mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bailey v Namol Pty Limited (1994) 53 FCR 102
Outcome: cited
Measuring the diminished capital value of the asset is not the only way of forming a view as to the proper amount of 'reasonable compensation' attributable to the loss suffered by a copyright owner. The purpose of an award of damages for breach of copyright is to compensate the applicant for the loss suffered as a result of the respondent's infringing conduct ( Interfirm Comparison (Aust) Pty Limited v Law Society of New South Wales (1975) 6 ALR 445 at 446 (Bowen CJ); Bailey v Namol Pty Limited (1994) 53 FCR 102 at 111 (Burchett, Gummow and O'Loughlin JJ). 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).
Case: McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377
Outcome: cited
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' ).
Case: The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 ; (1992) 174 CLR 64
Outcome: cited
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' ).
Case: Raben Footwear v Polygram Records Inc. (1997) 75 FCR 88
Outcome: cited
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).
Case: Sony Entertainment (Australia) Limited v Smith (2005) 215 ALR 788
Outcome: cited
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).
Case: Autodesk Inc. v Yee (1996) 68 FCR 391
Outcome: cited
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).
Case: Lamb v Cotongo [1987] HCA 47 ; (1987) 164 CLR 1
Outcome: cited
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).
Case: Ravenscroft v Herbert and New English Library Limited [1980] RPC 193
Outcome: cited
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).
Case: Microsoft Corporation v PC Club of Aust Pty Limited [2005] FCA 1522 ; (2005) 148 FCR 310
Outcome: cited
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).
Case: Re Ansett Australia Ltd (No 3) [2002] FCA 90 ; (2002) 115 FCR 409
Outcome: referred to
In Re Ansett Australia Ltd (No 3) [2002] FCA 90 ; (2002) 115 FCR 409 Goldberg J reviewed all of the relevant authorities relating to the principles which govern the exercise of the Court's power to give directions to a liquidator. His Honour stated the principles which emerged from the authorities at [65]. The effect of what Goldberg J said was that there must be something more than the making of a business or commercial decision before a Court will give directions. It may be a legal issue or an issue of power, propriety or reasonableness. In the present case I am satisfied that an issue of reasonableness arises in accordance with the principles stated by Goldberg J. 15 It arises because the liquidators have a primary duty to expedite the winding up and to bring it to an early conclusion. Here the liquidators seek to extend the winding up by deferring payments to note holders and creditors. There is sufficient authority for the course that I propose to take in the decision of Master Lee in Re Statewide Investments Ltd (In liq) (1981) 6 ACLR 265 to which Goldberg J referred in Ansett at [50].
Case: Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209
Outcome: referred to
I should add that in making these orders, I have taken into account a matter not referred to by Mr Bathurst this morning. In Ford's Principles of Corporations Law (Butterworths Australia, looseleaf service) at [27.182], the learned authors point out that under s 511 of the Act, the Court's power is more limited than under s 479(3). The authority for that proposition is a decision of Young J in Dean-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209 at 212. His Honour there referred to 511(2) of the Act which provides that the Court may accede to an application if it is satisfied that the exercise of the power will be "just and beneficial." 19 In Dean-Willcocks , Young J was of the view that this means that the Court has a discretion as to whether the making of an order under s 511 will be of advantage in the liquidation. For the reasons set out above, I am of the view that this test is satisfied. 20 I should also note Young J's consideration, in Dean-Willcocks at 212 to 213, of the question of whether it is appropriate to make an application such as this ex parte . His Honour observed at 213 that it is proper for such an application to be made ex parte , as has been done in the present case. I will therefore make orders in terms of the short minutes of order, as amended, which I will sign and date. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 15 December 2008 Counsel for the Applicant: T F Bathurst QC with I M Pike Solicitor for the Applicant: Baker &amp; McKenzie Date of Hearing: 9 December 2008 Date of Judgment: 9 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1895.html
Case: Re Statewide Investments Ltd (In liq) (1981) 6 ACLR 265
Outcome: referred to
It arises because the liquidators have a primary duty to expedite the winding up and to bring it to an early conclusion. Here the liquidators seek to extend the winding up by deferring payments to note holders and creditors. There is sufficient authority for the course that I propose to take in the decision of Master Lee in Re Statewide Investments Ltd (In liq) (1981) 6 ACLR 265 to which Goldberg J referred in Ansett at [50].
Case: American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396
Outcome: discussed
and Hayne JJ said (at 81 [65]) that the relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. They referred to a passage in the reasons for judgment of Kitto, Taylor, Menzies and Owen JJ in that case and to their Honours' use of the phrase "prima facie case". Gummow and Hayne JJ went on to say (at 82 [65]): "By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show that it is more probable than not that at the trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: 'How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.'" (Citations omitted.) A little later, after referring to observations by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 , their Honours said (at 84 [71]): "Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought."