Wanem Pty Ltd v Tekiela

Re: WANEM PTY LIMITED
And: JOHN TEKIELA and GLENN McKENZIE
No. G62 of 1990
FED No. 527
Designs - Trade Practices
19 IPR 435

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Designs - infringement - reproduction or obvious imitation - no claim of fraudulent imitation.

Trade Practices - s. 52 - whether unjustified threats of design infringement made against customer of the respondents was conduct "in trade or commerce".

Trade Practices - s. 52 - s. 82 - whether loss of custom suffered by the respondents after making of unjustified threats by applicant against customer of respondents was suffered "by" conduct of the applicant - whether necessary causal connection established.

Designs Act 1906

Patents Act 1952

Trade Marks Act 1955

Copyright Act 1968

Trade Practices Act 1974

J. Rapee and Co. Pty Ltd v Kas Cushions Pty Ltd (1989) 90 ALR 288

Kevi A/S v Suspa-Verein U.K. Limited (1982) RPC 173

D. Sebel and Co. Ltd v National Art Metal Co. Pty Ltd (1965) 10 FLR 224

Dart Industries Inc. v The Decor Corporation Pty Limited (1989) AIPC 90-569

Dalgety Australia Operations Ltd v Seeley (FF) Nominees Pty Ltd (1986) 64 ALR 421

Turbo Tek Enterprises Inc. v Sperling Enterprises Pty Ltd (1989) 88 ALR 524

Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 64 ALJR 293

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1989) 89 ALR 539

Nella v Kingia Pty Ltd (1989) ATPR 46-046 Argy v Blunts (1990) ATPR 41-015

HEARING

SYDNEY

#DATE 26:9:1990

Counsel and solicitors Mrs M. Yates and Mrs M. Osterberg-Olsen for the Applicant: instructed by Messrs Michell Sillar McPhee Meyer.

Counsel and solicitors Mr D.K. Catterns instructed by Messrs for the Respondents: Abbott Tout Russell Kennedy.

ORDER

The application and the cross-claim be dismissed.

JUDGE1

The preparation and trial of this case has been assisted by the steps taken by experienced counsel on both sides to refine the issues to those really in dispute between them. In its Amended Statement of Claim, the applicant alleges infringement of four designs registered pursuant to the Designs Act 1906 ("the Designs Act"). The respondents, by their defence, put in issue both their infringement and the validity of the registered designs. However, at the trial, counsel for the respondents indicated that the design issue on which the case was to be fought was that of infringement alone.

