Describe about the Essay for Law of Civil Remedies of Water Adventures Pty Ltd.
Water Adventures Pty Ltd. is a company which provides river rafting services and it seeks legal advices on few matters which have cropped up in the course of its business. The company has faced a threat of being sued in the Court with respect for trespassing property of Forest Enterprises and for infringing a design owned by River Rafting. Forest Enterprises and River Rafting may institute a suit any any time for obtaining legal remedy against Water Adventures. This paper seeks to give advices to Water Adventures about the legal remedies which the other two companies are going to obtain against it and also highlights the possibilities or chances of the success of such legal remedies.
Water Adventures Pty Ltd. provided river rafting services to adventure seekers on the Rocky River for the past five years. The river is used for rafting flows that is owned by Water Adventures and Forest Enterprises Pty Ltd. owns the neighboring land. Initially, Forest Enterprises gave permission to Water Adventures to use the river for the first 2 years at a fee of 20,000 $ per year. However, for the past three years Water Adventures did not have the permission to use the property of Forest Enterprises. Forest Enterprises did not renew the contract, as they wanted to protect the wildlife in the river. Sometime ago, Forest Enterprises wrote a letter to Water Adventures to stop their trespass however, Water Adventures continued to use the river and ignored the letter. Water Adventures were of the view that Forest Adventures would never be able to discover that Water Adventures are using their property. Water Adventures has asp copied the design of River Rafting for the purpose of manufacturing boats for their own use and for selling them to the public. They have been able to generate an income of $1.5 million through selling of the ships. The main basis on which Water Adventures Pty Ltd. has been threatened a legal action by the River Rafting Pty Ltd is that Water Adventures Pty Ltd has used a design owned by Rafting Pty Ltd for the purpose of manufacturing boat and selling them to the public.
Based on the above facts, the following issues arise:
Tort law in Australia is a composition of precedents and rules rather than a composite set of legislative rules.[1] The precedents and rules define the legislative extent of tort law in Australia. A tort is considered as a civil wrong, rather than a breach of contract. Tort law is regarded as a way in which law has the capacity to interfere with the associations between private individuals to rectify the wrong conduct or wrong action[2]. Tort law has derived their status from common law. Australian tort law is also influenced by case laws and common law. However, there has been rectification in Australia with regard to tort law in the Civil Liabilities Act[3].
The tort law in Australia is divided into two major offences, which are negligence and trespass.[4] Thus, trespass as defined under common law gives any aggrieved party the right to bring about an action and receive compensation and damages for interference with his property in any form whatsoever which is conducted without the owner’s consent[5]. In cases where damage is caused to the property or to the property owner because of the trespass, the amount of compensation is higher. Moreover, trespass is a tort which is intentional in nature and thus in some cases can be punished as a crime.[6] Thus, a trespass action is brought about by the owner of a property who has the authority and the lawful right to possess and enjoy the property, when the said right is infringed by another individual without the owner’s consent[7].
Under the Australian common law, any form of unlawful entry into another’s property constitutes trespass and there is no requirement to prove actual damage or loss caused by the said trespass[8]. Trespass being an intentional tort, intention is required for the act committed and not for trespass. An individual, who has the right to enter a land, becomes a trespass as soon as he engages into conducts a certain action, which is wrongful or stays in the land for additional time than granted by the landowner[9]. Thus, intention as well as actual loss to land is not required to be established under the Australian common law trespass[10]. In Nickells v Melbourne Corporation, [11]a servant of the defendant drove horse, which was wild in nature and attached to a cart. Thus, in order to turn the said cart in a narrow way, he would go very close to the neighbor’s window. Thus, even after being aware of a potential trespass, the defendant’s servant turned the carry which resulted in the horse e breaking neighbor’s window. Thus, in the said case, the defendant was held liable for the trespass committed by his servant and the court said that non intentional trespass is also actionable if the defendant was negligent[12].
