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Ladakh Pty Ltd v Quick Fashion Pty Ltd & Anor [2010] FMCA 919 (22 November 2010)

Last Updated: 14 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LADAKH PTY LTD v QUICK FASHION PTY LTD & ANOR

COPYRIGHT – Application by second respondent for summary dismissal – second respondent sole director and shareholder of the first respondent – applicant’s claim against the second respondent could not be described as having no reasonable prospect of success – Keller v LED Technologies Pty Ltd – premature to say that the law is settled – application for summary dismissal dismissed – application by second respondent in the alternative to strike out amended statement of claim – amended statement of claim does not clearly articulate what each respondent is alleged to have done – amended statement of claim should be struck out and the claim be repleaded.


Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; (2006) 236 ALR 720; [2007] ALMD 1936; [2006] FCA 1352
Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416
Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; (2006) 156 FCR 380; (2006) 237 ALR 714; (2006) 71 IPR 1; [2007] ALMD 3676; [2007] AIPC 92-236
Keller v LED Technologies Pty Ltd (2010) 185 FCR 449; (2010) 268 ALR 613; (2010) 87 IPR 1; [2010] AIPC 92-384; [2010] ATPR 42-318; [2010] ALMD 6566; [2010] FCAFC 55
Spencer v Commonwealth (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233; [2010] ALMD 7244; [2010] HCA 28
University of New South Wales v Moorhouse (1975) 133 CLR 1; (1975) 49 ALJR 267; (1975) 6 ALR 193; [1976] RPC 151; [1975] HCA 26
WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274; (1987) 77 ALR 456; (1987) 10 IPR 349; [1987] ATPR 48,929 (40-827); [1987] FCA 266; [1987] AIPC 37,754 (90-428)

Applicant:
LADAKH PTY LTD
(ACN 079 120 595)

First Respondent:
QUICK FASHION PTY LTD
(ACN 126 154 890)

Second Respondent:
FENG JIANG

File Number:
MLG 669 of 2010

Judgment of:
Riley FM

Hearing date:
22 November 2010

Date of Last Submission:
22 November 2010

Delivered at:
Melbourne

Delivered on:
22 November 2010

REPRESENTATION

Counsel for the Applicant:
Mr Heerey

Solicitors for the Applicant:
Middletons

Counsel for the Respondents:
Ms Gatford

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The second respondent’s application for summary dismissal be dismissed.
(2) The second respondent’s application to strike out the amended statement of claim filed on 24 June 2010 be allowed.
(3) The applicant have leave to file and serve a further amended statement of claim within 14 days.
(4) The respondents file and serve any further amended response on or before 20 December 2010.
(5) There be costs in the cause as between the applicant and the second respondent.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 669 of 2010

LADAKH PTY LTD
(ACN 079 120 595)

Applicant


And


QUICK FASHION PTY LTD
(ACN 126 154 890)

First Respondent

FENG JIANG

Second Respondent


REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

  1. This is an application by the second respondent for orders that the claim against him be summarily dismissed, and, in the alternative, that the amended statement of claim be struck out as against him. Orders were pronounced at the conclusion of the hearing, with very brief, oral reasons, on the basis that complete, written reasons would be provided later if required. These are those reasons.
  2. The applicant is a corporation and claims to be a designer, manufacturer, distributer and wholesaler of women’s clothing. The first respondent is a corporation. The second respondent is its sole director and shareholder.
  3. The applicant alleges, and the respondents do not admit, that:
    1. one of the applicant’s employees designed a certain fabric print, known as “butterflies of paradise”; and
    2. the respondents infringed or authorised the infringement of the copyright in the butterflies of paradise print.
  4. In the respondents’ joint response, the first respondent admitted that it imported and sold garments known as the Sweetacacia Garments. It denied that, in doing so, it had reproduced or substantially reproduced the alleged copyright work, or that it knew or reasonably ought to have known that were made from fabric with the allegedly infringing print.

