Case: Aristocrat Technologies Australia Pty Limited v DAP Services [2007] FCAFC 40
Outcome: cited
The respondent put to Mr Pesch that the Second Plans were actually created in September 2003. Mr Pesch said 'no' and said he 'would have said 2002' . Mr Pesch said he would not rule out the possibility that it was that late and agreed that he was not sure of the date but 'I thought it was done much earlier than that' . 64 Document BC 41 D014F for the 'floor side plate' bears the date 12 March 2002. Mr Pesch said he could not recall the exact date of creation of the drawing but that it was early 2002. Mr Pesch accepted that it was possible that the document was created as late as September 2003. The respondent drew Mr Pesch's attention to the noted addition of 'flat floor dimensions' to the drawing on 3 February 2006. That version of the drawing was produced by the applicant in discovery in March 2006. Thus the respondent put to Mr Pesch that the drawing incorporates any revisions made to the document up to the date of printing out the drawing. If so, the drawing reflecting the original work leading to the changes in November 2001 and March 2002 could not be seen in document 185D. Mr Pesch said that the drawing reflects the features of the floor side plate 'right at the start' of the changes he made. 65 As to the floor plate itself, Mr Pesch agreed that the 'borders' of the old plan (1994) for the floor side plate depict a general triangular form; the triangular form is 'pretty much the same' in the new drawing (BC 41 D014F); and that as to the shape at least, the two drawings are just the same. Mr Pesch says the dimensions however are not the same. 295 However, that sum does not represent a reasonable or fair estimate of the compensatory loss actually suffered by the applicant because it represents a construct based on the particular assumption. The court must do its best to quantify the actual loss even if some degree of speculation or even possible guess work is involved in this exercise ( Aristocrat Technologies Australia Pty Limited v DAP Services [2007] FCAFC 40 per Black CJ and Jacobson). The court is not relieved from the duty of assessing the loss merely because circumstances do not admit of damages being assessed with certainty ( McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377 at 412 per Dixon and Fullagar JJ; Enzed Holdings Limited v Wynthea Pty Limited (1984) 57 ALR 167 at p 183 per Sheppard, Morling and Wilcox JJ where their Honours said, 'The principle is clear. If the court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved. Furthermore, if actual damage is suffered, the award must be for more than nominal damages' . See also The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 ; (1992) 174 CLR 64 at 83 per Mason CJ and Dawson J, where their Honours said, 'The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can' ). 302 The principles influencing an assessment of damages under the section are these ( Aristocrat Technologies Australia Pty Limited v DAP Services (supra) [40]-[45]). Flagrancy is not an essential pre-requisite for an award of additional damages; it is sufficient if the court is satisfied that any one or more of the circumstances set out in s 115(4)(b) is established ( Raben Footwear v Polygram Records Inc. (1997) 75 FCR 88 at 93 per Burchett J; per Tamberlin J at 103 and per Lehane J at 104; Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 76 FCR 565 per Lockhart J at 575; Sony Entertainment (Australia) Limited v Smith (2005) 215 ALR 788 per Jacobson J [158]); additional damages under s 115(4) may be assessed having regard to principles derived from awards of aggravated and exemplary damages at common law ( Autodesk Inc. v Yee (1996) 68 FCR 391 per Burchett J at 394; Lamb v Cotongo [1987] HCA 47 ; (1987) 164 CLR 1 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ at pp 9, 10); one objective of an award is deterrence; an element of penalty is an accepted factor ( Autodesk v Yee (supra) at p 384); the accrual of benefit by reason of the infringement to the respondent is a further factor and the notion of 'benefit' suggests a pecuniary benefit to the respondent in excess of the damages otherwise payable ( Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 per Brightman J at 208); the benefit need not be pecuniary ( Polygram v Golden Editions Pty Ltd (supra) per Lockhart J, p 576); and there need not be any proportionality between the amount of compensatory damages awarded pursuant to s 115(2) and the amount of additional damages awarded pursuant to s 115(4) ( Raben Footwear v Polygram Records (supra), pp 93, 103 and 104; Microsoft Corporation v PC Club of Aust Pty Limited [2005] FCA 1522 ; (2005) 148 FCR 310 at pp 409, 410 per Conti J); and the assessment of the amount to be awarded is necessarily an imprecise exercise ( Bailey v Namol Pty Limited (supra) per Burchett, Gummow and O'Loughlin JJ at p 114).