DAVID FASOLD AND IAN RUTHERFORD PLIMER v ALLEN ROBERTS AND ARK SEARCH ASSOCIATION INCORPORATED No. NG 942 of 1992 SUMMARY INTRODUCTION In accordance with the practice of the Federal Court in some other cases of public interest, Sackville J has prepared this brief summary to accompany the reasons for judgment, delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. THE ISSUES The litigation has attracted considerable public attention, doubtless because it has been thought to be yet another contest in the legal arena between science and what is sometimes referred to as "creation science". Professor Plimer, one of the applicants, is a Professor of Geology and is a member of the Australian Skeptics. Dr Roberts is an ordained Christian minister, who has publicly supported the view that a boat-shaped geological formation at a place near Mount Ararat in Eastern Turkey ("the Site") could contain the remnants of Noah's Ark, as referred to in Genesis. Despite the historical comparisons the case has attracted, the issues are relatively prosaic. The first major question is whether Dr Roberts contravened the Fair Trading Acts of the States and of the ACT. The Fair Trading 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 case for the applicants is that Dr Roberts, in the course of a series of public lectures given in early 1992 and in certain publications, misrepresented his qualifications and the nature of the investigations he personally carried out at the Site. The second question, which has very little to do with the first, is whether Mr Fasold, the other applicant, is entitled to relief under the Copyright Act 1968 (Cth), in respect of what he claims is an infringement of his copyright. Mr Fasold is the author of a book entitled "The Ark of Noah", published in the United States in 1989. He says that Dr Roberts infringed his copyright, by reproducing or authorising the reproduction of, a diagram from Mr Fasold's book in a brochure and newsletter distributed in 1992. "IN TRADE OR COMMERCE" Not every misrepresentation made publicly contravenes the Fair Trading Acts. In order for the applicants to succeed in their claim that Dr Roberts breached the Fair Trading Acts, they must show that he made the relevant representations in trade or commerce. Their argument, in essence, is that, although Dr Roberts was not paid for his lectures, nor for the sale of tapes of those lectures, he was acting in trade or commerce, because he was promoting the business of an organisation known (among other names) as Noah's Ark Research Foundation ("NARF"). NARF was an unincorporated association, the membership of which included people sharing Dr Robert's beliefs about the significance of the Site. NARF was not a commercial undertaking, but its objects included raising funds for further investigations at the Site. Dr Roberts was intended to be the recipient of some of those funds. NARF's funds were transferred to Ark Search Inc when it was incorporated on 25 July 1992. The Court rejects the applicants' argument that Dr Roberts acted in trade or commerce, for two reasons: • First, even though most of the Fair Trading Acts define "business" to include "a business not carried on for profit", NARF was not carrying on a business. This was because its activities lacked the necessary degree of system and continuity. Thus, there is no foundation for the applicants' argument that Dr Roberts was promoting NARF's business. • Secondly, even if NARF were to be regarded as having conducted a business, Dr Roberts' activities, on the facts of the case, did not bear the required "trading or commercial character". Accordingly, his conduct could not be regarded as being "in trade or commerce". The Court notes that the rejection of the applicants' arguments reflects a broader proposition, namely, that courts 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. Some issues - no matter how great the passions they arouse - are more appropriately dealt with outside the courtroom. MISLEADING AND DECEPTIVE CONDUCT In view of the Court's conclusion, that Dr Roberts did not make representations "in trade or commerce", it is not necessary to consider whether any of his statements, in the public lectures or elsewhere, constituted misleading or deceptive conduct. However, because the issues were debated, the Court addresses this question and reaches the following principal conclusions: • The brochure and newsletter did not contain representations that were misleading or deceptive, or likely to mislead or deceive. • In his 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. He also represented that he had personally carried out or caused to be carried out scientific tests on objects retrieved from the Site. These representations were false and, had the Fair Trading Acts applied, would have constituted misleading or deceptive conduct on Dr Roberts' part. • Other representations relied on by the applicants were either not made by Dr Roberts or were not shown to have been false. In particular, Dr Roberts' references to his academic qualifications or expertise did not constitute misleading or deceptive conduct. REMEDIES The Court has a discretion to decide whether it should grant an injunction to restrain misleading or deceptive conduct. Had it been necessary to consider whether relief of this kind should be granted to the applicants, the Court would have been inclined not to grant an injunction. Considerable care should be exercised before making orders restraining comments 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. COPYRIGHT At all material times, Mr Fasold held copyright in his book, "The Ark of Noah". A drawing appearing in the brochure and newsletter published by NARF in 1992 reproduced, in substance, a diagram appearing in 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 was no evidence of significant financial loss to Mr Fasold in consequence of the infringement of his copyright. Assessing damages on a "jury basis", the Court awards the modest sum of $2,500 damages against Dr Roberts. ARK SEARCH INC The applicants also make claims against Ark Search Inc, including a claim under the Trade Practices Act 1974 (Cth). However, Ark Search Inc undertook very few activities following its incorporation in July 1992. None of the claims made against it succeeds. CONCLUSION The applicants' case, insofar as it is based on the Fair Trading Acts and the Trade Practices Act, fails. Mr Fasold succeeds in his claim for infringement of copyright against Dr Roberts, but he is awarded damages of only $2,500. Costs will be considered by the Court after the parties make further submissions. Sydney, 2 June 1997 This judgment is available in full text on the internet at the following URL: http://www.austlii.edu.au/au/other/FCA CAT

