The Environmental Group Ltd v Bowd (No 2) [2019] FCA 1227

The Environmental Group Ltd v Bowd (No 2) [2019] FCA 1227

Nominal damages of $1 are awarded to EG as Mr Bowd breached his employment contract and copyright, though there was no loss suffered. Additional damages under s 115(4) Copyright Act are not appropriate since Mr Bowd's infringement was not flagrant but arose from honest, albeit mistaken, beliefs and emotional upheaval. Costs are awarded in favour of the EG parties for the period until return of company property; indemnity costs are refused. Apportionment for the detinue claim is unnecessary due to its minor role. In proceeding VID 580/2017, the proceeding is dismissed with no order as to costs, as s 570 of the Fair Work Act (being more specific than the general Corporations Act provision)...

Parties
First Applicant in VID 497/2017; First Respondent in VID 580/2017: The Environmental Group Limited; Second Applicant in VID 497/2017: Baltec IES Pty Ltd; Third Applicant in VID 497/2017: Total Air Pollution Control Pty Ltd; Respondent in VID 497/2017; Applicant in VID 580/2017: Peter John Bowd; Second Respondent in VID 580/2017: Ellis Richardson
Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Civil / Final Judgment and Orders After Trial and Submissions
Outcome
VID 497/2017: Nominal damages and partial costs awarded to applicants; additional damages and indemnity costs refused. VID 580/2017: Application dismissed with no order as to costs.
Legal Topics
Nominal Damages, Indemnity Costs, Additional Copyright Damages, Costs Apportionment
Contract Law Copyright Law Employment Law Civil Procedure Nominal Damages Indemnity Costs Additional Copyright Damages Costs Apportionment

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Parties

The Environmental Group Limited

First Applicant in VID 497/2017; First Respondent in VID 580/2017

Baltec IES Pty Ltd

Second Applicant in VID 497/2017

Total Air Pollution Control Pty Ltd

Third Applicant in VID 497/2017

Peter John Bowd

Respondent in VID 497/2017; Applicant in VID 580/2017

Ellis Richardson

Second Respondent in VID 580/2017

Procedural Posture

Civil / Final Judgment and Orders After Trial and Submissions

Legal Issues

  1. 1 Whether nominal damages should be awarded for breach of contract and copyright
  2. 2 Whether additional damages should be paid under s 115(4) of the Copyright Act 1968 (Cth)
  3. 3 Whether costs should be awarded on an indemnity basis or apportioned

Ratio Decidendi

Nominal damages of $1 are awarded to EG as Mr Bowd breached his employment contract and copyright, though there was no loss suffered. Additional damages under s 115(4) Copyright Act are not appropriate since Mr Bowd's infringement was not flagrant but arose from honest, albeit mistaken, beliefs and emotional upheaval. Costs are awarded in favour of the EG parties for the period until return of company property; indemnity costs are refused. Apportionment for the detinue claim is unnecessary due to its minor role. In proceeding VID 580/2017, the proceeding is dismissed with no order as to costs, as s 570 of the Fair Work Act (being more specific than the general Corporations Act provision)...

Court Disposition

VID 497/2017: Nominal damages and partial costs awarded to applicants; additional damages and indemnity costs refused. VID 580/2017: Application dismissed with no order as to costs.

Orders

  • The respondent (Mr Bowd) pay the first applicant (EG) nominal damages in the amount of $1.
  • The respondent pay the applicants' costs for the period ending on 30 August 2017 in VID 497/2017.