefly. Atomic number is the number of protons in the nucleus of an atom. The number is unique for any given element.
The periodic table is a table of elements arranged in order of increasing atomic number. The various properties recur periodically throughout the sequence of elements. Elements with similar arrangements of electrons are placed under each other in vertical columns called groups. Elements within a group therefore have similar properties. There are eight main groups designated as I to VII, and 0. Group I, for example, includes hydrogen and the alkaline metals such as lithium and sodium. Group VII contains the halides; and group 0 contains the inert gases. A horizontal sequence of the periodic table is called a "period". They are numbered from the top down from 1 to 7.
Rare earth elements are elements in a group of elements consisting of lustrous silvery-white metals. They occur naturally as oxides (earths) and are widely distributed throughout the earth's crust. The rare earths consist of 17 elements in the periodic table, 15 with atomic numbers ranging from lanthanum with an atomic number of 57, to lutetium with an atomic number of 71, and including cerium (atomic number 58), europium (atomic number 63) and terbium (atomic number 65) (together known as "the lanthanide series"), and scandium (atomic number 21) and yttrium (atomic number 39).
Scandium, yttrium and the lanthanide series belong to the sub-group III(a) of the periodic table. The lanthanides all occupy the same position in the sixth period below yttrium which in turn is below scandium.
All the rare earth elements have a similar chemical structure and similar properties. They are all transition elements. The patent specification
The specification of the patent in suit commences as follows:

"The invention relates to a low-pressure mercury vapour discharge lamp having a vacuum-tight radiation-permeable envelope provided with a luminescent layer, a gas filling comprising mercury and a rare gas, and means for maintaining a column discharge in the gas filling, the power consumed by the column being at least 500 W per m2 surface area of the luminescent layer."

The specification then outlines the principles underlying low-pressure mercury vapour discharge lamps, their physical descriptions and manner of operation. Reference is made to conventional fluorescent lamps, the statement being made that the 40 watt T-12 lamp (a lamp 1.2 metres in length and 37 mm in diameter) generally has a wall-loading of about 300 watts per square metre ("W/m2").
The specification then says that low-pressure mercury vapour discharge lamps have already been made, wherein a higher wall-loading, of 500 W/m2, is applied. This is said to have been done "with the object of obtaining small and compact lamps". Reference is made to German and United States patents disclosing small lamps with wall-loadings of 2,500 W/m2 and 25,000 W/m2 respectively.
The specification turns to the prior art:

"A great drawback of the prior art lamps with a relatively high wall load is that the efficiency of the lamp, that is to say the radiant flux or luminous flux of the useful radiation emitted by the luminescent layer ... appears to have a low value. In particular this efficiency is considerably lower than that of the normal lamp (for example the 40 W/T12-lamp). This drawback is especially felt with the compact lamps and is one of the reasons that this lamp type, which might offer great advantages for practical applications, for example as a substitute for normal incandescent lamps, has as yet not been introduced. The reason why it appeared to be impossible to produce lamps having a high power input per unit volume and with an efficiency comparable to that of the normal lamps was not understood. Also known insights as regards the optimum mercury vapour pressure ... and means for controlling the mercury vapour pressure (amalgams etc) did not lead to the desired result. It has, therefore, been considered that producing a compact lamp, for example by reducing the diameter whilst maintaining the electric power supplied must inevitably be accompanied by loss in efficiency."

Continuing, the specification deals with the object of the invention in these terms:

"... to provide low-pressure mercury vapour discharge lamps which in operation has (sic) a high density of the consumed power and a high radiation efficiency, so that on the one hand compact lamps with an efficiency substantially equal to that of the normal low-pressure mercury vapour discharge lamps and, on the other hand, lamps having high current densities with an improved radiation efficiency become available."

The substance of claim 1, with one variation to which I will refer later, is then set out (the consistory clause). It is followed by this description of the course of investigations:

