Witham v Hough - [2009] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION:

Witham & Anor v Hough & Anor [2009] QSC 101

PARTIES:

CATHERINE MARY WITHAM (first plaintiff)

AUSTRALIAN POLO MAGAZINE PTY LTD (ACN 081 109 248) (second plaintiff)

V

GREGORY DAVID HOUGH (first defendant)

EXECUTIVE PUBLISHING NETWORK PTY LTD (ACN 058 057 597) (second defendant)

FILE NO/S:

8521 of 2006

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

8 May 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

24-27 November 2008

JUDGE:

Douglas J

ORDER:

Judgment for the first defendant

CATCHWORDS:

TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - ENFORCEMENT AND REMEDIES - ACTIONS FOR DAMAGES - CAUSATION - ASSESSMENT OR AVAILABILITY OF DAMAGES - GENERALLY - Relaunch of “Australian Polo Magazine” - Whether first defendant knowingly concerned in publishing “International Polo Leisure & Lifestyle” magazine – Whether likely to mislead consumers into believing that magazine was “Australian Polo Magazine” or affiliated with it - Whether first defendant breached terms of agreement binding him to assist in the creation of a new company to publish magazine - Whether first defendant breached alleged duty of good faith or fiduciary duty owed to plaintiffs - Whether plaintiffs suffered loss of commercial opportunity to exploit their intellectual property - Whether damages proved – Whether nominal damages available.

Trade Practices Act 1974 s 52, s 82
Uniform Civil Procedure Rules 1999 r 428

CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 referred
Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 [3]-[4], [25] referred
Gold Coast Waterways Authority v Salmead Pty Ltd [1997] 1 Qd R 346 referred
Highmist Pty Ltd v Tricare Australia Ltd [2005] QSC 115 at [43] referred
JLW (Vic) Pty Ltd v Tsiloglou[1994] 1 VR 237, 249 followed
Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd [2001] QCA 212 referred
Re Kendells (NSW) Pty Ltd (In Liq) [2005] QSC 064 [58]-[60] referred
Re Zurich Australian Insurance Ltd [1999] 2 Qd R 203, 213-219 [34]-[82] referred

COUNSEL:

Catherine Mary Witham in person and representing the second plaintiff.
Gregory David Hough in person.

SOLICITORS:

Catherine Mary Witham in person and representing the second plaintiff.
Gregory David Hough in person.

Douglas J: This is an action arising out of an agreement made 21 March 2005 between the plaintiffs and the defendants. The second defendant, Executive Publishing Network Pty Ltd is in liquidation and leave has not been given to proceed against it. The action has continued, however against Mr Hough, the first defendant, who was a director and chief executive officer of the second defendant at relevant times. He is claimed to have been knowingly concerned in a contravention of s. 52 of the Trade Practices Act 1974 (Cth) alleged against the second defendant of publishing a magazine called International Polo Leisure & Lifestyle and in so doing engaging in conduct likely to mislead consumers into believing that magazine was a magazine called Australian Polo Magazine or was…

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: [2009] QSC 101
Decision Date: 8 May 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiffs, Witham, commenced proceedings against the defendants, Hough and others, regarding the relaunch of the "Australian Polo Magazine." The plaintiffs alleged that the first defendant, Hough, was knowingly involved in publishing the "International Polo Leisure & Lifestyle" magazine, which they claimed was likely to mislead consumers into believing it was affiliated with or a continuation of the "Australian Polo Magazine." The plaintiffs further alleged that the first defendant breached an agreement to assist in the creation of a new company to publish the magazine and breached a duty of good faith or a fiduciary duty owed to the plaintiffs. The plaintiffs sought damages for the loss of commercial opportunities related to their intellectual property.

The primary legal issues before the court were whether the first defendant was knowingly concerned in the publication of the "International Polo Leisure & Lifestyle" magazine, whether that publication was likely to mislead consumers, and whether the first defendant breached the terms of the agreement or any duty owed to the plaintiffs. Additionally, the court had to determine whether the plaintiffs suffered a loss of commercial opportunity and whether damages were proven, including the availability of nominal damages.

The court found that the first defendant was not knowingly concerned in the publication of the "International Polo Leisure & Lifestyle" magazine, and that the title and content of the magazine did not mislead consumers into believing it was affiliated with the "Australian Polo Magazine." The court also found that the first defendant did not breach any agreement or duty owed to the plaintiffs. Consequently, the plaintiffs' claims were dismissed, and the first defendant was awarded nominal damages due to the proceedings.

Orders

Orders of the court

Judgment for the first defendant

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Witham & Anor v Hough & Anor [2009] QSC 101
PARTIES:	CATHERINE MARY WITHAM (first plaintiff) AUSTRALIAN POLO MAGAZINE PTY LTD (ACN 081 109 248) (second plaintiff) V GREGORY DAVID HOUGH (first defendant) EXECUTIVE PUBLISHING NETWORK PTY LTD (ACN 058 057 597) (second defendant)
FILE NO/S:	8521 of 2006
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	8 May 2009
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	24-27 November 2008
JUDGE:	Douglas J
ORDER:	Judgment for the first defendant
CATCHWORDS:	TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - ENFORCEMENT AND REMEDIES - ACTIONS FOR DAMAGES - CAUSATION - ASSESSMENT OR AVAILABILITY OF DAMAGES - GENERALLY - Relaunch of “Australian Polo Magazine” - Whether first defendant knowingly concerned in publishing “International Polo Leisure & Lifestyle” magazine – Whether likely to mislead consumers into believing that magazine was “Australian Polo Magazine” or affiliated with it - Whether first defendant breached terms of agreement binding him to assist in the creation of a new company to publish magazine - Whether first defendant breached alleged duty of good faith or fiduciary duty owed to plaintiffs - Whether plaintiffs suffered loss of commercial opportunity to exploit their intellectual property - Whether damages proved – Whether nominal damages available. Trade Practices Act 1974 s 52, s 82 Uniform Civil Procedure Rules 1999 r 428 CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 referred Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 [3]-[4], [25] referred Gold Coast Waterways Authority v Salmead Pty Ltd [1997] 1 Qd R 346 referred Highmist Pty Ltd v Tricare Australia Ltd [2005] QSC 115 at [43] referred JLW (Vic) Pty Ltd v Tsiloglou[1994] 1 VR 237, 249 followed Laurelmont Pty Ltd v Stockdale & Leggo (Queensland) Pty Ltd [2001] QCA 212 referred Re Kendells (NSW) Pty Ltd (In Liq) [2005] QSC 064 [58]-[60] referred Re Zurich Australian Insurance Ltd [1999] 2 Qd R 203, 213-219 [34]-[82] referred
COUNSEL:	Catherine Mary Witham in person and representing the second plaintiff. Gregory David Hough in person.
SOLICITORS:	Catherine Mary Witham in person and representing the second plaintiff. Gregory David Hough in person.