FEDERAL COURT OF AUSTRALIA COPYRIGHT – photograph taken pursuant to agreement that it would be used for specific purpose – use of photograph outside agreed purpose – whether applicant entitled to any relief beyond restraining use of photograph – whether applicant entitled to damages for breach of statutory right of restraint – whether applicant entitled to damages in addition to an injunction (or its equivalent in the form of an undertaking to the Court). Copyright Act 1968 - s 35(5) Federal Court of Australia Act 1976 - ss 5 (2), 22 and 23 Supreme Court Act 1970 (NSW) Judiciary Act 1903 – s 79 Carr v McDonald's Australia Ltd (1994) 63 FCR 358, cons. Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502, cons. Colbeam Palmer Ltd and anor v Stock Affiliates Pty Ltd [1968] 122 CLR 25, cons. Wentworth v Woolahra Council [1982] 149 CLR 672, cited GRANT MATTHEWS v ACP PUBLISHING PTY LIMITED NG 730 of 1997 BEAUMONT J 10 SEPTEMBER 1998 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 730 of 1997 BETWEEN: GRANT MATTHEWS Applicant AND: ACP PUBLISHING PTY LIMITED Respondent JUDGE: BEAUMONT J DATE OF ORDER: 10 SEPTEMBER 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Note that the respondent gives an undertaking to the Court in the terms of para. 3 of the applicant's application dated 9 September 1997. 2. That the respondent pay the applicant the sum of $1,650.00. 3. Costs reserved. Liberty to file written submissions on costs. 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 ng 730 of 1997 BETWEEN: GRANT MATTHEWS Applicant AND: ACP PUBLISHING PTY LIMITED Respondent JUDGE: BEAUMONT j DATE: 10 SEPTEMBER 1998 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT J: INTRODUCTION These are proceedings under s 35 (5) of the Copyright Act 1968 ("the Act") which provides: " (5) …where (a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph...; and (b) the work is made in pursuance of the agreement; the first mentioned person is the owner of any copyright subsisting in the work…, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work" [emphasis added] By his application dated 9 September 1997, the applicant seeks the following relief: "1. A declaration that the respondent has infringed the copyright of the applicant in a photograph of Kate Fischer made on or about 5 September 1995 (the 'Photograph'). 2. An order that the respondent by itself, its servants or agents, be restrained from reproducing or authorising the reproduction of the Photograph or a substantial part of the Photograph without the licence of the applicant. 3. Alternatively to order 2, an order that the Respondent by itself, its servants or agents, be restrained from reproducing or authorising the reproduction of the Photograph or a substantial part of the Photograph for any purpose other than reproduction in the December 1995 edition of CLEO magazine, without the licence of the applicant. 4. Damages, or at the option of the applicants, an account of profits. 5. All necessary accounts and enquiries (including, so far as may be necessary, any enquiry as to damages). 6. Damages pursuant to s 115(4) of the Copyright Act 1968. 7. Damages pursuant to s 116 of the Copyright Act 1968. 8. Such further or other order or relief as the Court sees fit. 9. Interest pursuant to s 51A of the Federal Court of Australia Act 1976. 10. Costs." The respondent does not dispute that the purpose contemplated by s 35(5) existed here, and, in lieu of the injunction sought, proffers an undertaking to the Court in the terms of para. 3 of the applicant's application. Since an undertaking to the Court has an operation similar to an injunction, the applicant did not seriously contend that the Court should refuse to accept it in lieu of the injunction originally sought. I propose to accept the undertaking which is given, as has been noted, to the Court, and not merely as between the parties. Whilst this means that the claim for injunctive relief in para. 3 (or 2) of the application is no longer a live issue, the applicant maintains its claim for other relief, specifically for damages. This claim is disputed by the respondent on jurisdictional and other grounds, and on the merits. ISSUES ARISING FROM THE APPLICANT'S CASE AS PLEADED By his statement of claim, the applicant pleads his case and by its defence, the respondent responds, as follows: · On 5 September 1995, the applicant was the author of an artistic work, being a photograph ("the Photograph") of Kate Fischer. (The respondent admits this.) · Copyright subsists in the Photograph. (The respondent admits this.) · The applicant is the owner of the copyright in the Photograph. (The respondent denies this. The respondent says that the Photograph was made pursuant to an agreement between the applicant and the respondent for the taking of the Photograph; and further