Ductline Pty Ltd v Arcric Investments Pty Ltd [1995] FCA 718

CATCHWORDS TRADE PRACTICES - Misleading and deceptive conduct - assessment of damages - damages for loss of business profits - damage to goodwill. Trade Practices Act 1974 ss52, 82 DUCTLINE PTY LTD v ARCRIC INVESTMENTS PTY LTD No VG 355 of 1990 FINN J MELBOURNE 4 SEPTEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 355 of 1990 ) GENERAL DIVISION )

BETWEEN: DUCTLINE PTY LTD Applicant AND: ARCRIC INVESTMENTS PTY LTD Respondent COURT: FINN J PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995 MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The respondent pay to the applicant damages in the amount of $17,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA) ) VICTORIA DISTRICT REGISTRY ) No. VG 355 of 1990 ) GENERAL DIVISION ) BETWEEN: DUCTLINE PTY LTD Applicant AND: ARCRIC INVESTMENTS PTY LTD Respondent COURT: FINN J PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995 REASONS FOR JUDGMENT This is not a satisfactory proceeding. On 30 November 1990 an Application and Statement of Claim were filed against the respondent alleging breaches of copyright, contraventions of the Trade Practices Act, 1974, Part V, and passing off. Orders were sought for injunctive relief, damages or an account of profits, and for the delivery up and destruction of various articles. The claims made will be detailed below to the extent that they are of relevance to the present proceedings. Briefly stated here, they related to the manner in which the respondent had manufactured, named and advertised an evaporative cooler pump, a misuse of the design and name of the applicant's like pump providing the core of the allegations made. The application came on for hearing on 11 November 1991. While seeking a determination of the various allegations, the parties had agreed that, if an assessment of damages was to be undertaken, this should take place at a later hearing. In the event, the judgment of the trial judge was limited to the determination of one matter. That was whether there had been a contravention of the Trade Practices Act, 1974, s52. The Orders of the Court of 20 December 1991, insofar as they are presently relevant, were as follows. "THE COURT 1. declares that the respondent has, in the course of trade and commerce, engaged in conduct that is likely to mislead or deceive 2. reserves the applicant liberty to apply in respect of the assessment of damages, and generally, in case any question should arise as to the respondent carrying out its stated intention of desisting from the use of the name "Evap-pump"" The matter before me is that of the assessment of damages.