Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
FNH Investments Pty Ltd v Sullivan [2003] FCAFC 246 COPYRIGHT – additional damages – breach of contract and copyright infringement – whether damages can be awarded under subs 115(4) of the Copyright Act 1968 (Cth) if the copyright owner and infringing parties are contracting parties – where no license agreement in force – where breach of copyright flagrant. Copyright Act 1968 (Cth), subs 115(4) Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 referred to FNH INVESTMENTS PTY LTD v NORTH JOHN SULLIVAN & XYZ PRODUCTIONS PTY LTD N 615 of 2003 WHITLAM, MOORE & KIEFEL JJ SYDNEY 7 NOVEMBER 2003
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 615 OF 2003
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: FNH INVESTMENTS PTY LTD
APPELLANT
AND: NORTH JOHN SULLIVAN
FIRST RESPONDENT
XYZ PRODUCTIONS PTY LTD
SECOND RESPONDENT
JUDGES: WHITLAM, MOORE & KIEFEL JJ
DATE OF ORDER: 7 NOVEMBER 2003
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. 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 615 OF 2003
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: FNH INVESTMENTS PTY LTD
APPELLANT
AND: NORTH JOHN SULLIVAN
FIRST RESPONDENT
XYZ PRODUCTIONS PTY LTD
SECOND RESPONDENT
JUDGES: WHITLAM, MOORE & KIEFEL JJ
DATE: 7 NOVEMBER 2003
PLACE: SYDNEY
REASONS FOR JUDGMENT
the court:
Introduction 1 This is an appeal from a judgment of a single judge of this Court of 10 April 2003 in which his Honour awarded the first respondent, Mr Sullivan, damages and additional damages under the Copyright Act 1968 (Cth) ('the Act') and a judgment of 30 April 2003 ordering the appellant, FNH Investments Pty Ltd ('FNH'), to pay Mr Sullivan's costs (and the costs of a service company he used ('the service company') which was the second applicant below) on an indemnity basis. The proceedings concerned photographs Mr Sullivan had taken and the use of them by FNH in breach of Mr Sullivan's rights under the Act.
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