By their cross-claim, the respondents allege that the applicant made certain representations to one of the respondents' distributors, Harry K. Evans Building Supplies Pty Limited ("Evans Building"), inter alia, to the effect that the respondents' products infringed three of the four registered designs now sued upon in the present proceedings; it is alleged that this conduct contravened s. 52 of the Trade Practices Act 1974 ("the TP Act"). In the cross-claim, the relief that is sought includes an injunction and damages pursuant to s. 82 of the TP Act. At the trial, counsel for the respondents pressed only the claim for damages.
The trial was conducted on the footing that I should first determine liability in respect of both the alleged design infringements, and the alleged contravention of the TP Act, and that issues as to the assessment of any quantum of pecuniary remedy should await the outcome on the first part of the case.
The applicant was incorporated in New South Wales on 8 August 1978 under the name Semiconductor Systems Pty Limited, and changed its name to its present name with effect from 11 October 1989. Since September 1989, the applicant has carried on business as a wholesaler, distributor and retailer of some 3,000 specialist hardware items for the concreting industry. It manufactures and sells bar chairs. These are items which are used in the manufacture of concrete slabs.
The two examples of bar chairs which are in evidence (the allegedly infringing products of the respondents) are Exhibits B and C. They both have circular bases of the same diameter, but Exhibit B is used for heights of 50/65mm, while Exhibit C is used for heights of 75/90mm. The height of bar chairs is dictated by the requirements of the building trade. In general, a layer of plastic is laid over the ground which has been previously levelled with sand. The bar chairs are then placed on the plastic, steel rods or mesh (to reinforce the concrete slab) are placed on the bar chairs, so as to prevent the reinforcing rods or mesh from sinking to the bottom of the slab and from thereby weakening it; the concrete is then poured over the rods or mesh and left to harden.
Since October 1987, the respondents have carried on under the name "Universal Plastics" the business of manufacturers of custom moulded plastic components for office furniture, hardware, such as air vents, and household ware, such as kitchen utensils; they commenced to manufacture bar chairs in June 1989. The Universal Plastics business is conducted from premises at Seven Hills in New South Wales.
Design Infringement
The applicant alleges that what are now Exhibits B and C infringe each of four registered designs of which the applicant is presently the registered owner. The alleged acts of infringement are founded in para. 30 (1) (a) and sub-para. 30 (1) (c) (i) of the Designs Act. Para. (a) is concerned with the application of the design in question or any fraudulent or obvious imitation of it to an article in respect of which the design is registered, and sub-para. (c) (i) is concerned with selling, offering or keeping for sale or hiring, offering or keeping for hire, any article to which the design or any fraudulent or obvious imitation of it has been applied in infringement of the monopoly in the design. Although the case on the pleadings includes allegations as to fraudulent imitation, counsel for the applicant indicated in his opening that the applicant relied only upon its allegations as to reproductions of the designs themselves and of obvious imitations of those designs. The issue as to fraudulent imitation thus dropped out of the case.
The registration of a design is deemed to have come into force on the day on which the application for registration was lodged: sub-s. 27A (1). The four designs in question are Nos. 99814 (registered 10 March 1988, with effect 30 June 1987), 101048 (registered 25 August 1988, with effect 23 October 1987), 101051 (registered 25 August 1988, with effect 23 October 1987) and 99893 (registered 24 March 1988, with effect 9 July 1987). In each case, the registration is in respect of "a bar chair" and the statement of monopoly is in the following terms:

"Monopoly is claimed in the shape and configuration of a bar chair as shown in the accompanying representations."

Sub-section 20 (4) of the Designs Act provides that an application for registration of a design may be accompanied by a statement of monopoly in respect of the design to which the application relates.

