Windridge Farm Pty Limited v Grassi - [2011] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation: WINDRIDGE FARM PTY LIMITED v GRASSI & ORS [2011] NSWSC 196
Hearing dates: 6, 7, 8 and 9 September 2010
Decision date: 28 March 2011
Jurisdiction: Common Law
Before: Hall J
Decision:
The plaintiff is entitled to an order and judgment for damages as follows:-
(1) General damages: $15,000.00
(2) Special damages, namely, veterinary costs: $1,625.45

Catchwords:
TORTS - trespass to property - defendants trespassed on plaintiff's farm at request of an office of Animal Liberation NSW to investigate conditions in which animals kept - video and photographs taken during the trespass - authorised only for use as material for a veterinarian report and police investigation - no adverse police findings against farm - entry unlawful

INTELLECTUAL PROPERTY - whether copyright subsists in victim over photographs and video film taken during the course of unlawful trespass - defendants' evidence was that there was no intention to publish or profit from or damage plaintiff's reputation through the material - premises mentioned in media by third party Animal Liberation NSW - whether copyright held on constructive trust for plaintiff - whether defendants can be ordered to deliver up film and negatives - whether principle that a trespasser should not enjoy the "fruits of their tort" applied - no intention by defendants to profit from film - no commercial loss or loss of goodwill by plaintiff - photograph and video had no intrinsic value - no basis for a constructive trust

INJUNCTIVE RELIEF - whether court could restrain trespass to the video/photographic "products" obtained during a trespass to land - unconscionability as a ground of relief in equity - whether breach of confidence - video film and photographs not in the nature of confidential information - common law damages adequate remedy - injunctive relief refused
DAMAGES - claim for general damages, special damages, aggravated damages and exemplary damages - no proof of loss or damage to property - nominal damages inappropriate - general damages vindicates plaintiff's right to exclusive occupation award of $15,000 general damages - exemplary and aggravated damages unnecessary in lieu of sabotage or aggravating circumstances - special damages awarded for costs arising from the natural and probable consequences of the trespass - cost of veterinary services check allowed
Legislation Cited: Copyright Act 1968 (Cth)
Prevention of Cruelty to Animals Act 1979 (NSW)
Cases Cited: ABC v Comalco (1986) 12 FCR 510
ABC v Lenah Game Meats Pty Limited (2001) 208 CLR 199
Aktas v Westpac [2009] NSWCA 9
Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225
Black v S Freedman & Co (1910) 12 CLR 105
David Syme & Co Limited v Mather [1977] VR 516
Colombia Pictures Industries Inc v Robinson [1987] 87 Ch 38
Donnelly v Amalgamated Television Services Pty Limited (1998) 45 NSWLR 570
Finesky Holdings Pty Limited v Minister for Transport for Western Australia [2001] WASC 87
Finesky Holdings Pty Limited v Minister for Transport for Western Australia [2002] WASCA 206
Gray v Motor Accident…

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.

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Details

Case: [2011] NSWSC 196
Decision Date: 28 March 2011

CaseChat Overview and Summary

The case of Windridge Farm Pty Limited v Grassi involved a dispute over an unlawful trespass on a farm owned by the plaintiff, Windridge Farm. The trespass was conducted by the defendants, Grassi and another individual, at the behest of Animal Liberation NSW, an animal rights organisation. The defendants entered the property to investigate the conditions in which animals were kept and took video and photographs during their visit. The plaintiff sought relief on multiple fronts, including an order for the delivery of the photographs and video, an injunction to prevent the publication of the material, and damages for the trespass.

The legal issues before the court included whether copyright subsisted in the plaintiff over the photographs and video taken during the trespass and whether the material should be held on a constructive trust for the plaintiff. Additionally, the court considered whether the defendants could be ordered to deliver up the film and negatives and if the principle that a trespasser should not enjoy the "fruits of their tort" applied in this case. The court also examined whether injunctive relief could be granted to restrain the trespass to the video/photographic "products" obtained during the trespass and if damages were appropriate.

The court determined that the defendants did not intend to profit from the material, and there was no evidence of commercial loss or loss of goodwill by the plaintiff. The photographs and video had no intrinsic value, and there was no basis for a constructive trust. The court found that the principle that a trespasser should not enjoy the "fruits of their tort" did not apply here as there was no intention to profit. Injunctive relief was refused as the video and photographs were not in the nature of confidential information, and common law damages were considered an adequate remedy. The court awarded general damages of $15,000 to vindicate the plaintiff's right to exclusive occupation and special damages for costs arising from the natural and probable consequences of the trespass, including the cost of veterinary services check. Exemplary and aggravated damages were deemed unnecessary in the absence of sabotage or aggravating circumstances.

Orders