Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 (14 August 2008)

STATUTORY INTERPRETATION – intellectual property – claim that registered design for mattress infringed – claim that registration invalid for lack of novelty – design used before priority date – mattress exhibited at furniture fair – Designs Act 1906 (Cth) s 47 exception for designs exhibited at certain exhibitions – whether fair needed to be "official exhibition" or "officially recognised international exhibition" or "official international exhibition" or "officially recognised international exhibition" – Paris Convention of 1883 not incorporated into, nor its ratification approved by, Designs Act 1906 – words of Act starting point for interpretation – questions resolved by statutory language – correct interpretation "official exhibition" or "officially recognised international exhibition" – fair not "official exhibition" – whether fair "international" – whether determined by presence of foreign exhibitors, place of manufacture of goods or presence of foreign visitors – fair "officially recognised international exhibition"

Held: Appeal allowed – trial judge erred in concluding fair not international.

Acts Interpretation Act 1901 (Cth) s 15AB(1), (2)(a), (2)(f)
Customs Tariff Act 1965 (Cth)
Designs Act 1906 (Cth)
Designs Act 2003 (Cth)
Export Development Grant Act 1974 (Cth)
Migration Act 1958 (Cth) s 4(1)
Patents, Designs and Trademarks Act 1883 (UK) s 58
Racial Discrimination Act 1975 (Cth)
Designs Regulations 2004 (Cth) reg 2.01

Convention on Nomenclature for the Classification of Customs Tariffs
Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees Art 1
International Convention on the Elimination of all Forms of Racial Discrimination
Paris Convention for the Protection of Industrial Property
Vienna Convention on the Law of Treaties Arts 31, 32

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 referred to
Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321 referred to
Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 referred to
Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2007] FCA 1869; (2007) 243 ALR 334 referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 referred to
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 referred to
Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 referred to
D & R Henderson (MFG) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132 referred to
Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251 referred to
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 referred to
Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 referred to
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 referred to
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 referred to
Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 referred to
Scaniainventor v Commissioner of Patents [1981] FCA 84; (1981) 36 ALR 101; 54 FLR 367 referred to
Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28 referred to

Little W, Fowler MW, Coulson J (eds), The Shorter Oxford English Dictionary (3^rd ed, Clarendon Press, 1944)
Bodenhausen, Professor GHC, Guide to the Application of the Paris Convention for the Protection of Industrial Property (United International Bureaux for the Protection of Intellectual Property, 1968)

CHIROPEDIC BEDDING PTY LTD v RADBURG PTY LTD
VID 1215 OF 2007

FRENCH, RARES AND BESANKO JJ
14 AUGUST 2008
ADELAIDE VIA VIDEOLINK TO MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1215 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CHIROPEDIC BEDDING PTY LTD
Appellant

JUDGES:	FRENCH, RARES AND BESANKO JJ
DATE OF ORDER:	14 AUGUST 2008
WHERE MADE:	ADELAIDE VIA VIDEOLINK TO MELBOURNE

1. The appeal be allowed and the first, second and third orders made by Finkelstein J on 5 December 2007 be set aside. In lieu of those orders there be the following orders:

2. The respondent pay the appellant’s costs of the appeal including the respondent’s Notice of Contention.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1215 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

CHIROPEDIC BEDDING PTY LTD
Appellant

JUDGES:	FRENCH, RARES AND BESANKO JJ
DATE:	14 AUGUST 2008
PLACE:	ADELAIDE VIA VIDEOLINK TO MELBOURNE

2 The appellant, Chiropedic Bedding Pty Ltd, is registered as the proprietor of a design under the Designs Act 1906 (Cth) ("1906 Act"). The design is in respect of a particular style of mattress. Registration of the design was effected on 2 September 1996 with a priority date of 26 July 1996. The appellant brought a proceeding in this Court against the respondent, Radburg Pty Ltd, claiming that company had infringed the design. The respondent brought a cross-claim in the proceeding alleging that the design was not novel. One ground of the respondent’s claim of a lack of novelty was based on an allegation that the design was published or used in Australia before the priority date. The trial judge ordered that issue be tried separately from and before the other issues in the proceeding.

