Case: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564
Outcome: applied
purpose of an award of damages in a tort action is to compensate the applicant for loss suffered as a result of the tort: see Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 at 63. The same principle operates in relation to damages for breach of copyright: see Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564 at 568. The principle will also have application in determining many (but not all) cases arising from contraventions of consumer protection provisions in legislation such as the TP Act and the FT Act: see Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1 at 13. This is not, therefore, a case in which the applicant has been in a position to adduce evidence which would assist the Court in assessing damages but has not done so: cf Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at 266. It falls into the class of a case in which, as Black CJ and Jacobson J held in Aristocrat Technologies , "damages should be liberally assessed, in the sense that inferences will be more readily drawn against [the wrongdoers], but the object remains to compensate [the applicant], not to punish the respondent": at 569. See also Adidas Salomon AG v Turner [2003] FCA 421 and Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293 at 300. One basis for assessing damages in cases in which infringements of intellectual property rights have occurred is the making of an estimate of sales lost by the applicant as a result of the infringing conduct. Such an approach is apposite in cases such as the present where the infringing conduct has been engaged in for the purpose of convincing purchasers that they are acquiring the applicant's products: see Aristocrat Technologies at 570; Sony Computer at [8]. Counsel for Deckers invites a comparison of the circumstances of the present case with a large number of other cases in which both compensatory and additional damages have been awarded for copyright infringement. Attention was also directed to the quantum of the damages awarded in those cases. They include Aristocrat Technologies , Microsoft Corporation v Glostar Pty Ltd (t/as Downtown Technology Centre) (2003) 57 IPR 518 ; Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748 ; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54 ; Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578; Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Ltd [2007] FMCA 155 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 ; Bailey v Namol Pty Limited [1994] FCA 1401 ; (1994) 53 FCR 102 ; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 24 IPR 461 ; Foxtel Management Pty Ltd v Mod Shop Pty Ltd [2007] FCA 463 ; (2007) 72 IPR 1 ; Australasian Performing Right Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 ; and Elwood Clothing Pty Ltd (ACN 079 393 696) v Cotton On Clothing Pty Ltd (ACN 052 130 462) (2009) 8 IPR 378. These authorities are of limited assistance. They emphasise the unfettered nature of the discretion conferred on the Court in fixing an appropriate measure of additional damages. They demonstrate that, depending on the circumstances of the case, a significant award of additional damages can be made even though compensatory damages are fixed at a nominal sum; and that additional damages are often fixed at a lower sum than that awarded for compensatory damages. They make it plain that there is no recognised practice of awarding additional damages in an amount equal to or lower than compensatory damages: cf Raben Footwear at 104 (per Tamberlin J).