Whilst each of the four registrations sued upon was effected in the course of 1988, the applicant was entered on the Register as owner of them only on 17 November 1989. Previously, there had been somewhat complicated dealings in the title to the designs. The applicant in respect of all four designs had been James Merrick Phillips. On 31 October 1986, one George Henry Black had applied for registration of a design in respect of a bar chair, which on 27 August 1987 was registered in his name as Design No. 97694 ("the Black Design"). On the next day, 28 August 1987 the Black Design was assigned to Mr Phillips, who then had pending applications made by him on 30 June 1987 and 9 July 1987 respectively, for what became registrations Nos 99814 and 99893. Later, on 23 October 1987, Mr Phillips applied for registration of what became the other two designs in suit, Nos 101048 and 101051. Then, on 17 December 1987, Mr Phillips was entered in the Register as owner of the Black Design, pursuant to the earlier assignment of 28 August 1987.
As I have indicated, on the pleadings there was an issue as to validity. The respondents asserted, by way of defence, that each of the registered designs in suit was not new or original within the meaning of sub-s. 17 (1) of the Designs Act; in particular, reliance was placed upon the prior publication of the Black Design. For its part, the applicant contended that the four registered designs in suit differed only in "immaterial details" from the Black Design; the result was said to be that in meeting this challenge to validity the applicant had the benefit of sub-s. 25D (1) and sub-s. 25D (5) of the Designs Act; cf. J. Rapee and Co. Pty Ltd v Kas Cushions Pty Ltd (1989) 90 ALR 288 at 290-291.
It is unnecessary to deal further with this aspect of the litigation since, as I have indicated, at the trial the respondents founded their case on a denial of infringement, rather than a challenge to validity.
In this regard, it remains only to state that by Deed dated 12 September 1989, Mr Phillips assigned to the applicant his rights in respect of no less than twenty-two Australian design registrations in respect of bar chairs. The registrations concerned included the Black Design and the four designs presently in suit. By the same Deed, Mr Phillips also assigned to the applicant design rights, in respect of bar chairs, in the United Kingdom, New Zealand, Canada and the United States.
Exhibit 1, tendered by the respondents, comprises copies of nine of the Australian design registrations dealt with in this deed, being registrations in addition to the Black Design registration and the four registrations presently in suit. Of the nine design registrations comprising Exhibit 1, eight had been applied for by Mr Phillips on 23 October 1987, the same day on which he applied for two of the designs now in suit, namely Nos 101048 and 101051. The other design registration was applied for by Mr Phillips on 9 July 1987, the same day on which he applied for what became design registration No. 99893, being another of the designs in suit. The respondents also tendered (as Exhibit 2) details of Australian registered designs Nos 89042, 89043 and 91798; these registrations are held by third parties. The first two were registered 14 June 1984, and the third 24 April 1986. That is to say, these three designs were all registered before the making of the application in respect of the Black Design on 31 October 1986. The applicant contends that the Black Design is the "parent" of the four later registrations which it claims have been infringed by the respondents.
Counsel for the respondents relied upon the materials in Exhibits 1 and 2 to help make good, as applicable to this case, the proposition that if only small differences separate a registered design from what has gone before, then equally small differences between the alleged infringement and the registered design will be held sufficient to avoid infringement. That proposition, which appears in Russell Clarke's "Copyright in Industrial Designs", 5th Ed., 1974, p. 85, was approved by Falconer J. in Kevi A/S v Suspa-Verein U.K. Limited (1982) RPC 173 at 179, and is well supported by Australian authority including D. Sebel and Co. Ltd v National Art Metal Co. Pty Ltd (1965) 10 FLR 224 at 229, and Dart Industries Inc. v The Decor Corporation Pty Limited (1989) AIPC 90-569 at 38,976.
In aid of his submissions that Exhibits B and C did not infringe any of the design registrations in question, counsel for the respondents also referred to the wide terms in which the statement of monopoly is expressed in each design registration. He referred to what was said by the Full Court in Dalgety Australia Operations Ltd v Seeley (FF) Nominees Pty Ltd (1986) 64 ALR 421 at 422 and in Turbo Tek Enterprises Inc. v Sperling Enterprises Pty Ltd (1989) 88 ALR 524 at 543. The authorities are collected there for the proposition that where the statement of monopoly does not identify particular features of shape or configuration of the design, the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind.
Counsel for the applicant addressed on the footing that its strongest case as to infringement was in respect of registered design No. 99893 ("the principal design"), in the sense that if the applicant succeeded in respect of the principal design, it might succeed also in respect of the other designs, but if it failed to make out a case of infringement of that design, it was most unlikely to succeed in respect of any of the other designs. I agree that is how the case is to be viewed.
In Dart Industries Inc. v The Decor Corporation Pty Limited (supra at 38,976-38,979) Lockhart J. (in a judgment with which Jenkinson J. and I agreed) dealt with the authorities which establish that (i) first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner.
Counsel for the parties in the present case accepted these propositions.
Attached as a Schedule to these reasons for judgment is a copy of the four drawings in respect of the principal design registration. Counsel for the applicant submitted that the features of shape and configuration which gave this design (and also design No. 99814) its individuality of appearance were (a) an annular base, (b) a frustro-conical body tapering from the base to the crown portion, (c) U-shaped apertures in the body, defining a plurality of legs and (d) a partially cup-like crown portion possessing aligned pairs of asymmetrically U-shaped notches in the upper portion thereof. As to element (c), the designs differed in that the principal design had three legs, whereas No. 99814 had four legs. The allegedly infringing items, Exhibits B and C, each have three legs only; hence, if for no other reason, the preferred reliance by the applicant on registration No. 99893.
Counsel for the applicant submitted that Exhibits B and C possessed these four features. He conceded that the shape of the legs was different, and the accused designs also differed from the principal design in that the inner perimeter of the annular base of those designs was notched, whereas that of the principal design was not. But, he submitted, these differences were immaterial, and the accused design was readily apparent to the eye as at least an obvious imitation.
Counsel for the respondents, correctly in my view, emphasised that it would not be permissible for the applicant to read together its four registered designs and to abstract from them some general characteristics which it was then said were duplicated by Exhibits B and C. Counsel for the applicant disclaimed any such activity on his part in propounding the features (a) - (d) I have described.
In addition to pointing to the differences between the principal design and Exhibits B and C, which had been conceded by the applicant, counsel for the respondents submitted:

(i) the proportions of Exhibit B were closer to those of the registered design than Exhibit C, the latter having a greater elevation and more elongated appearance;

(ii) there was a ring set back from the inner circumference of the base of Exhibit B and raised above the upper surface of that base; Exhibit C had two such rings; no such ring appeared on the design drawings;

(iii) the side supports or supporting gussets of

the frustro-conical portion of Exhibits B and C were stepped and bevelled at the base so as to extend almost to the outer perimeter of the base, whereas the supports in the registered design were tapered not stepped, extended no more than half way from the inner to the outer perimeter of the base and had a chunkier, more substantial appearance;

(iv) the "bottom perspective view" on the

design drawings showed the three side supports each to have a V-shaped hollow, whereas this was not the case with Exhibits B and C;

(v) the "elevational view" of the design drawings showed a collar at the base of the crown portion, which is not present in Exhibits B and C;

(vi) the "elevational view" of the design

drawings also showed a collar at the base of the legs, at right angles to the base, which was not found in Exhibits B and C; and

(vii) the tops of the crown portions of Exhibit B

were flat, not curved, as was the case in the registered design (and also as was the case with Exhibit C).

The evidence was that the stepped gussets in Exhibits B and C have a functional advantage over the principal design of permitting the products to be packed and unpacked more readily.

As I have said, the height of bar chairs is dictated by the requirements of the building trade, given the functions they perform. This also is a field in which apparently small differences have separated one design from what has gone before. I also bear in mind the wide terms in which the statement of monopoly is expressed. But, on first impression, there are apparent similarities between the principal design and Exhibits B and C. Exhibit B has a proportion between the height of the bar chair and the size of the base which is closer to that of the principal design than the proportion displayed by Exhibit C. Both exhibits and the principal design have the four features of shape and configuration identified by counsel for the applicant. But there are distinct differences. The side supports or supporting gussets differ as counsel for the respondents stated (in his point (iii)), and the result is to disclose to the eye significantly different top perspective and elevational views, to use the language of the design drawings. The bottom perspective views, with the absence from the exhibits of the three V-shaped hollows on the underside of the side supports, are also significantly different. The presence and absence of the annular ring and the collars (which I have described) are also important but less visually striking differences. So also is the presence of the flat-topped portions of the crown of Exhibit B, and the more elongated overall shape of Exhibit C.
In my opinion, acting both upon first overall impressions and upon later examination, comparing the appearance of the principal design and the respondents' products, there has been no application of the principal design itself. Nor is there any obvious imitation of that design.
As was pointed out in counsels' addresses, added and significant differences made the applicant's case for infringement of the other three designs more difficult. The other designs each have four rather than three side supports, none of them stepped as in Exhibits B and C. Further, in each of designs 101048 and 101051 the outer perimeter of the base is octagonal rather than annular, as in Exhibits B and C. The conclusions I have reached as to non-infringement of the principal design apply a fortiori to the other designs in suit.

Contravention of TP Act, s. 52
The market in Australia for bar chairs consists of commercial concreters and hardware retailers who provide the bar chairs to builders and home handymen. Mr H.K. Evans, who gave oral evidence, is a director of Evans Building, which carries on business at North Parramatta in New South Wales. His company sold for retail bar chairs in packets of 100 which were supplied to it by the respondents. The packets were clear plastic sacs containing clearly visible slips which identified Mr Evans' company as a distributor of the product. The slips were inserted in the packages by the respondents at the request of Mr Evans' company.
On 4 December 1989, Mr Evans received by courier a letter of the same date from the solicitors for the applicant. It was addressed to the directors of Evans Building and referred to three registered designs Nos 99814, 101048 and 101051 (but not 99893, the principal design upon which the applicant now most strongly relies). An allegation was made that Evans Building had been selling bar chairs which infringed the applicant's monopoly in the relevant registered designs. Reference was made to the personal liability of company directors who authorised infringement by their company. Undertakings were sought that sales of the offending bar chairs would cease forthwith, and that details be provided of names and addresses of customers to whom the articles had been sold. The concluding paragraphs of the letter were as follows:

"Should you not comply promptly and fully with the above requirements, our client shall be obliged to seek an urgent injunction restraining any further infringement of our client's rights and shall exercise to the full its rights against you and your company. Those rights will include the recovery of substantial compensation and costs.