3 A fair was held in the Melbourne Exhibition Centre between 20 July and 23 July 1996. The fair was organised by the Furnishing Industry Association of Australia (Vic/Tas) Inc ("FIAA") and was called "The National New Products Parade". There was no dispute before the trial judge that on 20 July 1996 the appellant exhibited at the fair a mattress to which the design had been applied. The mattress was known as the "Microcoil Pillowtop Plus" mattress and the novel feature was known subsequently as the "posture-top". The exhibition of the mattress six days before the appellant applied to register it, deprived the design of novelty unless the fair fell within the terms of s 47 of the 1906 Act. At the relevant time that section was in the following terms:

4 Although the 1906 Act has been repealed and replaced by the Designs Act 2003 (Cth), ("2003 Act"), the validity of the registration of the design is to be determined by reference to the provisions of the 1906 Act (2003 Act s 151(3)).

5 The trial judge held that the fair was an exhibition and that it was "officially recognised". However, he held that it was not an "official" exhibition or an "international" exhibition. In the circumstances, the fair did not fall within s 47 of the 1906 Act and the display at the fair of the mattress to which the design had been applied deprived the design of novelty (Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2007] FCA 1869; (2007) 243 ALR 334). The trial judge entered judgment in favour of the respondent on the relevant paragraph in the cross-claim and he also ordered that the registration of the design be expunged from the register. The trial judge granted the appellant leave to appeal from his orders and he stayed the operation of certain orders.

6 The appellant contends that the trial judge erred in holding that the fair was not an "official" exhibition and an "international" exhibition. For its part, the respondent sought to uphold the trial judge’s conclusions, although it did not seek to support all of his reasoning. It also filed a notice of contention in which it claims that the trial judge’s conclusions can be upheld on an alternative ground, namely, that, contrary to the trial judge’s conclusion, s 47 only applied to official international exhibitions, and officially recognised international exhibitions, and then adopting the trial judge’s conclusion that the fair was not an international exhibition. The respondent does not challenge the trial judge’s conclusion that the fair was "officially recognised" within s 47(1).

7 It is convenient to start by setting out the findings of fact made by the trial judge and referring to some of the uncontested evidence which was before him. We will then turn to examine the trial judge’s approach to the issues before him.

8 The trial judge found that the fair was funded by a $200,000 grant from the Victorian Government upon various conditions, including that it be open to the general public for at least one day and that no goods be sold to the public. The fair was opened by the Victorian Minister for Small Business. There were 257 exhibitors whose products were on display at the fair and, of these, 250 manufacturers were Australian and the balance were from New Zealand. The trial judge said that, relatively speaking, the New Zealand contingent was inconsequential. He said that the fair did not have, what he called, a significant foreign presence.

9 On the appeal, each party referred to evidence given at the trial concerning matters which were not the subject of findings by the trial judge. The evidence given at the trial was for the most part uncontested, and we set out below a more detailed description of FIAA and its role, and the circumstances surrounding the fair.

10 FIAA is an incorporated association and a non-profit body governed by its rules of association. It is the chief governing body for the furnishing industry in Victoria and Tasmania. It represents and governs Australian furniture manufacturers and retailers in certain manufacturing categories. In order to achieve its objectives FIAA liaises from time to time with federal and state governments and it implements a number of programs for members in conjunction with those governments. As we understand it, FIAA receives government grants from time to time and its officers liaise with their counterparts in similar associations overseas. The evidence was that FIAA received a grant from Austrade under the Export Development Grant Act 1974 (Cth). It was interested in promoting exports by its members, as no doubt were the federal and state governments.

