|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
TRADE PRACTICES - misleading and deceptive conduct - whether statements in the lectures and in publications conveyed representations alleged - whether representations were false.
REMEDIES - whether person not relying on false representations can claim damages - whether an injunction should be granted to restrain repetition of misleading statements made in public lectures.
COPYRIGHT - diagrams of archaeological or geological site contained in book - copyright held in the United States - whether sufficient causal connection with the original work - whether the material reproduced was a substantial part of the original work - whether the respondents authorised the reproduction.
COPYRIGHT - breach of copyright - assessment of damages on a "jury basis"- whether additional damages should be awarded.
WORDS AND PHRASES - "in trade or commerce" - whether conduct bears a trading or commercial character.
WORDS AND PHRASES - "business" - particular statutory context - relevance of system and continuity.
Copyright Act 1988 (Cth), ss 14(1), 31(1), 32(2), 32(4), 36(1), 38(1)(a), 84, 115(4).
Fair Trading Act 1985 (Vic), ss 5(4), 11(1), 34(4), 39.
Fair Trading Act 1987 (NSW), ss 4(1), 42(1), 65, 68.
Fair Trading Act 1987 (SA), ss 3(1), 56(1), 83(5), 84.
Fair Trading Act 1990 (Tas), ss 3, 14(1), 46(1).
Fair Trading Act 1987 (WA), ss 5, 10(1), 74(2), 77.
Fair Trading Act 1989 (Qld), ss 5, 38(1), 98(5), 99.
Fair Trading Act 1992 (ACT), ss 5, 12(1), 44(5), 48.
Trade Practices Act 1974 (Cth), ss 4(1), 52, 80(4), 82(1).
Federal Court Rules, O 6, r 2; O 10A, r 5(1).
Copyright (International Protection) Regulations 1969 (Cth), regs 4(1), (4); Schedule 1.
A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 143 ALR 543.
Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd (1991) 27 FCR 149.
Autodesk Australia v Cheung (1990) 94 ALR 472.
Autodesk Inc v Dyason (No2) [1993] HCA 6; (1993) 176 CLR 300.
Avel Pty Ltd v Multicoin Amusement Pty Ltd [1990] HCA 58; (1990) 171 CLR 88.
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594.
Durant v Greiner (1990) 21 NSWLR 119.
Edgelow v MacElwee [1918] 1 KB 205.
Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 150 CLR 355.
Fenning Film Services Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171.
Francis Day Hunter Ltd v Bron [1963] Ch 587.
Glorie v WA Chip and Pulp Co Pty Ltd [1981] FCA 224; (1981) 55 FLR 310.
Grieve v Commissioner of Inland Revenue [1984] 1 NZLR 101.
Hanfstaengl v H R Baines & Co Ltd [1895] AC 20.
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1.
Hungier v Grace [1972] HCA 42; (1972) 127 CLR 210.
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FLR 248.
Jansseg-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437; (1992) 37 FCR 526.
Re Ku-Ring-Gai Co-Operative Building Society (No 12) Ltd [1978] FCA 50; (1978) 22 ALR 621.
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465.
March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.
Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd [1994] ATPR (Digest) 40-130.
Nationwide News Ltd v Copyright Agency Ltd (1996) 136 ALR 273.
O'Brien v Smolongov (1983) 53 ALR 107.
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191.
Prestia v Aknar (1996) 40 NSWLR 165.
Raben Footwear Pty Ltd v Polygram Records Inc, 16 May 1997, FCA, Full Court, unreported.
State Superannuation Board (NSW) v Federal Commissioner of Taxation (1988) 82 ALR 63.
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1.
Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559.
Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177.
Unilan Holdings Pty Ltd v Kerin [1992] FCA 179; (1992) 35 FCR 272.
University of New South Wales v Moorehouse [1975] HCA 26; (1975) 133 CLR 1.
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514.
DAVID FASOLD & ANOR v ALLEN ROBERTS & ANOR
NG 942 of 1992
Sackville J
Sydney
2 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 942 of 1992
GENERAL DIVISION )
BETWEEN:
DAVID FASOLD
First Applicant
IAN RUTHERFORD PLIMER
Second Applicant
AND:
ALLEN ROBERTS
First Respondent
ARK SEARCH ASSOCIATION INCORPORATED
Second Respondent
AND:
ALLEN ROBERTS
First Cross Claimant
ARK SEARCH ASSOCIATION INCORPORATED
Second Cross Claimant
AND:
DAVID FASOLD
First Cross Respondent
IAN RUTHERFORD PLIMER
Second Cross Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 2 JUNE, 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. Judgment in favour of the first applicant against the first respondent in the sum of two thousand five hundred dollars ($2,500).
2. The application otherwise be dismissed.
3. The cross-claim be dismissed.
4. Direct the respondents to file and serve any submissions on costs within 14 days.
5. Direct the applicants to file and serve their submissions on costs within 14 days from receipt of the respondents' submissions.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 942 of 1992
GENERAL DIVISION )
BETWEEN:
DAVID FASOLD
First Applicant
IAN RUTHERFORD PLIMER
Second Applicant
AND:
ALLEN ROBERTS
First Respondent
ARK SEARCH ASSOCIATION INCORPORATED
Second Respondent
AND:
ALLEN ROBERTS
First Cross Claimant
ARK SEARCH ASSOCIATION INCORPORATED
Second Cross Claimant
AND:
DAVID FASOLD
First Cross Respondent
IAN RUTHERFORD PLIMER
Second Cross Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY
DATE: 2 JUNE, 1997
REASONS FOR JUDGMENT
"Among the scenes which are deeply impressed on my mind, none exceed in sublimity the primeval forests undefaced by the hand of man; whether those of Brazil, where the powers of Life are predominant, or those of Tierra del Fuego, where Death and Decay prevail. Both are temples filled with the varied productions of the God of Nature: - no one can stand in these solitudes unmoved, and not feel that there is more in man than the mere breath of his body."
Charles Darwin, The Voyage of the Beagle (1839, Heron Books Edition), 503.
INDEX
I. THE PROCEEDINGS 1
The Parties 1
The Issues 2
Conduct of the Proceedings 4
II. THE EVIDENCE 6
The Extent of Factual Disputes 6
Dr Roberts' Evidence 7
Professor Plimer's Evidence 9
Mr Fasold's Evidence 11
Mr Wyatt's Evidence 11
Mr Midgley's Evidence 12
III. THE FACTS 12
Dr Roberts' Background 12
Mr Fasold's Visits to the Site and his Diagrams 15
Dr Roberts' 1990 Visit to the Site 20
Noah's Ark Research Foundation 20
Dr Roberts' 1991 Trip 23
NARF's First Newsletter 24
The Brochure 25
Preparation of the Drawing 28
NARF's Second Newsletter 29
The Public Meetings 30
Income and Expenditure of NARF and Ark Search Inc 33
Additional Findings 34
IV. APPLICATION OF THE TRADE PRACTICES ACT AND FAIR TRADING ACT 36
The Trade Practices and Fair Trading Legislation 36
In Trade or Commerce - The Contentions 38
Did NARF Conduct a Business? 40
"In Trade or Commerce?": The Authorities 43
Did Dr Roberts Make Statements in Trade or Commerce? 50
An Alternative Argument 51
Ark Search Inc 52
Prestia v Aknar 53
Summary of Conclusions on Trade and Commerce 53
V. MISLEADING AND DECEPTIVE CONDUCT 54
The Principles 54
The Representations Relied On 55
Were the Representations Made and Were they Misleading or Deceptive? 64
Remedies 73
Summary of Conclusion on Misleading and Deceptive Conduct 76
VI. COPYRIGHT 76
The Case for Infringement 76
Did Mr Fasold have Copyright in the Book and Diagram? 77
Was Mr Fasold's Copyright Infringed? 79
Did the Respondents Authorise the Infringement? 82
Damages? 84
Summary on Copyright 86
VII. CONCLUSION 86
I. THE PROCEEDINGS
The Parties
The principal antagonists in this case, although not the only parties to the litigation, are the second applicant ("Professor Plimer") and the first respondent ("Dr Roberts"). Professor Plimer is a Professor of Geology and Head of the School of Earth Sciences at the University of Melbourne. He is a member of an organisation known as the Australian Skeptics, which, at least since 1995, has provided him with financial support in connection with these proceedings. Dr Roberts is an ordained Christian minister whose career includes a period as the principal of a Bible College in Sydney. He described himself in an affidavit as "an historical researcher in archaeological work as it relates to the boat-shaped formation in Turkey...which I believe may be Noah's Ark".
Professor Plimer claims to have been affronted by what he says were misleading or deceptive statements made in the course of public lectures given by Dr Roberts throughout Australia in April and May 1992. Professor Plimer also complains about statements made or authorised by Dr Roberts in certain publications and in video and audio tapes of the lectures. The lectures and publications of which Professor Plimer complains advance the hypothesis that a boat-shaped geological formation at a place known as Akyayla, near Mt Ararat in Eastern Turkey (to which I refer as "the Site") is or could contain the remnants of Noah's Ark, thereby providing tangible evidence of the literal truth of the account of the great flood in Genesis, 6:13 - 8:19. It is important to appreciate that Professor Plimer's case, as presented on his behalf, is not directed to establishing the invalidity of the hypothesis put forward by Dr Roberts. Rather, Professor Plimer relies on what he says is the falsity of particular statements made by Dr Roberts in the lectures and in the publications.
There are two other parties to the litigation. The first applicant ("Mr Fasold") is a citizen of the United States, who has worked (among other roles) as a merchant seaman, salvage master and marine consultant. Mr Fasold is the author of a book, published in 1989 in the United States, entitled "The Ark of Noah". The book contains a diagram of what is said to be the remains of Noah's Ark at the Site. Mr Fasold claims that his copyright in the book has been infringed by what he says are reproductions of this diagram in the publications. Mr Fasold's role as an applicant in these proceedings has been supported financially by Professor Plimer, and more recently, by the Australian Skeptics.
The second respondent, Ark Search Association Incorporated ("Ark Search Inc"), was incorporated on 25 June 1992 as an association under the Associations Incorporation Act 1991 (ACT). Ark Search Inc, according to its Treasurer, receives support primarily from members of the Christian community to further its purposes, which include investigating the Site to determine whether it contains the remnants of Noah's Ark. There was evidence that, on 10 March 1997, about one month before the hearing was scheduled to commence, the committee of Ark Search Inc resolved to wind up the company, in accordance with the procedures for the voluntary winding up of a company contained in the Corporations Law. It is not entirely clear what effect that resolution was intended to have (see Corporations Law, s.583(b)), but the parties were agreed that the resolution did not have the effect of staying the proceedings against Ark Search Inc. Accordingly, it was common ground that the applicants did not require leave to continue the proceedings against Ark Search Inc.
It is of some importance to the legal issues in this case that Ark Search Inc was not incorporated until 25 June 1992, after the most important events of which the applicants complain had occurred. The incorporation of Ark Search Inc was preceded by the establishment, in March 1991, of an unincorporated association known variously as the "Noah's Ark Foundation", "Noah's Ark Research Foundation", "Noah's Ark Research Project" and "Ark Search". The public meetings addressed by Dr Roberts, at which publications and tapes were sold, were conducted under the auspices of this unincorporated association, to which I shall generally refer as "NARF". Dr Roberts was described on NARF's letterhead and in other documentation produced by it, or with its authority, as the organisation's "Archaeological Research Consultant". Dr Roberts denied that he was a member of NARF. If this evidence is accepted, as I think it should be, it follows that no member of NARF is a party to these proceedings.
The Issues
The litigation has attracted considerable public attention, doubtless because it has been thought by some to be yet another contest in the legal arena between science and what is sometimes referred to as "creation science". References were made during the hearing to the famous Scopes trial, which took place in Dayton, Tennessee in July 1925. In that case, a local schoolteacher was convicted of violating the so-called Anti-Evolution Act 1974 of Tennessee, passed in 1925. That Act prohibited the teaching in public schools of "any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals". (The proceedings of the trial are reproduced in L.W. Levy (ed), The World's Most Famous Court Trial: State of Tennessee v John Thomas Scopes (Di Capo Press, New York, 1925)). The appeal to the Supreme Court of Tennessee, which upheld the constitutionality of the Anti-Evolution Act but overturned Scopes' conviction, is reported: Scopes v Tennessee 154 Tenn 105; 289 SW 363 (1927).
In more recent times, the Supreme Court of the United States has struck down State laws prohibiting the teaching of evolution in schools, or requiring the teaching of the theory of evolution to be accompanied by instruction in "creation science". The Supreme Court has regarded such statutes as violations of the Establishment Clause of the First Amendment to the United States Constitution, which forbids the enactment of any law "respecting an establishment of religion": Epperson v Arkansas [1968] USSC 204; 393 US 97 (1968); Edwards v Aguillard 483 US 578 (1986) (note that the Establishment Clause has been held to apply to the States). See also McLean v Arkansas Board of Education 529 F.Supp. 1255 (1982) (containing a brief history of "scientific creationism" in the United States); J A Villarreal, "God and Darwin in the Classroom: The Creation/Evolution Controversy" (1988) 64 Chicago-Kent LR 335; J F Francis, "Creationism v Evolution: The Legal History and Tennessee's Role in that History" (1996) 75 Tenn LR 753. Of course, the constitutional structure in Australia is different from that in the United States, although s.116 of the Constitution forbids the Commonwealth (but not the States) making any law for establishing any religion or for prohibiting the fair exercise of any religion.
Despite the historical comparisons and indeed the passions which the present case has plainly aroused, the issues to which it gives rise are relatively prosaic. There are two principal questions to be decided:
* The first major question is whether Dr Roberts has contravened the Fair Trading Acts of the States and of the Australian Capital Territory ("ACT"). These Acts provide that a person shall not, in trade or commerce,
engage in conduct that is misleading or deceptive or likely to mislead or deceive. The applicants contend, in substance, that Dr
Roberts misrepresented his qualifications and the nature and extent of his investigations at the Site. I set out later in this judgment
the particular passages in the lectures, tapes and publications on which the applicants rely to support their claims. The applicants
say that Dr Roberts' conduct took place "in trade or commerce" within the meaning of the Fair Trading Acts, and that they are entitled both to damages and to orders restraining Dr Roberts from repeating the misrepresentations in trade or
commerce. The claim against Ark Search Inc is based on the sale and distribution by it of the publications and tapes containing
the alleged misrepresentations. Ark Search Inc is said to have infringed s.52(1) of the Trade Practices Act (Cth) ("TP Act 1968 "), which prohibits a corporation, in trade or commerce, engaging in conduct that is misleading or deceptive, or likely to mislead
or deceive. Ark Search Inc is subject to the TP Act because it is a corporation incorporated in the ACT.
* The second question is whether Mr Fasold is entitled to relief under the Copyright Act (Cth) ("Copyright Act 1987 ") in respect of what he claims is an infringement of his copyright in his book. Mr Fasold claims that Dr Roberts and Ark Search
Inc infringed his copyright, by reproducing or authorising the reproduction of the diagram in a brochure and a newsletter and by
distributing or authorising the distribution of copies of the brochure and newsletter. Mr Fasold contends that he is entitled to
damages for the infringement of his copyright.
The respondents filed a defence and cross-claim. In the cross-claim they seek relief in relation to what was said to be unjustifiable threats by the applicants to pursue claims of breach of copyright. Since nothing was said in the respondents' submissions to support the granting of any relief on the cross-claim it is not necessary to consider it further.
Conduct of the Proceedings
Three further matters should be noted at the outset. First, these proceedings were commenced by the filing of an application by Mr Fasold and Professor Plimer on 21 December 1992. Therefore, a period of some four years elapsed before the proceedings were ready for trial. Moreover, the evidence suggests that the parties incurred very substantial costs in preparing the case for hearing.
I do not have complete information on the reasons for the delay or for the apparently unusual level of costs incurred by the parties. Even so, I think it fair to say that some of the delay and a significant proportion of the costs are attributable to the propensity of each side to prepare and file affidavits and voluminous documentary evidence, without always paying careful attention to relevance or to matters of form. A consequence of this approach was that much of the affidavit material was ruled inadmissible at the trial, or was simply not read by counsel. This had the advantage of shortening the hearing. Instead of continuing for the period of four weeks initially estimated by the parties, the trial lasted for seven hearing days. However, the rejection of a large volume of affidavit material does not eliminate the expense and delay associated with its preparation.
It is proper to record that I do not necessarily lay these difficulties at the feet of counsel or solicitors appearing or instructing at the trial. Some of the legal representatives only came into the proceedings at a late stage, and are not responsible for the affidavit evidence filed before their involvement. Moreover, counsel appearing at the hearing readily accepted that the issues had to be confined to the case as pleaded. Indeed, as the case progressed, the issues were narrowed. In particular, the way in which the applicants put the case based on misleading and deceptive conduct was considerably narrower than the affidavits filed in the proceedings might have suggested. Nonetheless, the parties must bear the primary responsibility, albeit not necessarily in equal proportions, for the unusual delay and expense in bringing these proceedings to finality.
Secondly, it should be apparent from what has been said thus far that the application seeks relief in respect of two quite distinct causes of action. The cause of action for breach of copyright is available (if at all) only to Mr Fasold. The cause of action founded on the Fair Trading Acts and the TP Act, although said to be brought on behalf of both applicants, in substance seeks relief that can only benefit Professor Plimer. While there is some overlap in the evidence relevant to each cause of action, it is not entirely clear that the test provided by the Federal Court Rules ("FCR") for the two claims to be joined in the one set of proceedings is satisfied: see FCR, O 6, r 2. However, the respondents did not suggest that the two claims should be heard separately and, in the event, they were heard together.
Thirdly, the principal claim made by the applicants, in relation to misleading and deceptive conduct, was based on the Fair Trading Acts of the States and of the ACT. Each of the Fair Trading Acts of the States confers jurisdiction on the Supreme Court of the State (or some other specified State court) to grant injunctive relief to restrain a contravention of the legislation. Although no reference was made to the point in the pleadings or in submissions, presumably the applicants invoke the jurisdiction conferred on the Federal Court by the Cross-vesting legislation of the States: see, for example, Jurisdiction of Courts (Cross-vesting) Act (NSW), s 4(1).
If a party to a proceeding in the Federal Court proposes to invoke the jurisdiction arising under a Cross-vesting law, the pleadings should identify the particular provision on which the party relies and the grounds on which the Cross-vesting law is invoked: FCR, O 10A, r 5(1)(a). Moreover, the party must seek directions as soon as practicable on whether the proceedings should be transferred under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): FCR, O 10A, r 5(1)(b). As far as I am aware, in the present case the requirements of the FCR were not complied with. Had they been, this may well have been a case which, by reason of its somewhat tenuous "federal" aspects, the Court might have considered appropriate to transfer to the Supreme Court of a State.
I should add that the High Court is currently considering the constitutionality of the Cross-vesting scheme, in a case in which special leave was granted to appeal from a decision of the Full Court of the Federal Court: see BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; special leave to appeal granted on 15 November 1996. In view of the conclusions I have reached, I need not address the consequences for the present proceedings should the High Court hold the whole or part of the Cross-vesting scheme invalid.
II. THE EVIDENCE
The Extent of Factual Disputes
As might have been expected, the evidence made it clear that there is an unbridgeable gulf between Professor Plimer and Dr Roberts, on what might be described (no doubt loosely) as philosophical issues. It is equally clear that there is considerable personal antipathy between them. In 1992, Dr Roberts commenced defamation proceedings against Professor Plimer that have not yet been resolved. The antipathy between Professor Plimer and Dr Roberts may account for the immoderate tone of some of the affidavit evidence, especially that filed on behalf of the applicants. In the event, as I have already indicated, a good deal of the affidavit evidence was ruled inadmissible.
Despite this background to the litigation, much of the evidence was ultimately not disputed. In part, this was because a good deal of the evidence was in documentary form. For example, the material containing the alleged misrepresentations was either in documentary form (the brochure and newsletter), or was recorded on videotapes or audio cassettes and thus could be transcribed accurately. Moreover, the financial records of NARF and of Ark Search Inc were in evidence, including its cash book and its statements of income and expenditure. There was no challenge to the accuracy of those records and, indeed, the accounts appear to have been kept meticulously by Mr Hannaford, the Treasurer of NARF and of Ark Search Inc. Accordingly, I am satisfied that the records and accounts accurately record the financial affairs and transactions of the two organisations.
It is nonetheless appropriate to say something about the evidence of the principal witnesses, notably Dr Roberts and Professor Plimer. Mr Walmsley, who appeared with Mr Vincent for the applicants, submitted that I should reject certain evidence given by Dr Roberts relating to his involvement with NARF, which organised the public meetings he addressed. (As I have noted, those meetings took place before Ark Search Inc was incorporated on 25 June 1992.) This evidence was material to the question of whether Dr Roberts had engaged in misleading or deceptive conduct "in trade or commerce", within the meaning of the Fair Trading Acts. Mr Walmsley also challenged certain of Dr Roberts' evidence relating to the claim for infringement of copyright. For his part, Mr Duncan, with whom Mr Radojev appeared for the respondents, submitted that I should take account of Professor Plimer's motives in instituting and continuing these proceedings. It was suggested that I should find that Professor Plimer's objective was in essence to "put creationism on trial" and that this is a reason to deny him any injunctive relief to which he might otherwise be entitled. I also make brief observations about the evidence of some of the other witnesses.