"During the investigations which led to the invention, it was found that an efficient conversion of the electric power into ultra-violet radiation is possible in a highly loaded lamp. It was surprisingly found that the efficiency of this conversion can be substantially equal to that of the normal 40W/T12 lamp. It was found to be a prerequisite that the electron temperature in the highly loaded lamp assumes a value which is not lower, and is, preferably higher than that in the normal lamp. Various measures are possible to achieve this. Starting, for example, from the normal lamp, the required high electron temperature is maintained if the discharge tube has a smaller diameter, while the electric power supplied to the lamp is kept substantially constant. Compared to the normal lamps, the electric field strength is then higher, the lamp current is lower and the wall load is higher than in the normal lamps. Experiments showed that said high efficiency of the conversion into ultra-violet radiation can also be obtained with very low diameters of the discharge tube (from one to a few mm). Another measure which makes it possible to maintain a high electron temperature is to reduce the rare gas pressure in the lamp whilst increasing the supplied electric power. Compared to the normal lamps the lamp current is then considerably greater and the electric field strength is substantially the same or is somewhat lower. The wall load in these lamps is of course higher. It was furthermore found that with an efficient production of ultra-violet radiation in highly loaded lamps, there is not only a high ultra-violet radiation density at the wall but also the share of the radiation having a wavelength of 185 nm is relatively higher than in normal lamps. This unexpectedly high ratio between the 185 nm radiation and the 254 nm radiation combined with the increased density of the total ultra-violet radiation produced results in the 185 nm-load of the wall of such lamps being considerably higher than in normal lamps."

The specification then identifies the invention:

"The invention is based on the recognition that failure of the prior art lamps with high wall load is not due to a low efficiency of the conversion into ultra-violet radiation, as has been generally assumed so far, but is due to the luminescent materials used. The invention provides suitable luminescent materials as a measure for obtaining efficient, highly loaded lamps. Consequently, the present invention opens the way to an entirely new lamp type, namely the compact low-pressure mercury vapour discharge lamp which can replace the normal incandescent lamp which is used in very great numbers. As the efficiency of the low-pressure mercury vapour discharge lamp is approximately 5 times greater than that of the incandescent lamp, a very considerable saving in energy is possible." (Emphasis added).

It seems to be common ground that the phrase "as a measure for" in the emphasised sentence of this extract is synonymous with "as a means of". So, the essence of the claimed invention is that it "provides suitable luminescent materials" as a means of obtaining efficient, highly loaded lamps. Although, according to the specification, the investigators surprisingly discovered that it is possible to convert electric power into ultra-violet radiation as efficiently in a highly loaded lamp as in a normal 40W/T12 lamp, and although the authors describe how this can be done, this discovery and information is not part of their claimed invention. Rather, in describing the invention, they start from the position that there is equal conversion efficiency between a 40W/T12 lamp and a highly loaded lamp, and address the question why, in that situation, highly loaded lamps are less efficient in producing visible light. The problem, they say, lies in the luminescent materials that have been used. The solution is to select suitable luminescent materials; and the purpose of the invention is to guide that choice, thus opening the way for a new type of lamp: the compact low-pressure mercury vapour discharge lamp.
The specification turns to embodiments. It says that, in a lamp according to the invention:

"a luminescent material is used which is, on the one hand, highly resistant against 185 nm radiation, that is to say it has only a very slight decrease in the luminous flux (on excitation by 254 nm radiation) owing to irradiation by 185 nm rays and which, on the other hand, has a high mercury resistance".

No luminescent material is identified. The specification goes on to set boundaries for acceptable short-term decrease of the luminous flux of the material when it is irradiated for 15 minutes:

"by radiation having wave lengths of mainly 185 nm and 254 nm with a radiation density between 150 and 500 W/m2 and with a ratio of 185 nm power to 254 nm power between 0.20 and 0.40".

The specification refers to an apparatus for measuring this short-term decrease which is described and illustrated later in the document. The specification stipulates that the STD after 15 minutes "shall not be more than 5%". The embodiment proceeds to deal with electro-negativity, stating that:

"the luminescent material must not only satisfy the requirement as regards the short-term decrease but also the requirement for a higher degree of mercury resistance."

It is said that it has

"been found that the luminescent layer in highly loaded lamps is exposed to a much greater number of collisions with excited mercury atoms and mercury ions than is the case in normal lamps ... A measure of the mercury resistance of a luminescent material is found in the electro-negativity (e.n) of the cations of the luminescent material".

After stating that "it is now clear that mercury ... will attack luminescent materials whose cation has e.n >-1.9" the embodiment specifies an e.n of not more than 1.4, measured according to the Pauling table.
It is not necessary to detail all the remaining embodiments. A number reflect the various claims without identifying any particular luminescent material as meeting the specified criteria or being otherwise suitable for use in compact lamps. However, at page 13, the specification refers to an embodiment containing as luminescent material

"a red-luminescing, trivalent europium-activated rare earth metal oxide having a composition defined by the formula Ln2o3:pEu3+, where Ln represents at least one of the elements Y, Gd and Lu and where 0.01<- p <- 0.20. These luminescent oxides, which are known per se, appear to have a very small short term decrease and are highly resistant to mercury, so that they can be used with great advantage in lamps according to the invention".

The compound referred to in this embodiment is generally known as "YOX". This embodiment is reflected in claim 6.