11 The fair was first held in 1989 and is still held today, albeit under a different name. According to the evidence the fair is the "showpiece event on the Australian furniture and bedding calendar" and one of the witnesses agreed with the suggestion put to him that FIAA was the "pre-eminent furniture organisation" because it organised what was a very large fair. The evidence was that the fair gave Australian and New Zealand manufacturers an opportunity to show their new products to local and overseas buyers, distributors, retailers and representatives from overseas governing bodies equivalent to FIAA. In 1996 the fair was promoted overseas and the promotional material was prepared in various languages for distribution to FIAA’s database of industry visitors. Industry visitors from overseas were offered deals and discounts with respect to the costs of travel and accommodation. The evidence was that the aim of the fair was, and is, to promote manufacturing and distribution agreements in favour of Australian and New Zealand furniture and bedding manufacturers.

12 Exhibitors were required to enter into an exhibitor’s agreement and rules and policies with FIAA. There were strict eligibility criteria including the fact that only members of FIAA and the New Zealand Furniture Association ("NZFA") were permitted to exhibit at the fair, and the fact that exhibitors were only to display furnishings manufactured in Australia with an Australian labour content of not less than 50 per cent of the total labour content and which had not previously been displayed for sale on a retail floor within Australia. New Zealand manufacturers were invited to exhibit under a reciprocal agreement with the NZFA whereby Australian manufacturers were also allowed to exhibit at New Zealand fairs. The New Zealand exhibitors were governed by the NZFA exhibitor rules which were, it seems, very similar to the FIAA exhibitor rules. Although it is not entirely clear from the evidence, we take the evidence to be that the NZFA exhibitor rules are similar to FIAA exhibitor rules albeit that they refer to furniture manufactured in New Zealand and a New Zealand labour content.

13 Awards for the best design were made and those awards were, in some cases, sponsored by overseas companies.

14 Persons who wished to attend the fair had to register in advance and the FIAA then sent them tickets for admission. As we have said, in 1996 the fair was opened by the Victorian Minister for Small Business, and it was conducted over four days. It attracted 6,381 visitors, including visitors from a number of overseas countries. Persons from 26 countries applied for registration for tickets to the fair before it opened. Persons attending the fair who were classified as VIPs were usually presidents or delegates of overseas furniture associations and, occasionally, members of trade organisations or government trade officers. Although the evidence is not entirely clear, it appears that some of the foreign companies who sponsored awards at the fair had a distributor, agent or licensee in Australia.

15 We turn now to examine the trial judge’s reasoning as to the issues before him.

16 The first question the trial judge addressed was the proper construction of the words "an official or officially recognised international exhibition" in s 47(1). He said that there were two possible constructions. The first was that the exhibitions at which a disclosure which did not deprive a design of novelty could be made were: (1) an official international exhibition; and (2) an officially recognised international exhibition. The second possible construction was that the exhibitions at which such a disclosure could be made were: (1) an official exhibition (whether international or not); and (2) an officially recognised international exhibition.

17 The trial judge said that "the starting point" for the resolution of that problem of construction was the Paris Convention for the Protection of Industrial Property, which was opened for signature on 20 March 1883 ("Paris Convention"). The trial judge said that s 47 was clearly based on Art 11(1) of the Paris Convention. The trial judge said that although Australia did not become a party to the Paris Convention until 1925, the conclusion that the operative language in s 47 was copied from Art 11(1) was inescapable. The trial judge then said:

19 The Minister who introduced the Bill for the 1906 Act said that s 47 had been taken from s 58 of the Patents, Designs and Trademarks Act 1883 (UK). He was incorrect because the corresponding provision to s 47 in the UK Act was s 57 and it permitted prior publication at an industrial or international exhibition provided it had been certified by the Board of Trade.

20 The trial judge traced the events leading up to the Paris Convention. He said that the main object of the Paris Convention was to secure to foreigners the same protection for industrial property (patents, designs and trademarks) as was enjoyed by foreigners in their country of nationality. This was the so-called principle of equal protection.

21 The trial judge referred to statements made by delegates involved in the drafting of the Paris Convention and he concluded, based on the English text of Art 11(1), that the words "official" and "officially recognised" each modified "international exhibition".

