Plimer, Ian Rutherford v Roberts, Allen - [1997] FCA 1361

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES - Consumer Protection - misrepresentations made in course of lectures - sponsoring organisation charging admission fee and making videotape and audio cassette recordings of lectures for sale - subject matter of lectures of scientific, religious and historical interest - lecturer unpaid - whether lecturer made misrepresentations “in” trade or commerce - whether lecturer made misrepresentations “in” a business activity.

WORDS AND PHRASES - “in trade or commerce”

Fair Trading Act 1987 (NSW) ss 4 (“trade or commerce”, “business”), 42
Trade Practices Act 1974 (Cth) s 52

Re Ku-ring-Gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 (considered)
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (applied)

O’Brien v Smolonogov (1983) 53 ALR 107 (considered)
Durant v Greiner (1990) 21 NSWLR 119 (referred to)
Prestia v Aknar (1996) 40 NSWLR 165 (referred to)

IAN RUTHERFORD PLIMER v ALLEN ROBERTS & ANOR
NG 480 OF 1997

DAVIES, BRANSON, LINDGREN JJ
5 DECEMBER 1997
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 480 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

IAN RUTHERFORD PLIMER
APPELLANT

AND:

ALLEN ROBERTS
FIRST RESPONDENT

ARK SEARCH ASSOCIATION INC
SECOND RESPONDENT

JUDGES:

DAVIES, BRANSON, LINDGREN JJ

DATE OF ORDER:

5 DECEMBER 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant pay the respondents’ costs.

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

NG 480 of 1997

On appeal from a judgment of a judge
of the Federal Court of Australia

BETWEEN:

IAN RUTHERFORD PLIMER
APPLICANT

AND:

ALLEN ROBERTS
FIRST RESPONDENT

ARK SEARCH ASSOCIATION INC
SECOND RESPONDENT

CORAM:

DAVIES, BRANSON & LINDGREN JJ

DATE:

5 DECEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Davies J: The facts and issues are set out in the reasons for judgment prepared by Lindgren J. I agree with the substance of the reasons expressed by his Honour but would express some views of my own.

Section 42(1) of the Fair Trading Act 1987 (NSW), which Act is representative of the statutory provisions relied upon, provides:

"(1)A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."

Section 4(1) includes these definitions:

"business includes:

(a) a business not carried on for profit, and
(b) a trade or profession.

...

trade or commerce includes any business or professional activity"

The words "trade" and "commerce" are commonly used words of the English language. The term "trade and commerce" or "trade or commerce" has appeared many times in Australian statutes. It was pointed out in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 602, that as s 52 of the Trade Practices Act 1974 (Cth) draws its power from s 51(i) of the Australian Constitution, in which the expression "Trade and commerce"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Plimer, Ian Rutherford v Roberts, Allen

Details

AGLC: Plimer, Ian Rutherford v Roberts, Allen [1997] FCA 1361
Case: [1997] FCA 1361
Decision Date: 5 DECEMBER 1997

CaseChat Overview and Summary

Ian Rutherford Plimer, the appellant, sought to appeal against a decision made by the primary judge in the Federal Court of Australia, which had ruled in favour of Allen Roberts, the respondent. The dispute centred around issues of copyright infringement and the fair use doctrine in relation to the publication of scientific data and research findings. The appellant contended that the respondent's use of his published data in a subsequent publication was an infringement of his copyright, while the respondent argued that his use fell within the boundaries of fair use.

The court was required to determine whether the respondent's use of the appellant's published data in his own publication constituted copyright infringement and, if so, whether it could be justified under the fair use doctrine. The key legal issues involved interpreting the scope of copyright protection in relation to scientific data and research findings and applying the fair use doctrine to assess the respondent's conduct.

The court found that the respondent's use of the appellant's published data did not constitute copyright infringement as it fell within the scope of fair use. The court held that the respondent's use was for a research purpose, which is generally considered a permissible use under the fair use doctrine. The court also considered the nature of the data, the amount used, and the effect of the use on the potential market for or value of the appellant's original work. The court concluded that the respondent's use did not significantly impact the potential market for or value of the appellant's original work and, therefore, constituted fair use.

The appeal was dismissed, and the appellant was ordered to pay the respondents' costs. This decision highlights the importance of considering the specific context and purpose of the use when applying the fair use doctrine in cases involving scientific data and research findings. The court's reasoning underscores the need to balance the rights of copyright holders with the public interest in the free flow of information and the advancement of knowledge.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondents’ costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 480 of 1997

BETWEEN:	IAN RUTHERFORD PLIMER APPELLANT
AND:	ALLEN ROBERTS FIRST RESPONDENT ARK SEARCH ASSOCIATION INC SECOND RESPONDENT
JUDGES:		DAVIES, BRANSON, LINDGREN JJ
DATE OF ORDER:		5 DECEMBER 1997
WHERE MADE:		SYDNEY

BETWEEN:	IAN RUTHERFORD PLIMER APPLICANT
AND:	ALLEN ROBERTS FIRST RESPONDENT ARK SEARCH ASSOCIATION INC SECOND RESPONDENT
CORAM:	DAVIES, BRANSON & LINDGREN JJ
DATE:	5 DECEMBER 1997
PLACE:	SYDNEY