The next embodiment refers to a group of luminescent aluminates, known per se under the sobriquet "CAT". It is said that these materials have a small short-term decrease and a good mercury resistance. Claim 7 is based on this embodiment.
The next embodiment contains a reference to a further group of luminescent aluminates, known per se and often called "BAM". They are said to have very low short-term decrease and good mercury resistance: see claim 8.
The statement is then made that:

"The luminescent layer in a lamp according to the invention may contain a luminescent material from the group consisting of bivalent europium-activated strontium tetraborate, lead-activated barium disilicate, bivalent europium-activated strontium chlorophosphate with an apatite crystal structure, gadolinium metaborate activated by cerium and terbium and gadolinium borate activated by trivalent bismuth and trivalent europium."

It is said that these materials have an excellent STD and that their mercury resistance "is very favourable": see claim 9.
The specification refers to two diagrams. Figure 1 illustrates "a low-pressure mercury vapour discharge lamp according to the invention". Figure 2 is a diagrammatic representation of the apparatus for measuring STD. Both diagrams are described at length. It is important to note that the STD specified in the claims (5% and 3%) is the decrease in luminosity of the luminescent material when measured by the particular apparatus in the way prescribed in this embodiment.
The specification refers to some tables. Table I sets out the electro-negativity, STD and luminous flux of ten different compounds, including YOX, CAT and BAM, as measured in discharge tubes with an inside diameter of 10.3 mm. The specification comments:

"It is clear that reducing the diameter, which results in highly loaded lamps, in accordance with the invention, is not accompanied by a loss in column efficiency".

Table II sets out measurements of the luminous flux of lamps of 7.8, 10.3 and 14.5 mm inside diameter, containing "a blue luminescing material", BAM, after various numbers of hours of operation. Table III conveys similar information concerning YOX, a red luminescing material. Example 17 gives the same information for CAT, a green luminescing material, but only in respect of a 7.8mm tube. There is information in Tables IV and V (examples 18 to 26) regarding a mixture of YOX and CAT. Examples 27, 28, 29 provide some information about a mixture of YOX, CAT and BAM.
At the end of this section of the specification the words appear:

"It is clear that the abovementioned embodiments only serve to illustrate the invention. On the basis of the requirements formulated in this description as regards short term decrease and mercury resistance and by means of the methods described for determining these properties, a person skilled in the art can easily ascertain which luminescent materials are suitable for use in lamps according to the invention. Furthermore it should be noted that a luminescent material which, for example, does not satisfy the requirements imposed on the short-term decrease can be made suitable, for example by optimizing the preparation of this material. It is possible that a luminescent material becomes sufficiently resistant to attack by mercury by coating the material with a protective layer."

The claims to the invention follow. Because of its central importance to the argument, I set out claim 1 in full:

"1. A low-pressure mercury vapour discharge lamp having a vacuum-tight, radiation-permeable envelope bearing a luminescent layer and containing a gas filling comprising mercury and a rare gas, and means for maintaining a column discharge in the gas filling, the power consumed during operation by the column discharge being at least 500 W per m2 surface area of the luminescent layer, wherein the luminescent layer contains a luminescent material which has the property of having at 254 nm-excitation a luminous flux which, after the material has been subjected for 15 minutes to ultraviolet radiation consisting substantially of the wavelengths 185 and 254 nm, having a radiation density between 150 and 300 W/m2 and having a ratio of 185 nm power to 254 nm power between 0.20 and 0.40, is not more than 5% lower than the initial luminous flux of the material at 254 nm excitation and measured under identical circumstances, and wherein the combination of cations (as hereinbefore defined) in the luminescent material has an electro-negativity of not more than 1.4."

(emphasis added)

Claim 2 refers to a lamp as claimed in Claim 1, but with an STD of not more than 3%, rather than the 5% mentioned in Claim 1.
Claim 3 refers to a lamp, as claimed in Claim 1 or Claim 2:

"wherein an electric field strength of 150 to 1000 V/m (volts per metre) is maintained in the column discharge during operation of the lamp".

It is common ground between the parties that this claim envisages a compact lamp, the stipulated electric field strength being appropriate only to such a lamp. The earlier claims do not mention electric field strength.

Claim 4 refers to a lamp, as claimed in Claim 3:

"wherein the envelope has a tubular shape, whose cross-section perpendicular to the axis of the tube is substantially circular and whose inside diameter is from 3 to 15 mm".