22 The Convention was also concluded in French and that text was authentic. The trial judge had the French text of Art 11(1) before him. After the hearing on 15 October 2007, the trial judge invited the parties to make submissions as to the English translation of the French text. The appellant objected to the process but it ultimately provided a translation by a French-speaking member of the Victorian Bar. The respondent provided a translation apparently made by its own counsel. In reaching a conclusion about the proper translation, the trial judge appears to have had regard to his own knowledge of the French language. He concluded that the French translation supported the meaning he had attributed to the English text of Art 11(1).

23 The trial judge concluded that prima facie the meaning to be attributed to s 47(1) was the meaning he attributed to Art 11(1) of the Paris Convention. However, he said that the prima facie meaning could be displaced. He identified three matters which he said led to the conclusion that the prima facie meaning had been displaced. The first matter was the fact that in s 47(2) there are two references to "official exhibition, or an officially recognised international exhibition" and he said that it was difficult to avoid the conclusion that the language of s 47(2) controlled the construction of s 47(1). Secondly, the trial judge referred to the heading to s 47. He noted that ordinarily section headings in an Act are no part of the Act. However, in a case of ambiguity, the heading of a section may be looked at to resolve the ambiguity. The trial judge considered that the heading to s 47 supported the view that an official exhibition was distinct from an international exhibition rather than a type of international exhibition. Thirdly, the trial judge noted that on the second reading of the Bill, the Minister said of s 47 that it covered "official or international exhibitions" and he considered that the Minister’s statement supported the view that Parliament understood the phrase "official or officially recognised international exhibition" to mean both officially recognised international exhibitions and non-international yet official exhibitions.

24 The trial judge said that a construction of s 47(1) that it encompassed official exhibitions and officially recognised international exhibitions was not so incongruous or irrational as to require a Court to correct an obvious legislative error and the fact that s 47 went further than the Paris Convention was not a difficulty because the section was a remedial or beneficial provision and therefore ought to be construed broadly.

25 Having reached the conclusion that the exhibitions included within s 47(1) were "official exhibitions" or "officially recognised international exhibitions" the trial judge turned to consider whether the fair was an "official" exhibition. He held that to be an "official" exhibition an exhibition must be organised by a government authority whether it be federal or state or local government. In the present case, the exhibition was organised by an industry association and not a government authority. The trial judge relied on a number of matters to support his conclusion as to the meaning of the word "official" including the history and meaning of Art 11(1), the fact that the contrary construction advanced by the appellant would lack any limiting principle and the definition of "official" in Little W, Fowler MW, Coulson J (eds), The Shorter Oxford English Dictionary (3^rd ed, Clarendon Press, 1944) at [4a] (namely: he said it referred to an exhibition organised by a government). The trial judge had earlier found that all the great exhibitions in Europe prior to the Paris Convention had been organised or financially supported by government.

26 The trial judge held that the fair was an "officially recognised" exhibition because it had been funded by a $200,000 grant from the Victorian Government upon various conditions including that the exhibition be open to the general public for at least one day and that no goods be sold to the public and because it had been opened by the Minister for Small Business. As we have said, that conclusion is not challenged by the respondent.

27 The last question the trial judge had to consider was whether the fair was "international". On that question, the appellant’s submission was that the fair could be considered international either by reference to the source of the goods or the nationality of the exhibitors or the nationality of visitors to the exhibition. The respondent’s submission was that the only relevant factors were the source of the goods and the nationality of the exhibitors. The trial judge favoured the conclusion that the question was to be judged only by reference to the source of the goods and the nationality of the exhibitors. In explaining his reasons for that conclusion the trial judge said:

28 The respondent submitted that for an exhibition to be truly international it required exhibitors from at least three nations (that is, the host country and two others). The trial judge was inclined to accept that submission. He noted that it involved departing from the ordinary dictionary definition of "international" but he said it was an approach that sat comfortably with an authority he cited (that is, Bodenhausen, Professor GHC, Guide to the Application of the Paris Convention for the Protection of Industrial Property (United International Bureaux for the Protection of Intellectual Property, 1968) at 151).