says that, pursuant to s 35(5) of the Act, the respondent is the owner of the copyright in the Photograph. · At a date then unknown to the applicant, but between 5 September 1995 and 7 June 1997, the respondent (a) supplied a copy of the Photograph to a third party, Headpress Pty Limited ("Headpress"), and (b) in the knowledge and/or with the intention that Headpress would license the reproduction of the Photograph. (The respondent admits this.) · Thereafter (a) Headpress supplied for reward a copy of the Photograph to Pacific Publications Pty Ltd ("Pacific") for the purpose of reproduction; and (b) Pacific reproduced the Photograph in the magazine New Idea. (The respondent does not admit this.) · These acts were done without he applicant's licence. (The respondent says that (a) it owns the copyright; (b) the applicant had no right to license or to withhold a licence; and (c) it does not otherwise admit this claim.) · The respondent has infringed the applicant's copyright in the Photograph. (The respondent denies this.) · Further, or alternatively, the Photograph was made pursuant to an agreement ("the Agreement") between the applicant and the respondent for the taking of the Photograph. The Agreement, made in August 1995, which was partly express and partly implied, was constituted by : (a) conversations between Amanda Odgers, then an employee of the applicant's agent, Melanie Dames Agency Pty Limited, and Paula McFadden, the respondent's employee; and (b) an invoice from Melanie Dames to the respondent dated 24 October 1995. (The respondent (a) admits that the Photograph was made pursuant to an agreement between the applicant and the respondent for the taking of the Photograph, and (b) says that it owns the copyright.) · At the time the Agreement was made, the respondent made known to the applicant, by implication from the Agreement, that the Photograph was required for the purpose of being reproduced in an article about Kate Fischer in one particular edition of the magazine CLEO. (The respondent, whilst claiming to own the copyright, denies this.) · In these circumstances the respondent owns the copyright in the photograph, but the applicant is entitled to restrain the reproduction of the Photograph for any purpose other than the above agreed purpose. (The respondent denies this.) · The supply by the respondent of the Photograph to Headpress, its supply by Headpress to Pacific, and its reproduction in New Idea, were not done for the above agreed purpose. (The respondent, whilst claiming that it owns the copyright, and that the applicant has no right to license or withhold a license, does not admit this.) · The respondent threatens to repeat these acts. (The respondent denies this.) In these circumstances, the applicant (a) is entitled to restrain the respondent from doing these acts and (b) has suffered loss and damage. (The respondent denies this.) THE APPLICANT'S EVIDENCE There was no real dispute about the primary facts which, in the main, were described in the affidavit evidence adduced on behalf of the applicant to the following effect, so far as presently relevant: (1) In this affidavit sworn 12 December 1997, the applicant (who was not cross-examined) said: · His work as a professional photographer over the past 24 years included "celebrity portraiture". · Melanie Dames was his photographic agent in 1995. Amanda Odgers, who was employed by Melanie Dames, was then his photographic producer. Her duties included negotiating the terms of contracts according to which he took photographs and making arrangements for the taking of photographs. · During August and September 1995, the respondent commissioned him to take about 5 photographs of Kate Fischer ("the Photographs"). Ms Odgers negotiated the terms of the commission ("the Agreement"). The Photographs were taken in Sydney on or about 5 September 1995 in accordance with the terms of the Agreement. · By invoice dated 24 October 1995, Melanie Dames invoiced the respondent as follows: "Order No. Cleo/Paula … Kate Fischer feature … Grant Matthews Photography – full day rate 500.00 Couriers - film, equipment, background 105.00 Invoice Total $605.00" · If, at the time of the Agreement, he had known that the Photograph would be reproduced in New Idea, he would have asked for a fee of between $10,000 and $20,000; otherwise he would not have entered into the Agreement. (2) Ms Odgers, in her affidavit sworn 12 December 1997, says: "7. At some time between about 15 August 1995 and 31 August 1995, Paula McFadden called me on the telephone. Paula McFadden was known to me as an employee of the Respondent working on Cleo magazine. I had had numerous professional dealings with her in the past. On this occasion we had a conversation to the following effect: She said: 'We're doing a story on Kate Fischer, would Grant be interested in shooting her?'