Dr Roberts' Evidence
The initial impression created by Dr Roberts in the witness box was that he was attempting to be careful and measured in his responses. He gave the appearance of being at pains to provide precise answers and took particular care to read closely documents about which he was being questioned. However, having had the opportunity to observe him throughout his evidence, I formed the view that his evidence on certain issues should be treated with caution. This does not mean that Dr Roberts' evidence should necessarily be rejected; rather, it is necessary to take into account what I regard as a propensity to filter his recollection or interpretation of events through his own perception of the issues in the case.
I think that Dr Roberts had identified what he saw as the critical issues in the case and, whether consciously or unconsciously, tailored some of his answers to advance his own interests on those issues. This was particularly noticeable in his attempts to distance himself from the activities of NARF. His reluctance to acknowledge a leading role within that group (even if not as a "member") in my view derived from his appreciation that the fund-raising activities of the group were likely to bear on the "in trade or commerce" point.
An example of Dr Roberts' reluctance on this issue can be given. He gave evidence that he had made no inquiries about the door receipts or sales at the public meetings he addressed. Indeed, he said that he had shown absolutely no interest in the subject. Yet he acknowledged that one of the objectives of NARF was to raise funds for investigations at the Site and that he wished to do his best to foster the project. The brochure itself, which was on sale at the Sydney meetings, stated that the "Ark Search project" was supporting the "work of archaeological research being undertaken by Dr Allen Roberts". Moreover, he had received a grant from a supporter in 1991 to meet expenses of his trip that year, and he was clearly a potential recipient of funds from NARF for the purpose of enabling him to undertake further investigations at the Site in 1992 and later years. Tapes of his presentations were on sale at the meetings, in addition to copies of the brochure and newsletter, portions of which he had written. In these circumstances, even allowing for the fact that Dr Roberts was not particularly interested in maximising his own financial rewards, I think it inherently improbable that Dr Roberts would have evinced no interest at all in the financial success of the meetings.
My impression of Dr Roberts' was reinforced by his unwillingness to acknowledge fully the role he had played in using or encouraging the use of the title "Dr". He was asked questions on this issue:
"And you were using the title, Doctor, throughout the course of giving these lectures, were you not?---It was used of me by others.
And it was used by you of yourself, was it not?---I don't remember calling myself Dr Roberts, Mr Walmsley."
Yet Dr Roberts had assisted in the preparation of the newsletter and brochure and he accepted that he had consented to his photograph appearing on the front of the newsletter. Advertisements were placed in newspapers to publicise the public meetings and these, too, contained Dr Roberts' photograph. Each of these documents - the brochure, the newsletter and the advertisements - described him as "Dr Allen Roberts" or "Dr Allen S Roberts", with the title "Dr" being prominently displayed. The inference is irresistible that Dr Roberts knew that he was to be so described and encouraged the use of the description. Moreover, as part of his presentation, recorded on the video and audio tapes, Dr Roberts gave an account of an event in which he referred to himself as "Dr Roberts":
"And a lady in England, when I was lecturing there to quite a large number of people, came up and said, 'Dr Roberts, would you like to hear something?' It's amazing how ordinary, everyday people can bring things to your mind often way ahead of the academics. We academics sometimes get a bit myopic, you know."
None of this necessarily indicates that the use of the title "Dr", whether by NARF or Dr Roberts, was misleading or deceptive. However, I think that Dr Roberts' reluctance to acknowledge his own role in the use of the title was influenced by his knowledge that an issue in the case was whether the title had been used in a manner that was misleading or deceptive.
In assessing Dr Roberts' evidence, I have borne in mind my strong impression that he is prone to interpret events or information consistently with his own belief system. For example, it is clear that Dr Roberts has long accepted what the Doctrinal Statement of his Church describes as the "inerrant" character of the Holy Scripture. In particular, he has long held the belief that the account in Genesis should be accepted as literally true. I am not concerned with Dr Roberts' beliefs as such; he is of course entitled to hold and express them. But the evidence shows that he is apt to rely on conclusions on factual matters reached by like-minded people in circumstances where a more inquiring mind would investigate the matters more critically.
A rather striking example is that at the public meetings Dr Roberts said that certain petrified wood, said to be found at the Site, had been carbon dated to 5,700 years, plus or minus 200 years. When asked about the carbon dating, he replied that Mr Wyatt, the author of a book on Noah's Ark, had conducted the testing. Mr Roberts continued:
"Yes, Mr Wyatt did have this carried out and he gave to me, and this was verbally done, an indication of the number of years, it was just a few thousand years, plus or minus as is often used, I understand, as a layman, and I was simply recounting to Mr Reinhardt Stark, the young man interviewing me, since he asked about it, that there had, as I understood it, been something of this kind carried out....
So you say that Mr Wyatt told you that the petrified wood had been carbon dated and that he told you that it was a few thousand years, is that right?---I'm not sure whether he said it was the petrified wood that he brings forward and is in several exhibits here, but it was on the front section, I understood, of the formation."
The reference to Mr Stark in this extract is to an interview given by Dr Roberts in late 1991, in which he had also stated that carbon dating had yielded a result of 5,700 years. It is true that Dr Roberts expressed reservations about carbon dating, but it is hard to see how what he had been told objectively supported his statements, either in the public meeting or in the interview.
The point is not whether Dr Roberts holds the beliefs he has put forward in his public presentations. I think he does. The point is that his interpretations of events are apt to be coloured by his own beliefs and attitudes. As I have said, this does not necessarily imply that Dr Roberts' evidence should be rejected. But it does suggest that some of his evidence should be viewed cautiously.
Professor Plimer's Evidence
Professor Plimer holds high academic qualifications, including the degree of Doctor of Philosophy from Macquarie University. He has taught geology and conducted research in that discipline in Australian universities since 1969. He has undertaken numerous consultancies and has an international reputation in his field. He has published over 100 scientific books and papers.
It is clear that Professor Plimer holds passionately to the belief that Dr Roberts' views are scientifically insupportable and that he (Professor Plimer) has a public duty to refute them. For this reason, Professor Plimer attended three of the public meetings addressed by Dr Roberts. He was asked to leave two of them. It is unnecessary to recount the circumstances in which he was asked to leave, beyond noting that he insisted on asking questions from the floor despite being told that he could submit written questions. When asked in cross-examination why he chose not to avail himself of that opportunity, Professor Plimer replied as follows:
"I chose not to because I was very concerned that the audience were being misled and deceived by the science presented at that meeting and as a senior academic I felt it was my duty to maintain a standard of scholarship and make a statement at that meeting."
Professor Plimer's zeal on the subject of "creation science" is reflected in his reply, when asked whether he attended his first public meeting (on 4 April 1992, in Melbourne) with an open mind. His response was that he went "to hear a totally new creationist on the block" and "to see how the audience was going to be misled and deceived". His zeal is also reflected in his actions. In April 1992, he registered in his own name the business name "Noah's Ark Research Project Services". He later instructed his solicitors to write to NARF, demanding that they not use the name Noah's Ark Research Project. He said that he took this step because he wanted to "stop obvious scientific misleading and deceptive behaviour".
Having regard to the way in which the issues were ultimately framed in this case and the conclusions I have reached, it has not been necessary for me to decide whether I should accept Professor Plimer's evidence on all matters addressed by him. Had it been necessary to do so, I would have had to consider whether Professor Plimer's zeal for his cause coloured his evidence. I should note, however, one matter. Professor Plimer said in cross-examination that Dr Bayruktutan, a geologist at Ataturk University in Turkey, had expressed certain views in private conversations that were at odds with what he (Dr Bayruktutan) had said publicly. Professor Plimer was not challenged on the accuracy of his account of these private conversations. Dr Bayruktutan did not give evidence in the proceedings, and thus had no opportunity to give his version of events. Whether the conversation took place in the terms recounted by Professor Plimer or not is not relevant to any issue in these proceedings and I make no finding concerning that conversation.
Mr Fasold's Evidence
Mr Fasold's role in this litigation is a little curious. On his own account, for a number of years he was "obsessed with [the Site]". He later became convinced "beyond a shadow of a doubt that [the boat-shaped formation at the Site] was Noah's Ark". Indeed, this was his position when the litigation commenced in 1992 and when he swore his principal affidavits in the proceedings during 1994.
Yet, by February 1995 Mr Fasold had discarded the beliefs he held so fervently and for so long and that had formed the basis for his book, first published in 1989. His change of heart came about shortly after he met Professor Plimer in 1994, first in the United States and later when they met in Turkey at the Site. Mr Fasold was paid by a German magazine, Stern, to participate in the visit to the Site. However, the motivation for his change of mind was not explored in the evidence, doubtless because it is irrelevant to the issues in the case.
I formed the strong view that Mr Fasold, who has experienced financial difficulties in recent years, has a strong commitment to maximising the returns from his book and from other endeavours associated with the Site. However, most of Mr Fasold's evidence was either non-contentious or was supported by contemporary documentation. I think his financial interest in the litigation provides a reason to scrutinise his evidence on disputed matters (such as the effect of his application under United States bankruptcy laws) carefully. In general, however, I have formed the view that Mr Fasold's account of events is broadly accurate and I have therefore accepted his evidence in relation to several matters on which he was challenged.
Mr Wyatt's Evidence
Ronald E. Wyatt is the author of a book entitled "Discovered: Noah's Ark!" published in 1989 by the World Bible Society of Nashville, Tennessee. This book, which is 91 pages in length and replete with biblical references, claims that there are reasons to "positively identify the remains of the large ancient boat within the boat formation [at the Site] as those of Noah's Ark" (p.12).
Mr Wyatt, who is apparently trained as an anaesthetist, filed two affidavits in the proceedings. I was informed by counsel that there were difficulties in securing Mr Wyatt's attendance for cross-examination, whether in person or by means of a video-link with the United States. It was agreed between counsel that Mr Wyatt's affidavits could be read, but that no point would be taken by the respondents about the absence of cross-examination.
Mr Wyatt's evidence principally relates to the investigations he claims to have made during the course of, or in consequence of, his numerous visits to the Site before and after writing his book. The significance of these investigations is that Dr Roberts, at the various public meetings which he addressed in 1992, referred to them, although there is a dispute whether Dr Roberts claimed to have personally undertaken investigations that had in fact been carried out by Mr Wyatt. In substance, it was not disputed for the purposes of these proceedings that Mr Wyatt had carried out the investigations referred to in his affidavits. The accuracy or significance of his findings are not matters that need be resolved in these proceedings.
Mr Midgley's Evidence
Mr Midgley attended the meeting at which the establishment of NARF was first discussed and on 27 April 1991 was asked by Dr Roberts to build a model to depict Noah's Ark. In consequence of the request Mr Midgley prepared a series of drawings, one of which was reproduced in a brochure and newsletter published under the auspices of NARF. It is this drawing, including the annotations to it, that is the subject of Mr Fasold's claim to copyright.
I recount later the circumstances in which Mr Midgley prepared his drawings. I formed the view that, although I do not think Mr Midgley was deliberately attempting to mislead the Court, some of his evidence was not reliable. In particular, I have been unable to accept his statement that he did not take much notice of the diagram appearing at p.291 of Mr Fasold's book when preparing his own drawings.
III. THE FACTS
Dr Roberts' Background
One of the issues in this case was whether Dr Roberts misrepresented his qualifications and training in the lectures and the tapes of those lectures. It is therefore necessary to consider his educational background and career. Dr Roberts was born in 1932 and is now 65 years of age. He trained at Wagga Teachers' College as a primary school teacher, graduating in 1951. He completed a Bachelor of Arts degree in 1962 at the University of New England, in Armidale, N.S.W. He completed ten units while qualifying for that degree, majoring in English and History, with a sub-major in Geography and single units in Psychology and Education.
In 1964, Dr Roberts completed a Master's degree at the University of New England. According to his affidavit evidence, the degree was subsequently renamed as a Master of Letters in 1992, but the evidence did not make clear its original designation. In 1976, Dr Roberts was awarded a Master of Education degree, with special merit, from the University of Sydney. He is a member of the Australian College of Education.
In February 1977, Dr Roberts was admitted as a candidate for the Doctor of Christian Education program offered by an institution
then known as Freedom University, located in Orlando, Florida. (The Institute in 1992 had a letterhead which suggested that it had
then become known as "Freedom Seminary
* Freedom University
* Freedom Institute".) Dr Roberts said in evidence, and I accept, that the essential purpose of Freedom University was to train ministers,
missionaries and Christian educators and counsellors. In order to obtain the degree of Doctor of Christian Education, according
to the records of Freedom University in evidence, a candidate enrolling in 1977 had to complete the equivalent of at least 30 semester
hours in the program.
Dr Roberts was assigned to a "doctoral internship", given a weighting of twelve semester hours. This work was satisfactorily completed, and he was then assigned a doctoral dissertation, with an approved subject entitled "The Teaching of Absolute Christian Values in Australian Primary Schools". His dissertation was reviewed by a committee of five doctoral faculty members. The dissertation, which was accorded a weighting of six semester hours, was ultimately graded and approved in December 1978. According to Dr Roberts, the thesis was related to similar work for which he had previously been allowed credit at Sydney University. The remaining twelve semester hours (required to complete the total of 30 hours) comprised a "doctoral personalised study project in Christian Education".
During Dr Roberts' 22 month period of enrolment at Freedom University, he provided monthly reports of both his internship and the progress of his dissertation. According to the records in evidence, Dr Roberts completed the required semester hours with honours. The degree of Doctor of Christian Education was conferred on him on 20 January 1971, although he was not present at the conferral ceremony.
Material was in evidence from the Department of Education, Florida, which indicated that religious schools in Florida, including Freedom University, are allowed to offer degrees, and graduates are permitted to use the academic titles conferred by those schools, provided the institution complied with the law of Florida. Freedom University falls within paragraph (e) of the relevant provision under Florida law:
"(e) A religious seminary, institute, college or university which offers only education programs that prepare students for a religious vocation, career, occupation, profession, or lifework, and the nomenclature of whose certificates, diplomas, or degrees clearly identifies the religious character of the educational program."
Accordingly, as far as the law of Florida is concerned, it appears that Dr Roberts is entitled to use the academic title of "Doctor", by reason of having been awarded the degree of Doctor of Christian Education by Freedom University.
Dr Roberts commenced his working career as a primary teacher. From 1952 until 1963, he taught primary and secondary school students in various areas of New South Wales. Among the subjects he taught was history. From 1963 until 1969, he taught at Wollongong Teachers' College. He was then appointed as the foundation head of the English Department at what was then known as Westmead Teachers' College. He remained in that position for about a decade, but took leave in order to complete his doctorate at Freedom University.
Dr Roberts was the founding principal of the Australian College of Christian Education, which he described in evidence as a "Bible College". He took up that position in 1982 and continued in the role until 1990. The Bible College was conducted from premises in Baulkham Hills, a suburb of Sydney. Its principal function was to train people who wished to study as missionaries. For some time, Dr Roberts has also been the Australian Honorary Director of a United States Christian Curriculum Organisation named "Accelerating Christian Education".
Dr Roberts has been continuously involved in Church activities since the age of nine, which he describes as "the time of [his] conversion". He has been a Sunday School teacher and preacher for over 40 years in Methodist, Anglican and Baptist Churches. Dr Roberts has been a Church and Christian Convention speaker in Australia and other countries and has undertaken a "teaching/preaching/lecturing ministry" on various religious subjects in New Zealand, the United States, Fiji, Great Britain and France. He is an ordained Christian minister and is the Pastoral Elder at the Hills Bible Church at Baulkham Hills, where he is the chairman of the controlling body of the Church. The Doctrinal Statement of the Church, which Dr Roberts annexed to one of his affidavits, includes the following statements:
"1. The Holy Scripture: We believe that the thirty-nine books of the Old Testament and twenty-seven of the New Testament, each book in its entirety, to be the Word of God, supernatural, unique, verbal and plenary in its inspiration; wholly without error (inerrant) and altogether sufficient as our only infallible and authoritative rule of faith and practice.
...
6. Creation: We believe in the Genesis account of creation, that it is to be accepted literally, and not allegorically or figuratively; that man's creation was not a matter of evolution or evolutionary change of species, or development through interminable periods of time from lower to higher forms; that all animal and vegetable life was made directly and God's established law was that they should bring forth only 'after their kind'. (Gen. 1:1; Ex. 20:11; John 1:3; Col. 1:16,17; Gen. 1:26,27; 2:21-23; 1:11; 1:24)."
Dr Roberts stated that he became interested in the "religious background, philosophy and geographic setting of Noah's Ark" in about 1960. Since then, he has read a large number of books and articles on the Ark and its possible location, including biblical sources and commentaries on these sources. He has spoken on the subject of the Ark and the "scriptural basis" for its possible location in Churches in Australia as well as some Bible colleges and schools. Dr Roberts described the significance, as he sees it, of the possible existence of Noah's Ark as follows:
"The implications of the Ark's existence and the flood's occurrence are important not only for religion but for science and history generally but also for the authenticity of the Old and New Testaments. The implications of the Flood and the Ark and their relationship to the Gospel and the Second Coming of Christ are important to the belief of the Hills Bible Church which are brought out in the New Testament."
It was not suggested to Dr Roberts that he did not sincerely hold these views and I accept that he does. Of course, this does not mean that everything he might say in pursuance of those beliefs is well-founded.
Mr Fasold's Visits to the Site and his Diagrams
Mr Wyatt, the author of the book "Discovered: Noah's Ark!", first visited the Site in 1977. In 1984, he again visited the Site, in company with Colonel James Irwin, a former astronaut. During this visit Mr Wyatt used a metal detector to undertake scans of the formation and estimated its length at 512 feet. Mr Wyatt formed the view that this roughly corresponded to the biblical length of 300 cubits for Noah's Ark, referred to in Genesis, 6:15.
In late 1984 or early 1985, Mr Fasold made telephone contact with Mr Wyatt. There was some disagreement between Mr Fasold and Mr Wyatt as to the content of their conversations, but it is not necessary to resolve the conflict. It is common ground that in March 1985, Mr Wyatt and Mr Fasold travelled to Turkey to visit the Site. On this occasion some tests were done using a metal detector and further measurements were taken of the formation. In May 1985, Mr Fasold prepared a drawing incorporating some of the measurements that had been taken at the Site.
In June 1985, Mr Fasold made a second visit to the Site. Again, he was accompanied by Mr Wyatt and, indeed, met Mr Wyatt's expenses. They were joined by Dr John Baumgardner who, according to Mr Fasold, was a geophysicist from the Las Alamas National Laboratory in New Mexico. On this occasion, Mr Fasold used a frequency generator and a metal detector. He obtained readings which, according to his evidence, suggested "regularly spaced iron fittings in a vertical structure". According to Mr Fasold, the lines he detected were ferrous elements and not simply soil alloys.
During the period from June 1985 to August 1985, Mr Fasold raised funds to finance his next expedition to the Site. His expenses included USD10,000 for the hire of what was described as an SIR System - 3 radar. At about this time, Mr Fasold began writing the text for a book, which was ultimately published in the United States in 1989 under the title "The Ark of Noah".
In June 1985, Mr Fasold prepared a diagram on tracing paper, which he entitled "Preliminary Survey of Remains - Wyatt/Fasold Expedition" (Ex H). He had prepared a very rough drawing in his notebook during his visit to the Site in March 1985. He prepared the diagram using measurements he had made on site. The diagram was endorsed with a notation that Mr Fasold claimed copyright in it and included notes in English, together with some words in Turkish. Mr Fasold subsequently prepared some blue-print copies of this diagram, making some changes and additions to this version (Ex A). Mr Fasold then made a further copy of the blueprint version, reducing it to A4 size, and traced the reduced copy onto another sheet (Ex DFF19). This tracing reproduces the diagram appearing on the blueprint copy, and has different notations including some additional words in Turkish.
At about this time, Mr Fasold prepared a report for submission to the Government of Turkey, apparently because the permit issued to him by the Turkish authorities to conduct investigations at the Site required him to provide copies of any reports resulting from his investigations. Mr Fasold prepared the text of the report in English and had it translated in Turkish. The English version was not in evidence, although the Turkish version was (Ex B). The report had attached to it a plan in the form of the reduced tracing (Ex DFF19), to which I have previously referred. The following is a reproduction of the diagram annexed to the report:
Mr Fasold delivered nine copies of the report to various ministries in Turkey. He forwarded another four copies to Turkish archaeologists. The evidence does not disclose what responses, if any, Mr Fasold received from the ministries and the Turkish archaeologists.
Mr Fasold again visited the Site in August 1985 and May 1986. However, on each of these occasions he was unable to make any further investigations using instruments, because of disturbances in the area involving the Kurdistan National Liberation Front. He returned to the Site in June 1986 and performed a radar survey, having previously undertaken an eleven day course in the use of certain radar equipment he had arranged to hire.
On 20 June 1987, the Turkish Government dedicated the Site as part of Noah's Ark National Park. Mr Wyatt attended the ceremony at the invitation of the Governor of Agri Province. At about this time Mr Wyatt conducted a radar scan at the Site. Later in the year construction began on a visitors' centre near the Site.
Prior to the institution of the present proceedings, Mr Fasold made further visits to the Site. These included visits in November 1987 (with Professor Bayraktutan of Ataturk University in Erzurum, Turkey), July - August 1988 (in company with Dr Baumgardner and Professor Bayraktutan), June 1990 and June 1991. He does not appear to have conducted investigations on these occasions, although he provided advice in relation to an extensive core drilling program undertaken during the 1988 expedition by Professor Bayraktutan and Dr Baumgardner.