The test for summary dismissal

  1. The application for summary dismissal is brought under rule 13.10 of the Federal Magistrates Court Rules 2001. That rule provides as follows:
  2. There is also power under s.17A of the Federal Magistrates Act 1999 to summarily dispose of a proceeding. Section 17A provides as follows:
  3. Section 17A of the Federal Magistrates Act 1999 is in the same terms as s.31A of the Federal Court of Australia Act 1976. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 70 IPR 146, Rares J considered the effect of s.31A and said the following at [42] to [47]:
  4. In Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 at [30] Jacobson J summarised the conclusions of Rares J in Boston Commercial as follows:
  5. Boston Commercial largely concerned factual disputes in summary dismissal applications. However, the High Court more recently in Spencer v Commonwealth [2010] HCA 28; (2010) 84 ALJR 612 dealt primarily with disputed questions of law in summary dismissal applications. In Spencer, the Federal Court had summarily dismissed the applicant’s claim that certain Commonwealth laws were invalid. The Full Federal Court affirmed that decision, partly on the basis that the applicant’s claim was precluded by existing authority.
  6. The High Court overturned the Full Federal Court’s decision. French CJ and Gummow J said:

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.


More recently, in Batistatos v Roads and Traffic Authority (NSW)[4] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[5] which included the following:


Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways,[6] but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A.[7] That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.


[25] Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. (emphasis added)


The second respondent’s arguments for summary dismissal

  1. The second respondent argued that there were no pleaded facts to the effect that he did anything other than act as the director of the first respondent. Indeed, the respondents’ solicitor said in an affidavit that he had reviewed the discovered material and all of the affidavits that the applicant had filed for the trial and had discerned no evidence at all supporting the applicant’s claims against the second respondent.
  2. The second respondent argued that the question of the liability of directors in copyright and intellectual property matters had been a vexed issue but had recently been resolved by the Full Federal Court’s decision in Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449. The second respondent submitted that it was now established that merely being the director of a company did not suffice to establish the director’s liability for the tortious acts of the company.
  3. Keller was a case under the Designs Act 2003. There is no provision for accessorial or derivative liability set out in that Act. The company in Keller was small, but it had two directors. It was alleged, and the primary judge accepted, that the two directors had authorised, directed and procured the infringing conduct.
  4. Jessup J, at [361], said the following:
  5. At [83], Emmett J said:
  6. Jessup J said:
403 Another cause for concern relates to the matter of limited liability. While perhaps more an issue of policy than of analysis, the fact is that, to make a director liable for the wrongs of his or her company – when he or she would not otherwise be liable – would be to expose those who serve the company to greater liability at the suit of third parties than are the proprietors themselves. As a matter of principle, it is no answer to this concern to rejoin that the director would in any event be answerable to the company for the external consequences of his or her internal mistakes: so it may be in some cases, but it provides no rational jurisprudential basis for making the director liable directly to the third party. I also consider that it is altogether too simplistic an approach to assume that a director will necessarily be liable at the suit of the company for the consequences of any wrong committed by the company by reason of his or her conduct. Merely to have acted in a way that exposed the company to a claim by a third party will not always amount to a breach of duty to the company, the remedy for which would correspond closely with that achieved by the third party as against the company.