. I said: 'I'm sure he would be, but I will need to check his availability. When is the shoot?'. She said: 'In early September. About the 5th'. I said: 'I will check his availability and get back to you, ok?'. She said: 'Ok'. 8. At some time between about 15 August 1995 and 5 September 1995, I had another telephone conversation, or conversations, with Paula McFadden to the following effect: I said: 'Grant should be available for the Kate Fischer shoot we talked about. Can you give me some more details?'. She said: 'Sure'. I said: 'Is it a full days shoot?'. She said: 'Yes'. I said: 'How many shots will you need?'. She said: 'About 5 should be enough. A combination of fun and sexy would be good'. I said: 'What's it for?' She said: 'For this feature story we're doing about Kate in the December issue.'. [emphasis added] I said: 'Where is the shoot?'. She said: 'At Ludbrook's'. I said: 'What sort of rate are you talking about?'. She said: '$500.00 fee for Grant, plus film, processing and equipment on our account.' I said: 'Ok, he'll do it'. 9. From my experience as a photographic producer, I can say that it is the usual practice that a photographer's consent is required before a photograph is used for a purpose other than the purpose for which the client first required it. Very often, a further fee is paid if the consent is given. [emphasis added] 10. On 7 June 1997, I telephoned Shawnee Lister who was known to me as an employee of the Respondent working on Cleo magazine. I had had numerous professional dealings with her in the past. On this occasion, we had a conversation to the following effect: I said: 'I just saw Grant's shot of Kate on the cover of New Idea. How did that happen?'. She said: 'I gave Headpress a whole lot of stuff, but they haven't confirmed what they're running with. They said they'd pay a fee and we'll pay 10% of that to Grant'. [emphasis added] I said: 'What's the fee?'. She said: 'I don't know yet'. 11. If I had known in advance that one of the Applicant's photographs of Kate Fischer was to be used on the cover of New Idea, I would have asked the Respondent to pay the Applicant a fee of between $10,000.00 and $20,000.00. If the Respondent had not agreed to pay that fee, I would not have agreed, on the Applicant's behalf, that the Applicant would take any photographs of Kate Fischer for the Respondent in that instance. 12. On or about 7 June 1997, I had another telephone conversation with Shawnee Lister, which was to the following effect: I said: 'What is Grant's fee for that shot of Kate?'. She said: 'ACP is getting $500.00, so we'll give you 10% of that'." In her affidavit sworn 30 March 1998, Patricia Ann Watson, says: "10. It was not the Company's practice to presume that a commissioned photograph could be used for any purpose, even if the photographer did not attempt to expressly exclude certain uses at the time of the commission. 11. While I was employed by the Company, the Company never authorised photographic library to use photographs commissioned by the Company. 12. In my experience, it is not the practice of magazine publishers to automatically presume that a commissioned photograph could be used for any purpose, even if the photographer did not attempt to expressly exclude certain uses at the time of the commission." In her affidavit sworn 31 March 1998, Marina Simone Go, editor in chief of Elle Australia magazine, says: "9. In my experience, there are certain purposes for which a photograph commissioned by a magazine is simply never used. These purposes include advertising purposes and photographic library purposes. I would never permit such usage without first entering into a formal contract with the photographer. 10. In my experience, it is customary to permit the re-use of a commissioned photograph only for certain extremely limited purposes. These purposes are editorial use by 'sister' magazines published by the one company or editorial use by 'chain' magazines which bear the same name as the first publisher. It is also customary to re-use commissioned photographs for the purposes of promoting the magazine or chain itself. In these instances it is not customary to seek the consent of the photographer. 11. It has not been the practice, of any magazine publisher for whom I have worked, to presume that a commissioned photograph could be used for any purpose whatsoever. This is so even if the photographer had not attempted to expressly exclude certain uses before taking the photograph. 