Claim 5 refers to a lamp, as claimed in Claim 1 or Claim 2, wherein an electric current of a current density of at least 0.5 A/cm2 (Amps per square centimetre) is maintained in the column discharge during operation of the lamp.
Claims 6, 7, 8 and 9 each claims a lamp as claimed in any one of Claims 1 to 5 wherein a particular luminescent material is used: in the case of Claim 6, YOX; in the case of Claim 7, CAT; in the case of Claim 8, BAM; and in the case of Claim 9 a compound from the group described above immediately before my reference to the diagrams.

The effect of the 1990 Act on patents granted under the 1952 Act
52. The primary Judge dealt at the commencement of his reasons for judgment with the question of the implications for patents granted under the 1952 Act of the repeal of that Act and its replacement by the 1990 Act. It is to that question that I turn first.

The 1952 Act was repealed by s. 230 of the 1990 Act. The 1990 Act contained transitional and savings provisions in Chapter 23. An important section in Chapter 23 is s. 233 which provides as follows:

"233(1) Subject to this Chapter and the regulations, this Act applies in relation to a standard patent or a petty patent granted under the 1952 Act as if the patent had been granted under this Act.

(2) A patent mentioned in subsection (1) does not have effect in any place in which it did not have effect immediately before the commencing day.

(3) Chapter 9 of this Act does not apply in relation to a patent mentioned in subsection (1).

(4) Objection cannot be taken to a patent mentioned in subsection (1), and such a patent is not invalid, so far as the invention is claimed in any claim, on any ground that would not have been available against the patent under the 1952 Act."

His Honour found that the purpose of sub-s. (4) is to ensure that a person who obtained a patent under the 1952 Act would not be exposed, by the repeal of that Act and the substitution of the 1990 Act, to an attack on the validity of the patent on a ground which would not previously have been available. His Honour found that a person who challenges the validity of the 1952 Act patent must do so under the 1990 Act, but that a ground of revocation available under that Act must also have been a ground of revocation under the 1952 Act. His Honour expressed this view subject to a qualification arising from reg. 23.26(1) of the Patents Regulations 1991 which provides that the 1952 Act applies to an action or proceeding, made or started under that Act and not finally dealt with or determined before the commencing day of the 1990 Act, in which the validity of a patent is disputed or which concerns infringement of a patent. As the present proceeding was instituted on 5 July 1991 (after the commencement of the 1990 Act on 30 April 1991), the regulation has no application to it so that it is not a proceeding commenced under the 1952 Act. His Honour therefore ignored the qualification. He found that to obtain a revocation order in the present case the respondent must make out at least one ground of invalidity under the 1990 Act which is also a ground of invalidity under the 1952 Act. He found that the purpose of s. 233(4) is to maintain the existing rights of holders of patents under the 1952 Act, but no more and that this purpose may be achieved by an interpretation:

"that requires an applicant for revocation under the 1990 Act to establish, not only the facts needed to make out the relevant ground under the 1990 Act, but also facts that would have led to revocation upon an equivalent basis under the 1952 Act. That interpretation means that, whilst 1952 Act patents remain in contention, there must be a dual inquiry, the Court testing the facts against the invoked ground of invalidity, however described, in each Act. If the proved facts satisfy the requirements of each Act, s. 233(4) permits revocation under the 1990 Act of the 1952 Act patent; but not otherwise." (755)