We have no authority to grant any extensions or indulgences. This matter is both serious and urgent and you therefore are urged to give this letter your immediate attention and to consult your solicitors without delay."
Upon receipt of this letter, Mr Evans did indeed consult his solicitor. Then, with his solicitor, he attended upon Messrs Spruson and Ferguson, patent attorneys. That firm then replied in writing to the letter of 4 December 1989, denying infringement. But Mr Evans had no wish for his company to become embroiled in litigation. He regarded the dispute as a technical matter on which he had to obtain advice, and he accepted the advice he was given. He understood that there were allegations and counter-allegations and that the question of infringement was not a clear-cut matter.
Mr Evans had wished his company to continue without interruption its purchases of the respondent's products. He regarded the service and the product as good, and had had favourable response from his customers. The respondents had certain stocks on hand which had been manufactured and packed so as to display labels identifying Evans Building as a distributor. Despite the threats by the applicant, Mr Evans believed his company was morally bound to take those stocks. It was only in March 1990 that he contacted Stewart Plastics Pty Limited, another company which manufactured bar chairs, and Evans Building commenced to make its purchases from this source. But in the period between December 1989 and March 1990, whilst Evans Building received and sold the stock which had been previously ordered from the respondents, no further orders were placed with the respondents. On the other hand, neither Mr Evans nor his company was sued by the applicant. The present proceedings against the respondents were instituted on 13 February 1990.
The Designs Act, unlike the Patents Act 1952, s. 121, Trade Marks Act 1955, s. 124 and Copyright Act 1968, s. 202 (see also s. 242), contains no provisions for an action to restrain unjustified threats. The common law action in injurious falsehood for so-called "trade libel" or "slander of goods" or "slander of title" would require proof by the respondents of malice in the applicant. Accordingly, the respondents have sought to base in s. 52 of the TP Act their complaint in respect of the threats made by the applicant to Evans Building. As I have indicated, the claim for injunctive relief was not pressed, but it was said that there was a liability in damages under s. 82 of the TP Act, in a quantum later to be assessed.
The respondents contend that by the letter of 4 December 1989, the applicant represented to Evans Building that the respondent's bar chairs infringed registered designs 99814, 101048 and 101051, and that Evans Building infringed these designs by selling the respondent's products; it is said that these representations were false and misleading, because there is no such infringement. It is then submitted that "but for" the letter in question, Evans Building would have purchased from the respondents the bar chairs which it purchased from Stewart Plastics Pty Limited.
The applicant responded that the alleged threats were in fact justified because the products did infringe as claimed by the applicant; this has proved not to be the case, with the result that at least prima facie there may have been misleading or deceptive conduct, or conduct likely to have that effect, as regards Evans Building. Hence, the further submissions by the applicant:
(i) the conduct complained of had not

been "in trade or commerce" within the meaning of that term in s. 52 of the TP Act, and as explained in Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 64 ALJR 293;

(ii) the solicitors' letter in question

did not make claims which extended beyond the prima facie right conferred by the registration of the three designs relied upon, and was properly to be understood as no more than an assertion as to the opinion of the solicitors on the question of infringement, and as communicating the applicant's intention to commence proceedings; and

(iii) the evidence of Mr Evans showed that the

loss suffered by the respondents in respect of the custom of Evans Building company was not loss or damage suffered by the respondents "by" conduct of the applicant in contravention of s. 52; it was caused by Mr Evans' unwillingness to become involved in threatened litigation against his company, and in reliance upon the advice that he received from his solicitor and patent attorneys. The result, it was submitted, was that there was insufficient connection between the conduct complained of and the loss alleged to satisfy the causal link required by s. 82 of the TP Act.

