Today's published judgments

Appeal and New Trial ; Practice and Procedure ; Copyright
Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20
APPEAL AND NEW TRIAL - proceeding brought by appellants against respondents for (inter alia) alleged infringement of copyright in computer programs - whether appellants were denied procedural fairness as a consequence of primary judge disallowing questions in cross-examination or otherwise curtailing cross-examination of respondents' witnesses - whether questions proposed to be put to witnesses tendered and rejected - whether rejection of any questions or line of questions had the effect of denying the appellants the opportunity to put their case or depriving them of a fair trial - whether primary judge failed to consider the inherent improbability of respondents' case as a whole - whether evidence of events given by respondents' witnesses was glaringly improbable - where primary judge's acceptance of respondents' witnesses' evidence heavily influenced by demeanour - relevance of lengthy delay between hearing and judgment PRACTICE AND PROCEDURE - whether allegation that a witness has given a false account of events or has fabricated, concealed or destroyed evidence constitutes an allegation of fraud which must be pleaded in circumstances where such conduct is not an element of the cause of action PRACTICE AND PROCEDURE - where appellants claimed additional damages under s 115(4) of the Copyright Act 1968 (Cth) relying upon (inter alia) alleged fabrication, concealment and destruction of documents - whether appellants required to plead or particularise such allegations in support of claim for additional damages Held: appeal allowed - new trial ordered

Contract ; Trade Marks
Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2024] FCAFC 15
CONTRACTS - construction - scope of releases in settlement agreement - prima facie canon of construction -whether releases apply to proceeding TRADE MARKS - infringement - trap viewing - extra-territorial application of s 120(1) of the Trade Marks Act 1995 (Cth) - whether images were available to consumers in the ordinary course of trade - where the Appellant permitted images to be uploaded to and displayed on its website - where such images were displayed as part of a search tool TRADE MARKS - award and quantification of nominal damages for trade mark infringement - de minimis, trifling or technical infringements - applicability of de minimis non curat lex principle of statutory construction TRADE MARKS - award and quantification of additional damages under s 126(2) of the Act - relevance of quantum of nominal damages already awarded - deterrent effects of additional damages - consideration of Appellant's content moderation procedures TRADE MARKS - availability of injunctive relief - prima facie entitlement to final injunctions under s 126(1) of the Act TRADE MARKS - formulation of injunctions - where injunction restrained use of marks otherwise than as badges of origin - where practical effect of general injunction would require the Appellant to cease trading

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