In 1988, Mr Fasold completed the manuscript of his book. It was first published in the United States on 13 March 1989, by Wynwood Press, New York, under the title "The Ark of Noah". The book was also published in 1990 in the United Kingdom by Sedgwick & Jackson, under the title "The Discovery of Noah's Ark". The UK edition of the book records that copyright is held by Mr Fasold. The text of each publication is identical and includes, at p.291 of the text, a diagram which is derived from the diagram included in Mr Fasold's 1985 report to the Turkish government. Mr Fasold stated (and I accept) that he prepared the diagram which appears at p.291, by undertaking the following steps:
* he photocopied the diagram appearing in the report and blanked out some of the writing on the bottom of the copy and certain other
details;
* he then made a photocopy of this version of the diagram and typed in some additional lines at the bottom of the document and added
some further details; and
* he then photocopied the amended document and included it in the manuscript, which is reproduced in the published work.
The following is the diagram as it appears at p.291 of the published work, together with a note by the author:
According to Mr Fasold, the Turkish words "Nuh' Un Gemisi", appearing in the top left-hand corner of the diagram, mean "Noah's Ark".
Dr Roberts' 1990 Visit to the Site
In late 1989, Dr Roberts telephoned Mr Wyatt to express his interest in the latter's work at the Site. Mr Wyatt later sent to Dr Roberts copies of the results of his sub-surface radar studies, metal detector work and laboratory analysis of specimens. In due course, arrangements were made for Dr Roberts and Mr Wyatt to meet at the Site in August 1990. The planned meeting did not take place, but Dr Roberts spent several days at the Site in that month.
During his stay, Dr Roberts made some measurements of spaces between the rock formations, examined rock samples and took photographs. He noticed deposits of "what appeared to be pitch", which he regarded as "primary evidence confirming the description of Noah's Ark in the book of Genesis". He also visited an area near the Site, containing "drogue stones", which Dr Roberts considered could have been anchor stones from a large boat. In March 1991, Dr Roberts arranged for the "pitch" samples to be tested by an industrial chemist, apparently with inconclusive results.
Noah's Ark Research Foundation
In the first part of 1991, a number of people to whom Dr Roberts had spoken about his activities in Turkey arranged to meet. According to Mr Ronald Edwards, who later became the chairman of NARF, these people shared the aim of publicising the existence of the boat-shaped object at the Site in Eastern Turkey, which might be the remains of Noah's Ark and to encourage further investigation into the Site and its conservation and development. (Mr Edwards swore an affidavit, but was not cross-examined. He resigned as chairman of NARF in August 1992 because, by that date, he had formed the opinion that the boat-shaped object at the Site was a natural formation, and not a man-made object.)
On 21 March 1991, the inaugural meeting of what the minutes described as "The Noah's Ark Foundation" took place in a building located at the Bible College in Baulkham Hills. Dr Roberts chaired the meeting, which was attended by about 20 people. He gave a presentation, with slides, of his observations at the Site. The participants at the meeting, some of whom were previously known to Dr Roberts, agreed that it would be necessary to form some kind of association to carry out their aims. The result was the formation of the Noah's Ark Foundation Steering Committee, which met on 18 April 1991 and established a number of sub-committees, each with its own Chairman.
On about 23 April 1991, Dr Roberts prepared an itinerary for his proposed visit, to the United States, the United Kingdom, and Turkey in June 1991. The stated purposes of Dr Roberts' visits were to meet Mr Wyatt in Nashville, Tennessee, to review, plan and examine research samples; to meet in London with Mr Wyatt and representatives of a British corporation to encourage the corporation to consider providing financial assistance for development of the Site; to attend the Site with Mr Wyatt for a "summit conference" with representatives of the Turkish Government and Turkish Universities; and to undertake research and preparation for a dig, leading to a publication by Mr Wyatt and himself.
The Public Relations Committee of NARF, chaired by Mrs Valerie Hill, met on 26 April 1991. At that meeting, attended by about 10 persons, Dr Roberts outlined his plans for his trip to Turkey which, according to the minutes, was designed to clear the way for a dig the following year. There was discussion at the meeting concerning a lecture tour to publicise work on the Site and the desirability of preparing a video. The Public Relations Committee also decided that an information folder should be prepared. According to Mrs Hill, the intention was to provide information on the objectives of NARF and on proposals for investigation of the Site.
A document was prepared, although a number of versions were apparently brought into existence. One of the versions was in evidence (annexed to Mr Midgley's affidavit). This document refers to "exciting information" having been received regarding the formation at the Site. It specifies the objectives of the Noah's Ark Research Foundation as follows:
"a) To establish, wherever possible with independent technical analysis, whether the 'formation' at the Akyayla Site Eastern Turkey, IS or IS NOT the NOAH'S ARK of the scriptures.
This may involve investigation and analysis of other artefacts and/or formations in the surrounding locale or elsewhere.
b) To bring out the significance of this discovery and research as relating to history, science and religion.
c) To make the findings widely known for the benefit and promotion of Research and Education in the above disciplines of knowledge in local, national and international communities."
The page containing the objectives bears a notation "(c) COPYRIGHT. ALLEN S. ROBERTS 1991". The evidence does not make clear to what extent, if at all, this document was distributed. However, the statement of the objectives is consistent with other evidence and in my view reflected the general understanding of the founders of NARF.
The steering committee met again on 10 May 1991. Once more Dr Roberts was present, and on this occasion gave a report on the investigations at the Site that had been undertaken by Mr Wyatt. He defended Mr Wyatt against criticism that had been made of his (Mr Wyatt's) work. Later in the meeting, Mr Edwards raised the question of a budget for Dr Roberts "for the coming trip". Dr Roberts gave details of his proposed trip and suggested a budget, including air fare and materials, of $10,000. The meeting discussed the possibility of donations to the association becoming deductible for income tax purposes. Arrangements were made for business cards to be printed, so that Dr Roberts could take them on his forthcoming trip.
On 14 May 1991, Mr Edwards forwarded a letter on behalf of NARF for circulation to people who might be interested in the project. The letter was as follows:
"Dear FRIEND OF THE FOUNDATION,
We have come to the stage of forming the Foundation where funds are needed if we are to proceed further.
There is unanimous agreement amongst the Steering Committee that we should not go to the public (Christian or Secular) until Dr Allen Roberts returns from his overseas trip. Any public announcement should include a programme for further excavation of the Akyayla site which will provide conclusive evidence, that the object is or is not Noah's Ark.
Approval from the Turkish Government for a comprehensive transverse 'dig' is being sought by Allen and Ron Wyatt on his coming trip. This 'dig' would provide the needed conclusive evidence.
The transverse dig and all it involves would form the basis of our appeal to the public for funds. It would be a positive and specific proposal that even the sceptics would find hard to criticise.
To cover the costs of Allen's trip and the incidental expenses incurred so far, and planned, we ask you to give what you can.
All donations will be kept confidential at this stage.
Once the Foundation is approved and Membership Fees have been finalised I will discuss with each of you personally the level of financial involvement you would like to maintain.
We are confident that funds will be forthcoming to cover Allen's trip (approx $10,000:00) but are hoping we can raise $15,000:00 at this stage."
On 17 May 1991, Dr Roberts wrote to the Turkish Consul-General in Sydney and to the Turkish Ambassador in Canberra. Each of these letters was written on the letterhead of "Noah's Ark Research Foundation Project". The letterhead identified Mr Edwards as chairman of the foundation steering committee and referred to Dr Roberts as "Archaeological Research Consultant". The return postal address printed on the letterhead was Dr Roberts' home address. The letters sought assistance in developing "an archaeological site which could be one of the most important in the world today."
On 29 May 1991, a member of the initial group, a Mr Russell, made a donation of $10,000 for the purposes of providing financial assistance for Dr Roberts' planned trip to the United States and Turkey. The gift was deposited in the NARF's bank account and recorded in the cash book maintained by Mr Hannaford, the Treasurer. The sum was immediately paid out to Dr Roberts by cheque from the NARF's account.
Dr Roberts' 1991 Trip
In June 1991, Dr Roberts flew to the United States and visited Mr Wyatt in Nashville, Tennessee. While in Nashville, Dr Roberts examined objects which Mr Wyatt claimed to have found at the Site. These included objects which appeared to Dr Roberts to be petrified laminated wood, animal hair and fossilised animal dung. Mr Wyatt provided Dr Roberts with copies of laboratory tests which had apparently been performed on certain items.
Thereafter, Dr Roberts flew to the United Kingdom, where he was met by Mr Wyatt. As I have noted, Dr Roberts intended to hold discussions with a large British corporation with a view to securing funds for further investigations of the Site. It is unnecessary to deal with the evidence on this topic in detail. It is curious, however, that despite the somewhat optimistic tone of letters written by Dr Roberts to the corporation and to others (including his supporters in Australia), no letters from the corporation were adduced in evidence and there was no independent evidence to suggest that the corporation was seriously entertaining the prospect of supporting the investigations.
Dr Roberts travelled to Turkey and to other places later in June 1991. He seems to have spent several days at the Site, during which he took photographs and collected samples of what he described as "artefacts". He also found an object which appeared to him to be the tip of an animal antler. He did not use any equipment on this visit.
Meeting with no success in his efforts to persuade the Turkish Government to allow him to excavate the Site, Dr Roberts returned to the United Kingdom. In late August 1991, he was notified by the Turkish Embassy that a meeting had been arranged with officials in Ankara. Dr Roberts and Mr Wyatt travelled to Turkey and attended meetings on 28 and 29 August 1991. On 30 August 1991, Dr Roberts and Mr Wyatt set out by bus from Erzurum in eastern Turkey to visit an archaeological site (not the Site itself). En route to Bingal, they were kidnapped by the Kurdish Liberation Army and held hostage in the mountains for three weeks. Following his release in late September, Dr Roberts returned to Australia to considerable media interest in his kidnapping.
NARF's First Newsletter
In December 1991, NARF distributed a newsletter to its members and, I infer, to others. The newsletter invited interested persons to provide financial support for the work of the Noah's Ark Research Project. It described the project as
"an Australian initiative to support further scientific and historical investigation of the great boat-shaped formation in the mountains of Ararat, and the publishing of the findings of the investigation across the world."
The newsletter stated that a great deal of preparation was required for "the return trip being planned by Allen Roberts and Ron Wyatt and their team of specialists in June 1992". It also stated that "[a] speaking tour is being planned in centres across Australia in the early months of 1992 when Dr Roberts is looking forward to sharing current information". The newsletter included a photograph of Dr Roberts under the heading "MAN WITH A MISSION". He was identified on the cover of the newsletter as the project's "Archaeological Research Consultant" and his degrees, in abbreviated form, were listed beside his name.
A letter dated 12 December 1991, signed on behalf of Mr Edwards as Foundation Project Chairman by the Deputy Chairman, Reverend Farr, was also sent to members and others. The letter included the following passages:
"We wonder in awe if God is allowing the Ark to be properly researched and displayed to an unbelieving world, which is caught up in sin 'as in the days of Noah'.
...
It is planned that Allen Roberts and Ron Wyatt and their team will return to the site in June 1992 to initiate a preliminary dig, hopefully on the upper end of the structure, the prow end. It is deteriorating rapidly and the first job is to protect it with a covering structure. They will then take some of the veneer of mud off and see what they can find between the timber ribs."
The Brochure
At about this time, a suggestion was made by one of the members - the evidence does not establish which of them - that NARF should prepare an information booklet. The first draft of this document, which was referred to at the hearing as the "brochure", was prepared by a Mr Greatbatch, described in the document as a member of the executive of Ark Search. The first draft was given to Dr Roberts and to Mrs Hill. Each rewrote portions of the text. The brochure was in the final stages of preparation in April and early May 1992. At that time, Dr Roberts was out of Sydney on the lecture tour, which had commenced in Adelaide on 1 April 1992. On two occasions Mrs Hill faxed Dr Roberts' drafts of the brochures and had conversations with him about the drafts. Mrs Hill collected printed copies of the brochure on 15 May 1992 and immediately took the print run to a hall in Baulkham Hills, where Dr Roberts was speaking to a public meeting. Copies of the brochure were sold at that meeting and at a meeting held the following evening in Sydney.
A copy of the brochure (but not an original) was tendered. The brochure is 28 pages in length. Its title is "IF THIS IS NOT NOAH'S ARK, THEN WHAT IS IT?", and the words "Ark Search" appear on the cover. The cover also has a photograph of Dr Roberts, next to a photograph of the Site. A second photograph of Dr Roberts appears on the first page. He is described on the first page as "Dr Allen Roberts, archaeological research consultant for ARK SEARCH". The second page has the following notation:
"Compiled by
ARK SEARCH*
1992
Published in conjunction with an
Australia-wide speaking tour
by Dr. Allen Roberts.
ARK SEARCH
Box 299
Sans Souci NSW 2219
(c)Copyright Allen S. Roberts
All text and illustrations in this
book are the property of, or are used here
by permission to Allen S. Roberts. No part
may be reproduced without written permission
*ARK SEARCH is the registered name of
the body which formerly worked under
the interim title of The Noah's Ark
Research Project. All lectures and related
material presented under the interim title
remain the property of ARK SEARCH or its
representatives."
It is sufficient at this stage to note several features of the brochure, although it will be necessary to refer to portions of the text later. On p.11 a drawing is reproduced as follows:
The text at p.11 is as follows:
"Diagram shows iron readings from the Eastern Turkey site. Measurements were detected by sub-surface interface radar scan; molecular frequency scanner and pulse induction readings used by Fasold, in 1985/6 and reported to the Government of the Republic of Turkey.8 Diagram above drawn by W.B. Midgley, 1992 using published data."
Footnote 8 refers to Mr Fasold's 1985 report to the Turkish Government which was, of course, in Turkish. Other footnotes in the brochure refer to Mr Fasold's book,"The Ark of Noah".
Page 24 of the brochure contains a summary, including the following passage:
"This publication records succinctly what has been done and what has emerged as evidence at the Akyayla site. It is a kind of history of the site. Whilst Dr Roberts has been personally engaged in the recent on-site research, this publication presents evidence which has been derived from the work of many people over a number of years."
The summary is followed by an "Academic profile [of] Dr Allen S. Roberts B.A., B.Litt., M.Ed., D.C.E., M.A.C.E.". The "profile" includes the following passages:
"The following overview of Dr. Robert's academic background indicates something of the intellectual discipline his involvement is contributing to the search and to his particular role in carefully recording the investigations and findings. To those who have enquired, however, Dr Robert's response has been that academic qualifications are not really the issue - he points out that the evidence speaks for itself - as he says, 'A goat herd discovered the Dead Seas Scrolls'.
...
Dr. Roberts chose to complete his doctoral studies with Freedom University, Florida U.S.A. His dissertation involved Australian educational history focussing on the analysis and implication of values endorsement in government and non-government primary education from early colonial times to the 1970s, sections of which have been published several times.
...
Further information may be helpful to those unfamiliar with the wide choices offered by the American system of education - Freedom University is one of the many independent institutions of high standards across the United States which are deemed officially acceptable, without the kind of registration that brings government control. Two of the most prestigious of these are Yale and Harvard. Freedom University has this independent status under Statute 245 of the Florida State Board of Independent Colleges and Universities."
The errata in the brochure correct the reference to "B.Litt.", stating that it should read "M.Litt.". The initials "M.A.C.E." stand for Member of the Australian College of Education.
I infer that Dr Roberts either wrote or specifically approved the text of the academic profile. It is to be noted that the text does not specifically refer to the Christian education component of Dr Roberts' dissertation. Moreover, on one view of it, the text implicitly makes a not unfavourable comparison between the academic standards at Freedom University and those prevailing at Yale University and Harvard University.
Finally, the brochure invites readers to assist the work of Ark Search by making donations. It also invites them to purchase a "[v]ideo update Lecture tour 92...summarising findings and developments to date" and an audio cassette of the "Australian Tour Lecture" of Dr Roberts.
Preparation of the Drawing
It will be seen that the drawing reproduced in the brochure closely resembles the diagram appearing at p.291 of Mr Fasold's book. The drawing appearing in the brochure was prepared by Mr Midgley, who had attended the first meeting at which the establishment of NARF was discussed. On 27 April 1991, Mr Midgley was asked by Dr Roberts to design and build a model "to depict what might have been Noah's Ark". Dr Roberts gave Mr Midgley, who had never been to the Site, photographs of the Site.
Mr Midgley went about his task by consulting a number of books and articles, including the books written by Mr Wyatt and Mr Fasold. It is not entirely clear whether Mr Midgley used the UK edition or the US edition of Mr Fasold's book, although it would seem from his affidavit that it was the UK edition that was made available to him. Nothing appears to turn on this and, indeed, in Mr Midgley's cross-examination, he was referred only to the US edition. In any event, Mr Midgley, when contemplating constructing a model of Noah's Ark, formed the view that Mr Fasold's book provided, over about 35 pages, the most detailed measurements of the features at the Site, including details of the "internal structure" of the Ark. Mr Midgley decided to use Mr Fasold's measurements as the basis for a drawing, which in turn would be used for a model.
Mr Midgley initially prepared two versions of his drawing. He claimed that he "did not take much notice of [Mr] Fasold's diagram [on p.291]" because it presented only a few, incomplete measurements. Mr Midgley gave a copy of the second draft of his diagram to Dr Roberts and Mrs Hill. He then offered to prepare a further drawing for inclusion in the "folder" which was being prepared for the lecture tour. He went about this task by preparing a series of additional drawings, each varying in some respects from its predecessor. One of these drawings (not the last in the series) was sent to Dr Roberts and Mrs Hill. It was the version which was reproduced in the brochure and newsletter. The version reproduced in the brochure and newsletter was accompanied by printed notations which had been handwritten by Mr Midgley on his various drafts.
NARF's Second Newsletter
NARF published a second newsletter for distribution and sale during the lecture tour arranged for April and May 1992. The document, which was referred to at the hearing as "the newsletter", is headed "Noah's Ark Research project newsletter" and is dated 30 March 1992. It is four pages in length. The first page has a photograph of Dr Roberts and a heading in bold letters as follows:
"Do YOU think that this huge mud-covered, boat shaped formation in Eastern Turkey is the ark of Noah described in the Old Testament?"
The front page of the newsletter also includes the drawing reproduced in the brochure, with two modifications. First, the notes to the drawing have been rearranged, presumably for ease of presentation. Secondly, an additional note has been added as follows:
"This diagram was drawn for the Project by W.B. Midgley from sub-surface interface radar scan data from the Eastern Turkey site. The readings were taken by marine salvage expert and former merchant navy officer, David Fasold. All measurements taken from Molecular Frequency Scanner and Pulse Induction readings - 1986."
Much of the material contained in the first two pages of the newsletter is identical to that contained in the brochure (which was actually printed later). Mrs Hill gave evidence, which I accept, that this material was given to her by Dr Roberts, although she said that some of it was taken from an information folder prepared in 1991 with Dr Roberts' assistance. Mrs Hill wrote or compiled most of the material appearing in the third and fourth pages of the newsletter, except for a report by Mr Edwards, as Chairman of NARF. Mr Edwards (whose photograph appears on p.3) notes in the newsletter that NARF is expecting approval of its application for incorporation of the association in the ACT and requests donations for the exploration work of the Foundation to be undertaken at "what is perhaps the most dramatic archaeological site in the world". Mr Edwards expresses his belief that membership fees and donations will be tax deductible, presumably after incorporation. The newsletter includes a form to be completed by those wishing to donate to NARF.
The final page is headed "NATIONAL SPEAKING TOUR" and states that "Dr Roberts and Chairman, Ron Edwards will tour the capital cities of Australia prior to Dr Roberts' return to the mountains of Ararat". The newsletter gives the proposed dates and venues of meetings in Adelaide (1, 2 April 1992), Melbourne (3, 4 April 1992), Hobart (9 April 1992), Brisbane (29, 30 April 1992), the ACT (1, 2 May 1992), Perth (8, 9 May 1992) and Sydney (15, 16 May 1992).
The Public Meetings
The public meetings, at which Dr Roberts made presentations, took place on the dates referred to in the newsletter. In addition, a meeting took place at Parkes in New South Wales on 8 June 1992. Much of the organisation for the tour was undertaken by Mr Edwards, in conjunction with co-ordinators resident in each city.
A videotape of Dr Roberts' presentation at the first Adelaide meeting was in evidence, as was a transcript of that presentation and the question time that followed. An audio cassette, together with a transcript of what was recorded on the cassette, were also in evidence. Dr Roberts' prepared presentation recorded on the videotape is in substance the same as that recorded on the audio cassette. However, the questions and answers are different, indicating that the audio cassette records proceedings at a different meeting, probably the second Adelaide meeting. In any event, no videotapes, audiotapes or transcripts of presentations at other meetings were tendered, although reference was made to their existence at the hearing. Professor Plimer attended three meetings (Melbourne, 4 April 1992; Hobart, 9 April 1992; and Sydney, 16 May 1992). His evidence was that Dr Roberts' prepared presentation on each occasion was essentially the same and that any variations were very minor. Dr Roberts did not give evidence to the contrary. Accordingly, I find that the presentations made by Dr Roberts at the Adelaide meetings were repeated, with very minor variations, at each of the subsequent meetings.