12. It is, in my experience, the magazine publisher's responsibility to specify the purpose for which a commissioned photograph is required. It is most unusual for a photographer to expressly exclude certain uses before taking a photograph. Most photographers simply do not operate that way. In my experience, if the photographer wants to expressly control anything at all, it will be the selection of the particular shot which is to be published and the layout of that shot in the magazine." THE RESPONDENT'S EVIDENCE (3) In her affidavit sworn on 13 February 1998, Deborah Thomas, editor of CLEO magazine, says: "3. When photographers are commissioned by magazines, they are paid either a 'page rate' or a 'day rate'. Photographers who are paid a day rate are paid a set fee for each day of the photographic shoot, irrespective of how many photographs are published or even if no photographs are published at all. Photographers who are paid a 'page rate' are remunerated on the basis of how many photographs are published." (4) In her affidavit sworn 16 February 1998, Bunty Avieson, editor of Woman's Day magazine says: "4. In assessing the value of a photograph for use as a cover, I take into account a number of issues. Those factors include the newsworthiness of the subject and the relationship between the subject and a story in that edition (particularly if there are further photographs accompanying the story). I also consider the appropriateness of the photograph for use as a cover from a standpoint of layout and design, the extent to which it has already been used and the availability of substitutes. [emphasis added] 5. I estimate that, in my time with the Woman's Day and with New Idea I have commissioned thousands of photographs. I have also chosen and negotiated licences to publish hundreds of magazine covers. 6. Annexed to this affidavit and marked "A" is a copy of the cover and an article extracted from pages 14 and 15 of the New Idea edition published on or about 7 June 1997. I have reviewed the cover photograph in the light of the article at pages 14 and 15 of that edition concerning Ms Kate Fischer. I have also taken into account the speculation referred to in the media at about that time concerning Ms Fischer's private life and her relationship with James Packer, now her fiance. Further I have taken into account the fact that the photograph had already been published in Cleo magazine in December 1995, however, this does not involve a large discount. [emphasis added} 7. On the basis of my experience and my review of the photograph as set out in paragraph 6 above, I say the true commercial value of a licence to publish the photograph on the cover of a mass circulation weekly magazine in June 1997 is around $5,000. This figure covers the whole of the licence fee that I would consider payable. I would not make any additional payments to the photographer. Any arrangements between the copyright owner and the photographer would have to be dealt with between themselves within that overall figure." THE APPLICANT'S CONTENTIONS On behalf of the applicant, it is submitted that: · The applicant was the author of the subject photograph, taken at the respondent's request. · The respondent placed the photograph at the disposal of Headpress, knowing or intending it to be licensed for reproduction by Headpress. · The photograph was reproduced, by Pacific Publications, without the applicant's consent, on the cover of New Idea. · Section 35 (5) of the Act operates here. (As has been noted, the statement of claim sought to plead a case of copyright infringement independently of s 35 (5) but, in my view, it is plain that s 35 (5) exclusively covers the present case, so that I need not consider the infringement claim). · Within the meaning of s 35 (5), the purpose for which the work was required was the use of the photograph in the December edition of CLEO, in an article about Kate Fischer. None of the above is seriously disputed by the respondent. It is then argued for the applicant that the applicant is entitled to either (a) damages for breach of the statutory right of restraint; or (b) damages in equity in addition to an injunction. CONCLUSIONS ON THE APPLICATION As has been said, the applicant's claim for an injunction should now be viewed in the light of the respondent's offer of the undertaking to the Court in the terms of para 3 of the application. I propose to accept this offer in lieu of the grant of an injunction. However, there remains outstanding the question, which is now the real issue in the proceedings, whether the applicant is entitled to any further relief, specifically damages. On behalf of the respondent, it is submitted that the Court has no power to award damages either under the Act or in equity in addition to, or in lieu of an injunction (or its equivalent in the form of an undertaking to the Court). Although Counsel exhaustively researched the question, it appears that, with the exception of the decision of Burchett J in Carr v McDonald's Australia Ltd (1994) 63 FCR 358, there appears to be no authority in this Court on the point. In Carr, Burchett J said (at 390): "The next question, in relation to the claim in contract, is whether the applicant should receive the remedy of specific performance which he seeks. In my opinion, the case does fall within the ambit of the principle upon which specific performance may be granted. The contract is not one for the performance of acts requiring constant supervision or superintendence in order to ensure obedience to a decree, nor is it a contract for personal service, so as to put the repudiation of it by McDonald's beyond the reach of the remedy of specific performance. But that remedy is a discretionary one, and the Court may, in its discretion, award in lieu of it the remedy of damages, not at common law, but by virtue of the power originally conferred on courts administering equity in the last century by Lord Cairns' Act. It has been held that this is not possible where specific performance is not available at all; in such a case, damages could only be awarded at law. But where specific performance is refused upon a discretionary ground, such as hardship, an award of equitable damages may be made: Bosaid v Andry [1963] VR 465 at 479. In my opinion, in all the circumstances of this case, and having regard to the time which has inevitably elapsed since the dispute arose, I should exercise my discretion against ordering specific performance, and in favour of awarding damages in lieu of specific performance." [emphasis added] I respectfully agree with this general approach, which is in point (as a matter of both jurisdiction and power) in the present case. So far as jurisdiction is concerned, the initial claim for copyright infringement under the Act (i.e. under Part V) is within the Court's jurisdiction (s 131C). Section 35(5) is not in Part V, but the claim under s 35(5) is in my opinion clearly within either the Court's accrued or its associated jurisdiction. On the question of the Court's power to award damages in lieu or in addition to the grant of any injunction (or its equivalent in the form of an undertaking of the Court), the provisions of s 5(2) of the Federal Court of Australia Act should be recalled: "5(2) The Court is a superior court of record and is a court of law and equity." We should further note s 22 of that Act: "22 The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." Mention should also be made of s 23 of that Act: "23 The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of writs of such kinds, as the Court thinks appropriate." In my opinion, these statutory provisions, when read together, mean that this Court, as a statutory court, has at least the same powers as a modern court of equity to award damages in addition to, or in lieu of, an injunction (or its equivalent). In the context of this Court's position, the question is properly regarded as one of procedure, rather than of substantive rights. As Meagher, Gummow and Lehane, in Equity Doctrines and Remedies, 3rd edition explain, in speaking of an analogous context (at 638): "[2305] The position in the concurrent and auxiliary jurisdictions was quite different to that discussed above. For in these jurisdictions the Court was dealing with legal rights and the question was one of procedure rather than substance; namely whether in cases involving breaches of legal rights equity could award damages whether as sole relief, or in addition to purely equitable relief." A breach of s 35(5) is, in my view, a breach of a legal and not of any equitable, right. In any event, as Windeyer J noted in Colbeam Palmer Ltd and anor v Stock Affiliates Pty Ltd [1968] 122 CLR 25 (at 35) damages were in origin a common law remedy. His Honour observed (at 33): "In assessing damages equity follows the law…" In my opinion, viewed against the background of the jurisdiction of a modern court of equity (Lord Cairns Act having been passed in 1858) and adopted in other jurisdictions (see Meagher, Gummow and Lehane, above, at 640) the provisions of ss 5(2), 22 and 23 of this Court's constating statute directly confer the requisite power. Alternatively, in my view, the power is available indirectly via s 68 of the Supreme Court Act 1970 (NSW) (the local version of Lord Cairns Act) when it is picked up by s 79 of the Judiciary Act. In Huddart Parker Ltd v The Ship Mill Hill, (1950) 81 CLR 502 at 507-508, Dixon J said: "They base their application to this Court on the supposition that as a result of s 79, or perhaps s 80, of the Judiciary Act 1903-1948 the Court possesses statutory power to stay proceedings on the ground that there is an agreement to refer them to another tribunal or to arbitration. There is no express statutory power conferred upon this Court to stay, on such a ground, proceedings otherwise properly brought in its original jurisdiction. It is not a power that can arise otherwise than from statute. Section 