29 The trial judge decided that the fair was not international in character because it did not have a significant foreign presence. The trial judge described what he meant by a significant foreign presence as the quantitative presence of foreign exhibitors, both in relative and absolute terms. The fact that only 7 out of 257 exhibitors were foreign was a factor against the fair being viewed as international. He also referred to the quality of the foreign exhibitors as being a factor in the assessment of whether there was a significant foreign presence. The quality of the foreign exhibitors involved an assessment of the geographic location and importance of the foreign States in the relevant industry. The trial judge gave the following example:

30 The trial judge appears to have taken the view that Art 11(1) was incorporated into the 1906 Act and that therefore Art 11(1) was the "starting point" for the proper construction of s 47. The respondent did not seek to support that reasoning. The respondent submitted that Art 11(1) could be used as an aid to the proper interpretation of s 47, but did not contend that Art 11(1) had been incorporated into the 1906 Act and therefore was the starting point for the proper construction of s 47.

31 In our respectful opinion the trial judge erred in concluding that Art 11(1) had been incorporated into the 1906 Act. The starting point for the proper construction of s 47 is the words of the 1906 Act itself, not Art 11(1) of the Paris Convention.

32 An international agreement may be relevant to the construction of a municipal law in a number of ways. In 1992, Gummow J, as a member of this Court, discussed the ways in which an international agreement may be relevant to the construction of a municipal law: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-305. In Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28, Mason J (with whom Barwick CJ, Gibbs and Stephen JJ agreed) said (at 43-44) (citations omitted):

33 A statutory intention to give effect to an international agreement may be revealed in a number of ways. We include within the concept of a statutory intention to give effect to an international agreement a statutory intention to incorporate an international agreement into municipal law.

34 A statutory intention to give effect to an international agreement may be revealed by an express statement that a word or provision in a municipal law is to have the meaning it has in an international agreement. Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 is an example of such a case. Section 4(1) of the Migration Act 1958 (Cth) in 1997 defined "refugee" as having the same meaning as in Art 1 of the Convention Relating to the Status of Refugees or in that Article as amended by the Protocol Relating to the Status of Refugees. The High Court said that such an approach by the Parliament required the Court to interpret the Convention and for that purpose the interpretive rules to be applied were those applied for the interpretation of international agreements (at 230-231 per Brennan CJ; at 239-240 per Dawson J; at 251-253 per McHugh J; at 272-273 per Gummow J; at 294 per Kirby J).

35 For agreements entered into after 27 January 1980 those rules are embodied in the Vienna Convention on the Law of Treaties ("Vienna Convention") (Arts 31, 32). The authorities suggest that similar rules apply in relation to international agreements entered into before that date: Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251 at 282 per Lord Diplock. The rules allow reference to be made to, among other matters, the travaux preparatoires: Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (Tasmanian Dam Case) at 93 per Gibbs J; at 223 per Brennan J.

36 The statutory intention to give effect to an international agreement may be revealed in other ways. In Koowarta v Bjelke-Petersen (1982) 153 CLR 168, the High Court was called upon to consider the constitutional validity of the Racial Discrimination Act 1975 (Cth) which, it was said, had been passed to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination, to which Australia was a party. The statutory intention to give effect to the convention was revealed by a statement to that effect in the preamble to the Act, a section approving the Commonwealth’s ratification of the Convention and the use in the Act of the same words as appeared in the Convention. It should not be overlooked that on occasions constitutional imperatives may affect the Court’s approach to the question of whether an Act gives effect to an international agreement where, for example, the external affairs power is said to be the source of the power to make the law. Such considerations are not a relevant factor here.

37 The Court was referred to D & R Henderson (MFG) Pty Ltd v Collector of Customs for the State of New South Wales (1974) 48 ALJR 132, a decision of Mason J sitting in the original jurisdiction of the High Court. In issue was the meaning of a term in the Customs Tariff Act 1965 (Cth). Mason J said reference to the Convention on Nomenclature for the Classification of Customs Tariffs signed at Brussels on 15 December 1950 was permissible. The Convention had not been ratified by Australia at the time the Act was passed although it was subsequently ratified. The important point about the decision is Mason J’s conclusion that it was evident that the Act adopted the Convention nomenclature in anticipation of subsequent Australian ratification. Mason J reached the conclusion that the statute was intended to give effect to the Convention.

