Coles v Dormer (No 2) - [2016] QSC 28

SUPREME COURT OF QUEENSLAND

CITATION:

Coles v Dormer & Ors (No 2) [2016] QSC 28

PARTIES:

STEPHEN VINCENT COLES
(Plaintiff)

v
JAMES DORMER
(First Defendant)
and
MICHAEL CLARK
(Second Defendant)
and
JOHN ARTHUR BREDEN and
EDITH MARY KATHRYN BREDEN
(Third Defendants)

FILE NO/S:

SC 177 of 2014

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

26 February 2016

DELIVERED AT:

Cairns

HEARING DATE:

13 November 2015

JUDGE:

Henry J

ORDERS:

1. The defendants pay the plaintiff damages in the amount of $70,000.

2. I will hear the parties as to costs.

CATCHWORDS:

INTELLECTUAL PROPERTY - COPYRIGHT - REMEDIES FOR INFRINGEMENT - DAMAGES - GENERALLY - ADDITIONAL DAMAGES - where the defendants had constructed a house substantially replicating the house of the plaintiff who had been assigned the copyright of the house plans - where the defendant complied with remedial orders to remove publicly visible external indicia of replication of the plaintiff’s house - where the infringement was flagrant and involved a reckless indifference to the rights conferred by copyright law - assessment of damages - whether compensatory damages for infringement of copyright is to be paid for the plaintiff’s loss suffered - whether additional damages in accordance with s 115(4) of the Copyright Act 1968 (Cth) should be applied

Copyright Act 1968 (Cth), s 115(2), s 115(4)

Bailey v Namol Pty Ltd (1994) 125 ALR 228, cited
Coles v Dormer & Ors [2015] QSC 224, cited
Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 6 ALR 445, cited
Prior v Lansdowne Press Pty Ltd (1975) 12 ALR 685, cited

COUNSEL:

C Ryall for the Plaintiff
Dr M Jonsson for the First, Second and Third Defendants

SOLICITORS:

Robert P Palethorpe for the Plaintiff
Williams Graham Carman for the First, Second and Third Defendants

Introduction

I gave judgment for the plaintiff in this matter, finding the defendants had infringed the plaintiff’s copyright in house plans (“the Skyring house plans”).[1] The first and second defendants had constructed a house for the third defendant, substantially replicating the nearby house of the plaintiff, using plans that were a reproduction of a substantial part of the Skyring house plans. In giving judgment I granted an injunction requiring the removal of the most publicly visible external indicia of replication. I postponed determination of the balance of relief to allow time for those remedial works to occur.
[1]Coles v Dormer & Ors [2015] QSC 224.

The remedial works have now been completed. The parties have been heard further and it is now necessary to determine the balance of relief to be ordered.

Compensatory and additional damages are available

Section 115(2) of the Copyright Act 1968 (Cth) provides:

“Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.” (emphasis added)

As between…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coles v Dormer (No 2)

Details

AGLC: Coles v Dormer (No 2) [2016] QSC 28
Case: [2016] QSC 28
Decision Date: 26 February 2016

CaseChat Overview and Summary

Coles v Dormer (No 2) involved a dispute over copyright infringement, where the plaintiff, Coles, held the copyright to the plans of a house design. The defendants, Dormer, constructed a house that was substantially similar to the plaintiff’s design, leading to legal proceedings. The case came before the court to address the issue of damages for copyright infringement and whether additional damages under section 115(4) of the Copyright Act 1968 (Cth) were applicable.

The primary legal issues that the court had to decide were whether the defendants were liable for copyright infringement and, if so, what the appropriate measure of damages should be. The court also needed to consider whether the infringement was flagrant enough to warrant additional damages under section 115(4). This section allows for additional damages where the infringement was done with reckless indifference to the plaintiff’s rights.

The court found that the defendants had indeed infringed the plaintiff’s copyright by replicating the house design without permission. The infringement was considered flagrant due to the defendants’ reckless disregard for the plaintiff’s copyright. The court ruled that the defendants were liable for copyright infringement and ordered them to pay damages to the plaintiff. The amount of damages was set at $70,000, reflecting the loss suffered by the plaintiff. The court further considered that the defendants had complied with earlier orders to remove publicly visible external elements of the infringing house, which was taken into account in the final assessment of damages.

Orders

Orders of the court

1. The defendants pay the plaintiff damages in the amount of $70,000.

2. I will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Coles v Dormer & Ors (No 2) [2016] QSC 28
PARTIES:	STEPHEN VINCENT COLES (Plaintiff) v JAMES DORMER (First Defendant) and MICHAEL CLARK (Second Defendant) and JOHN ARTHUR BREDEN and EDITH MARY KATHRYN BREDEN (Third Defendants)
FILE NO/S:	SC 177 of 2014
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	26 February 2016
DELIVERED AT:	Cairns
HEARING DATE:	13 November 2015
JUDGE:	Henry J
ORDERS:	1. The defendants pay the plaintiff damages in the amount of $70,000. 2. I will hear the parties as to costs.
CATCHWORDS:	INTELLECTUAL PROPERTY - COPYRIGHT - REMEDIES FOR INFRINGEMENT - DAMAGES - GENERALLY - ADDITIONAL DAMAGES - where the defendants had constructed a house substantially replicating the house of the plaintiff who had been assigned the copyright of the house plans - where the defendant complied with remedial orders to remove publicly visible external indicia of replication of the plaintiff’s house - where the infringement was flagrant and involved a reckless indifference to the rights conferred by copyright law - assessment of damages - whether compensatory damages for infringement of copyright is to be paid for the plaintiff’s loss suffered - whether additional damages in accordance with s 115(4) of the Copyright Act 1968 (Cth) should be applied
Copyright Act 1968 (Cth), s 115(2), s 115(4) Bailey v Namol Pty Ltd (1994) 125 ALR 228, cited Coles v Dormer & Ors [2015] QSC 224, cited Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales (1975) 6 ALR 445, cited Prior v Lansdowne Press Pty Ltd (1975) 12 ALR 685, cited
COUNSEL:	C Ryall for the Plaintiff Dr M Jonsson for the First, Second and Third Defendants
SOLICITORS:	Robert P Palethorpe for the Plaintiff Williams Graham Carman for the First, Second and Third Defendants