There are some things that you just don’t expect the Full Court of the Federal Court of Australia to say.
For example, it just seems strange to read the Court waxing lyrical about erectile dysfunction: Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 225 ALR 416; 68 IPR 1; (2006) AIPC ¶92-149; [2005] FCAFC 224.
It seems a little incongruous to read Heerey, Lindgren, and Jacobson JJ writing about dancing at nightclubs: Australian Hotels Association v Copyright Tribunal [2008] FCAFC 37.
You don’t expect to see a small treatise on artificial sweeteners, as is found in Ajinomoto Co Inc v NutraSweet Australia Pty Ltd [2008] FCAFC 34.
But I think it will be hard to top Adultshop.Com Ltd v Members of the Classification Review Board [2008] FCAFC 79 at [16]–[19] per Sundberg, Emmett, and Siopis JJ:
Before the primary judge the parties accepted the Board’s description of the film as accurate. It is substantially as follows. The film is of 98 minutes duration. It depicts men and women having sex. There is no plot and the participants are not given names. There are six unrelated ‘vignettes’ containing explicit sex scenes, five involving a man and a woman and one involving two women.
Various forms of sexual activity are explicitly shown including cunnilingus, fellatio, rear-entry sex, the use of dildos, self, partner and mutual masturbation, ejaculation, digital and penal [sic] vaginal penetration and tongue stimulation of the anus.
The camera angles are designed to accentuate and focus on the sexual activity. Throughout the film there is significant and frequent use of cinematographic techniques to accentuate the sexual activity, including close-ups, zooms, lighting, background music and noises by the participants.
The Review Board did not consider that the film depicted fetishes, although the first vignette contains prolonged scenes of toe sucking and licking. The fourth vignette contains four-fingered vaginal penetration and the sixth shows a man using his open hand to stimulate his erect penis.