The meetings were advertised in the press. The financial records of NARF showed that the sum of $7,779 was spent on advertising and publicity during the period 29 May 1991 to 30 June 1992. The bulk of this amount was spent on newspaper advertising for the meetings. The only advertisement in evidence was that for the Sydney meeting, which appears to have been placed in the Telegraph Mirror. It is important to stress that the applicants do not allege any misleading conduct in relation to the advertisements. However, the advertisement shows the way in which the Sydney meeting was presented to the public and the admission charges that were to be paid by those attending. The version in evidence cannot be satisfactorily photocopied, but the text was as follows:
"ARK SEARCH
is proud to present
Dr. Allen Roberts
B.A., B.Litt., M.Ed., D.C.E., M.A.C.E.
* Large boat-shaped object found in Turkey
* Is this Noah's Ark?
* The Implications!
* Dramatic evidence!
Hear Dr. Roberts in Sydney
Friday 15th May 7:30 pm
Cropley House, Watkins Rd., Baulkham Hills
Saturday 16th May 7:30 pm
Lyceum Theatre, 220 Pitt St., Sydney
Admission: Adults $4, Concession $2, Families $10
Tickets available at the door.
Booklets, Video and Audio Tapes on sale.
Further information: John Farr Ph: (02) 546 5498"
The advertisement also included a photograph of Dr Roberts. I infer that similar advertisements were placed to publicise the other meetings. Flyers containing a similar text, but with some additions, were also distributed.
NARF paid for Dr Roberts' air tickets, to travel to the various meetings throughout Australia. In addition, his accommodation was provided, although Dr Roberts appears to have stayed at the homes of supporters in each of the cities. Dr Roberts also received from NARF a total of $600 by way of reimbursement for telephone expenses. These expenses were not exclusively attributable to the meetings, but included international calls made by Dr Roberts.
Admission fees were collected from those attending the meetings. Professor Plimer estimated that about 500 were present at the Melbourne and Hobart meetings he attended, and about 400 at the Sydney meeting. Dr Roberts thought about 1,000 attended in Adelaide, although I think it likely to be an overestimate. NARF's records show that the attendance at Melbourne on 16 May 1991 was about 300 (receipts at the door totalling $1,129). The records show that door receipts totalled $16,394 during the period 29 May 1991 to 30 June 1992 (which embraces all the meetings). This suggests that approximately 5,000 to 6,000 people paid to hear Dr Roberts speak at the various meetings.
Children were present at each meeting. The records of NARF in evidence show a breakdown of admission fees only for the two Melbourne meetings. At the first (15 May 1991), there were 9 family admissions ($10 each), 192 individual admissions ($4 each) and 48 concessional admissions ($2 each). At the second (16 May 1991) meeting, there were 7 family admissions, 232 individual admissions and 64 concessional admissions. Although the question was not explored in the oral evidence, I think that, given the availability of family admissions and the fact that the meetings were in the evening, the likelihood is that most concessional admissions were pensioners rather than children. The probabilities are that fewer than 10% of the audience comprised children.
At the meetings, videotapes, audiotapes, brochures and newsletters were on display and available for purchase. Persons attending could purchase items, or make donations to NARF, as they arrived or during the meeting. The videotape and audio cassette on sale were of Dr Roberts' presentations in Adelaide and therefore were available only at subsequent meetings. The brochure was not printed until 15 May 1992 and was therefore available only at the Sydney meetings. The newsletter appears to have been available for sale, at all meetings, at a price of 20 cents.
The videotape in evidence had a white sticker on the cover as follows:
"ARK SEARCH
Dr. Allen Roberts The Search for Noah's Ark
ARK SEARCH PO Box 299 Sans Souci NSW 2219 (c) 1992"
The front cover bore these words:
"Lecture Tour 92
by Dr Allen Roberts
B.A., B.LITT., M.ED., D.C.E., M.A.C.E."
The cover also reproduced a colour photograph of what appears to be the Site. The back of the cover reproduced portions of the flyer, including Dr Roberts' photograph, and the five questions also reproduced in the advertisement extracted earlier. The spine of the cover carried the words "Noah's Ark". I infer that all videotapes for sale were packaged similarly.
The pattern followed at each meeting was essentially the same. Dr Roberts was introduced by the chairman of the meeting. He gave his prepared presentation. The chairman then said words to this effect:
"There will now be an interval of approximately 15 minutes during which we invite you to purchase books, videos and cassettes at the table outside the hall. We are also collecting donations for the Noah's Ark Research Project and would greatly appreciate your generosity."
During the interval, those present had the opportunity to purchase items and to make donations. An opportunity was provided for written questions to be put from the floor to Dr Roberts. He then responded to questions.
Income and Expenditure of NARF and Ark Search Inc
The income and expenditure of NARF is shown in the following statement for the period 29 May 1991 to 30 June 1992.
"RECEIPTS
SUPPORT 18,748.00
SALES BOOKLETS, VIDEO AND
AUDIOTAPES, WALLCHARTS 11,274.55
MEETING DOOR RECEIPTS 16,394.55
INTEREST EARNED ON "ACCESS" A/C 110.45
SALE PROCEEDS PUBLICITY PACKS 100.00
TOTAL RECEIPTS $46,627.55
EXPENDITURE
TELEPHONE COSTS HOBART 80.00
TRAVEL EXPENSES 1,847.00
MEETING VENUE HIRINGS 2,939.50
RESEARCH GRANTS TO DR A.S. ROBERTS 10,600.00
GOVERNMENT DUTY AND TAXES 95.55
ADVERTISING AND PUBLICITY 7,779.75
NEWSLETTERS 1,282.42
BANK CHARGES 119.06
LEGAL COSTS 1,075.00
POSTAGES ETC 1,280.30
BOOKLETS, VIDEO AND AUDIOTAPES,
WALLCHARTS 11,026.30
PUBLICITY PACKS 420.00 $38,544.88
BALANCE AT BANK $ 8,082.67"
As I have already said, Ark Search Inc was incorporated on 25 June 1992. Its first meeting took place on 14 August 1992, but it held no public meetings and did not solicit funds in the electronic or printed media.
Financial statements were prepared for the periods 1 July 1992 to 13 August 1992, 14 August 1992 to 31 January 1993 and 1 February 1993 to 30 June 1993. These periods were after the incorporation of Ark Search Inc and the statements suggest that the incorporated body took over the funds of the unincorporated association. The statements reveal sales totalling only about $828 for the period 1 July 1992 to 30 June 1993. "Support" (donations) of about $9,750 was received in the same period, most of which was recorded as contributions to legal fees.
The uncontradicted evidence of Mr Hannaford, which I accept, was that, after 25 June 1992, Ark Search Inc sold 24 videotapes, three audio cassettes and four brochures. Ten of the videotapes were sold at a discount to what Mr Hannaford ascribed as another "Christian group". In addition, it distributed up to 15 newsletters. After the first meeting of Ark Search Inc, it received a total of $360 in membership and joining fees. It also received about $1,225 in "support", other than donations for legal fees.
Additional Findings
One of the key issues in the case is whether Dr Roberts made any statements "in trade or commerce". If he did, the Fair Trading Acts may apply to his statements. If he did not, the legislation does not apply. It is appropriate to make some additional findings that bear on this issue. For the most part, these flow from the detailed factual account I have already given. To some extent, they are inferences drawn from the documentary and oral evidence and my assessment of the witnesses, in particular Dr Roberts.
NARF was an association created in about March 1991 by a group of like-minded people, some of whom had previously known Dr Roberts. The principal objectives of the association were to encourage and support investigations of the Site with the approval where necessary of the Turkish Government, to ascertain whether it contains the remnants of the biblical Noah's Ark. NARF's objectives also included publicising the significance of the Site (as understood by its members) and emphasising the need to protect and explore the Site. To advance these objectives NARF was to raise funds by a variety of means. These included collecting membership fees, encouraging donations and selling items such as publications and videotapes. The members of the steering committee intended from the outset (subject to contingencies) to utilise available funds to support Dr Roberts' plan to return to Turkey in 1992 to conduct further investigations at the Site.
Dr Roberts was not a member of NARF, but played a significant part in its activities in his role as "archaeological research consultant". Dr Roberts exercised considerable influence over the members of the steering committee and the other office bearers of NARF, reflected in the presentations he made at meetings and his prominence in the public presentations under the auspices of NARF. However, it is not the case (contrary to Mr Walmsley's submissions) that NARF was in effect, simply Dr Roberts' alter ego. While the articles of association were not in evidence, NARF had a clearly defined organisational and decision-making structure and its accounts were carefully kept. A number of people played a part in NARF's affairs and genuinely adhered to its objectives. Those people undertook activities such as organising and publicising meetings, printing newsletters and the brochure and arranging production of videotapes and audio cassettes. No member of NARF received a salary or wage for their work on behalf of the association. Nor did any member expect to receive any financial advantage from NARF's activities.
NARF cannot fairly be described as a trading or commercial organisation. Its work was carried out by unpaid volunteers. Its steering committee wished to raise funds to apply to its objectives. These funds were to be raised by various means, including membership fees, donations and the sale of publications, videotapes and video cassettes. To the extent that NARF generated revenue (that is, by charging entrance fees and selling tapes and publications), it did so with a view to raising funds to support its stated objectives of promoting interest in and investigating the Site.
Dr Roberts received a donation of $10,000, to which I have already referred, to support his overseas trip in 1991. That donation was made to him by Mr Russell, through NARF. Dr Roberts also received the sum of $600 to reimburse him for expenses. NARF paid for his interstate travel to attend the various meetings in April and May 1992. Subject to these matters, and to one further exception, Dr Roberts did not receive and did not expect to receive any personal financial benefit from NARF's activities. The exception was that Dr Roberts had an expectation that some of the funds raised by the association would be used to support further trips to the Site by him and by persons chosen by him, for the purpose of undertaking additional investigations. Although at one stage Mr Walmsley suggested that it was part of the applicants' case that Dr Roberts was paid to give the lectures at the public meetings, the evidence did not bear out this allegation.
Dr Roberts played the major, but not the exclusive role, in drafting the brochure and newsletters distributed by NARF. He knew in advance that these publications were to be sold at the public meetings. His understanding was that they were to be available for sale, partly to raise funds for NARF and partly to promote awareness of and sympathy for the cause of further investigating the Site. Dr Roberts knew and approved of the terms of advertisements placed in order to publicise the various meetings. He was aware that persons were to be charged to attend the presentations and that the proceeds, after expenses, would be used to advance NARF's objectives. He was also aware that donations would be solicited from persons attending the meetings. Dr Roberts was not, however, involved in the detail of organising the meetings. In particular, he was not involved in setting admission charges or planning the sale of merchandise.
Dr Roberts' own motivation for giving the presentations was touched on in cross-examination, but was not explored in depth. Clearly, he wished to assist NARF to raise funds for its objectives, including financing a return visit by him to Turkey (with the approval of the Turkish Government). He was also keen that the endeavour should succeed and, for that reason, he did his best to foster the project. However, Dr Roberts insisted that there were other reasons for his participation in the meetings. In my view, it was at least as important to Dr Roberts that he should have a platform to disseminate his views about the significance of the Site and to encourage interest in the Site as it was to assist NARF to raise funds for further investigations.
IV. APPLICATION OF THE TRADE PRACTICES ACT AND FAIR TRADING ACT
The Trade Practices and Fair Trading Legislation
Section 52 of the TP Act 1987 provides as follows:
"(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."
Section 52(1), which is within Part V of the TP Act, is directed to the activities of a "corporation", reflecting the fact that the source of power for the Act is primarily the power of the Commonwealth Parliament to make laws with respect to "trading or financial corporations formed within the limits of the Commonwealth" (Constitution, s.51(xx)). However, the TP Act also relies on the Parliament's power to make laws for the government of a Territory (Constitution, s.122). The Act defines the word "corporation" to include "a body corporate that...is incorporated in a Territory": TP Act, s.4(1). That definition embraces Ark Search Inc. The phrase "trade or commerce" is not defined in the TP Act, except in a manner not presently relevant.
Section 80(1) of the TP Act provides that where, on the application of the Trade Practices Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of a provision of Part V (including s.52(1)), the Court may grant an injunction in such terms as it considers appropriate. The power of the Court to grant an injunction restraining a person engaging in conduct may be exercised whether or not it appears to the Court that the person intends to engage again in conduct of that kind: TP Act, s.80(4)(a). Section 82(1) of the TP Act provides as follows:
"A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part VI or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention."
The Fair Trading Acts of the States and of the ACT were enacted in consequence of an agreement reached in June 1983, at a meeting of federal and State consumer affairs Ministers that there should be uniform fair trading laws in Australia: see the second reading speech of the New South Wales Minister for Consumer Affairs in relation to the Fair Trading Bill (NSW), NSW Parl Deb (Third Series), vol 197, at 11854, extracts from which appear in the judgment in Durant v Greiner (1990) 21 NSWLR 119 (S Ct NSW/Rolfe J), at 127-128. The relevant provisions of the Fair Trading Acts are modelled on Part V of the TP Act 1987 , except that the State legislation applies to "persons" rather than to "corporations": Prestia v Aknar (1996) 40 NSWLR 165 (S Ct NSW/Santow J), at 178-179. The Fair Trading Acts are therefore capable of applying to individuals and to members of unincorporated associations.
The Fair Trading Act (NSW) ("FTA (NSW)") may be taken as illustrative of the legislation of the other States and the ACT. Section 42(1) of the FTA (NSW) provides that "a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". Unlike the TP Act 1989 , the FTA (NSW) defines "trade or commerce" in a manner that is relevant to the present proceedings. The term is defined to include "any business or professional activity": FTA (NSW), s.4(1). "Business" is defined to include
"(a) a business not carried on for profit; and
(b) a trade or profession" (s.4(1)).
Section 65 of the FTA (NSW) is, in substance, identical to s.80 of the TP Act, except that the power to grant injunctive relief is conferred on the Supreme Court of New South Wales. Subject to that variation, s.65(6)(a) of the FTA (NSW) is the same as s.80(4)(a) of the TP Act, while s.68 of the FTA (NSW) is in substance identical to s.82 of the TP Act.
The following legislation is, in substance, identical to that in force in New South Wales except for the reference to the Supreme Court of that State: Fair Trading Act (Qld), ss.5, 38(1), 98(5), 99; Fair Trading Act 1987 (WA), ss.5, 10(1), 74(2), 77; Fair Trading Act 1992 (ACT), ss.5, 12(1), 44(5), 48. The Fair Trading Act 1985 (Vic) ("FTA (Vic)"), s.11(1) is identical to FTA (NSW), s.42(1), while s.5(4) of the FTA (Vic) provides that "a reference to trade or commerce includes a reference to a business not carried on for profit". The FTA (Vic), ss 34(4) and 39 are in substance identical to FTA (NSW), ss 65(6) and 68, respectively. The Fair Trading Act 1987 (SA) ("FTA (SA)") s.56(1) is identical to FTA (NSW), s.42(1). The FTA (SA), s.3(1) defines "business" to include a trade or profession, but the definition does not include a business not conducted for profit. In this respect the FTA (SA) differs from the legislation of the other States and the ACT. The FTA (SA), ss 83(5) and 84 are in substance identical to FTA (NSW), ss 65(6) and 68, respectively. The Fair Trading Act 1990 (Tas) ("FTA (Tas)"), ss 3 and s 14(1) are in substance identical to ss 4(1) and 42(1) of the FTA (NSW), respectively. However, the FTA (Tas) does not include a provision equivalent to FTA (NSW) s 65(6). The FTA (Tas), s 46(1) is in substance identical to FTA (NSW) s 68(1).
In Trade or Commerce - The Contentions
Mr Walmsley, on behalf of the applicants, submitted that Dr Roberts had made representations in trade or commerce. He relied on the holding of Hedigan J in Meadow Gem Pty Ltd v ANZ Executors & Trustee Co Ltd [1994] ATPR (Digest) 46-130 (S Ct Vic/Hedigan J), that public statements made by Victorian Government officials, to the effect that certain building societies were secure and had adequate asset backing, were capable of being regarded as having been made in trade or commerce. Mr Walmsley contended that Meadow Gem showed that a person could make statements "in trade or commerce", by promoting the business interests of another body, even though the statements were not made in the representor's own trade or commerce.
Mr Walmsley submitted that Dr Roberts was involved in "every commercial aspect of the activities of [NARF] that [therefore] he was engaged either in his own trade or that of others". The primary way in which the applicants put their case was that NARF was engaged in "trade or commerce", as that expression is defined in the Fair Trading Acts. NARF had engaged in organising a series of lectures and had produced videotapes, audio cassettes and publications, thereby raising money. This was sufficient to institute a business, albeit one not carried on for profit. Dr Roberts had promoted or participated in NARF's business activities. Mr Walmsley did not address specifically the fact that, until 25 June 1992, NARF was an unincorporated association. However, by implication, he contended that there is no reason why an unincorporated association, although lacking a separate legal identity, cannot carry on a business.
Mr Walmsley supported the proposition that Dr Roberts was involved in every commercial aspect of NARF's activities by pointing out that Dr Roberts actively assisted in the preparation of the brochure and newsletter; he knew the lecture tour would publicise the significance of the Site and would raise money; he was aware that admission was to be charged and that he was to be the centre of attention; he was the "archaeological research consultant" to NARF and had attended or chaired a number of meetings of the group or its committees; and he had received $10,600 in grants and expenses. Dr Roberts' involvement was such that he was the main force in NARF - to use Mr Walmsley's word, he was its "persona".
The respondents submitted that Dr Roberts had made no representations in trade or commerce. In undertaking the lecture tour and the consultancy Dr Roberts' conduct did not have the "trading or commercial character" required for conduct to be in trade or commerce. He was not engaged to promote the business activities of NARF. He received no payment for his lectures, nor from his role as a consultant. His interest in the Site derived from his belief that the Site contained relics of biblical and theological significance.
The respondents also relied on the judgment of Santow J in Prestia v Aknar. In that case, his Honour construed (at 190) s.42(1) of the FTA (NSW) as limited to those business or professional activities that bear a trading or commercial character. Santow J drew a distinction (at 188-190) between representations about an intellectual product (as where a professional person advertises his or her services) and the exercise of the intellectual skill of the professional person (as where the professional person gives advice to his or her client). The former is in trade or commerce; the latter is not. Mr Duncan argued that the same analysis applied in this case. Accordingly, Dr Roberts' presentations were not in trade or commerce and any representations by him (none of which was conceded to be false) did not give rise to any liability under the Fair Trading Acts.
Did NARF Conduct a Business?
Mr Walmsley's argument rested largely on the proposition that NARF had engaged in trade or commerce within the meaning of the Fair Trading Acts. On that argument, Dr Roberts' own involvement in trade or commerce came about because he had promoted NARF's trade or commerce. Mr Walmsley supported the proposition that NARF had engaged in trade or commerce, by relying on the wide definition of "business" to be found in most of the Fair Trading Acts. As I have said, that definition includes "a business not carried on for profit".
In my view, Mr Walmsley's submissions assumed, rather than demonstrated, that NARF had undertaken such a business. It is of course clear that NARF sold videotapes, audio cassettes, publications and other materials at the 13 meetings held over the period 1 April 1992 to 8 June 1992 (including the last meeting held at Forbes in New South Wales), A very small number of sales took place after the meetings had concluded. The proceeds from sales of merchandise totalled about $11,000, while door receipts from the meetings totalled $16,394. However, the mere fact that sales took place and entry fees were collected from those attending meetings does not necessarily demonstrate that NARF was engaged in a "business" within the meaning of the Fair Trading Acts.
It is generally accepted that the word "business", to use Mason J's phrase, has a "chameleon-like hue" but must take its meaning from the particular statutory context: Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 150 CLR 355, at 378-379; State Superannuation Board (NSW) v Federal Commissioner of Taxation (1988) 82 ALR 63 (FCA/Sheppard J), at 72; O'Brien v Smolongov (1983) 53 ALR 107 (FCA/FC), at 113-114. In Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at 8-9, Mason J considered that the word "business" ordinarily denotes activities undertaken as a commercial enterprise in the nature of a going concern - that is, "activities engaged in for the purpose of profit on a continuous and repetitive basis". His Honour observed, however, that the word took its flavour in that case from the statutory expression "carrying on business". In Hungier v Grace [1972] HCA 42; (1972) 127 CLR 210, at 216-217, Barwick CJ cited the observations of McCardie J in Edgelow v MacElwee [1918] 1 KB 205, at 206 that, in order for a person to be one "whose business...is that of money-lending", there must be more than occasional and disconnected loans: "the word 'business' imports the notion of system, repetition and continuity". Barwick CJ accepted (at 217) that "system and regularity are involved in the carrying on of a business", although he did not think it followed that one who conducts transactions systematically and regularly is necessarily carrying on a business in those transactions.
In State Superannuation Board v FCT, Sheppard J had to consider whether the administration of a superannuation scheme for government employees constituted the carrying on of an activity in the nature of a business. His Honour expressed the view (at 72) that the dictionary definition of "business" as "trade, commercial transactions or engagements" was helpful in ascertaining its meaning. In Durant v Greiner, Rolfe J considered that the dictionary definition shed light on the meaning of "business", as used in the FTA (NSW). In that case, his Honour held (at 128) that the provision of State schools, at which attendance is compulsory and free of charge, could not be characterised as a "business".
