Vertical Leisure Limited v Skyrunner Pty Ltd

In the Supreme Court of New South Wales, Justice Driver considered a dispute between Vertical Leisure Limited, the plaintiff, and Skyrunner Pty Ltd, the defendant. The plaintiff alleged that the defendant had infringed its copyright in various written and artistic works, photographs, and cinematographic films. The plaintiff also claimed trade mark infringement and misleading and deceptive conduct, including passing off, by the defendant. The court had previously entered default judgment against the defendant.

The central legal issues before the court were the assessment of damages arising from the admitted copyright infringement, and the determination of whether additional damages were warranted under the Copyright Act 1968 (Cth). The court also had to consider the claims for trade mark infringement and misleading and deceptive conduct, although the primary focus of the hearing was on the copyright damages.

Justice Driver applied the principles governing the assessment of damages for copyright infringement, considering both compensatory and additional damages. Compensatory damages were to put the plaintiff in the position it would have been in had the infringement not occurred. The court considered the defendant's profits derived from the infringing use and the plaintiff's lost profits. In relation to additional damages, the court examined whether the infringement was flagrant or otherwise merited an award beyond compensation, taking into account the defendant's conduct. The court also considered the evidence presented regarding the trade mark infringement and misleading and deceptive conduct claims.

The court ordered the defendant to pay damages to the plaintiff, with the quantum to be determined following further submissions or assessment.