404 Returning to the question which I posed at the end of para 401 above, I believe that the answer lies in the application of the conventional rules of law as to joint liability to the particular circumstance where the primary wrongdoer is an artificial person who can act only by human agency. Each of the two main conventional rules to which I have referred – directing another to commit a tort and participation in a joint enterprise – requires, or at least assumes, a duality (or multiplicity) of actors. In this sense, the presentation of the problem has much in common with that of inducement to breach of contract with which Starke J dealt in O’Brien v Dawson. For a director to be liable because he or she directs or procures his or her company to commit a wrong, the context must be such that the director is effectively standing apart from the company and directing or procuring it as a separate entity. There must be a sense in which the director is using the company as the instrument of his or her own wrong. This is, as I have explained earlier, the original sense in which Atkin LJ’s words in Performing Right are to be understood, at least to the extent that they drew upon what Lord Buckmaster had earlier said in Rainham Chemical. Likewise with a joint enterprise, unless the director is conceptually separate from the company, there is, it seems to me, no "jointness" about the enterprise at all, but merely a one-person wrong in which the company is actor.
405 It will be seen from the foregoing that I agree substantially with so much of the judgments of Le Dain J in Mentmore Manufacturing, of Nourse J in White Horse and of Beazley J in Milpurrurru as make it a requirement of liability that the director should make the tort his or her own. Other courts have at times expressed reservations about this formula but, in my view, its utility lies in the focus it gives to an understanding of the principle of dual or multiple participation as I have attempted to explain it above. It would be a mistake to attempt to resolve cases by reference to a search for the moment in time when a director made the company’s wrongdoing his or her "own". We are not here dealing with a species of property, or with ownership in any sense. However, in a situation in which the company-role and the personal-role of the director may be blurred, the formula does highlight the crucial distinction between acts which are done for and in the service of the company and acts which, in addition, are done in the director’s own personal capacity – a "non-company capacity" as it were.
406 I consider that effectively the same end point is reached if the first of Chadwick LJ’s four propositions in MCA Records is taken to its logical conclusion – a conclusion which, at least generally, is both just and in accordance with principle. I can, with respect, see no reason to limit the proposition to so much of the activities of a director as involve him or her voting at board meetings. In practice, problems nearly always arise in this area in the case of executive directors. I see no reason to draw the line at the proceedings of the board, but short of acts done by a director consistently with board decisions. I would apply the proposition to any act done by a director in what he or she, in good faith, reasonably perceives to be the interests of the company. In such a circumstance, the act of the director should be seen as the means by which the company itself acts, and not as the director "directing or procuring" the company to act, or participating in some joint enterprise. To regard the act in either of the latter senses would, in my view, be to take a quite artificial approach to the matter.
407 Although I have discussed the problem above with reference to directors as such, and although the context of the present appeal is so limited, it will be apparent that the solution which attracts itself to me is not, in point of principle, limited in its application to a situation in which it is a director whose acts have brought about the commission of the tort. What I have said applies equally to any servant or agent whose acts have that consequence. Indeed, one of the anomalies of the present state of the law (such as it is), in my respectful view, may be seen in the distinction which Branson and Kenny JJ drew in Cooper between a person in a position to determine what the company itself would do and a person in a subordinate role. The latter, it seems, could never be liable in accordance with the test in Performing Right. In my view, this is an unsatisfactory distinction. The point should not be whether the individual sought to be made liable can, or did, determine how the company might act, but whether there was a dimension to his or her role which was separate from the good faith discharge of his or her duties in the service of the company. If so, there will be a basis, in accordance with general principles, for making the individual liable because he or she was involved in a joint, wrongful, enterprise with the company.
408 In my view, the question arising in the present case should be resolved in accordance with the approach to which I have referred. The facts set out at para 360 above are not such as would, consistently with that approach, sustain a finding that either of Messrs Keller and Armstrong was a joint tortfeasor with Ren or Olsen in the infringement of LED Technologies’ registered designs. Their appeals against the primary Judge’s findings of infringement should be allowed.