FEDERAL COURT OF AUSTRALIA

DAVID FASOLD AND IAN RUTHERFORD PLIMER

ALLEN ROBERTS AND ARK SEARCH ASSOCIATION INCORPORATED

No. NG 942 of 1992

SUMMARY

INTRODUCTION

In accordance with the practice of the Federal Court in some other cases of public interest, Sackville J has prepared this brief summary to accompany the reasons for judgment, delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court's reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.

THE ISSUES

The litigation has attracted considerable public attention, doubtless because it has been thought to be yet another contest in the legal arena between science and what is sometimes referred to as "creation science". Professor Plimer, one of the applicants, is a Professor of Geology and is a member of the Australian Skeptics. Dr Roberts is an ordained Christian minister, who has publicly supported the view that a boat-shaped geological formation at a place near Mount Ararat in Eastern Turkey ("the Site") could contain the remnants of Noah's Ark, as referred to in Genesis. Despite the historical comparisons the case has attracted, the issues are relatively prosaic.

The first major question is whether Dr Roberts contravened the Fair Trading Acts of the States and of the ACT. The Fair Trading 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 case for the applicants is that Dr Roberts, in the course of a series of public lectures given in early 1992 and in certain publications, misrepresented his qualifications and the nature of the investigations he personally carried out at the Site.

The second question, which has very little to do with the first, is whether Mr Fasold, the other applicant, is entitled to relief under the Copyright Act 1968 (Cth), in respect of what he claims is an infringement of his copyright. Mr Fasold is the author of a book entitled "The Ark of Noah", published in the United States in 1989. He says that Dr Roberts infringed his copyright, by reproducing or authorising the reproduction of, a diagram from Mr Fasold's book in a brochure and newsletter distributed in 1992.

"IN TRADE OR COMMERCE"

Not every misrepresentation made publicly contravenes the Fair Trading Acts. In order for the applicants to succeed in their claim that Dr Roberts breached the Fair Trading Acts, they must show that he made the relevant representations in trade or commerce. Their argument, in essence, is that, although Dr Roberts was not paid for his lectures, nor for the sale of tapes of those lectures, he was acting in trade or commerce, because he was promoting the business of an organisation known (among other names) as Noah's Ark Research Foundation ("NARF").

NARF was an unincorporated association, the membership of which included people sharing Dr Robert's beliefs about the significance of the Site. NARF was not a commercial undertaking, but its objects included raising funds for further investigations at the Site. Dr Roberts was intended to be the recipient of some of those funds. NARF's funds were transferred to Ark Search Inc when it was incorporated on 25 July 1992.

