Sony Computer Entertainment Australia Pty Ltd v Stirling

FEDERAL COURT OF AUSTRALIA

Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 1852

DAMAGES – quantum – where Court satisfied applicant entitled to more than nominal damages – where evidence insufficient to quantify damage suffered accurately – appropriate method of determining award of damages

PRACTICE & PROCEDURE – where party awarded judgment for less than $100,000 – whether Order 62 Rule 36A applies – factors to be considered

Trade Marks Act 1995 (Cth)

Federal Court Rules  Order 62 Rule 36A

Enzed Holdings Limited & Others v Wynthea Pty Limited & Ors (1984) 3 IPR 619 followed

SONY COMPUTER ENTERTAINMENT AUSTRALIA
PTY LTD & ANOR v KAREN STIRLING

N 1233 OF 2000

EMMETT J
5 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1233 OF 2000

BETWEEN:

SONY COMPUTER ENTERTAINMENT AUSTRALIA PTY LTD (ACN 077 583 183)
FIRST APPLICANT

KABUSHIKI KAISHA SONY COMPUTER ENTERTAINMENT
SECOND APPLICANT

AND:

KAREN STIRLING
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

5 DECEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The applicants are entitled to judgment for damages:

(a) for trade mark infringement pursuant to s 126 of the Trade Marks Act 1995; and
(b) for breach of ss 9, 10 and 12 of the Fair Trading Act (NSW) pursuant to s 159 of the Fair Trading Act (Vic),
such damages to be fixed in the sum of $3000.

2.   The respondent pay the sum referred to in Order 1 to the applicants by 1 March 2002.

3.   The provisions of Order 62 Rule 36A of the Federal Court Rules not apply.

4.   The respondent pay the applicants’ costs of the proceeding from 16 June 2001.

5.   The applicants inform the respondent as soon as practicable of the terms of these Orders and of the effect of Order 35 Rule 7(2)(a).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1233 OF 2000

BETWEEN:

SONY COMPUTER ENTERTAINMENT AUSTRALIA PTY LTD (ACN 077 583 183)
FIRST APPLICANT

KABUSHIKI KAISHA SONY COMPUTER ENTERTAINMENT
SECOND APPLICANT

AND:

KAREN STIRLING
RESPONDENT

JUDGE:	EMMETT J
DATE:	5 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 15 June 2001, for the reasons that I then delivered, I made orders in favour of the applicants declaring that the respondent had infringed registered trade marks and restraining the respondent from further infringement.  Other orders were also made requiring the respondent to furnish sworn information concerning infringements of the trade marks prior to that time.  Affidavits have been filed on behalf of the respondent in purported compliance with the orders that I made.  For the most part, the affidavits contain assertions that the respondent kept no record of, and has no recollection of, the quantum of sales of compact disks for use in connection with Sony Play Station consoles.

2. The matter was fixed for hearing today for the purposes of assessing the applicants’…