Seafolly Pty Ltd v Madden [2012] FCA 1346

FEDERAL COURT OF AUSTRALIA

Seafolly Pty Ltd v Madden [2012] FCA 1346 Citation: Seafolly Pty Ltd v Madden [2012] FCA 1346

Parties: SEAFOLLY PTY LTD (ACN 001 537 748) v LEAH MADDEN

File number: VID 764 of 2010

Judge: TRACEY J

Date of judgment: 29 November 2012

Catchwords: TRADE PRACTICES – misleading or deceptive conduct claimed where allegations of copying swimwear designs – consideration of relevant legal principles – whether statements misleading, deceptive or false – whether statements expressions of opinion or statements of fact – whether representations were "false" and asserted that goods were of particular "style or model" – whether ss 52 and 53(a) of the Trade Practices Act 1974 (Cth) apply where contravention by natural person –whether impugned conduct occurred "in trade or commerce" – damage to reputation claimed – economic loss claimed – whether loss and damage actually suffered – no significant or ongoing damage – limited damages awarded under s 82 of the Trade Practices Act 1974 (Cth) – declaration sought – granting of declaration warranted – permanent injunction sought to restrain further allegations of copying – whether injunction would serve a purpose – whether possibility that contraventions will be repeated – injunction granted TRADE PRACTICES – cross-claim of misleading or deceptive conduct – whether representations made apt to mislead – cross claim not made out TORT – claim for injurious falsehood – consideration of relevant principles – whether pecuniary loss suffered INTELLECTUAL PROPERTY - copyright infringement claimed where allegation that photographs of swimwear reproduced and communicated to the public without license – whether ownership of copyright at the relevant times established DEFAMATION – cross-claim that defamatory allegations made – whether statements made defamatory – whether contextual truth defences made out – whether fair comment defence made out – whether defence of qualified privilege made out