DIRECTOR GENERAL DEPARTMENT OF FAIR TRADING v OLIVER [2005] NSWSC 102

New South Wales Supreme Court

CITATION : DIRECTOR GENERAL DEPARTMENT OF FAIR TRADING v OLIVER [2005] NSWSC 102

HEARING DATE(S) : 18-19 October 2004

JUDGMENT DATE : 25 February 2005

JUDGMENT OF : Hulme J at 1

DECISION : See paragraph 48

Director General Department of Fair Trading Michael Geoffrey Oliver PARTIES : Samantha Jansie Oliver Australasian Publications and Advertising Pty Limited

FILE NUMBER(S) : SC 12935/02

P Singleton COUNSEL : In person

DI Catt SOLICITORS : Self represented

LOWER COURT JURISDICTION :

- 18 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J Friday, 25 February 2005

12935/02

DIRECTOR GENERAL FAIR TRADING v Michael Geoffrey OLIVER and 2 ORS JUDGMENT 1 HULME J: By Summons filed on 28 October 2002 the Plaintiff sought orders against each Defendant that is Mr and Mrs Oliver and Australasian Publications and Advertising Pty Ltd (hereinafter referred to as "APA") which, in summary, would restrain them from being engaged in business as a publisher, advertising agent or collector of debts and from a variety of activities such as soliciting the placing of, or seeking payment for, advertising and from seeking payment for any good or service not provided or in advance of it being provided and from making any commercial publication or using the publication names "Statewide Firefighters" and "National Police Bulletin". In common with other claims in this area of law the Plaintiff sought to restrain a wide variety of particular activities which could be said to be associated with those which I have mentioned. 2 When the matter came on for hearing on 18 October last, Mr Oliver appeared and consented to the orders sought. There was no appearance on behalf of Mrs Oliver on that day although I was satisfied that she was aware that the matter was to then proceed and I allowed that to occur. Counsel for the Plaintiff indicated that, "unless there is a change in the status of the company at the end of the proceedings no orders will be sought" against the Third Defendant. No later attention was given to the position of the Third Defendant. 3 The Plaintiff relied on a great deal of written material and, despite the matters referred to in the immediately preceding paragraph, at the conclusion of the hearing which proceeded into a second day, I reserved my decision. Some of the material consisted of affidavits, some of statements and some of other documentary material. Consideration of this material satisfies me of the following. 4 The Third Defendant was the publisher of publications entitled "National Police Bulletin" and "Statewide Firefighters". The publications would not seem to have had any wide circulation. 5 Affidavits from librarians at the Hawkesbury City Council Library, the Parramatta City Library, the Ryde Library and the Blacktown City Council Library establish that neither of the magazines are held in those libraries or in their branches nor have any requests been made of those librarians by representatives of the publications to have the libraries hold copies. 6 An affidavit from a librarian in the Serials Section of the State Library of New South Wales, Ms Richards, deposed to there being an obligation under the Copyright Act on every publisher in New South Wales to deposit a copy of every serial title in the State Library and that searches of the Library's internal database and the National Bibliographic Database have not revealed any record of either publication. Ms Richards said that receipt of the first issue results in an entry into the National Bibliographic Database. 7 Ms Richards also commented on various features of copies of the publications which had been shown to her. Shown by an inspector from the Department of Fair Trading two copies of the National Police Bulletin, Ms Richards observed that neither had on its cover any identifying volume number, issue number or date although inside the front cover of one, there was a reference to "Volume 3, 2003". She said that the absence of any such reference was unusual for a serial publication. 8 Ms Richards also observed that the Bulletins did not display an International Standard Serial Number. An ISSN is issued by the National Library of Australia and by convention is usually printed on the outside or inside of a front cover. Nor did the Bulletin contain any information as to the name of the printer, frequency of publication and in one copy there was no physical address. 9 Ms Richards observed that inside the front cover of one of the copies of the National Police Bulletin it was claimed that the magazine was distributed "Free of Charge throughout Australia to Police Stations, Police Departments, Public Libraries and Medical Centres." She observed that for a publication with such a wide distribution it appeared amateurish, the layout being of low quality, spacing poor and the margins inconsistent. 10 Shown two copies of "Statewide Firefighters", Ms Richards observed that they contained no ISSN and one copy contained no date, volume or issue number or name of printer, frequency of publication and no information with respect to the ACN or ABN numbers of the publisher. She observed that this magazine also seemed of poor quality.