The applicant’s arguments against summary dismissal

  1. The applicant argued that the respondents had misunderstood the claim against the second respondent, in that the claim was not one of joint tortfeasorship but of authorisation. On the hearing of the application, the applicant stated that the allegation against the second respondent was that he personally infringed the applicant’s copyright and in the alternative that he authorised the infringement of the applicant’s copyright by the second respondent. The applicant submitted that the second respondent, as the sole director and shareholder of the first respondent, had ultimate control over all of the actions of the first respondent and thus authorised any infringing conduct of the first respondent.
  2. Section 36 of the Copyright Act 1968 provides that:
  3. The applicant argued that the present case was readily distinguishable from Keller, because the Copyright Act, unlike the Designs Act, makes express provision for liability as an infringer where a person has authorised infringing conduct by another. The applicant argued that, because the second respondent was in complete control of the first respondent, the second respondent must have either:
    1. personally undertaken the first respondent’s infringing conduct; or
    2. authorised any infringing conduct of the first respondent.
  4. The applicant noted the second respondent’s claim that the first respondent had five employees. However, the respondents have not alleged, in affidavit form or otherwise, that any infringing conduct was undertaken by an employee without authority. On the contrary, the applicant noted that the first respondent had admitted that it had imported and sold the relevant items, albeit with a denial that there was any copyright infringement involved.
  5. The applicant referred to the High Court’s decision in University of New South Wales v Moorhouse [1975] HCA 26; (1974) 133 CLR 1. In that case, the High Court held that the University of New South Wales had authorised the infringement of literary copyright by providing a photocopier in the University library, notwithstanding that there was no express permission given by the University to anyone to photocopy anything.
  6. In reaching that conclusion, Jacobs J said at pages 20 and 21:
  7. Gibbs J said at pages 12 to 14:
  8. In the present case, the applicant argued that the court could be satisfied that the second respondent had reason to suspect the first respondent’s infringement of the applicant’s copyright because:
    1. the applicant had made oral complaints to one of the first respondent’s employees, namely Jenny, about an earlier alleged infringement in 2008; and
    2. a letter of demand dated 11 July 2008 concerning the earlier alleged infringement was addressed and sent to the first respondent.[8]
  9. The applicant argued that these circumstances, which occurred before the butterflies of paradise print had been designed, were sufficient to give the second respondent reason to suspect that there was an infringement in relation to the butterflies of paradise print.
  10. The applicant referred to the decision of Gummow J, sitting in the Federal Court, in WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274. His Honour reviewed the development of the concept of authorisation in copyright law, saying at pages 283 to 286:
  11. The applicant also relied on the Full Federal Court’s decision in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; (2006) 156 FCR 380. In that case, the Full Court considered s.101(1) of the Copyright Act, which concerns sound recordings, but is otherwise materially identical to s.36(1). French J, as his Honour then was, agreed with Kenny J, who said:
146 As such cases as Jain and Canterbury-Bankstown emphasize, prior to s 101(1A), an alleged authorizer’s failure to take reasonable steps to prevent the infringing act that the person knows, or had reason to suspect, would be, or would be likely to be, done was also treated as a consideration relevant to a finding of authorization: see also Metro on George at 259.
147 The Court is now required by s 101(1A) to consider three matters that the authorities had previously identified as relevant to the High Court’s concept of ‘authorization’. These factors are: (1) the extent (if any) of the person’s power to prevent the doing of the infringing act; (2) the nature of the relationship between the alleged authorizer and the person who did the infringing act that was supposedly authorized; and (3) whether the alleged authorizer took reasonable steps to prevent or avoid that infringing act.
  1. In relation to the three matters set out in s.36(1A) of the Copyright Act, the applicant argued that:
    1. as the sole director and shareholder of the first respondent, the second respondent clearly had the power to prevent the first respondent’s infringement;
    2. the relationship between the first and second respondents was one of absolute control; and
    1. there was no evidence, at least at present, that the first respondent took any steps at all to prevent the infringement.

The second respondent’s reply regarding summary dismissal

  1. The second respondent argued that the earlier alleged infringement had not been proved and, in any event, it related to a dress design rather than a fabric print. Moreover, the second respondent argued, there was no evidence that the complaint had been passed on to him.
  2. The second respondent also argued that he had not misunderstood the claim against him. He argued that Keller was not distinguishable, because the tests that apply in determining whether action can be taken against a director solely because he is a director are the same under the Copyright Act as they are under the Designs Act.

Conclusion on summary dismissal

  1. It seems to me that the applicant’s claim against the second respondent could not be described as having no reasonable prospect of success. Although the second respondent argued that a previously vexed area of the law had been settled authoritatively and definitively by the Full Federal Court’s decision in Keller, that decision is only about six months old. It refers to a contrary body of opinion in the Federal Court, and, indeed, Besanko J and Jessup J had somewhat different reasons for their conclusions. As we well know, differently constituted Full Federal Courts sometimes decline to follow each other. It is probably premature to say that the law is settled in a particular area until a decision of an appellate superior court has stood unchallenged for a considerable period of time, or until the High Court determines the matter.
  2. Moreover, it is reasonably arguable that Keller is distinguishable on the basis that it concerns the Designs Act, which, unlike the Copyright Act, makes no provision for infringement by authorisation. Section 36 of the Copyright Act indicates that authorising an unlawful act comprised in the copyright is itself an infringement. That liability is separate from any notion of joint tortfeasorship.
  3. The decision in Keller, particularly the judgment of Jessup J, at paragraph 400, makes it clear that a director is not liable for the wrongs of his or her company, merely by reason of being a director. That is not controversial. However, the present case may be distinguishable from Keller because the second respondent is not simply a director, but the sole director of the company. I consider that there is some force in Mr Heerey’s submissions that as the sole director the second respondent was ultimately responsible for all of the acts of the first respondent. That may be a materially different situation to the case where there is a board of directors and one or the other of them is not, perhaps, at all conscious or aware or personally in control of any particular act done by the company.
  4. The applicant has filed its trial affidavits. However, the facts are yet to be determined. There will clearly be a challenge to the claim that the second respondent at the very least ought to have suspected that the first respondent was infringing the applicant’s copyright. However, at this stage, it does not seem to me that it could be said that there is no realistic prospect of any outcome but one, being an outcome favouring the second respondent. Moreover, there may be scope for a good deal of argument about the legal consequences of the facts as found in this case.
  5. I acknowledge that the test for summary dismissal is no longer that the case is bound to fail or is absolutely hopeless. However, I am not persuaded that the applicant should be shut out from a full hearing with the second respondent on the basis that there is no reasonable prospect of success. The application for summary dismissal will be dismissed.