38 The trial judge referred to Applicant A and Koowarta but those cases, and the circumstances they deal with, are clearly distinguishable from the present case. The 1906 Act does not reveal a statutory intention to give effect to Art 11(1). No term or provision in the 1906 Act is expressly defined by reference to Art 11(1); indeed there is no reference to the Paris Convention in the 1906 Act. Article 11(1) is expressed in general or policy terms and it envisages that each country will implement its general tenor as it considers appropriate. Insofar as it is appropriate in this context to look at the Minister’s Second Reading Speech, the suggestion therein is that cl 47 was based on s 57 of the UK Act (wrongly, it seems) rather than a specific provision of the Paris Convention. The Minister referred to the Paris Convention but he did that in the context of cll 48 and 49 of the Bill and not in the context of cl 47.

39 The starting point for the proper interpretation of s 47(1) is the words of the section. It is not suggested that any other section in the 1906 Act is relevant. There must be a reason to depart from the literal or grammatical meaning of a provision and the Court is to strive to give meaning to every word of a provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382 [71] and 384 [78] per McHugh, Gummow, Kirby and Hayne JJ. Extrinsic material may be referred to either by reason of the Acts Interpretation Act 1901 (Cth) or common law principles. A treaty or international agreement is referred to as one of the matters in s 15AB(2), but only if it is referred to in the Act. As we have said, the Paris Convention is not referred to in the 1906 Act. As far as the common law principles are concerned, they were stated (relevantly for present purposes) by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408) (citations omitted):

40 Although the 1906 Act does not reveal a statutory intention to give effect to the Paris Convention, it is proper to infer from the coincidence of wording and subject matter that the Parliament had the Paris Convention in mind when enacting s 47. Perhaps it is appropriate to say that it underlies the statutory provision which was the expression used by the Full Court of this Court in what we think is quite a similar case to the present: Scaniainventor v Commissioner of Patents [1981] FCA 84; (1981) 36 ALR 101; 54 FLR 367. At all events, there is no reason why, in appropriate circumstances, the Paris Convention could not be a contextual matter to which reference may be made. Clearly, it could not control the meaning of the statutory words, nor could it be used "to contradict the meaning of the language of an Act of Parliament, that meaning being taken from its proper statutory context": Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112 at 120 per Beaumont J (Lockhart and Gummow JJ agreeing). However, in this particular case, we do not think that Art 11(1) is of any assistance in determining the proper construction of s 47(1). The proper meaning of s 47(1) is revealed by its statutory context (that is, s 47(2)) and there is no need to go to Art 11(1). In any event, the Article itself is ambiguous and absent a statutory intention to give effect to it, reference to the extrinsic materials which may be referred to when interpreting international agreements would not seem to be permitted. As we have said, this case bears some similarities to the decision in Scaniainventor where the Full Court said (at 106):

41 It is to be noted that the Court is not here concerned with the canon of construction that where legislation is susceptible of a construction which is consistent with the terms of an international instrument and the obligations which it imposes on Australia then that construction should prevail: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287-288 per Mason CJ and Deane J. Australia was not under an international obligation in terms of Art 11(1) at the time the 1906 Act was passed (see Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 27-28 [19]). Furthermore, this is not a case where one construction of s 47(1) is consistent with Art 11(1) and the other is not; both constructions are consistent with Art 11(1) and the only difference is that the construction favoured by the trial judge extends the protection to an official non-international exhibition.

42 In view of our conclusion that the Paris Convention is of no assistance in the proper construction of s 47, it is not necessary for us to consider the appellant’s particular complaints about the trial judge’s approach to the translation of the French text of Art 11(1).

