WINDRIDGE FARM PTY LIMITED v GRASSI & ORS [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