In my view, the letter went beyond an assertion as to the opinion of the solicitors regarding infringement. Submission (ii) put by the applicant is not made good. That leaves submissions (i) and (iii).
The tort of "slander of goods" or "trade libel" and the tort of "slander of title" were among the earliest of the economic torts, controlling the conduct of rival traders and ante-dating the development of passing-off actions. The history of the matter is traced by Professor Morison in his article, "The New Law of Verbal Injury" (1959) 3 Syd Law Rev 4 at 11-18; the learned author deals also with the introduction in the 19th century English intellectual property statutes of the statutory threats actions (at 12).
Against this background, the submission that the acts complained of in the present case were not conducted "in trade or commerce" appears, at first blush, somewhat adventurous. The object of the letter of 4 December 1989 was to bring to an end the dealings in the course of trade between the respondent, Evans Building and its customers in the bar chairs manufactured by the respondents and supplied by them to Evans Building. The contention of the applicant, speaking through its solicitors, essentially, was that in the conduct of its business, Evans Building was invading the statutory rights given under the Designs Act to the applicant, and utilised by it in manufacturing bar chairs which competed with the products manufactured by the respondents.
Bar chairs were a subject of the commerce conducted by the applicant, the respondents and Evans Building. The letter complained of was calculated under claim of legal right to bring immediately to an end the trade by Evans Building in the species of bar chair manufactured by the respondents as trade competitor of the applicant. In my view, the conduct complained of in the sending of the letter was an aspect of activities or transactions which, of their nature, bore a trading or commercial character, within the meaning of what was said by Mason C.J., Deane, Dawson and Gaudron JJ. in Concrete Constructions (N.S.W.) Pty Ltd v Nelson, supra at 295.
Accordingly, in my view, the applicant has not made out its submission (i). There remains the question of causation raised by submission (iii).
In my view, the loss of custom to Stewart Plastics Pty Limited in March 1990 was not loss or damage the respondents suffered by the making by the applicant of the now unsubstantiated allegations of design infringement, and the claim under s. 82 of the TP Act is not made good. The applicable principles are discussed in detail by Lee J. in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1989) 89 ALR 539. As his Honour points out, s. 82 of the TP Act is not to be read as presenting no more than a choice between various measures of pecuniary loss supplied by the law of contract, by various torts (particularly deceit) and in equity. His Honour said (supra at 556):

"The inquiry as to the amount of loss or damage suffered by a person as a result of, or by reason of the conduct of another in contravention of s. 52, becomes an assessment of that which is reasonable having regard to the degree of connection between the loss suffered and the contravening conduct as well as to the extent to which the loss could have been mitigated."

See also Nella v Kingia Pty Ltd (1989) ATPR 46-046 per French J; Argy v Blunts (1990) ATPR 41-015 at 51,279-282, per Hill J.

Here, Evans Building responded to the letter claiming design infringement by a letter sent on its behalf by its patent attorneys denying infringement. Mr Evans did not appreciate the technicalities involved, but did understand that the issue of infringement was not a clear cut matter. The present proceedings against the respondents were instituted on 13 February 1990. Evans Building was not joined as a respondent. In that setting, three months after receipt of the letter, Evans Building placed an order not with the respondents but with another supplier. According to his evidence, in the end Mr Evans decided that his company should not become involved at all in any dispute as to infringement. In the intervening period, Evans Building had continued to take stock which had been on order from the respondents. It is true that the train of events in question started with the letter of 4 December 1989.
But, in my view, the other factors which I have mentioned mean that, for the purposes of s. 82, there is an insufficient degree of connection between the loss allegedly suffered by the respondents (the diversion of the custom of Evans Building from the respondents to Stewart Plastics Pty Limited) and the misleading or deceptive conduct of the applicant, to enable recovery of the loss or damage claimed by the respondents.
Conclusion
The application and the cross-claim should be dismissed. I will hear the parties on costs.

[1990] FCA 527

26 SEPTEMBER 1990