43 The phrase "an official or officially recognised international exhibition" in s 47(1) is ambiguous. It could be given either of the constructions which were the subject of submissions. Section 47(2) may be described as an evidence provision. It enables a person to prove conclusively a matter referred to in subs (1). Plainly, it is designed to facilitate a claim under subs (1). Section 47(2) uses the phrase "an official exhibition, or officially recognised international exhibition" on two occasions and it seems to us that it clarifies the ambiguity attending the phrase "an official or officially recognised international exhibition" in subs (1). Of less relevance, but of assistance in supporting this conclusion, are the section heading, "official or international exhibitions", and the reference by the Minister during the Second Reading Speech to "official or international exhibitions", both of which suggest that an official exhibition, whether international or not, is encompassed by s 47(1) (see s 15AB(1), (2)(a), (2)(f) of the Acts Interpretation Act 1901 (Cth)).

44 The respondent sought to meet these arguments by a number of submissions. First, it submitted that the terms of s 47(1) are clear and mean an official international exhibition or an officially recognised international exhibition. Section 47(1) should control the meaning of s 47(2) and not the other way around. This submission must fail because the meaning of s 47(1) is not clear and even if it was, the submission asks the Court to read the word "international" into s 47(2), a course which is not permissible. Secondly, it submitted that s 47(2) is nothing more than a "deeming" provision. This submission must fail because s 47(2) is not a deeming provision but, rather, may be described as an evidence provision. Thirdly, the respondent submitted that the trial judge’s interpretation of the section leads to an irrational result. It means the section encompasses official exhibitions – whether international or not – and officially recognised international exhibitions, but not officially recognised non-international exhibitions. That does appear to be a consequence of the trial judge’s interpretation and there is no obvious reason why the Parliament would include official non-international exhibitions but exclude officially recognised non-international exhibitions. This submission fails because the result is dictated by the words of the section and one cannot go so far as to call it irrational or absurd. In addition, there is no reason why the Parliament would not have intended Australian designs to be protected when first exposed at an official exhibition in this country, particularly in 1906 when international travel required weeks at sea to convey people to Europe or the other continents beyond New Zealand. Even a trip to New Zealand took some time. There is no good reason to constrain the protection afforded by the statutory phrase "official exhibition" to such exhibitions that have an additional character not in the express words used by the Parliament, namely that they are international. Fourthly, the respondent submitted that under the Designs Act 2003 (Cth) and the Designs Regulations 2004 an official non-international exhibition would not be included (reg 2.01). Even if it is assumed that is the correct construction of reg 2.01 of the Designs Regulations 2004 that circumstance cannot control the meaning of s 47(1) of the 1906 Act when interpreted in its statutory context.

45 And, a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky 194 CLR at 381-382 [70] per McHugh, Gummow, Kirby and Hayne JJ applying Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440 per Gibbs J. Unless s 47(2) is construed as reflecting the concept in s 47(1) the odd result would occur that the Parliament had omitted the word "international" twice between the words "official exhibition" in s 47(2). Yet s 47(2) provided that the Minister could give a certificate that a particular exhibition was one of the two types of exhibition in s 47(1) so that the certificate would become conclusive evidence of the character of the exhibition. It is not necessary to insert any words into the phrase in s 47(1) "an official or officially recognised international exhibition" to read it harmoniously with s 47(2). In the context of s 47 read as a whole, the construction at which we have arrived corresponds to the literal or grammatical meaning of the words. The respondent’s alternative construction lacks force: Project Blue Sky 194 CLR at 381-382 [69]-[71], 384 [78]; Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321 at 338 [34]- [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

46 Although Art 11(1) is of no assistance in the interpretation of s 47(1), the trial judge’s conclusion that s 47(1) encompasses official exhibitions and officially recognised international exhibitions is correct.

47 The next question is whether the trial judge erred in concluding that the fair was not an "official" exhibition within s 47(1). The appellant submitted that the trial judge had taken too narrow a view of the meaning of the word, "official". It submitted that while exhibitions organised by government were official exhibitions, so also were exhibitions organised by other types of bodies. One such body was the FIAA. It was a body which had official status in the sense that it was recognised by government, it had a public officer and the features of the fair, including the fact of government support, and the presence of overseas visitors, suggested it was an official exhibition. The appellant referred to the evidence which we have summarised in [8]-[14].