I agree with Rolfe J that, generally speaking, the word "business" as used in the Fair Trading Acts, bears the dictionary meaning of "trade, commercial transactions or engagement". However, that will not always carry matters very far. I think that in addition, ordinarily at least, the concept of "business" imports, as Barwick CJ suggested in Hungier v Grace, a notion of system, repetition and continuity. I appreciate and accept that due regard should be paid to the "wide and flexible meaning" attributed to the word "business" in common usage: Grieve v Commissioner of Inland Revenue [1984] 1 NZLR 101, at 111, per Richardson J. I also recognise that each case must depend on its particular circumstances. Nonetheless, in general, for an undertaking to constitute a business it will have to be conducted with some degree of system and regularity.
The present case involves an organisation which is said to be carrying on a business otherwise than for profit. The nature of non-profit enterprises can vary from those which are essentially commercial in character (compare Re Ku-Ring-Gai Co-Operative Building Society (No.12) Ltd [1978] FCA 50; (1978) 22 ALR 621 (FCA/FC), at 648-649, per Deane J) to those which exist entirely for charitable or altruistic purposes. In my view, the less commercial the character and objectives of an organisation, the greater the degree of system and regularity required for the organisations activities to be characterised as a "business". This approach, in my view, is consistent with the purposes underlying the Fair Trading Acts, namely to establish standards of conduct applicable to commercial and consumer transactions: Prestia v Aknar, at 180, 183. If the net is cast too widely, the legislation will apply to transactions that are not truly commercial in character and confer protection on persons who cannot fairly be described as consumers.
NARF's objectives were not primarily trading or commercial in character. Its principal objectives were to encourage and support further investigation at the Site and to publicise what its founding members saw as the significance of the Site. These objectives reflected the religious and ideological orientation of its founding members. Of course, as I have accepted, even a voluntary organisation pursuing purely altruistic or charitable goals can conduct a business. But, in my opinion, the activities carried out by NARF lacked the degree of system and regularity that is normally required before such an organisation can be said to conduct a business.
As I have found, NARF had no office premises and no retail outlets. It had no paid staff and no infrastructure, other than volunteer labour. Its letterhead initially nominated Dr Roberts' home address as its own address; later a post office box number was substituted. The organisation's records were maintained by a volunteer, Mr Hannaford.
The meetings at which fees were collected and tapes and publications sold took place over a period of about two months. There was no evidence that the national tour, which took in all Australian States and the ACT, was to be a forerunner for similar events in the future. The tour was a "one-off" venture, intended to take advantage of the interest stimulated by Dr Roberts' trip to the Site. A total of 13 meetings took place, organised with the assistance of volunteers in the various cities. As events transpired, no public meetings were held after 8 June 1992, either by NARF or the newly incorporated Ark Search Inc. The meetings were designed, in part, to raise funds. But they were also designed to promote interest in and support for the objectives of the organisation. So, too, with the merchandise that was sold. Moreover, the raising of funds was to take place, not merely through the sale of merchandise and entry fees, but through donations to the organisation.
Sales of merchandise during the period of the meetings were modest and barely covered the costs of production. Entry fees received were greater, but still of modest dimensions. I accept that a business, particularly one not conducted for profit, need not necessarily generate large returns. Nonetheless, the scale of the undertaking is a relevant consideration, particularly where the content of the publications or services provided reflect the ideological or religious perspectives of the organisation. In this instance, in my view, the sales of merchandise and the charging of entry fees were incidental to NARF's non-commercial objectives.
I have borne in mind that the policy of consumer protection, which underlies the Fair Trading Act 1969 (although it is not the exclusive focus of the legislation) requires that the test for determining whether a particular undertaking is a business should not be set too high. Nonetheless, while the circumstances of the present case are perhaps close to the line of what constitutes a "business", I conclude that NARF was not undertaking a "business" within the meaning of the Fair Trading Acts. It follows that the applicants' argument, insofar as it rests on the foundation that NARF was engaged in business, must fail.
"In Trade or Commerce": The Authorities
Much of the argument before me was conducted on the assumption that NARF was engaged in business. I have concluded that the assumption is unfounded. Nonetheless, having regard to the course of argument, I think it appropriate to address the position on the basis that (contrary to my view) NARF was engaged in business. The question, then, is whether, accepting that NARF was engaged in business, Dr Roberts made representations "in trade or commerce". I turn to that question.
The starting point is the decision of the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594. In that case, a construction worker sustained injuries at work. He sued his employer, a corporation, claiming that the employer had breached s.52(1) of the TP Act. The worker claimed that he was injured in consequence of a foreman incorrectly informing him that certain grates were secured. A majority of the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) regarded it as settled that an action to restrain a contravention of s.52(1) of the TP Act can, in appropriate circumstances, be maintained by a person who is not a consumer (at 601-602). The majority was not persuaded that the heading to Part V of the TP Act, namely "Consumer Protection", could control the permissible scope of the substantive provisions of Part V. To take this course would be to impose "an unnaturally constricted meaning" upon the words of s.52(1) (see at 601). In Prestia v Aknar, Santow J accepted (at 180) that the majority holding in Concrete Constructions should be applied to the FTA (NSW). I think that, with respect, Santow J was clearly correct to do so. It follows that the applicants in the present case are not foreclosed from claiming relief under the Fair Trading Acts merely because they cannot be classified as "consumers". Indeed, Mr Duncan did not contend to the contrary.
It is the other aspect of Concrete Construction that is relevant to the present case. The joint judgment considered (at 602) that the words "trade" and "commerce", as used in s.52(1) of the TP Act, are "terms of common knowledge of the widest import". Their Honours pointed out, however, that the real problem with the construction of s.52(1) does not spring from the use of the words "trade or commerce", but from the requirement that the conduct to which the section refers be in trade or commerce (at 602).
Their Honours identified two alternative constructions of this requirement (at 602-603):
"The phrase 'in trade or commerce' in s.52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct 'in trade or commerce' can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business. If the words 'in trade or commerce' in s.52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct handsignal when driving a truck in the course of a corporation's haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. Alternatively, the reference to conduct 'in trade or commerce' in s.52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J in a different context in Bank of N.S.W. v The Commonwealth [(1948) [1948] HCA 7; 76 CLR 1, at 381], the words 'in trade or commerce' refer to 'the central conception' of trade or commerce and not to the 'immense field of activities' in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business."
Their Honours considered that the choice between the competing constructions was "fairly evenly balanced", but preferred the second (narrower) view (at 603-604):
"[I]n the context of Pt V of the Act with its heading 'Consumer Protection', it is plain that s.52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct 'in trade or commerce' may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. The point can be illustrated by reference to the examples mentioned above. The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce in so far as the relationship between supplier and actual or potential customer or between builder and building owner is concerned. That being so, to drive a truck with a competitor's name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct 'in trade or commerce' for the purposes of s.52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct 'in trade or commerce' for the purposes of that section. That being so, the giving of a misleading handsignal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation 'in trade or commerce'. Nor, without more, is a misleading statement by one of a building company's own employees to another employee in the course of their ordinary activities. The position might well be different if the misleading statement was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee."
The Fair Trading Acts do not contain the same headings as the TP Act. Part 5 of the FTA (NSW), for example, which contains s.42, is headed "Fair Trading". However, it has been accepted that the principles laid down by the High Court in Concrete Constructions apply to the equivalent provisions in the Fair Trading Acts: Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559 (NSW S Ct/Bryson J), at 572; Prestia v Aknar, at 182. This is so notwithstanding the extended definition of "business" in most of the Fair Trading Acts.
The critical question, then, is whether the public presentations by Dr Roberts constituted "conduct which is itself an aspect or element of transactions which, of their nature, bear a trading or commercial character". The High Court's judgment provides some limited guidance in determining whether conduct has the necessary quality to satisfy the test of being "in trade or commerce". Promotional activities in relation to the supply of goods and services constitute conduct which usually bears a trading or commercial character. Some activities, such as the mere driving of a truck, or the giving of information by one employee to another, even if undertaken for the purposes of a business, do not necessarily bear the requisite character. They may acquire that character if the activities or the misleading statements are made in the course of, or for the purposes of, some trade or commercial dealing between the employer and the particular employee.
Cases decided both before and after Concrete Constructions provide further illustrations of situations falling on either side of the line: see, generally, B. McCabe, "Revisiting Concrete Constructions" (1995) 3 Trade Practices Law Journal 161. The cases involving public statements or presentations by government or industry representatives are the closest to the circumstances of the present case: see McCabe, at 167-170.
In Glorie v WA Chip and Pulp Co Pty Ltd [1981] FCA 224; (1981) 55 FLR 310 (FCA/Morling J), an association of companies engaged in woodchipping joined with the Western Australian Forests Department to produce a documentary film entitled "Forests Forever". The applicant claimed that statements in the film were misleading or deceptive and she sought declaratory and injunctive relief. Morling J held that, although there was a "significant element of altruism" in the making of the film (at 319-320), the exhibition of the film was "in trade or commerce". The film had been produced, in part, to answer criticism of the industry. It was considered prudent that such criticism be answered to protect the commercial interests of members of the association. The evidence showed that the production of the film was seen as a "public relations exercise". Morling J accepted (as did the High Court subsequently in Concrete Constructions) that not everything done by a corporation engaged in trade or commerce is done in trade or commerce. However, he concluded (at 320) that
"a real reason for exhibiting the film was to protect indirectly the commercial interests of the members of the association".
It was therefore correct to characterise the exhibition of the film as being in trade or commerce.
A similar approach was taken by the same Judge in Australian Federation of Consumer Organisations Inc v The Tobacco Institute of Australia Ltd (1991) 27 FCR 149 (FCA/Morling J), a case decided after Concrete Constructions. The Tobacco Institute published an advertisement in several newspapers suggesting that there was little evidence, and nothing which proved scientifically, that cigarette smoke caused disease in non-smokers. Morling J held (at 157) that the advertisement had been published "in trade or commerce".
"No doubt the participation by a trading corporation in a debate on a matter of public or social controversy will often not be conduct in trade or commerce. But the publication of the advertisement in the present case should not be viewed in isolation. It was published by a trading corporation which, so it may be safety inferred, was concerned to ensure that the sale of cigarettes would not be adversely affected by a belief on the part of the public as to a possible causal link between cigarette smoke and disease in non-smokers.
...
The advertisement had the potential, and was no doubt intended, to protect the commercial interests of cigarette manufacturers and distributors. Accepting that conduct 'in trade or commerce' is confined to conduct which is itself an aspect of activities which, of their nature, bear a commercial character I think the proper conclusion is that the publication of the advertisement was conduct 'in trade or commerce'. Advertising products for sale is an aspect or element of the selling of those products. The selling of the products is indisputably a trading or commercial activity. Advertising may serve a number of purposes. One purpose may be to refute criticism of the seller's products thus protecting the market for them. The advertisement published by the respondent was calculated to achieve such a purpose."
On appeal, the main issue considered on this aspect of the case was whether there was evidence to support the conclusions reached by Morling J: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1 (FCA/FC). Sheppard J considered (at 16) that the evidence, although incomplete, justified the inference that "the most likely reason for the publication of the advertisement was to promote or maintain sales of cigarettes for commercial reasons, i.e. gain". For this reason, the publication of the advertisements was in trade or commerce. Foster J concluded (at 25) that
"the general tenor of the advertisement, its wide exposure, and the name of the appellant combine to create an irresistible impression that it was promotional material designed to advance the cause of cigarette smoking and to assist in the sale of cigarettes".
Hill J (at 44) reached a similar conclusion, pointing out that the advertisement on its face was designed to promote the further sale, or arrest a decline in sales, of tobacco. His Honour continued (at 44):
"There can be no doubt that a corporation, formed to promote the interests of a particular industry or whose activities are directed at representing members of that industry in promotional activities, acts 'in trade or commerce' when conveying representations about that industry's product to the general public."
In Unilan Holdings Pty Ltd v Kerin [1992] FCA 179; (1992) 35 FCR 272 (FCA/Hill J), a case decided shortly before the appeal in Tobacco Institute v AFCO, Hill J held that a statement made by a Commonwealth Minister at an overseas conference had not been made in trade or commerce. In Kerin, the then Minister for Primary Industries and Energy had delivered a speech to the annual conference of the International Wool Textile Organisation in Dubrovnik. In the course of the speech the Minister gave a "cast iron guarantee" that the Australian Government would not contemplate, under any circumstances, any further downward movement in the floor price for wool. About eight months later, the reserve price scheme was suspended and the price of wool fell, allegedly causing loss to the applicants who claimed to have relied on the Minister's statements. The Minister conceded that his motivation in making the speech was to influence wool prices in the interests of Australian wool growers and to persuade people not to dump wool, but to buy it.
Hill J took the view (at 278) that the giving of a speech by a Minister to an international conference is not an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. The speech, since it concerned matters of trade or commerce, was in relation to trade or commerce; it was not in trade or commerce. His Honour distinguished Glorie (at 278):
"It is obvious that a statutory body could engage in trade or commerce. The Treasury might mint coins to be marketed for collection; its sale of those coins would be conduct in trade or commerce. If the Treasurer, acting on behalf of his Department, were to make a misleading statement in the course of promoting the sale of the coins, he could be representing the Treasury in its dealing with potential consumers. But such a case is remote from the present. The conduct complained of here is a speech of the Minister dealing with governmental policy which impinges directly upon the international trade in wool. It is not conduct which itself has a trading or commercial character, as the exhibiting of the film in Glorie clearly was."
Accordingly, his Honour struck out the statement of claim insofar as it pleaded a claim against the Minister under the TP Act.
Kerin was itself distinguished, at least tentatively, in Meadow Gem v ANZ Executors, to which I have already referred. In Meadow Gem claims were pleaded against two Ministers of the Victorian Government and the Registrar of Building Societies. The claims were based on public statements representing that investments in the Pyramid Building Society were secure and that there were no risks to investors. The Building Society later failed. The Government parties made an application to strike out portions of the statement of claim on the ground that the statements had not been made in trade or commerce. Hedigan J rejected the application. His Honour considered (at 53,631) that
"the conduct in question does not have to be conduct in connection with one's own business, and that it would be sufficient if the conduct engaged in was for the purpose of promoting the business of some other person or corporation."
It was arguable that the statements made were to "shore up" the Building Society and associated companies during a time when there was a run by depositors. The statements were capable of being regarded as promotional activities. They were directly addressed to and supportive of the affairs of a trading corporation and were therefore "more easily identifiable" than the representations in Kerin as having been made in the trade or commerce of another entity. His Honour continued (at 53,631-53,632)
"Without finally deciding any issue concerning this, it would seem to me to be at least arguable that 'promotion' is sufficiently wide to encompass conduct encouraging the continuation of investment in a trading corporation. Indeed, without being further instructed, it is not easy to imagine a clearer case of such promotion or encouragement since the Government itself was not directly involved in the profit or loss of the business of Pyramid and/or the associated companies and was apparently in the position of the detached State bystander who had conducted its own objective studies and it reached the conclusion that Pyramid was in good shape. It is arguable that the statements were made with the intention of encouraging investors to maintain their trading relationship with Pyramid".
These cases support a number of propositions which shed light on the test formulated by the High Court in Concrete Constructions:
(i) A person undertaking public presentations, such as exhibiting films or publishing advertisements, engages in conduct in trade or commerce if the presentations are designed to advance or protect the commercial interests of the exhibitor or the publisher, or of trading entities represented by the exhibitor or publisher: Glorie; Tobacco Institute v AFCO.
(ii) Altruistic motives will not necessarily prevent the public presentation being in trade or commerce, depending on the other circumstances of the case: Glorie.
(iii) A person may make public statements designed to influence trading patterns, yet not make those statements in trade or commerce. Even statements designed to persuade people to buy a particular commodity, if made by a Government representative, are not necessarily made in trade or commerce: Kerin.
(iv) Public statements by a person not engaged in trade or commerce himself or herself, may be made in trade or commerce if designed to encourage others to invest, or continue investments, in a particular trading corporation: Meadow Gem.
Did Dr Roberts Make Statements in Trade or Commerce?
It is necessary to apply these principles to the statements made by Dr Roberts at the public meetings and recorded in the videotapes and audio cassettes. It is also necessary to apply them to the statements published in the brochure and the newsletter assuming (as I think is the case) that Dr Roberts made the statements complained of, or authorised their publication. In doing so, the facts of the case, as I have outlined them, must be borne in mind. The following matters are particularly important:
* There was no commercial or trading relationship between Dr Roberts and NARF. He was not paid to deliver the lectures; nor was he
paid to contribute to the newsletter or the brochure. He had no expectation of remuneration from his activities on behalf of NARF.
He had an expectation that NARF would apply funds to assist him to conduct further investigations in Turkey, but this neither established
nor reflected a trading or commercial relationship.
* NARF was staffed by volunteers, who adhered to its objectives, principally the encouragement of investigations at the Site to ascertain
whether it contained the remains of the biblical Noah's Ark. Its steering committee sought to raise funds for its objectives by
a variety of means, including donations, membership fees, entrance fees and sales of publications and tapes. To the extent NARF
carried on a business, the business was modest in scope and was incidental to the broader goal of promoting the association's objectives.
* In giving his lectures, and contributing to the publications, Dr Roberts was not primarily motivated by a desire to promote any
business activities of NARF. His objectives were to disseminate his own views and to assist NARF to raise funds for its objectives.
He was aware that funds were to be raised in part by the sale of merchandise, but he was also aware that funds were to be raised
by membership fees and donations.
In my view, the present case is different from the cases relied on by the applicants. Unlike Glorie, the principal objective of Dr Roberts' presentation, whether in the publications or the lectures, was not to promote the commercial interests of NARF. Unlike the corporate members of the association in Glorie, NARF was not a commercial or trading organisation. Nor was Dr Roberts' principal motive in giving the lectures or contributing to the brochure or newsletter to promote the business activities of NARF. He was concerned to promote his ideas and to encourage interest in the Site. As I have previously found, he was aware and intended that his activities would assist in raising funds for NARF. But those funds were to be raised in a variety of ways, including membership fees and donations, and the sale of tapes and publications was only one element in fund raising. It must be remembered that no complaint was made by the applicants about any newspaper advertising of NARF's activities that Dr Roberts may have approved or encouraged. The complaints were about his lectures (live and on tape) and about the contents of the publications available for purchase, one of which (the brochure) was available only at the last of the meetings.
The present case is also different from Meadow Gem. Hedigan J in that case decided only that there was an arguable claim against the Government parties. However, his decision was based on the proposition that "promotion" of a trading or commercial activity can include conduct encouraging the contravention of investments in a trading corporation. As his Honour pointed out, such conduct is undertaken with the intention of encouraging investors to maintain a trading relationship with the company. Doubtless, some people listening to the lectures were inspired to purchase a copy of a tape. But Dr Roberts did not seek to maintain or encourage a commercial relationship between his audience and a trading entity.
In my opinion, in the circumstances of the present case, Dr Roberts' conduct in giving the lectures and allowing them to be recorded was not an element of activities which, of their nature, bear a trading or commercial character. The same is true of his participation in the preparation of the newsletters and brochure. Whatever might have been said about NARF's or even Dr Roberts' activities in advertising the lectures and sales of tapes, Dr Roberts' activities lacked the qualities that would allow them to be characterised as conduct in trade or commerce. They had a relationship with trade or commerce, but that is not enough to attract the Fair Trading Acts.
An Alternative Argument
Mr Walmsley put, but did not develop, an alternative argument to support the conclusion that Dr Roberts had made representations in trade or commerce. He contended that Dr Roberts had embarked on writing a book about his experiences and that he later received royalties from the book. He seemed to suggest that Dr Roberts should be regarded as promoting that book and that, therefore, his lectures should be regarded as in trade or commerce.
This contention falls outside the applicants' case as particularised by them. Perhaps for that reason, it was not put to Dr Roberts that he intended to use the lectures in order to promote sales of the book when it ultimately appeared. In fact, a book by Dr Roberts was published in London in 1994, some two years after the lectures. It was entitled "Ark Search - The Terrifying Quest" and, according to Dr Roberts, was essentially the story of his kidnapping in Turkey. There was a reference in evidence to the fact that Dr Roberts obtained royalties for the book, but no exploration of the extent of the royalties or of sales in Australia, where the book was apparently later released.
In my opinion, the evidence does not justify the conclusion that Dr Roberts either intended to or in fact used the lectures to promote his profession or trade as an author. It is true that the newsletter referred to Dr Roberts working towards the final deadline of a "major book to be published in London" containing an "exciting story" and an "exploration of terrorism". But I interpret that reference as designed to stimulate public interest in the lectures, rather than the other way around. The newsletter contains no indication of where the book can be obtained or even that it might be available in Australia. No effort was made in the lectures to suggest that the audience purchase the book; no information was prepared or provided to enable them to order the book. The subject matter of the book, so far as the evidence reveals, was not the same as the subject matter of the lectures, although there was obviously some overlap. I have already made findings about Dr Roberts' objectives in giving the lectures. I do not think they included promotion of the book ultimately published in London.
Ark Search Inc
Very little attention was addressed in argument to the position of Ark Search Inc. Although Mr Walmsley's written submissions seek injunctive and declaratory relief against both respondents, the body of those submissions addresses only the case against Dr Roberts.
