The Environmental Group Ltd v Bowd (No 2)

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FEDERAL COURT OF AUSTRALIA

The Environmental Group Ltd v Bowd (No 2) [2019] FCA 1227

File numbers: VID 497 of 2017
VID 580 of 2017
Judge: STEWARD J
Date of judgment: 9 August 2019
Catchwords:

DAMAGES – where no loss suffered as a result of breaches of contract and copyright – whether nominal damages should be awarded – whether damages should be paid pursuant to s 115(4) of the Copyright Act 1968 (Cth)

COSTS – whether costs should be awarded on an indemnity basis – where proceeding involved actions under two Federal Acts – whether costs should be apportioned between the claims made under the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth)

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth)

Copyright Act 1968 (Cth) s 115

Corporations Act 2001 (Cth) ss 1317AH, 1335

Fair Work Act 2009 (Cth) s 570

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Workplace Relations Act 1996 (Cth) s 824

Civil Procedure Act 2010 (Vic) ss 16 to 26

Cases cited:

Actrol Parts Pty Ltd v Coppi (No 3) (2015) 49 VR 573

Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (No 2) (2013) 209 FCR 464

Health Services Union v Jackson (No 5) [2015] FCA 1467

Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129; (2014) 245 IR 422

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

Network Ten Pty Ltd v TX Australia Pty Ltd (No 2) [2019] NSWCA 51

Simply Irresistible Pty Ltd v Couper [2010] VSC 601

The Environmental Group Ltd v Bowd [2019] FCA 951

Date of hearing:   Determined on the papers
Date of last submissions: 26 July 2019
Registry: Victoria
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 33
Counsel for the Applicants in VID497/2017 and the Respondents in VID580/2017: Mr D Christie with Mr B Avallone
Solicitor for the Applicants in VID497/2017 and the Respondents in VID580/2017: Baker Jones
Counsel for the Respondent in VID497/2017 and the Applicant in VID580/2017: Mr R Millar
Solicitor for the Respondent in VID497/2017 and the Applicant in VID580/2017: McDonald Murholme

ORDERS

VID 497 of 2017
BETWEEN:

THE ENVIRONMENTAL GROUP LIMITED
(ACN 000 013 427)

First Applicant

BALTEC IES PTY LTD (ACN 124 484 108)

Second Applicant

TOTAL AIR POLLUTION CONTROL PTY LTD
(ACN 097 531 416)

Third Applicant
AND:

PETER JOHN BOWD

Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

9 AUGUST 2019

THE COURT ORDERS THAT:

1.The respondent pay the first applicant nominal damages in the amount of $1.

2.The respondent pay the applicants’ costs for the period ending on 30 August 2017.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

VID 580 of 2017
BETWEEN:

PETER BOWD

Applicant
AND:

THE ENVIRONMENTAL GROUP LTD (ACN 000 013 427)

First Respondent

ELLIS RICHARDSON
Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

9 AUGUST 2019

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Details
Case
[2019] FCA 1227
Decision Date

CaseChat Overview and Summary

The Environmental Group Ltd brought proceedings against Bowd, asserting breaches of contract and copyright. The Federal Court of Australia was tasked with determining the appropriate damages and costs. The primary legal issue was whether the plaintiff was entitled to nominal damages despite not suffering any loss as a result of the breaches. Additionally, the court had to consider whether damages should be awarded pursuant to section 115(4) of the Copyright Act 1968 (Cth). Another significant legal issue was whether the plaintiff was entitled to costs on an indemnity basis and whether these costs should be apportioned between the claims made under the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth).

The court held that no loss was suffered by the plaintiff as a result of the breaches, and thus, nominal damages were not warranted. The court further found that damages should not be awarded pursuant to section 115(4) of the Copyright Act 1968 (Cth). Regarding costs, the court concluded that the plaintiff was not entitled to costs on an indemnity basis. The court also determined that the costs should be apportioned between the claims made under the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth).

Ultimately, the court dismissed the application with no order as to costs. The plaintiff's application for damages and costs was denied, and no specific order was made regarding the apportionment of costs between the two federal acts. The decision underscores the importance of demonstrating actual loss to claim damages and the necessity of clear guidelines for apportioning costs in multi-act proceedings.

Orders

Orders of the court

1. The application be dismissed with no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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