The Court rejects the applicants' argument that Dr Roberts acted in trade or commerce, for two reasons:

• First, even though most of the Fair Trading Acts define "business" to include "a business not carried on for profit", NARF was not carrying on a business. This was because its activities lacked the necessary degree of system and continuity. Thus, there is no foundation for the applicants' argument that Dr Roberts was promoting NARF's business.

• Secondly, even if NARF were to be regarded as having conducted a business, Dr Roberts' activities, on the facts of the case, did not bear the required "trading or commercial character". Accordingly, his conduct could not be regarded as being "in trade or commerce".

The Court notes that the rejection of the applicants' arguments reflects a broader proposition, namely, that courts 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. Some issues - no matter how great the passions they arouse - are more appropriately dealt with outside the courtroom.

MISLEADING AND DECEPTIVE CONDUCT

In view of the Court's conclusion, that Dr Roberts did not make representations "in trade or commerce", it is not necessary to consider whether any of his statements, in the public lectures or elsewhere, constituted misleading or deceptive conduct. However, because the issues were debated, the Court addresses this question and reaches the following principal conclusions:

• The brochure and newsletter did not contain representations that were misleading or deceptive, or likely to mislead or deceive.

• In his 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. He also represented that he had personally carried out or caused to be carried out scientific tests on objects retrieved from the Site. These representations were false and, had the Fair Trading Acts applied, would have constituted misleading or deceptive conduct on Dr Roberts' part.

• Other representations relied on by the applicants were either not made by Dr Roberts or were not shown to have been false. In particular, Dr Roberts' references to his academic qualifications or expertise did not constitute misleading or deceptive conduct.

REMEDIES

The Court has a discretion to decide whether it should grant an injunction to restrain misleading or deceptive conduct. Had it been necessary to consider whether relief of this kind should be granted to the applicants, the Court would have been inclined not to grant an injunction. Considerable care should be exercised before making orders restraining comments 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.

COPYRIGHT

At all material times, Mr Fasold held copyright in his book, "The Ark of Noah". A drawing appearing in the brochure and newsletter published by NARF in 1992 reproduced, in substance, a diagram appearing in 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 was no evidence of significant financial loss to Mr Fasold in consequence of the infringement of his copyright. Assessing damages on a "jury basis", the Court awards the modest sum of $2,500 damages against Dr Roberts.

ARK SEARCH INC

The applicants also make claims against Ark Search Inc, including a claim under the Trade Practices Act 1974 (Cth). However, Ark Search Inc undertook very few activities following its incorporation in July 1992. None of the claims made against it succeeds.

CONCLUSION

The applicants' case, insofar as it is based on the Fair Trading Acts and the Trade Practices Act, fails. Mr Fasold succeeds in his claim for infringement of copyright against Dr Roberts, but he is awarded damages of only $2,500. Costs will be considered by the Court after the parties make further submissions.

Sydney, 2 June 1997

This judgment is available in full text on the internet at the following URL: http://www.austlii.edu.au/au/other/fca

CATCHWORDS

TRADE PRACTICES - Fair Trading Acts - misleading and deceptive conduct - whether statements in public lectures and in tapes of the lectures were made "in trade and commerce" - lectures promoted by a non-profit unincorporated association - whether association conducted a "business" - whether sale of merchandise and charging of entry fees incidental to the association's non-commercial activities - whether conduct bore a trading or commercial character - application of the test formulated by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.

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) 176 CLR 300.

Avel Pty Ltd v Multicoin Amusement Pty Ltd (1990) 171 CLR 88.

Concrete Constructions (NSW) Pty Ltd v Nelson (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) 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) 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) 144 CLR 1.

Hungier v Grace (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) 37 FCR 526.

Re Ku-Ring-Gai Co-Operative Building Society (No 12) Ltd (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) 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) 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) 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) 42 ALR 177.

Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272.

University of New South Wales v Moorehouse (1975) 133 CLR 1.

Wardley Australia Ltd v Western Australia (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.