The evidence to which I have already referred shows that Ark Search Inc, if not a moribund organisation, conducted virtually no activities. It sold a very small number of videotapes, audio cassettes and brochures, and distributed a few newsletters. It did not prepare the brochure or newsletter, or produce the videotapes or audio cassettes. It did not promote those products and derived a few hundred dollars revenue from them. On the principles I have discussed earlier, Ark Search Inc was not engaged in trade or commerce at any time. It follows that it has not breached s 52 of the TP Act.
Had I reached a different conclusion, it would have been necessary to consider whether Ark Search Inc had engaged in conduct that was misleading or deceptive. I shall deal later with the question of whether the publications, videotapes or audio cassettes contained material that was misleading or deceptive. Assuming they did, it does not follow that merely because Ark Search Inc sold the products it engaged in misleading or deceptive conduct. However, it is unnecessary to address the question further.
Prestia v Aknar
In view of the conclusions I have reached, it is not necessary to address the alternative argument put on behalf of Dr Roberts and Ark Search Inc, based on the analysis of Santow J in Prestia v Aknar.
Summary of Conclusions on Trade and Commerce
For the reasons I have given, I have reached the following conclusions:
* NARF did not conduct "business", within the meaning of the Fair Trading Acts, at the relevant times. Thus the foundation for the applicants' argument that Dr Roberts was engaged in trade or commerce, is wanting.
* In any event, even if NARF can be regarded as having conducted a business, Dr Roberts did not make any representations "in trade
or commerce" within the meaning of the Fair Trading Acts. Thus the Fair Trading Acts do not apply to the statements made by him, whether in the lectures, as recorded in the videotapes or audio cassettes, or as published
in the brochure or newsletters.
* Ark Search Inc did not make representations "in trade or commerce" within the meaning of s 52 of the TP Act. Thus it has not breached that section.
* It follows that the claims of the applicants, insofar as they are based on the Fair Trading Acts or the TP Act must fail.
I make one additional observation. This case demonstrates that there are limits to the scope and reach of the TP Act and the Fair Trading Acts. Not every false statement attracts a legal remedy, under the legislation. This reflects a broader principle, namely, that the legal system cannot and should not attempt to provide a remedy for every false or misleading statement made in the course of public debate on matters of general interest. The simple fact is that some issues - no matter how great the passions they arouse - are more appropriately dealt with outside the courtroom.
V. MISLEADING AND DECEPTIVE CONDUCT
In view of the conclusion I have first summarised, it is not necessary for me to consider whether any statements made by Dr Roberts were misleading or deceptive or likely to mislead or deceive. However, the issues were the subject of evidence and were debated by counsel. I therefore express my views on these questions.
As I have already indicated, Mr Walmsley, in his closing address, refined the applicants' case on this aspect of the case. He identified a number of representations that he submitted flowed from statements in the brochure, the newsletter and the lectures given by Dr Roberts. The major complaints relate to the lectures, as recorded on the transcript of the videotape and the cassette tape.
The Principles
There was no dispute between the parties that the principles for determining whether conduct is misleading or deceptive, generally speaking, were those laid down in the judgment of Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 (FCA/FC), at 202-203:
"First, it is necessary to identify the relevant section (or sections) of the public (which may be the public at large) by reference to whom the question of whether conduct is, or is likely to be, misleading or deceptive falls to be tested....
Second, once the relevant section of the public is established, the matter is to be considered by reference to all who come within it, 'including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations'....
Thirdly, evidence that some person has in fact formed an erroneous conclusion is admissible and may be persuasive but is not essential. Such evidence does not itself conclusively establish that conduct is misleading or deceptive or likely to mislead or deceive. The court must determine that question for itself. The test is objective....
Finally, it is necessary to inquire why proven misconception has arisen.... The fundamental importance of this principle is that it is only by this investigation that the evidence of those who are shown to have been led into error can be evaluated and it can be determined whether they are confused because of misleading or deceptive conduct on the part of the respondent." [Citation omitted.]
In determining whether conduct is misleading or deceptive it is necessary to view the conduct as a whole. It is wrong to select words or acts which, if considered alone would be likely to mislead or deceive, but which in context are not capable of misleading. In short, the context must be considered: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, at 199. See also Tobacco Institute v AFCO, at 48-50, per Hill J. The context includes the nature of the evidence to which the representations were directed.
In the present case, no evidence was adduced from persons who were claiming to have been misled by anything said by Dr Roberts. As Taco Bell shows, such evidence is admissible and may be persuasive, but is not essential. As I have found, it is likely that some 5,000 to 6,000 people heard Dr Roberts' lectures. Some hundreds more would have purchased and presumably viewed or listened to the videotapes and audio cassettes. I infer that Dr Roberts' audiences would have included people from a range of educational and occupational backgrounds (as was the case with the founding membership of NARF). A proportion - less than 10 percent - would have been children. I think it likely that most of the audience would have been relatively unsophisticated in scientific matters. I also think it likely that a high proportion of those attending the lectures or purchasing the publications and tapes were strongly predisposed, by reason of their religious beliefs, to view sympathetically claims that the Site contains the remnants of the Noah's Ark referred to in Genesis.
The Representations Relied On
The applicants identified a total of 16 representations they claimed were made by Dr Roberts and Ark Search Inc and were false. As will be seen, the alleged representations overlap to a considerable extent. The representations and the basis on which it is said that each is false are as follows:
1. The brochure is a summary of archaeological and/or scientific work done by Dr Roberts.
This representation is said to be made in the brochure. The applicants rely on the photograph of Dr Roberts on the cover of the brochure, shown next to the Site, coupled with this passage from the text (at pp.4-5):
"Evidence has emerged from:
- careful measurement of the dimensions of the formation
- geological and chemical sampling of the formation, its mud covering and the area surrounding it
- results of preliminary drill samples and readouts from interface radar testing
- sampling of fossilised and other materials including animal antlers, dung and hair which are able to be forensically analysed to determine types of animals and their diets."
The representation is said to be false because Dr Roberts did not himself undertake the archaeological and scientific work referred to.
2. The public lectures given by Dr Roberts and recorded on videotapes and audio cassettes contain a summary of archaeological and/or scientific work carried out by him.
The passages from the lectures relied on to support this alleged representation are as follows:
"May I now take you with me, in a sort of guided tour, so that you can see tonight some of what I was privileged to see on my several expeditions to the site. So that you, too, can examine, as far as this is possible tonight, the evidence I have gained, to assess it along with me and other people around this country for yourselves.
...
Now this is an interesting thing. In 1987 the Turkish Government declared the area a national park of the highest classification as a result of their own Commission, the work that we had done and several others had done over the years.
...
Now there have been many ideas as to what 'gopher' means. I have to say to you that we have some ideas now which have come back from the site. We think that this piece of wood, which we believe is part of deck timber, very thick as you can see - it's just a fragment and we picked it up on the sonar so we knew it was a fragmented piece - it was brought up in front of many dignitaries, well documented, recorded on television, so there is nothing shonky about it, this piece of petrified wood, if you look closely at it, is indeed in layers. If you look between the layers (and we have photographs, scientific ones which we have taken that show this) you will find the layers have been joined together by a kind of glue.
...
Now here we see what looks like a rock but it's not. We've checked out these things that turn up at regularly spaced intervals inside that hull shape and we found that they have a very high iron content. Some of the iron is close to the temper of steel, would you believe it.
...
When some horizontal drills or drill holes, core drilling holes, were made into the interior, we found, you say a piece of mud. Yes, you're right, but we found something else there in that mud. We found hair, animal hair, not just a little bit but much of it. Now I want you to realise that hair will last for centuries and millennia. Anyone who has studied or seen Egyptian mummies will know that. It's intact after thousands of years, even when buried. So, here is hair, we found it, of various textures, colours and lengths.
...
But I have some general concerns about carbon dating anyway, which I will share with you, and those concerns are shared by a huge number of scientists now worldwide. They have been using it and been disappointed with it, and I think it's going to become rapidly and increasingly outmoded. More about that in a moment. But, yes, we did anyway when we first started to work on this, have a section of it carbon dated and, for what its worth, and I'm only answering the question because the question was directly, have you carbon dated it? We found it was 5,700 years old according to that check out plus or minus 200 years."
(The last paragraph from this extract is not from Dr Roberts' prepared lecture, but from the question and answer session.)
The representation is said to be false because Dr Roberts did not himself undertake or cause to be undertaken the work described in the lectures.
3. Dr Roberts carried out or caused to be carried out careful and detailed measurements of the formation at the Site.
This representation is said to be supported by statements in the brochure and newsletter and by the following passages in the presentation at the public meetings, recorded on the videotape:
"On the basis, then of this 20.6 inch cubit we have estimated that a 300 cubit vessel, that is one that is 300 cubits, would be around 515 feet long. A very large boat, you would agree. That is, about 157 metres. The formation has been carefully measured, in fact, on site and you will be interested to hear is precisely that length, 515 feet. This, we think, is significant although, of course, it does not prove positively that this is the Ark.
...
So on the basis of this 20.6 inch cubit we have a checking out length confirmed in the field. How about the width? Well, this, when measured on site, is greater than the 50 cubits set down in Scripture."
This representation is said to be false because the measurements on which Dr Roberts relied had been undertaken by others, before he had visited Turkey.
4. Dr Roberts carried out or caused to be carried out geological and chemical sampling of the formation, its mud covering and the area surrounding it.
This representation is said to be supported by the statement previously extracted from the brochure (representation 1) and by comments made in the course of Dr Roberts' lectures. These comments were as follows:
"So there it is, we think that one is a million dollar picture and I think it's highly suggestive that underneath we do in fact have some structures that might well be a boat.
...
I also have this here and I can show it to you after if you would like to see it, it is a piece of slag.
...
Last August I found this protruding from or to the outside from inside between some ribs. I plucked it as one might pluck a rose growing on a wall. It's been positively identified by both a geologist and a biologist and several others in Britain as the tip of a deer's antler and it came from inside."
The applicants contend that this representation is false because Dr Roberts had not himself undertaken or caused to be undertaken geological and chemical sampling of the formation or its surrounds.
5. Dr Roberts conducted or caused to be conducted drilling of the formation at the Site and obtained drill samples therefrom.
This representation is said to be derived from the passage in the brochure already referred to (representation 1) and from a portion of the lecture already reproduced (representation 2).
The applicants submit that this representation is false because Dr Roberts did not conduct any drilling at the Site.
6. Dr Roberts obtained or caused to be obtained from the Site samples of fossilised and other materials including animal antlers, dung and hair which can be forensically analysed to determine the types of animals and their diets.
The applicants support this representation by reference to the statement in the brochure (representation 1) and to a similar statement in the newsletter. As far as the lectures are concerned, they rely mainly on passages that have already been extracted (representation 1). They also rely on a passage extracted later (representation 7).
This representation is said to be false because Dr Roberts did not himself find hair or coprolite (fossilised animal dung) at the Site.
7. Dr Roberts found or participated in or witnessed the finding of an antler, coprolite and/or animal hair at the Site.
The representation concerning the coprolite is said to be supported by a photograph of "positively identified animal coprolite", reproduced in the brochure. It is also said to be supported by three statements in the lectures. The first is as follows:
"This one, also found on site, is what is known as coprolite. It is petrified animal dung. We are hoping to find more of this when we dig."
The second, relating to animal hair, has already been reproduced (representation 1) as has the third, relating to the finding of a so-called deer's antler (representation 4).
The applicants claim that the representation is false because Dr Roberts himself found no hair, no coprolite and no antler tip.
8. Dr Roberts made or participated in or witnessed the making of a major find at the Site in June 1991, namely a "rivet".
The applicants rely on a photograph in the brochure of "[w]hat is believed to be petrified rivet and washer structures" to support the representation. They also rely on statements in the lectures, including the following:
"What we're seeing there is something very, very special. We found several things, just last year before we were kidnapped, on this site. One of them was this remarkable structure here. It appears to be a metal rivet which, from the hammer marks visible on the head, has been forcibly fixed together with a washer, which you can probably see there, into materials which we believe were adjoined or fixed to it in this way."
The representation is said to be false because, although Dr Roberts may have been present when Mr Wyatt picked up the object, Dr Roberts himself did not pick it up.
9. Dr Roberts has used or caused to be used powerful metal detectors and by that and other means he has carried out or caused to be carried out original research into the Site.
The main statement in the lectures upon which the applicants rely to support this representations is as follows:
"How about this area below that great mud top. Is there some deck area? Are there structures and things there that bespeak a boat? Well this was also checked using as well very powerful metal detectors which gave back strong metal readings. This feedback, together with that of the sonar to which I just referred and other sophisticated techniques such as molecular frequency, revealed as well as these traverse lines or walls longitudinal lines which you see as we trace them and map them out according to the bleeps we got here with tape on the surface, inside as it were or on the deck, shall we call it a deck for our purposes tonight, of this structure. Now we noticed as we looked forward that they ran parallel and if you put them together those longitudinal stern to stern lines or walls right down into the interior with the ones that come across, what do you get you get rooms, you get cabins, perhaps you get places where people or, it it's a boat, even animals could have been stored."
The applicants also rely on a later statement that a "washer" associated with the "rivet" might well have been "the very joining mechanism our sonar picked up".
The representation is said to be false because Dr Roberts admitted in the pleadings that he had not used or caused to be used powerful metal detectors at the Site.
10. Dr Roberts submitted or caused to be submitted the artefacts found at the Site to careful and objective scrutiny or testing, including radio-carbon dating.
I have had some difficulty following this alleged representation, since the statements on which the applicants rely do not seem capable of supporting the representation alleged (although they might be and have been used in support of an argument that other representations were made). However, a segment of the transcript of the audio cassette records Dr Roberts, in response to a question, as stating that "we did...have a section of it carbon dated" (representation 2).
It seems to be suggested that the representation is false because Dr Roberts accepted that he had not personally undertaken carbon dating.
11. Dr Roberts used or caused to be used subsurface techniques including interface radar or sonar scanning at the Site.
This representation is said to be supported by the passage in the brochure already referred to (representation 1) and a later statement in the brochure that "[r]esearch to date, including sub-surface interface sonar has revealed that it has just those structures one would expect to find in...a large vessel". The second passage is the subject of an erratum, which states that the passage "should read 'including sub-surface interface radar' (not sonar)". The applicants also rely on a similar statement (but referring to sonar, rather than radar) in the newsletter.
The passages in the lectures on which the applicants rely include this passage:
"With the permission of the Turkish Government again, and with its co-operation, in fact, and the co-operation as well of scientists from the USA we used a highly sophisticated technique. It is sub surface interface sonar. We used other things, as well, but let me tell you first what we found with the sonar. The sonar was used to locate structures deep down inside and it revealed, as you might even see in this shot, shapes, lines, which ran across the structure from gunwale to gunwale."
The applicants also rely on other references to "our sonar" and to what "we saw...on the sonar".
The representation is said to be false because Dr Roberts himself had undertaken no interface radar scanning and no sonar scanning had been used at all on the Site.
12. Dr Roberts has carried out work or research of a scientific nature on the formation at the Site.
As I understand the applicants' claim on this aspect of the case, it is to the effect that Dr Roberts represented in the newsletter and the lectures that he had scientific qualifications and thus was qualified to carry out scientific work on the Site. The claim appears to rest on the basis that Dr Roberts used language which implied that he had scientific qualifications. In this respect, the claim is similar to that based on what is said to be the misleading use of the designation "Dr" (see representation 15).
This claim seems to me to reflect Professor Plimer's view that the use of scientific terms by a commentator necessarily implied that the commentator has scientific qualifications. Mr Walmsley referred to a large number of passages and phrases in the lecture in his written submissions. These are said to indicate that Dr Roberts was claiming to have scientific qualifications. By way of example, Mr Walmsley referred to Dr Roberts' use of words like "intruded rock", "mud", "volcanic cone", "metal detector", "petrified", "sonar", "slag", "tectonic movements" and "carbon dating". In addition, he relied on the phrase "those of us involved...in archaeological research" and similar references by Dr Roberts to "archaeologists" or the "archaeological mud".
13. Dr Roberts had carried out work on the Site in conjunction with the Turkish Government or officials of the Turkish Government and had permits from the Turkish Government to undertake archaeological work at the Site and to remove materials therefrom.
The applicants rely on passages in the brochure and newsletter to support the allegation that Dr Roberts made this representation. The newsletter states that Noah's Ark Research Project "is currently making preparations in co-operation with Turkish authorities to carry out a preliminary dig in the summer of 1992". The brochure says that the Ark Search Project is supporting the archaeological research of Dr Roberts "who is consulting with people at high levels of government and technology in Turkey, Britain and the United States". It also refers to plans for a dig in 1991:
"A year of preparation followed, involving complex planning and consultation with the Turkish government, its Embassies in three countries, and with various international bodies, all of which would play their part in making the expedition possible.
After months of delays and negotiations everything started to come together. Verbal agreement for the dig was given - the written permit was to be granted."
The passages in the lectures relied on have already been referred to (representations 2, 11).
The representations are said to be false because Dr Roberts acknowledged in answers to interrogatories that he had never received a permit from the Turkish authorities to undertake work at the Site. Although he made requests to the Turkish Government to investigate the Site and take samples, no permits were issued to him.
14. Mr Fasold has carried out work on the Site in conjunction or in association with Dr Roberts and/or Ark Search Inc.
This representation is said to flow from this reference in the lectures:
"Largely as a result of [Ron Wyatt's] persistence along with that of such other people as ship's master and salvage expert David Fasold and James Irwin, scientist (of course, the famous astronaut), evidence began slowly to emerge that under this mud was just possibly the remains of a gigantic boat which again just possibly might be Noah's Ark."
The representation is said to be false because Dr Roberts did not go to Turkey until 1990 and never worked with Mr Fasold on the Site.
15. Dr Roberts represented, by the use of the preface "Doctor", that he had a high academic qualification which lent credibility to his claims of archaeological and scientific expertise and experience.
The applicants rely on references in the brochure and newsletter to "Dr Roberts" or "Dr Allen S. Roberts". In the newsletter, on one occasion the reference appears in conjunction with a description of Dr Roberts as "[a]rcheological research consultant for the Noah's Ark Research Project". The same conjunction appears on the first page and at least once in the text of the brochure. The brochure also refers on a number of occasions to "Dr Roberts" or "Dr Allen Roberts". The brochure states, for example, that "Dr Allen Roberts" is undertaking the "work of archaeological research".
The applicants rely in addition on several references in the transcript of the lectures to "Dr Roberts". On one occasion, to which I have referred earlier in dealing with Dr Roberts' evidence (Section II, above), he described himself as "Dr Roberts". On several other occasions he was introduced as "Dr Roberts".
The representations are said to be false, not because of the standards required for the award of a doctorate by Freedom University, but because Dr Roberts had only a degree in Christian Education and had no qualifications in archaeology, geology or science.
16. The drawing reproduced on the brochure is the original work of Mr Midgley or, alternatively, is reproduced with the permission of Mr Fasold.
This representation is said to flow from the words used on p.11 of the brochure, at the foot of the drawing. The representation is said to be false because the drawing, in substance, reproduced Mr Fasold's diagram in his book. Alternatively, it is said to be false because Mr Fasold had not given permission for his diagram to be reproduced.
Were the Representations Made and Were they Misleading or Deceptive?
Representation 1
The background to the preparation of the brochure has been set out earlier. I am satisfied that Dr Roberts approved of and encouraged publication of the brochure. He approved of his photograph appearing on the cover and I think it likely that he wrote the passage on which the applicants' rely.
However, I do not think that the brochure should be read as conveying the representations alleged by the applicants. The passage on which they rely is expressed in the passive tense. It does not say that Dr Roberts himself carried out the work. Other portions of the brochure specifically state that Mr Wyatt, Mr Fasold and others had visited the Site and carried out work there, including measurements, mapping and "interface radar scanning". The brochure also states that Dr Roberts first visited the Site in 1990. It does not suggest that he carried out scientific archaeological work at that time. The summary at the end of the brochure, which has been reproduced earlier, states that the publication presents evidence derived from the work of many people over a number of years. In these circumstances, I do not think that a fair reading of the brochure, even by a relatively unsophisticated reader, would lead to the conclusion that Dr Roberts had himself undertaken the work identified in the text. It is therefore not necessary to consider whether the representation was false.
Representation 2
In considering whether the lectures convey the representation alleged, it is necessary to take into account that most of the audiences listening to Dr Roberts' presentations were likely to be untutored in scientific method and relatively uncritical of the lecturer. It is also necessary to consider the context and content of the presentation as a whole. Those listening in person to the presentation, without the benefit of a transcript or a tape, would have to absorb a good deal of information in a fairly short time. A viewing of the tape confirms that Dr Roberts' lecture was presented at a measured pace. Even so, it would be difficult for a listener to grasp the nuances that might be more apparent from reading a text. A videotape or audio cassette offers more opportunity, by repeated playing, to grasp the nuances, but the impact would still be a matter of impression from the words used and (in the videotape) the image of an apparently authoritative presenter.
A careful reading of the transcript of videotape would indicate to an inquiring and sceptical reader that caution should be exercised in interpreting the statements relied on by the applicant. Early in the presentation, Dr Roberts states that in the mid 1970s Mr Wyatt went to the Site and implies that Mr Fasold followed some time after. He says that largely as a result of their persistence "evidence began slowly to emerge that under this mud was just possibly the remains of a boat which again just possibly might be Noah's Ark". He refers to "compelling evidence" which prompted the Turkish Government to form a university commission. He refers to fulfilling a 30 year dream "finally standing" in the mountains of Ararat in 1990, thereby implying (correctly) that he had never previously visited the Site.