It is plain that the Parliament did not intend by the repeal of the 1952 Act to leave the work of preservation of accrued rights and liabilities to the Acts Interpretation Act 1901 ("the Interpretation Act"). Chapter 23, in particular s. 233, evidences a plain intention to deal with the effect of the repeal and thus to express a contrary intention within the meaning of the introductory words of s. 8 of the Interpretation Act.
The initial Bill for an Act that became the 1990 Act did not include s. 233, which suggests that it was initially thought by parliamentary counsel that reliance would be placed upon the Interpretation Act to ensure continuation of relevant rights and liabilities under the 1952 Act; but obviously a change of mind and policy occurred. Clearly the rights of a patentee of a 1952 Act patent would have survived the commencement of the 1990 Act by the operation of s. 8(c) of the Interpretation Act. The patentee may have spent large sums of money developing the invention or, indeed may have assigned it for a large sum; obviously it would be not have been the intention of the Parliament to deprive the patentee or assignee of that benefit. But in the absence of Chapter 23 of the 1990 Act there would have been real doubt if a 1952 patent could have been revoked after the commencement of the 1990 Act. The language of s. 8 of the Interpretation Act probably would not have been a sufficiently strong vehicle to achieve the continued susceptibility of a 1952 Act patent to revocation: see Esber v The Commonwealth (1992) 66 ALJR 373 at 377; Norman v Federal Commissioner of Taxation (1963) 109 CLR at 16; and Mathieson v Burton (1971) 124 CLR 1 at 23.
In my opinion, the transitional and savings provisions in Chapter 23 of the 1990 Act are conclusive of the question of whether the 1990 Act is exhaustive of the grounds of revocation that may be relied upon with respect to a 1952 Act patent. The point becomes clear when reference is made to the relevant sections of the 1990 Act. The effect of s. 233(1) is that the 1990 Act applies in relation to a standard patent or a petty patent granted under the 1952 Act "as if the patent had been granted under this Act". A patent mentioned in sub-s. (1) does not have effect in any place in which it did not have effect immediately before the commencing day of the 1990 Act (sub-s. (2)). Chapter 9 is expressly excluded by sub-s. (3) from application in relation to a patent mentioned in sub-s. (1). Chapter 9 relates to re-examination by the Commissioner of complete specifications where the grant of a patent is opposed. Sub-section (4) states that objection cannot be taken to a patent mentioned in sub-s. (1) and that such a patent is not invalid, so far as the invention is claimed, in any claim on any ground that would not have been available against the patent under the 1952 Act.
Section 234(1) provides for the case where before the commencing day a patent application and provisional application had been lodged under the 1952 Act and the complete specification had not been lodged under that Act in respect of the application and the application had not been withdrawn; and states that, subject to Chapter 23 and the regulations, the 1990 Act applies in relation to the application on and after that day (that is the commencing day) as if it were a provisional application under the 1990 Act. Where, before the commencing day a patent application had been lodged under the 1952 Act and a complete specification or a petty patent specification had been lodged under that Act in respect of the application and the application had not been withdrawn or finally dealt with, subject again to Chapter 23 and the regulations, the 1990 Act is expressed to apply on or after that date in relation to the application as if it were a complete application made under the 1990 Act and in relation to the petty patent specification as if it were a complete specification filed under the 1990 Act in respect of the application (s. 234(2)).

Section 234(3) provides that Chapter 5 of the 1990 Act does not apply in relation to an application mentioned in sub-s. (2); but Part V of the 1952 Act as in force immediately before the commencing day continues to apply in relation to such application. Sub-section (4) provides that Chapter 9 of the Act does not apply in relation to applications mentioned in sub-s. (2) or patents granted under such applications. Sub-section (5) provides that objection cannot be taken to applications mentioned in sub-s. (2) or patents granted on such applications and that patents are not invalid, so far as the invention is claimed in any claim, on any ground that would not have been available against the applications or patents under the 1952 Act. Sub-section (6) provides that a petty patent specification to which sub-s. (2) applies cannot be amended under the 1990 Act so as to include more than one claim.
Section 235 provides for the application of the 1990 Act to applications, requests, actions or proceedings made or started under the 1952 Act and not finally dealt with or determined under that Act before the commencing day of the 1990 Act as if the applications, requests, actions or proceedings had been made or started under the corresponding provision of the 1990 Act. Provision is made by s. 236 that ss. 41 and 42 of the 1990 Act do not apply in relation to specifications lodged before 7 July 1987. Section 237 continues the effect of reports, orders or directions made or given under the 1952 Act and in force immediately before the commencing day as if they had been made or given under a corresponding provision of the 1990 Act.
Section 238, 239 and 240 provide for the continuance in office of persons holding office as Commissioner of Patents and Deputy Commissioner of Patents immediately before the commencing day (s. 238); for the Register of Patents under the 1952 Act to be taken as forming part of the Register of Patents under the 1990 Act; for the Register of Patent Attorneys under the 1952 Act to be taken to form part of the Register of Patent Attorneys under the 1990 Act (s. 239); and for the application of the 1990 Act to persons who were registered patent attorneys under the 1952 Act as if they had been registered as patent attorneys under the 1990 Act (s. 240).
These provisions in Chapter 23 lead to the conclusion that the express provision which the 1990 Act makes with respect to these matters must be read as exhaustive and that there is no room for the application of s. 8 of the Acts Interpretation Act. This is also consistent with the explanatory statement that accompanied the Bill which became the 1990 Act.
Counsel for the appellants argued that s. 233 plainly operates to permit revocation of a patent granted under the 1952 Act or the 1990 Act solely on grounds available under the 1990 Act, but only to the extent that those grounds are precise reflections of grounds of revocation previously available under the 1952 Act.
In my opinion the evident intent of s. 233(4) is to ensure that the grounds of revocation under the 1990 Act (which, though in some cases are expressed in different terms, are essentially the same as the grounds previously available under s. 100 of the 1952 Act) apply as the grounds for revocation of a 1952 Act patent; but with this important qualification, namely, that the elements of each ground of revocation under the 1990 Act apply only to the extent that they replicate in substance the elements that previously constituted a ground of revocation under the 1952 Act. Hence, if a ground of revocation under the 1990 Act omits an element which was a necessary part of a ground under the 1952 Act, the patentee has the benefit of it. On the other hand, if a ground under the 1990 Act contains an element not previously present under the 1952 Act, it cannot apply in aid of revocation of the 1952 Act patent. In short, a 1952 Act patentee is not to be worse off than he would have been if the 1952 Act had continued to operate, but he may be better off if the 1990 Act treats a former element of a ground of revocation as being no longer necessary.
A reading of the reasons for judgment of the primary Judge suggests that his Honour probably had the same approach in mind, though he did describe it as requiring a "dual inquiry". If his Honour meant by that expression that a ground of revocation under the 1952 Act still survives after its repeal by the 1990 Act, I respectfully disagree with him; but I do not think that is what his Honour intended by his observations on this question. His Honour's reasoning, as I understand it, was that an applicant for revocation under the 1990 Act of a 1952 Act patent must establish so many of the facts available as are needed to make out the relevant ground under the 1990 Act as were required under the 1952 Act. I think his Honour was in substance adopting the same approach as I have adopted.
I turn to the provisions of the 1990 Act relating to the grounds of invalidity asserted by the respondent.
The available grounds of revocation under the 1990 Act are set out in s. 138(3). Section 138 provides as follows:

"138(1) The Minister or any other person may apply to a prescribed court for an order revoking a patent.

(2) At the hearing of the application, the respondent is entitled to begin and give evidence in support of the patent and, if the applicant gives evidence disputing the validity of the patent, the respondent is entitled to reply.

(3) After hearing the application, the court may, by order, revoke the patent, either wholly or so far as it relates to a claim, on one or more of the following grounds, but on no other ground:

(a) that the patentee is not entitled to the patent;

(b) that the invention is not a patentable invention;

(c) that the patentee has contravened a condition in the patent;

(d) that the patent was obtained by fraud, false suggestion or misrepresentation;

(e) that an amendment of the patent request or the complete specification was made or obtained by fraud, false suggestion or misrepresentation;

(f) that the specification does not comply with subsection 40(2) or (3)."

It is ground (b) "that the invention is not a patentable invention" with which this case is concerned. The expression "patentable invention" is defined by the 1990 Act's dictionary (a combination of s. 3 and Schedule 1 to the Act) as meaning "an invention of the kind mentioned in section 18". Section 18 provides:

"18(1) Subject to subsection (2), a patentable invention is an invention that, so far as claimed in any claim:

(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and

(b) when compared with the prior art base as it existed before the priority date of that claim:

(i) is novel; and

(ii) involves an inventive step and

(c) is useful; and

(d) was not secretly used in the patent area before the priority date of that claim by, or on behalf of, or with the authority of, the patentee or nominated person or the patentee's or nominated person's predecessor in title to the invention.

(2) Human beings, and the biological processes for their generation, are not patentable inventions."

It is thus one of the essential features of a patentable invention that, when compared with the prior art base as it existed before the priority date of the claim, the invention is novel (s. 18(1)(b)(i)). Hence, lack of novelty deprives an invention of the status of being a "patentable invention" and constitutes a ground of revocation under s. 138(3)(b). It will be remembered that want of novelty is a ground of objection asserted by the respondent.
The respondent also asserts that the invention in suit did not involve an inventive step. Section 18(1) of the 1990 Act requires that a patentable invention is an invention that so far as claimed "when compared with the prior art base as it existed before the priority date of the claim ... involved an inventive step" (s. 18(1)(b)(ii)).
Section 7 of the 1990 Act deals with novelty and inventive steps in these terms:

"7(1) For the purposes of this Act, an invention is to be taken to be novel when compared with the prior art base unless it is not novel in the light of any one of the following kinds of information, each of which must be considered separately:

(a) prior art information (other than that mentioned in paragraph (c)) made publicly available in a single document or through doing a single act;

(b) prior art information (other than that mentioned in paragraph (c)) made publicly available in 2 or more related documents, or through doing 2 or more related acts, if the relationship between the documents or acts is such that a person skilled in the relevant art in the patent area would treat them as a single source of that information;

(c) prior art information contained in a single specification of the kind mentioned in subparagraph (b)(ii) of the definition of 'prior art base' in Schedule 1.

(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, whether that knowledge is considered separately or together with either of the kinds of information mentioned in subsection

(3), each of which must be considered separately.

(3) For the purposes of subsection 92), the kinds of information are:

(a) prior art information made publicly available in a single document or through doing a single act; and

(b) prior art information made publicly available in 2 or more related documents, or through doing 2 or more related acts, if the relationship between the documents or acts is such that a person skilled in the relevant art in the patent area would treat them as a single source of that information; being information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have ascertained, understood and regarded as relevant to work in the relevant art in the patent area."

An invention that fails to involve an inventive step is therefore not a "patentable invention" and is revocable under s. 138(3(b).
Another ground of objection on which reliance is placed by the respondent is that the subject of the patent is not an invention that is a manner of manufacture within the meaning of s. 6 of the Statute of Monopolies (s. 18(1)(a)). The dictionary to the 1990 Act defines "invention" as meaning "any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies, and includes an alleged invention".
Under the 1990 Act a "patentable invention" must be useful: see s. 18(1)(c). An invention which is not useful is revocable under s. 138(3)(b). I shall deal later, when considering each of the grounds of revocation upon which reliance is placed by the respondent, with the provisions of the 1952 Act that relate to them and their interaction with the provisions of the 1990 Act.
Reference must be made to s. 40 of the 1990 Act which sets out the formal requirements for provisional specifications and complete specifications. This case is concerned with a complete specification. Section 40 provides:

"40(1) A provisional specification must describe the invention.

(2) A complete specification must:

(a) describe the invention fully, including the best method known to the applicant of performing the invention; and

(b) where it relates to an application for a standard patent - end with a claim or claims defining the invention; and

(c) where it relates to an application for a petty patent - end with a single claim, or a single independent claim and not more than 2 dependent claims, defining the invention.

(3) The claim or claims must be clear and succinct and fairly based on the matter described in the specification.

(4) The claim or claims must relate to one invention only."

The respondent asserts two infringements of s. 40: first, that the complete specification does not describe the invention fully (s. 40(2)(a)); and, second, that the claims of the complete specification are not fairly based on the matter described in the specification (s. 40(3)).

Infringement
77. The applicants do not claim that the respondent has infringed any of Claims 6 to 9, the reason being that the luminescent material used in the respondent's lamp does not correspond with the material mentioned in any one of those claims. They assert that the respondent's luminescent material is a mixture of YOX, CAT and BAM, the three phosphors separately referred to in Claims 6, 7 and 8. But they accept that a mixture of the three phosphors is a different luminescent material from any of them individually and is therefore different from the relevant integer in any of these three claims.

At the trial the applicants asserted infringement of claims 1 to 5. It was not disputed at the trial that, if the case for infringement of claim 1 is established, infringement will also be established of claims 2, 3, 4 and 5. The argument on appeal and substantially at the trial centred on claim 1. Subject to one question of construction of claim 1, the primary Judge found that the Mirabella lamp answered the STD requirements of claim 1 and, provided the construction question is answered in favour of the appellant, there is infringement by the respondent of claim 1 and therefore claims 2, 3, 4 and 5. I turn to the question of construction of claim 1.
Questions of construction of claim 1 are critical to the issue of infringement. His Honour construed the words in the claim "wherein the luminescent layer contains a luminescent material ..." as meaning a luminescent layer which comprises a single phosphor or single chemical compound with defined properties. His Honour said that the word "contains" is ambiguous and that it may mean "comprises" or "includes". He looked to the body of the specification and concluded that the expression "contains a luminescent material" in claim 1 means comprises a single phosphor and not a mixture of phosphors. As the respondent's lamp embodies three phosphors, his Honour held that there was no infringement. This was the only basis on which it was contended before his Honour that there would not have been infringement, assuming the validity of the patent.
The relevant principles of construction of the claim where ambiguity is asserted are clear. If the meaning of a word in a claim is not clear then it is permissible to resort to the body of the specification to define or clarify the meaning of the word "without infringing the rule that clear and unambiguous words in the claim cannot be varied or qualified by reference to the body of the specification": see Interlego AG v Toltoys Pty Limited (1973) 130 CLR 461 per Barwick CJ and Mason J at 478-9 and the cases there cited. See also Decor Corporation Pty Limited v Dart Industries Inc (1989( AIPC 90-549 per Lockhart J at 38,827 and Sheppard J at 38,834.
The word "contains" is susceptible of more than one meaning. So far as relevant in this case it may mean "contains" in the sense of "comprises or consists of" or in the sense of "has within it", though, depending on the context, there is overlap between these concepts. The dictionaries attribute either meaning to the word. The word "material" is also capable of bearing more than one construction, again depending on the context in which it appears. It may mean "the substance of which a thing is made" or "composed of a component or constituent matter" as in a raw material; again, depending on the context, the two ideas may overlap. But the fact that a word may be susceptible of different meanings derived from its context does not mean that its meaning is ambiguous.
I respectfully differ on this question from the primary Judge. I do not discern ambiguity in the word "contains" where it appears in the relevant part of claim 1. It means that the luminescent layer has within it a luminescent material. The word "material", according to its ordinary English usage, may mean that the material is itself a mixture of other materials or compounds. It is perfectly apt to describe the resultant mixture as itself a material. I read the expression "contains a luminescent material" as meaning that the luminescent layer has within it a phosphor or mixture of phosphors. I see no warrant for reading the words "luminescent material" as being confined to a single phosphor or single chemical compound. Earlier in the claim, reference is made to the lamp the subject of the invention as having a "vacuum-tight radiation-permeable envelope bearing a luminescent layer and containing a gas filling comprising mercury and a rare gas ..." There the draftsman has used the word "containing" in the sense of having within it. In my view the reference a little later in the claim to the word "contains" is to be read in the same sense as the word "containing" which precedes it by some four lines. I discern no ambiguity. It is neither necessary nor permissible in my view to resort to the body of the specification in these circumstances.
However, if there is ambiguity in the words "contains a luminescent material" then resort to the body of the specification is justified. But if one proceeds down that path, I reach the conclusion that the luminescent layer has within it a single phosphor or a mixture of phosphors and not necessarily a single chemical compound or single phosphor.
Where necessary, the interpretation of the specification should be approached from the viewpoint of the skilled addressee in the art: Henricksen v Tallon (1965( RPC 434 at 443; General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd (1972( RPC 457 at 485; Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 523-4. In my opinion it is clear that the skilled addressee at the priority date, namely, 23 August 1977, would interpret the specification as referring to a luminescent layer which has within it a phosphor or a mixture of phosphors. The principal object of the invention was for a lamp which may be substituted for conventional incandescent lamps (see p 5 of the specification). The examples given in the specification contain examples 18, 19, 20, 27, 28 and 29, each of which involves mixtures of phosphors. Examples 27, 28 and 29 are CAT, BAM and YOX mixtures and it is said on p 25 of the specification that lamps made with mixtures of those three luminescent materials "only serve to illustrate the invention".
Also, it is clear from the evidence of Robert Bruce Sommerville, an electrical engineer experienced in the Australian fluorescent lamp industry, that the skilled addressee would recognize that the individual phosphors of the type mentioned in the specification, namely, CAT, BAM and YOX, would not by themselves give a "white light" sufficient to allow a lamp to be substituted for normal incandescent lamps. The phosphor CAT enables the production of a light of greenish-yellowish colour, BAM a bluish coloured light and YOX a reddish colour light; but it requires the mixture of the phosphors to give the white light which is sufficient to allow the invention to perform its primary function of substitution for normal incandescent lamps.
That the skilled addressee would at the date of publication interpret the specification as referring to a mixture of phosphors seems clear to me from the evidence of Dr Lowke, Dr Simpson and Mr Sommerville, although strictly the only witness whose evidence would be relevant on this question is the witness who was the skilled addressee in Australia, namely, Mr Sommerville. Mr Sommerville gave evidence that his knowledge of the three band lamps and the phosphors BAM and CAT came from the first appellant, particularly from a visit which he made to its establishment in Holland in 1976. On that visit he investigated the possibility of manufacturing three band lamps by Electric Lamp Manufacturers (Australia) Pty Limited ("ELMA"), his then employer, using the new phosphors which provided similar efficiency as the calcium halophosphates used in ELMA's standard fluorescent lamps, but which combined this with the superior colour rendering, previously only obtainable in so-called "Deluxe" lamps, which were also manufactured in Australia. Mr Sommerville concluded that their manufacture by ELMA would have been inadvisable since the skills of the present factory staff were inadequate and additional staff would have been required. Lamps employing three band phosphors such as CAT, BAM or YOX had never been manufactured in Australia. Mr Sommerville said that prior to about 1975 the choice in fluorescent lamps was between efficient lamps with less than optimum colour rendering, or where good colour rendering was required, so called deluxe lamps were used. Deluxe lamps employed phosphors which gave better colour rendering at the expense of efficacy. Later the so-called three band lamps and the phosphors CAT and BAM were developed to provide a lamp which combined colour rendering as good as the deluxe lamps with the efficacy of the high efficiency lamps.

In my opinion, the appeal should be allowed with costs; the orders made at first instance should be set aside; and the appellants should be directed to bring in, on a date to be fixed, orders in accordance with the reasons of this Court, to be made in lieu of the orders made at first instance.

[1993] FCA 583

26 AUGUST 1993