The application to strike out the amended statement of claim

  1. Order 11 rule 16 of the Federal Court Rules 1979 provides as follows:
  2. As far as the pleading point is concerned, the question is whether the claim as pleaded discloses a cause of action. On a pleading summons, there is no obligation on a party to put forward the evidence that substantiates the claim or defence. The court assumes that the party will be able to make out the allegations.
  3. The amended statement of claim filed on 24 June 2010 states at paragraphs 10 and 11 the following:

The Applicant refers to the First Respondent’s “Sweetacacia” branded garment with style number “S71611-9” (Sweetacacia Garment).
On 9 January 2010, a representative of the Applicant purchased a sample of the Sweetacacia Garment from the “Cocoland” retail outlet located at Shop U3/L33, McCarthur Square in the State of New South Wales. The Sweetacacia Garment was purchased for a retail price of $40. The receipt for the purchase had the ABN 22 091 404 250 printed on it which is the ABN for Co Co Land Pty Ltd. The Sweetacacia Garment purchased together with the receipt can be inspected at the offices of the Applicant’s solicitors by prior appointment.
By letter dated 15 January 2010 from the Applicant’s solicitors to Co Co Land Pty Ltd, the Applicant made a number of demands of Co Co Land Pty Ltd including that it disclose the name of the wholesaler from whom it purchased the Sweetacacia Garment. By letter dated 2 February 2010 from Kim & Associates, the solicitors acting for Co Co Land Pty Ltd to the Applicant’s solicitors, Co Co Land Pty Ltd advised that the Sweetacacia Garment was purchased from Quick Fashion Pty Ltd.
At all material times the Second Respondent was:
(i) the sole director and shareholder of the First Respondent;
(ii) directing or procuring the conduct of the First Respondent;
(iii) personally involved in the conduct of the First Respondent;
(iv) acting with the First Respondent towards a common goal; and
(v) authorising the conduct of the First Respondent.
11. In the premise of paragraph 10, the Respondents or either of them have, without the licence or authority of the Applicant, infringed or authorised the infringement of the Applicant’s copyright in the Copyright Work by:
  1. I consider those paragraphs in particular to be confused and confusing. They do not clearly articulate what each respondent is alleged to have done. In particular, they do not clearly state whether each respondent is alleged to have infringed or authorised the infringement of the applicant’s copyright. However, the gist of the applicant’s argument on the strike out application was that the first respondent infringed and the second respondent authorised the infringement. That should be clearly stated. The statement of claim should be struck out and the claim against each respondent should be repleaded.

Costs

  1. There were two aspects to the application before the court today. One was a summary dismissal application and the other was a pleading application. The second respondent has been successful on the second point but not on the first. The summary dismissal issue took up more of the court time today and I dare say more of the preparation time as well. The amendment of the statement of claim is required to get the case on a proper footing and to make it clear what the case is going to turn on. I think ultimately that the proper costs order for today is costs in the cause. There will be orders accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Riley FM


Date:

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 125-130; [1964] HCA 69; 38 ALJR 253 per Barwick CJ.
[2] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J.
[3] Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; [1983] HCA 25; 57 ALJR 621. See also Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602-603; [1993] HCA 57; 67 ALJR 886 per Mason CJ, Deane and Dawson JJ.
[4] Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; 80 ALJR 1100.
[5] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]; 74 ALJR 1219.
[6] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130; [1964] HCA 69; 38 ALJR 253 per Barwick CJ.
[7] In A v Essex County Council [2010] UKSC 33; [2010] 3 WLR 509, the criterion of “real prospect of success” was variously equated to whether the plaintiff “could succeed at a trial”, whether there was a “triable issue” and whether there was the “least doubt”: at [44] per Lord Clarke of Stone-cum-Ebony JSC; at [119] per Baroness Hale of Richmond JSC; at [133] per Lord Brown of Eaton-under-Heywood JSC; at [163] per Lord Kerr of Tonaghmore JSC.
[8] Affidavit affirmed by Keith Raymond Richards on 17 November 2010

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