79 provides that the laws of each State, including the laws relating to procedure, evidence and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable. This section is based on a provision of the law of the United States which has a long and controversial history, originating as it does in the thirty-fourth section of the Judiciary Act of 1789. But s 79 is more widely expressed than the American provision and I think that it should be interpreted and applied liberally. Notwithstanding the doubts expressed in Lady Carrington Steamship Co. Ltd. v Commonwealth, I should be prepared to regard such a provision as s 5 of the Victorian Arbitration Act 1928, corresponding to s 4 of the Arbitration Act 1889 of the United Kingdom, as made applicable to the High Court exercising its federal jurisdiction." This reasoning is in my view, also applicable in the present context, so as to pick up s 68. Finally, on the question of the power to award damages here, it should be noted that this is not, in my opinion, a case where the statute (i.e. s 35(5)) should be read so as to exclude any private claim of the present kind. Speaking of Lord Cairns Act, Meagher, Gummow and Lehane say (at 648): "[2318]… a question has arisen as to whether damages under the Act may be awarded to a plaintiff who sues for an injunction in aid of a statutory prohibition. The answer is that if the statute manifests an intention to create a private cause of action for damages, or if the plaintiff is seeking to enjoin the infraction of a private right under the first limb of Boyce v Paddington Borough Council [1903] 1 Ch 109, damages may be awarded under the Act, but not if the plaintiff asserts neither a personal cause of action nor violation of a private right but merely special damage arising out of violation of a public right under the second limb of Boyce's case." In my view, s 35(5) manifests an intention to create a private cause of action in damages in lieu of or in addition to the grant of an injunction where, the award of compensation is appropriate. Section 35(5) is not concerned with public rights. (cf. Wentworth v Woolahra Council [1982] 149 CLR 672 at 683; but see Meagher, Gummow and Lehane at 648). In my opinion, there is both jurisdiction and power to award damages here for the breach of s 35(5), and it is appropriate to award damages as well as accepting the undertaking. The next question is how damages should be assessed. In my opinion, an appropriate measure of damages in the present case may be found by approaching the matter as a case of a lost opportunity or lost chance on the part of the applicant; the opportunity or chance being one to negotiate a further fee with the respondent as a price for the grant of the applicant's permission to the respondent to use the photograph for purposes beyond its contemplated use in one edition of CLEO. In undertaking this task, I propose to take into account, in a general way, the evidence as to the practice in the industry which I have set out above. However, any estimate of how a hypothetical negotiation may have occurred between the parties can only proceed on a "by and large" basis. My estimate of a fair sum to compensate the applicant in all the present circumstances looking at the matter broadly, is a sum in the order of $1,500. I arrive at this figure by reckoning that, given the "celebrity" or "newsworthy" status of Ms Fischer as at June 1997, an amount of about $3,000 (i.e. in addition to the fee of $500 already paid) was the highest the applicant might have, realistically, asked in the negotiations. This is so, I think, notwithstanding the applicant's aspirations, as expressed in his affidavit, of obtaining more. I would rate the applicant's prospects of persuading the respondent to pay the amount of $3,000 as about even. The applicant also claims pre-judgment interest. This is an appropriate case for such an allowance. The breach of the statutory restriction occurred in June 1997, i.e. about 15 months ago. Taking 10% p.a. as an appropriate rate, this will yield an interest component of about $150. I will award damages, including pre-judgement interest, in the total sum of $1,650. ORDERS I make the following orders: 1. Note that the respondent gives an undertaking to the Court in the terms of the applicant's application dated 9 September 1997. 2. That the respondent pay the applicant the sum of $1,650.00. 3. Costs reserved. Liberty to file written submissions on costs. I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont Acting Associate: Dated: 10 September 1998 Counsel for the Applicant: R. Cobden Solicitor for the Applicant: Gray and Perkins Counsel for the Respondent: D. M Yates SC with M. P. Sindone Solicitor for the Respondent: Gilbert and Tobin Date of Hearing: 17 April 1998 Date of Judgment: 10 September 1998