48 The starting point for the interpretation of the word "official" in s 47(1) is the fact that it appears in a subsection which also uses the term "officially recognised". The use of "official" and "officially recognised" points to a clear distinction between the two. As we have said the Court must strive to give meaning to every word in a statutory provision. The dictionary definitions of "official" indicate that it may be construed narrowly or broadly depending upon its context. The use of the term "officially recognised" points to a narrower construction of "official", than might otherwise be the case. The factors identified by the appellant, or at least some of them, bring the event within the concept of "officially recognised" without any difficulty. There is another consideration in favour of confining an official exhibition to an exhibition organised by government. Such a test is a clear and relatively certain one. By contrast, the adoption of the appellant’s submission would make it difficult to determine where "official" ended and "officially recognised" began. In our opinion, the trial judge was correct to conclude that the fair was not an "official exhibition".

49 Before leaving this issue, we would add that on any view the fact that the appellant has a public officer is irrelevant to the question of whether an exhibition is an "official" exhibition. It is a matter which is entirely incidental to that question.

50 The final question is whether the trial judge erred in concluding that the exhibition was not an "international" exhibition.

51 The trial judge said that the international character of an exhibition is determined by reference to the "nationality" of the goods and of the exhibitors and does not include, as an alternative test, a consideration of the nationality of the visitors. It follows that an exhibition is international only if there are foreign exhibitors exhibiting foreign goods. In our respectful opinion, the trial judge was right. The test he adopted has, as his Honour noted, the value of certainty and convenience. An exhibitor considering whether he will have the benefit of s 47 will find it easier to check a list of exhibitors than to ascertain the identities of visitors and their nationalities. Furthermore, to emphasise the nationality of the goods and of the exhibitors seems more in accord with the purpose of s 47.

52 Before the trial judge the respondent submitted that to be "international" there must be goods and exhibitors from the host nation and more than one other nation. As we read the trial judge’s reasons, although he was disposed to accept that submission, he did not decide the case on that ground. In our respectful opinion, he would have been wrong to have done so. It seems to us there is no reason not to adopt the dictionary definition of "international" which leads to the conclusion that it is sufficient if there are two nations including the host nation. There were two nations involved in the fair as exhibitors, namely, Australia and New Zealand.

53 The trial judge said that for an exhibition to be "international" there needed to be a significant foreign presence judged in both a quantitative and qualitative sense. In a quantitative sense, the New Zealand contingent was, as the trial judge had earlier put it, relatively inconsequential. Assessing the question in a qualitative sense required a consideration of, to use the trial judge’s words, "the geographic location and the importance of the foreign state(s) in the relevant industry". We have already set out the examples given by the trial judge (see [29]).

54 In our respectful opinion, the trial judge erred in formulating a test of "international" which involved the need for a significant foreign presence. Not only does it import into the section a requirement that is not expressly stated, but it introduces into the section questions of degree which are likely to be productive of uncertainty and expense. In our opinion, the fact that there were exhibitors from Australia and New Zealand was sufficient to make the fair an "international" exhibition within s 47(1).

55 The fair was not an "official exhibition" within s 47(1) of the 1906 Act but it was an "officially recognised international exhibition" within the subsection.

56 In our opinion, the appeal should be allowed and the relevant orders made by the trial judge, should be set aside. A declaration reflecting the conclusions expressed in these reasons should be made and the respondent should be ordered to pay the appellant’s costs of the separately tried issue and of the appeal including the Notice of Contention.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Rares and Besanko .

Counsel for the Appellant:	Mr G McGowan SC with Ms S Ryan

Solicitor for the Appellant:	Actuate Intellectual Property Pty Ltd

Counsel for the Respondent:	Mr G Clarke SC with Mr J Samargis

Solicitor for the Respondent:	Lawcorp Lawyers

Date of Hearing:	27 May 2008

Date of Judgment:	14 August 2008

Federal Court of Australia - Full Court

Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142 (14 August 2008)