Despite these introductory remarks, I think a member of the audience at the meetings and persons purchasing the tapes would be likely to understand Dr Roberts' later remarks as meaning that he had personally undertaken many of the systematic investigations at the Site on which he was relying to support the thesis that the Site could contain the remains of Noah's Ark. After quoting from the early chapters of a book he was writing, Dr Roberts says that "those of us involved, then, in archaeological research are rather too sceptical, too unwilling to accept something...shoved up on a plateau". He refers to "what I was privileged to see on my several expeditions to the site" and to "the evidence I have gained". He refers to "work that we had done", items that "we found" or that "we've checked out", and carbon dating that "we did".
The ordinary adult listener or viewer, in my opinion, would understand that Dr Roberts had himself undertaken systematic investigations and had carried out or caused to be carried out scientific tests on objects retrieved from the Site, albeit in conjunction with others. Although some might be sceptical, most would not interpret Dr Roberts' observations as referring to investigations or tests carried out almost exclusively by others before he had ever visited the Site. Whatever Dr Roberts' actual intentions, the language used was calculated to create the impression that Dr Roberts himself had conducted or participated in the investigations or tests to which he was referring. In my view, the extracts relied on by the applicants, taken in context, show that Dr Roberts was representing to his audience (live and on tape) that he had personally undertaken or participated in systematic investigations at the Site and then he had personally carried out or caused to be carried out scientific tests on objects retrieved from the Site.
In this connection, some evidence given by Dr Roberts was revealing. In an interview published in a magazine called "Nexus" in early 1992, Dr Roberts was quoted as using the word "we" consistently in relation to work done on the Site or "evidence" obtained from the Site. Much of the language was similar to that later used in his public presentations. In two of his affidavits, Dr Roberts was at pains to insist that he had been misquoted, or at least inadequately quoted. He said that he had told the interviewer that when he used the word "we" he was talking about a team and was not intending to suggest that he was present for all the investigations to which he had referred. It is of course not necessary to establish that a representor intended to mislead or deceive in order to demonstrate that there has been misleading or deceptive conduct. But Dr Roberts' evidence shows that he clearly appreciated that the use of the word "we", in a context very similar to that of his lectures, could mislead an audience. In my view, the lectures represented that Dr Roberts had personally undertaken, or participated in, systematic investigations at the Site designed to determine whether the boat-shaped formation contained the remnants of Noah's Ark and that he had personally carried out or caused to be carried out scientific tests on objects retrieved from the Site. This is not quite in the terms alleged by the applicants, but it is very similar. A representation in these terms also reflects some of the specific claims made by the applicants which, in essence, are examples of the more general representation made by Dr Roberts.
Once it is accepted that Dr Roberts made this representation, it must follow that the representation was false. I have described earlier Dr Roberts' visits to the Site in 1990 and 1991. In the course of those visits he did not undertake what could be described as systematic investigations. Nor did he carry out or cause to be carried out scientific tests on objects retrieved from the Site, with the possible exception of the test he arranged on the so-called "pitch" samples after his 1990 visit. Dr Roberts admitted in the defence that he had not used or caused to be used metal detectors or interface radar, although the evidence shows that others had used these devices at the Site. In answer to interrogatories, Dr Roberts said that he had not used any form of scientific equipment at the Site, except for "basic items" he carried, apparently including a camera and hand held microscope. He accepted in cross-examination that he had not found animal hair or coprolite at the Site, had not conducted or arranged carbon dating of samples and had not systematically carried out measurements at the Site (although he had measured portions of what he regarded as the boat shaped formation). In these circumstances, it cannot be said that Dr Roberts had personally undertaken or participated a systematic investigation at the Site and had personally carried out or caused to be carried out scientific tests on objects retrieved from the Site.
Representation 3
Substantially for the reasons I have already given in relation to representation 1, I do not think that the brochure conveys a representation that Dr Roberts himself carried out or caused to be carried out the detailed measurements of the formation. Nor do I think the newsletter, which is framed in a manner similar to the brochure ("[t]his is the actual length of the formation on the Site as carefully measured") conveys any such representation.
I am also not satisfied that the extracts from Dr Roberts' lecture relied upon by the applicants should be read as representing that he had personally carried out or caused to be carried out the measurements. In the first extract Dr Roberts says that "we have estimated" a length of 515 feet. This, I think, implies that he has participated in the process of making that estimate. However, he then goes on to say that the "formation has been carefully measured, in fact, on site" which "we think is significant". The use of the passive tense seems to me to convey that Dr Roberts himself was not necessarily involved in the process of measurement. The matter is one of impression. It is neither feasible nor sensible to treat the transcript of the lectures as though it were the text of a statute. I do not think that the language used by Dr Roberts, having regard to the context, conveyed to the listening or viewing audience that Dr Roberts had been personally involved in carrying out the measurements.
It is therefore not necessary to consider whether this representation, alleged by the applicants, was false.
Representation 4
For the reasons I have already given (representation 1), I do not think the brochure supports the representation alleged.
Nor do I think the portions of the lectures relied on by the applicants can be construed in the manner suggested by the applicants. The comments may imply that Dr Roberts was personally involved in "checking out" the so-called slag, and I do not think they can fairly be understood as representing that Dr Roberts had carried out, or caused to be carried out, geological and chemical sampling of the formation. Therefore no issue of falsity arises.
Representation 5
In my view, the brochure does not support the representation alleged. Statements in the lecture do support the representation, but they add nothing to representation 2, which I have found was made and was false.
Representation 6
The passages from the brochure and the newsletter do not support the representation alleged. The passage from the lectures adds nothing to representation 2, which I have found was made by Dr Roberts. I shall deal with the finding of the coprolite next (representation 7).
Representation 7
I do not think that either the brochure or the lectures support a representation that Dr Roberts personally found or witnessed the finding of coprolite. The photograph and caption in the brochure do not imply that he did. The statement in the lecture, that "we are hoping to find more of this [coprolite]", does not, in context, convey the meaning that the coprolite already located had been found by Dr Roberts.
In my view, the lectures do create the impression that Dr Roberts was present when a considerable amount of animal hair was found at the Site. That representation is false, since Dr Roberts conceded in evidence that he had not found animal hair at the Site and attributed the find to Mr Wyatt's wife. I do not think, however, that the falsity of this representation adds anything material to representation 2, which I have found to be false.
Dr Roberts claimed in the lectures to have "plucked" what was later identified as the tip of a deer's antler from the formation. It was not put to him in cross-examination that his claim was false. Mr Walmsley relied on the fact that, in answers to interrogatories, Dr Roberts did not mention finding the deer's antler. I do not think that the wording of the interrogatory is sufficiently unequivocal, in the absence of the point being put directly to Dr Roberts, to warrant a finding that he had not found what he considered to be the tip of an antler.
Representation 8
I do not think that the brochure can be read as representing that Dr Roberts found the "rivet". No statement to that effect is made or implied. In the lectures, however, Dr Roberts claimed that "we found several things" including the "rivet". However, I do not think that this claim is falsified if, in fact, Dr Roberts was present with someone whom he regarded as a colleague when the item was found. Mr Walmsley did not suggest that Dr Roberts was not present at the time of the find. Accordingly, in my view, this representation has not been shown to be false.
Representation 9
In my opinion, the lectures conveyed the impression to the audience that Dr Roberts had used or caused to be used powerful metal detectors. The first mention of metal detectors does not specifically use the word "we". However, that word is used in the surrounding text. The later reference to "our metal detectors" would tend to confirm to most listeners or viewers that Dr Roberts himself had used or caused to be used metal detectors at the Site.
Given that the representation was made, the admissions in the pleadings establish that it was inaccurate.
Representation 10
In my view, Dr Roberts' answer to the question recorded on the transcript of the audio cassette convey that he had participated in the carbon dating of a piece of petrified wood. It is also clear that that representation was inaccurate. However, the applicants rely on the same answer to support representation 2, and formulating a further representation on the same material carries the applicants' claim no further. In any event, I do not think that the passages relied on support a representation in the terms alleged. Those passages do not convey that Dr Roberts has submitted artefacts to careful and objective scientific scrutiny.
Representation 11
For reasons I have already given, I do not think that the terms of the brochure or newsletter support the representation alleged.
In my view, however, the transcript of the lectures shows that Dr Roberts' language was calculated to and did convey the impression that he had personally been involved in the use of the sophisticated technique of "surface interface sonar". I reach the conclusion for the same reasons I have already expressed in relation to representation 2. Indeed, this representation is a particular illustration of the more general representation I have found was made by Dr Roberts. It was accepted by Dr Roberts that no sonar had been used at the Site and that references to sonar testing were intended to be to radar testing. He also accepted that he had not personally carried out radar testing. This representation was therefore not accurate.
Representation 12
This alleged representation must be considered together with representation 13. However, in my opinion, the passages on which the applicants rely, read in context, do not convey the impression that Dr Roberts was claiming to have scientific qualifications. The use of scientific or quasi-scientific terms does not of itself ordinarily convey that the speaker is himself or herself a scientist. To suggest otherwise would be to confine permissible discussion of issues on which scientific research has a bearing, at least in the context of trade and commerce, to persons with formal qualifications in science.
Nor do I think that Dr Roberts' references to archaeological research conveyed to the audience that he was trained as an archaeologist. He refers early in the lectures to "historians engaged in archaeological research". He certainly implies that he has engaged in archaeological research. This may well be an exaggeration. But a fair reading of the transcript of the lectures does not suggest that Dr Roberts, to the extent that he has engaged in any archaeological work, did so as a person with technical training in that field.
Representation 13
I think it fair to say that Dr Roberts has been prone to exaggerate the extent to which he secured the support or encouragement of others for the project. However, that does not establish that he made the representations alleged by the applicants.
I do not think that the statements in the brochure support a representation that Dr Roberts had carried out work in conjunction with the Turkish Government. The "consulting" to which the brochure refers does not imply that the Turkish Government actively participated or proposed actively to participate in the project. The brochure clearly represents that the Turkish Government had given verbal permission for the dig, but explicitly states that a written permit had not been received by the time of the kidnapping. The answers to interrogatories are consistent with the statements in the brochure and I am not satisfied that verbal approval was not given by the Turkish authorities.
The statement in the newsletter does not imply either that Dr Roberts had carried out work "in conjunction with" the Turkish Government or that a permit had been granted. It merely refers to preparations being undertaken "in co-operation with the Turkish authorities" for a preliminary dig.
The lecture does, however, convey the impression to the listener or viewer that the Turkish authorities had granted a permit for the use of "sonar" (presumably an error for radar) by Dr Roberts. Both Mr Fasold and My Wyatt apparently used radar at the Site. There is nothing to suggest that they did not have permission to do so. As I have already indicated, Dr Roberts represented that he had conducted or caused to be conducted investigations using radar (representation 12). I have also found that representation to be inaccurate. The representation that Dr Roberts had a permit to carry out radar investigations therefore adds nothing of substance to the false representation I have already found was made by him in the course of the lectures.
Representation 14
The representation alleged is not supported by the extract from the lectures. The context makes it quite clear that Mr Fasold's work was carried out in the 1970s and 1980s. Shortly after referring to Mr Fasold's work, Dr Roberts mentions his own trip to Turkey in 1990, implying (correctly) that it was his first visit to the Site. Listeners to the lecture could not reasonably have understood the reference to Mr Fasold as implying that he and Dr Roberts had worked together at the Site. There is therefore no reason to consider the issue of falsity.
Representation 15
This aspect of the applicant's case involved, in my view, some confusion probably reflecting Professor Plimer's (erroneous) belief that Freedom University simply handed out degrees more or less on request, subject to payment of fees. The evidence established that, in order to obtain his degree in Christian Education, Dr Roberts undertook studies over a period of about 20 months, including the preparation under supervision of a dissertation. Judging from some of the applicants' evidence on this issue (most of which was disallowed) it may have been intended to make out a case that Dr Roberts did not undertake any systematic studies in order to earn his doctorate. However, this was not the way the case was put in final submissions.
The representation alleged is not that Dr Roberts stated or implied that he had qualifications as an archaeologist, geologist or scientist, but that he had "a high academic qualification which lent credibility to his claims of archaeological and scientific expertise". There is no question that Dr Roberts repeatedly used and indeed stressed his title as "Doctor". I have referred earlier to his unwillingness to acknowledge in evidence the role he had played in using or encouraging the use of the title. There is also no doubt that Dr Roberts presented his qualifications in a manner calculated to add credibility to his presentations. This is shown most clearly in his "academic profile" in the brochure, which makes an incomplete reference to the subject matter of his dissertation and makes a dubious comparison with Yale and Harvard Universities. But the simple fact is that he was awarded a doctorate by Freedom University and according to the laws of Florida was entitled to describe himself as "Doctor". It has not been suggested that Australian law prevents him using the title to describe himself.
Moreover, both the newsletter and the brochure set out accurately the actual qualifications obtained by Dr Roberts (including his membership of the Australia Council of Education). They both refer to him as "B.A., B.Litt (corrected in the brochure's errata to M.Litt), M.Ed., D.C.E., M.A.C.E.". These references were correct. Unless it can be said that his use of the title "Doctor", in context, implied that he had archaeological, geological or scientific qualifications, I do not think that it has been shown that he made any false representations.
It is appropriate to add that I am not satisfied that Dr Roberts represented that he had academic qualifications in any of these fields. Had he simply described himself as an archaeological research consultant, the conjunction of the title Dr might well have conveyed the impression that he held a doctorate in archaeology. However, the brochure contained the academic profile which, whatever its deficiencies, made it clear to anybody reading it with any degree of care that he held no scientific qualifications. The newsletter comes closer to misrepresenting the position, but it, too, sets out Dr Roberts qualifications although they are not accompanied by a detailed "academic profile". Obviously not every reader - particularly those unfamiliar with academic qualifications - understands abbreviated references to degrees. But none of the abbreviations suggests that Dr Roberts has qualifications in a scientific field. Accordingly, I do not think that the newsletter, as a whole, conveys the impression that Dr Roberts had academic qualifications as an archaeologist.
I note that no submission was made that the phrase "archaeological research consultant" impliedly represented that Dr Roberts had expertise as an archaeologist.
Representation 16
Mr Walmsley, as I understood him, conceded that this alleged misrepresentation could add nothing significant to Mr Fasold's claim for infringement of copyright. I do not think it necessary, in these circumstances, to consider whether the representation alleged is made out and, if so, whether it is false.
Remedies
I have found that some of the representations made by Dr Roberts were false. In particular, I have found that his representation that he had personally undertaken or participated in systematic investigations at the Site and had personally carried out scientific tests on objects retrieved from the Site, was false. Even so, the applicants are not entitled to any relief under the Fair Trading Acts or the TP Act because of the conclusion I have already reached that none of the representations was made in trade or commerce. It follows that it is not necessary to consider the nature of the relief, if any, to which the applicants would be entitled in respect of the misrepresentations I have identified. Nonetheless, I shall briefly address this question. Again, I do so on the assumption (contrary to the conclusion stated earlier) that Dr Roberts made the representations found to be false in trade or commerce.
Mr Walmsley submitted, albeit without elaboration, that the applicants in these circumstances would have been entitled to damages against Dr Roberts under s 68 of the FTA (NSW) and equivalent provisions in the other Fair Trading Acts. In order for a party to recover damages under these provisions, it is necessary to show that the contravention of the relevant Fair Trading Act caused that party damage or loss: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, at 515, per Mason CJ. Causation is a question of fact, to be determined by reference to common sense and experience: March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. In some circumstances, a person who has not relied on representations may still be entitled to claim damages under the Fair Trading Acts for loss or damage caused by misleading or deceptive conduct. The clearest example is a claim for damages by a competitor of a party making false claims to consumers about that party's products: Jansseg-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437; (1992) 37 FCR 526 (FCA/Lockhart J).
In this case, the applicants do not claim that they relied on any representations made by Dr Roberts. Nor do they suggest that they have suffered financial loss by reason of any misleading or deceptive conduct. Professor Plimer claims to have been affronted by Dr Roberts' conduct. In assessing their claim for damages, I am prepared to assume, without deciding, that an applicant who has not relied on misleading or deceptive conduct, nonetheless may be entitled to damages for non-economic loss that can be shown to have been caused by that conduct. Even so, the evidence in this case simply does not establish any causal relationship between the particular representations that I have found were made falsely by Dr Roberts and any affront Professor Plimer may have experienced. To the extent that Professor Plimer was affronted, it was because of his general distaste for what he regarded as Dr Roberts' "pseudo-science" or, perhaps, because he was excluded from two of the meetings organised by NARF. It was not because of any representations made by Dr Roberts that I have found to be false. Mr Fasold is in a similar position. Accordingly, I would not have been prepared to award damages to either of the applicants under the Fair Trading Acts.
The applicants claimed injunctive relief, but did not formulate the precise terms of any proposed order restraining Dr Roberts from future conduct in contravention of the Fair Trading Acts. In fairness, it should be said that it is not easy to draft such orders until findings of fact have been made and the conduct in breach of the Fair Trading Acts identified. In the absence of such a draft, I shall limit myself to expressing tentative views as to whether I would have been prepared to grant injunctive relief had the applicants established that Dr Roberts had infringed the Fair Trading Acts.
The principles governing the award of injunctions under s 80 of the TP Act have been discussed by the Full Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248, and in Tobacco Institute v AFCO, at 16-19, 65-66. There is no reason why those principles should not apply to claims brought under the Fair Trading Acts. The remedy is discretionary. There is no rule that, if a contravention of Part V of the TP Act is established, an injunction should be granted unless the Court is of the view that it should be refused: ICI, at 257; Tobacco Institute v AFCO, at 18. While s 80(4) of the TP Act allows the Court to grant an injunction whether or not there is a likelihood of future contravention, the likelihood of future contravention is a relevant factor in the exercise of the Court's discretion: ICI, at 256. The remedy is granted in the public interest and the requirements of public interest must carry considerable weight with the Court: Tobacco Institute v AFCO, at 18. Having regard to the contempt sanctions available for breach of injunctions, any orders should be made only in clear and unambiguous terms: ICI, at 259.
In the present case, on the assumptions previously identified, I am inclined to the view that I would have declined to grant injunctive relief to the applicants or either of them. There was no attempt by the applicants to prove that a repetition of any misleading or deceptive conduct would occur in the absence of such relief. I am not prepared to infer that such repetition is likely. The conduct that I have found to be misleading and deceptive is, in substance, limited to Dr Roberts' representations that he had personally undertaken investigations at the Site or arranged testing of objects found at the Site. It can hardly be suggested that these representations, if repeated, are of themselves likely to sway the minds of those who interest themselves in the questions posed by Dr Roberts. Moreover, in my view, considerable care must be exercised before making orders restraining statements made in the course of public discussion on issues regarded by many people as important to their religious or ideological beliefs, at least where the motivation for making such statements is not primarily commercial in character. Unless caution is exercised, there is a serious risk that the courts will be used as the means of suppressing debate and discussion on issues of general interest to the community. It is no answer to the concern I have identified that any orders made by the Court will restrain only representations that have been shown to be false. The very task of having to justify impugned representations may deter those with limited resources (both financial and emotional) from engaging in discussion of matters of wide community interest. If the views they put forward are ill-informed or plain wrong, a democratic society offers ample opportunity to rebut those views. As the publicity preceding this case (of which there was evidence) demonstrates, there are means available to counter what are said to be misrepresentations or errors made in public presentations on issues of general interest, without invoking the TP Act or the Fair Trading Acts.
I prefer to express no view on whether I would have been prepared to grant declaratory relief had the applicants established that Dr Roberts contravened the Fair Trading Acts. I would have invited further argument, had it been necessary to decide the point.
Summary of Conclusion on Misleading and Deceptive Conduct
Because I have held that none of the representations made by Dr Roberts was made in trade or commerce, it is not necessary for me to consider whether Dr Roberts made statements that were misleading or deceptive or likely to mislead or deceive. However, I have addressed that question and have reached the following conclusions:
* The brochure and newsletter did not contain representations that were misleading or deceptive, or likely to mislead or deceive.
* In the lectures, Dr Roberts represented that he had personally undertaken or participated in systematic investigations at the Site
designed to determine whether it contained the remnants of Noah's Ark and had personally carried out or caused to be carried out
scientific tests on objects retrieved from the Site. This representation was false and, had the Fair Trading Acts applied, would have constituted misleading or deceptive conduct on his part.
* Several other statements made by Dr Roberts conveyed representations that were not true, but they do not add anything of substance
to the representation to which I have already referred.
* Other representations relied on by the applicants were either not made by Dr Roberts or were not shown to have been false. In particular,
I do not think that Dr Roberts' references to his academic qualifications or expertise constituted misleading or deceptive conduct.
Had it been necessary to consider whether relief should be granted to the applicants under the Fair Trading Acts, I would have concluded that neither applicant is entitled to damages by reason of any misleading or deceptive conduct on the part of Dr Roberts. I would also have been inclined to the view that no injunctive relief should be granted to the applicants to restrain Dr Roberts from repeating any misrepresentations made in the course of his public lectures.
VI. COPYRIGHT
The Case for Infringement
Mr Fasold's case for infringement of copyright is as follows. He held copyright in the book entitled "The Ark of Noah", published in the United States in 1989, including the diagram appearing at p.291, which has been reproduced earlier. This diagram was, in substance, reproduced in the newsletter and brochure. No licence had been given either to Dr Roberts or to Ark Search Inc to reproduce that diagram. The reproduction constituted a "substantial part" of Mr Fasold's book (Copyright Act, s 14(1)). Dr Roberts had authorised reproduction of the drawing (Copyright Act, ss 31(1)(a), 36) and thus was liable to Mr Fasold for infringing his copyright. Ark Search Inc had sold the brochure and the newsletter, thereby also infringing Mr Fasold's copyright (Copyright Act, s 38(1)(a)).
No reference was made in argument to the fact (as seems likely) that Mr Midgley actually used the UK edition of Mr Fasold's book when preparing his (Mr Midgley's) drawings. Both Mr Walmsley and Mr Duncan appeared content to argue the case on the basis that, if Mr Midgley copied Mr Fasold's work, it made no difference whether it was the UK or US edition that had been used as the source. I shall approach the matters on the same basis.
Did Mr Fasold Have Copyright in the Book and Diagram?
Under the Copyright Act, s 32(2), where an original literary or artistic work has been published, copyright subsists in the work if (inter alia) the author of the work was a "qualified person" at the time the work was first published. A "qualified person" is defined to include a person resident in Australia: s 32(4). However, the Copyright Act, s 184 contemplates that regulations may be made applying the provisions of the Act to countries other than Australia. The Copyright (International Protection) Regulations (the "Regulations"), reg 4(1), applies the provisions of the Copyright Act in relation to literary and artistic works first published in a country listed in relevant Parts of Schedule 1 to the Regulations:
"in like manner as those provisions apply in relation to literary...and artistic works...first published...in Australia".
Regulation 4(4) applies the provisions of the Act relating to works to persons who, at a material time, are resident in a country listed in a relevant Part of Schedule 1
"in like manner as those provisions apply in relation to persons who, at a material time, are resident in Australia."
The United States is listed in Part I of the Schedule. Accordingly, the Copyright Act applies in relation to the US edition of Mr Fasold's book in like manner as it applies to books first published in Australia. The provisions of the Act also apply to Mr Fasold as a resident of the United States, in like manner as they would apply in relation to an Australian resident.
The evidence clearly establishes that Mr Fasold was the author of the text of his book and of the diagram (including notations) appearing at p.291 of both editions of his book. Mr Duncan did not suggest to the contrary. Nor did he suggest that the diagram was not an original work, even though some of the measurements used in its compilation, notably the length, were in the public domain prior to publication of Mr Fasold's book: compare A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 143 ALR 543 (FCA/Drummond J), at 552 ff, and authorities cited there. Accordingly, pursuant to s 35(2) of the Copyright Act, Mr Fasold was the owner of the copyright in the text of his book, including the diagram, at the time the book was published. The documentary evidence supports this conclusion. A certificate of copyright registration, issued by the United States Copyright Office and dated 6 September 1989, was in evidence. This certificate, registration number TX 2-652-496, showed that Mr Fasold was the "Copyright claimant" in respect of the work entitled "The Ark of Noah", which had first been published on 13 March 1989. The certificate was lodged by a representative of Wynwood Press, the publisher of the Book, as Mr Fasold's authorised agent. The certificate is consistent with the publishing agreement between Mr Fasold and Wynwood Press, dated 9 March 1988. Clause 10 of the agreement required the publisher to register the copyright of the work, entitled "The Ark of Noah", in the name of the author in the United States Copyright Office.
The respondents rely on two matters to support a submission that Mr Fasold has not shown that he held copyright in his book at the time of the alleged infringements, in early 1992. They rely, first, on a letter dated 28 July 1992 to Mr Fasold from Baker Book House, of which Wynwood Press was, by then, a division. The letter stated that, on 6 September 1989, Wynwood Press "copyrighted as owner of the book "The Ark of Noah" under registration number TX 2-652-496". The letter further stated that the Baker Book House, by the letter itself, transferred copyright ownership to Mr Fasold. The respondents submit that the letter demonstrates that Mr Fasold was not the copyright owner of his book at any date earlier than 28 July 1992.
Mr Fasold gave evidence that in mid-1992 he had asked Baker Book House if it intended to republish his work. He was told that it had no such plans but that the company would be happy to let him off the contract. The letter was written in consequence of this conversation. Mr Fasold also gave evidence that, at the time he received the letter, he considered that it was simply mistaken as to the effect of the certificate of copyright registration. He said that no transaction had taken place whereby he had lost or assigned the copyright vested in him, as evidenced in the certificate of copyright registration. Mr Fasold's explanation is supported by the terms of the certificate of copyright registration, which are mis-stated in the letter of 28 July 1992. I accept his explanation. In my view, the letter does not show that Mr Fasold did not have copyright in his book at the time of the alleged infringements by the respondents.
The second matter on which the respondents rely is the fact that on 17 January 1992 Mr Fasold and his wife jointly and severally applied for what he described as "Chapter 7 bankruptcy" in the United States. However, the respondents adduced no evidence as to the effect of a Chapter 7 bankruptcy under the law of the United States, either in general or in relation to any copyright previously vested in Mr Fasold. Moreover, Mr Fasold gave evidence that at a court hearing in the United States, on about 24 April 1992 he had been "absolved" from the bankruptcy proceedings and that none of his assets had been transferred or assigned in consequence of his application under Chapter 7. He also gave evidence that he had taken legal action in about 1993 or 1994 in respect of alleged breaches of copyright and had received payments in settlement of his claims. This evidence suggests that the application for Chapter 7 bankruptcy did not affect his copyright in the book.
I accept Mr Fasold's evidence on these matters. In the absence of any contrary evidence, I conclude that Mr Fasold's application under United States bankruptcy laws did not result in the assignment or loss of his copyright in the book.
Was Mr Fasold's Copyright Infringed?
Mr Fasold's copyright in the book gave him the exclusive right to reproduce it in a material form: Copyright Act, s 31(1)(a)(i). Copyright is infringed if a person, without the licence of the owner, does or authorises the doing of any act comprised in the copyright: s 36(1). The reproduction of a work includes a reference to the reproduction of a "substantial part" of the work: s 14(1)(b). In the present case, there is no dispute that Mr Fasold did not licence Dr Roberts or Ark Search Inc to reproduce any portion of the book.
In order for an applicant to show that his or her work has been reproduced by another, it is necessary to establish that the reproduction is causally connected with the work of the original author: Francis Day & Hunter Ltd v Bron [1963] Ch 587, at 617-618, per Upjohn LJ. Reproduction means copying and does not include cases where an author or compiler produces a substantially similar result by independent work without copying: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465, at 469, per Lord Reid. What constitutes a copy is a question of fact, to be determined by the degree of resemblance between the work in which copyright subsists and the alleged copy: Hanfstaengl v H R Baines & Co Ltd [1895] AC 20, at 30-31, per Lord Shand.
In my opinion, the resemblances between the diagram (including notations) prepared by Mr Fasold, appearing at p.291 of his book, and the drawing (including notations) appearing in the newsletter and brochure are such that the latter should be regarded as copies of Mr Fasold's diagram. I have taken into account that the two are not identical in all respects. However, I think that there is more than mere similarity or resemblance in some leading features or certain details; the drawing prepared by Mr Midgley, which was reproduced in the brochure and newsletter, adopted the essential features and substance of Mr Fasold's diagram (compare the language of Lord Shand in Hanfstaengl, at 31).
Among the more important features in common are these:
* the shape and dimensions of the object portrayed (although Mr Midgley's is slightly more slender and narrower towards the pointed
end and has a rounded rather than straight protrusion at the other end);
* the number, shape and dimensions of what Mr Fasold describes as the "bulkheads" (labelled as A-F in Mr Midgley's drawing);
* the transverse lines in each of the drawings are very similar;
* each has an area, of similar shape and located in a similar position, designated as "rock intrusion";
* each has a series of longitudinal lines, converging at each end;
* each has two series of dots, although Mr Midgley identifies them as "Protuberances - possibly anchor points?"; and
* each has a series of notations that are virtually identical (in one case - the reference to "This area wracked out" - Mr Midgley's
notation appears to have been derived from another diagram prepared by Mr Fasold, appearing at p.119 of his book).
I am also satisfied that this is not a case of independent work, without copying. The drawing reproduced in the brochure and newsletters (including the annotations) is causally related, in the relevant sense, to Mr Fasold's work. I accept that Mr Midgley undertook considerable work of his own for the purpose of developing plans for a model of Noah's Ark. However, on Mr Midgley's own account, he paid close attention to, and relied on, detailed measurements and calculations appearing in Mr Fasold's book. Some of those were available from no other source. He readily acknowledged that he had paid careful attention to some 35 pages of Mr Fasold's book, including a number of diagrams, before preparing his own drawing. He agreed in cross-examination that he might have taken a number of the annotations directly from Mr Fasold's diagram.
I do not accept Mr Midgely's statement that "he did not take much notice of [Mr] Fasold's diagram" when preparing his own. In my view, this statement is extremely difficult to reconcile with the objective similarities between Mr Fasold's diagram and Mr Midgley's drawing and the admissions made by Mr Midgley. I found portions of Mr Midgley's evidence unconvincing, in particular his explanation of how he came to include the triangular shaped "rock intrusion" in his drawing. I also found unconvincing his insistence that he created his drawing after carefully considering Mr Fasold's measurements and calculations, but that he "largely disregarded" Mr Fasold's use of those same measurements and calculations in his diagram. I do not mean to suggest that Mr Midgley was consciously attempting to mislead the Court. He may well have come to believe over time that he paid little attention to Mr Fasold's diagram. Nor did Mr Midgley have any malevolent motive in utilising Mr Fasold's work. Nonetheless, in my view, Mr Midgley closely followed Mr Fasold's diagram when compiling his series of drawings, one of which appeared in the brochure and newsletter. Mr Midgley made some relatively minor changes to Mr Fasold's diagram, in the light of his own reading and opinions. However, these changes do not alter the conclusion that copying took place.
There was no real debate before me as to whether the material reproduced in the brochure and newsletter constituted a reproduction of a substantial part of the work in which Mr Fasold held copyright. It is generally accepted that the phrase "substantial part", as used in s.14(1)(a) of the Copyright Act, refers to the quality of what is taken rather its quantity: Autodesk Inc v Dyason (No.2) [1993] HCA 6; (1993) 176 CLR 300, at 305, per Mason CJ. The reproduction of a part of a work which has no originality will not normally be a substantial part of the work in respect of which copyright exists: Ladbroke Ltd v William Hill, at 481, per Lord Pearce.
In the present case, only a small proportion of Mr Fasold's work was reproduced. However, as Mr Midgley's evidence made clear, the reproduction of Mr Fasold's diagram reflected and drew upon a considerable volume of other material in Mr Fasold's book. Whether or not the analysis and reasoning relied on by Mr Fasold in preparing his diagram could survive careful objective scrutiny (bearing in mind that he has discarded his once fervently held belief that the Site contains the remains of Noah's Ark) does not determine whether the work is original for the purposes of copyright law. In my view, having regard to the significance of Mr Fasold's diagram for his book as a whole, the copying of the diagram constituted the reproduction of a substantial part of his work.
Did the Respondents Authorise the Infringement?
Section 36(1) of the Copyright Act refers to an infringement of copyright by a person who, without the licence of the owner, authorises any act comprised in the copyright. The High Court has construed the concept of "authorisation" in accordance with the dictionary meaning of "sanction, approve or countenance": University of New South Wales v Moorehouse [1975] HCA 26; (1975) 133 CLR 1, at 12, per Gibbs J, at 20-21, per Jacobs J (with whom McTiernan ACJ agreed). The concept has recently been considered by the Full Court in Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 136 ALR 273 (FCA/FC), at 294-296, per Sackville J. I do not repeat that analysis here.
Dr Roberts said in one of his affidavits that he did not suggest or authorise publication of the brochure. However, there is a considerable volume of evidence supporting the conclusion that he did sanction, approve or countenance publication of the brochure, including the reproduction of Mr Fasold's diagram. I have already found that Dr Roberts saw the first draft of the brochure and rewrote portions of it. Mr Midgley gave evidence, which I accept, that he showed Dr Roberts the version of his drawing ultimately reproduced in the brochure. Mrs Hill faxed Dr Roberts copies of the drafts of the brochures and Dr Roberts corrected and returned them. The brochure contains a notation that copyright is claimed by Dr Roberts and that all text and illustrations used are the property of or are used with his permission. Furthermore, Dr Roberts acknowledged his own responsibility for errors in the brochure. In a handwritten fax to Mr Fasold, dated 18 July 1992, written in response to a letter of complaint by Mr Fasold, Dr Roberts said that "I am prepared to take responsibility for what has been printed since my name is on it [the brochure]". In a subsequent telephone conversation with Mr Fasold, Dr Roberts said that he took "full responsibility for having erred in this matter", a reference to a failure to cite sources for certain material reproduced in the brochure.
I find that Dr Roberts was aware of the contents of the brochure, including the drawing prepared by Mr Midgley, prior to its publication. He encouraged the publication of the brochure by NARF and approved of its contents. Specifically he approved of the inclusion of the drawing in its final form. He knew that the brochure was to be sold and that his name and photograph would appear on it, along with the claim of copyright in his name. One important purpose behind Dr Roberts' making the claim to copyright over the brochure was to emphasise that he was responsible for its contents. In the circumstances, in my view, Dr Roberts was instrumental in arranging the preparation and publication of the brochure.
The position with respect to the newsletter is different, because it contains no claims to copyright by Dr Roberts. However, as I have found earlier, much of the material contained in the first two pages of the newsletter is identical to that contained in the brochure. This material was given to Mrs Hill by Dr Roberts. On Dr Roberts' own account he assisted Mrs Hill to write and compile the newsletter for distribution and sale at the meeting. The question posed on the front of the newsletter in large type (referring to "this huge mud-covered, boat-shaped formation") can refer only to the drawing prepared by Mr Midgley which, of course, Dr Roberts had seen. In these circumstances, I think it is clear that Dr Roberts knew and approved of the inclusion of Mr Midgley's drawing in the newsletter and approved of the newsletter being distributed and sold by or through NARF. It follows, in my view, that Dr Roberts authorised both the publication of Mr Midgley's drawing in the newsletter and the distribution and sale of that newsletter.
Once again, the position of Ark Search Inc received very little attention in submissions. Section 38(1)(a) of the Copyright Act, on which Mr Fasold relied, provides that the copyright in a literary or artistic work is infringed if a person, without the licence of the owner, sells an article "if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright". The test of whether the person "ought reasonably to have known" that the making of the article constituted an infringement of the copyright is objective, but the test allows regard to be had to the knowledge, capacity and circumstances of the particular respondent: Raben Footwear Pty Ltd v Polygram Records Inc, FCA/FC, 16 May 1997, unreported, at 3-4, per Burchett J. The onus of proof is on the copyright owner: Avel Pty Ltd v Multicoin Amusement Pty Ltd [1990] HCA 58; (1990) 171 CLR 88, at 94-95, per Mason CJ, Deane and Gaudron JJ.
The evidence did not address the organisational structure or activities of Ark Search Inc in any depth, beyond recording the sale of four brochures and the distribution of up to 15 newsletters after the incorporation of the association. There was no evidence as to the circumstances in which the sale or distribution of the brochures and newsletters took place by Ark Search Inc. Nor was there any evidence of the knowledge available to office bearers of Ark Search Inc concerning the circumstances in which Mr Midgley's drawing came to be included in the publications. Dr Roberts was, of course, aware of the circumstances, but he was not a member of Ark Search Inc and there was no evidence that he communicated his knowledge to officers of Ark Search Inc. It is true that other persons involved in NARF must have been aware that Mr Fasold had complained about breach of copyright in July 1992, but it was not shown that any of them were office bearers in Ark Search Inc, or acquired their knowledge before the sale of the brochure and newsletters by the incorporated association. Accordingly, I do not think it has been established that Ark Search Inc, or those acting on its behalf, knew or ought reasonably to have known that the publication of the brochure or newsletter constituted an infringement of Mr Fasold's copyright.
In any event, the sale and distribution of such a small number of brochures and newsletters, in my view, adds nothing to Mr Fasold's claim for damages in respect of infringement of his copyright. Even if Ark Search Inc were regarded as infringing Mr Fasold's copyright by the sale of the brochures and newsletters, I would not have held that Mr Fasold was entitled to any damages from Ark Search Inc additional to those awarded against Dr Roberts.
Damages?
There was nothing in the evidence to justify a finding that the unauthorised reproduction of Mr Fasold's diagram had caused a depreciation in the value of his copyright. Nor was there anything to support a finding that, if a licence fee had been demanded, Dr Roberts or NARF would have paid the licence fee, rather than chosen not to use the work. Doubtless for these reasons Mr Walmsley contended that the correct approach was to treat the damages "at large" and to award damages on the same basis as would a jury: Fenning Film Services Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171, at 1174, per Horridge J; Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 (FCA/Wilcox J), at 475-477. Mr Walmsley suggested, without elaboration, a figure of $30,000 was an appropriate award of damages against Dr Roberts for infringement of copyright.
Mr Walmsley pointed out that Mr Fasold had spent considerable sums - exceeding $50,000 - on his trips to Turkey prior to publishing his book. I think that this figure, even assuming it can be attributed exclusively to the writing of the book, is of limited, if any, relevance to the assessment of damages in the present case. Expenditure of this kind might be relevant in a case where the applicant contends that the value of the copyright is related to the pre-publication expenditure incurred by the author. It might also be relevant if it is established that a substantial licence fee could have been demanded and would have been accepted by the infringer. The present is not such a case. As I have noted, Mr Walmsley did not contend that the infringement had depreciated the value of Mr Fasold's copyright. Even if a licence fee could have been requested in this case, realistically Mr Fasold could have expected only a very modest sum. In assessing damages it is necessary to bear in mind that the total proceeds from the sales of the newsletter and brochure were unlikely to have exceeded $1,500.
Other factors must also be taken into account. Dr Roberts himself obtained no financial benefit from the unauthorised reproduction of Mr Fasold's diagram. Furthermore, the brochure and newsletter each acknowledged that the diagram reflected measurements and work undertaken by Mr Fasold. The brochure itself specifically referred to Mr Fasold's book in footnotes.
I regard this case as involving a relatively minor infringement of copyright that has inflicted no significant financial loss on Mr Fasold. Accordingly, the damages should be modest. I think the appropriate award of damages against Dr Roberts is $2,500.
Mr Walmsley submitted, again without elaboration, that this was a case in which additional damages should be awarded under s 115(4) of the Copyright Act. Section 115(4) is cast in wide terms and confers "a discretion of the most extensive nature" on the Court: Raben Footwear v Polygram, at 24, per Tamberlin J. Additional damages can be awarded under s 115(4) even if an infringement cannot be described as flagrant, although the flagrancy (or otherwise) of the breach is an important factor to take into account.
Mr Walmsley conceded that there was no evidence of "flagrancy" occurring at or before publication of the brochure or newsletter. I do not think that Dr Roberts' failure to take corrective action after his conversation with Mr Fasold on about 18 July 1992 warrants an award of additional damages, having regard to the negligible distribution of brochures and newsletters after that date. As I have said, Dr Roberts obtained no commercial advantage from the infringement of copyright and the brochure and newsletter each gave an acknowledgment, albeit incomplete, to Mr Fasold's work. I see nothing in the circumstances of the case to warrant an award of additional damages.
Summary on Copyright
At all material times, Mr Fasold held the copyright in his book, "The Ark of Noah", published in the United States in 1989. The drawing appearing in the brochure and newsletter published by NARF was prepared by Mr Midgley but, in substance, reproduced the diagram appearing at p.291 of Mr Fasold's book. Dr Roberts authorised the reproduction of the diagram in the brochure and newsletter. Accordingly, he infringed Mr Fasold's copyright.
There is no evidence of significant financial loss to Mr Fasold in consequence of the infringement of copyright. Assessing damages on a "jury basis", a modest award should be made against Dr Roberts. That award should be in the sum of $2,500.
On the evidence, I cannot be satisfied that Ark Search Inc, which distributed only a few brochures and newsletters, knew or might have known that the publication infringed copyright. In any event, even if it did have the requisite knowledge, I would not have awarded any damages in respect of any infringement of copyright by Ark Search Inc additional to those awarded against Dr Roberts.
VII. CONCLUSION
The applicants' case, insofar as it is based on the TP Act or Fair Trading Acts, fails. Mr Fasold succeeds in his claim for infringement of copyright against Dr Roberts, but he should be awarded damages only in the sum of $2,500. Mr Fasold's claim against Ark Search Inc should be dismissed. The cross-claim should be dismissed.
I shall give the parties the opportunity to make written submissions on costs. In the light of those submissions I shall determine whether a further hearing is necessary.
I certify that this and the preceding 85 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated: 2 June, 1997
Heard: 7,8,9,10,14,15 and 17 April, 1997.
Place: Sydney
Decision: 2 June, 1997
Appearances:
Counsel for the applicants: Mr S.L. Walmsley and Mr M.G. Vincent
Solicitors for the applicants: Blessington Judd.
Counsel for the respondents: Mr A. Radojev and Mr M.B. Duncan
Solicitors for the respondents: Bush Burke & Company.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1997/439.html