In a trespass lawsuit in Australia, a plaintiff is not required to prove defendant’s intention to trespass and the defendant has no excuse available to state that he believes he was not committing any wrongful act or any wrongful interference[13]. Thus, defenses under trespass action are very limited[14]. Some defenses, which are available against trespass, are necessity, abating public or private nuisance, consent and officer performing his duty under law. The defendant is free from trespass charges, if the trespass is a result of any action, which is necessary to prevent public disaster. Additionally, a defendant is free from trespass charges if the said trespass is required to abate a public or private nuisance benefiting a third party or the society at large. Another obvious defense to trespass is consent from the property owner or a license to enter the land lawfully.[15] Consent in the said case can also be implied in form of custom or usage. However, consent is not valid for the said purpose if the same is taken by fraudulent action, by mistake or under undue influence. Lastly, an officer enforcing law and in duty to either arrest, seize or search a property has the authority prescribed by law to enter any land with the consent of the owner.
Now, a design is an artwork or a logo or an image which could be reproduced onto a t-shirt, calendar, clothes fabric, greeting card, book jacket or other products. The relevant law which deals with design is the Designs Act 2003. A deign may be registered under the Design Act 2003 and the owner of the design gets rights of monopoly in the visual features of configuration, shape and pattern of the design.
Protection over a design protects a product’s appearances and not its functions. The product’s function may be protected by obtaining a patent. If a visual feature or the appearance of a product is associated with the product’s function, then the design does not disqualified from being registered.[16]
For a design to be registered, the design must consist of visual features of configuration, shape, ornamentation or pattern which are completely new and distinctive. A design shall be presumed to be a new design if it is not identical to:
A design shall be presumed to be a distinctive design if it is substantially not similar to:
Once a person becomes the owner of a design which has been registered, he gets a right if monopoly over the design for a period of 10 years. The owner will have the following rights in respect of the design:
The right of exploiting the design can also be permitted to be used or may be assigned by the design owner to any other person once a design gets registered. However, in order to take legal action against others for the purpose of restraining them to use the design, the registered design must be examined first. [18]
An infringement of a registered design takes place when a person, without taking permission of the design owner or without being authorized or licensed by the owner, manufactures, hires, sells or imports a product or uses a product for business or trade; provided such product embodies the registered design or is substantially similar or identical to the registered design. Infringement of a registered design also takes place when the person authorizes a third party to do any of the above mentioned acts.[19]
Firmagroup Australia Pty. Ltd vs. Byrne and Davidson Doors (Vic.) Pty. Ltd and Others (1994)[20]
In this case, the appellant (Firmagroup Australia) was the owner of a registered design. The design related to the shape and configuration of combination handle and lock for a shutter door. The design did not cover the rear face of handle and the lock. The design was supposed to apply by any suitable means and in any suitable manner.
The design was registered in 1972. The respondents (Byrne and Davidson & others) had the knowledge that the appellant was the owner of the registered design. Having kept such knowledge, the respondents manufactured combination handle and lock for shutter doors and sold them. The appellant alleged that the respondents have done an act resulting in the infringement of the rights of the appellant with respect to the registered design.
After examining the respondent’s article the Judges formed an opinion that the said article was not similar to the appellant’s design. The respondent’s article was much slimmer and its design was much squat. According to the Court, the features of the design which can be protected are those in which the idea of ‘one particular individual and specific performance’ is conveyed. The respondent’s article has a unique design of its own and it has not infringed the registered design of the appellant. Hence appellant’s contention was rejected and the Court held that no infringement has taken place.
Case law: Stenor, Ld. vs. Whitesides (Clitheroe), Ld.[21]
In this case, the Court held that a feature which identifies only a general characteristic of shape does not fall within the purview of design protection.
Case Law: Polyaire Pty Ltd vs. K-Aire Pty Ltd & Others[22]
This is one of the most important cases on the infringement of design and has been decided by the High Court of Australia. The facts of the case are as follows:
The appellant (Polyaire Pty Ltd) used to carry a business of manufacturing and selling of the components of air condition. Polyaire owned a design with respect to “an air conditioning outlet director part”. The design has been registered on the basis of novelty. The appellant had alleged that the respondents had made infringement of this design. The Trial Court had accordingly passed order of injunctions restrained the respondents from using the same design in manufacturing air conditions. However, the decision of the Trial Court was overturned in an appeal by the Full Court of the Federal Court.
The principles which were applied by the Court in determining whether an infringement of design has taken place or not are as follows:
The Court emphasized on the point that several statutes dealing with design protection have laid down that application of a registered design or any ‘fraudulent imitation’ thereof in any product, without the consent of the owner would constitute the infringement of the registered design. The Court did find a fraudulent imitation of the design by the respondents in the light of the above stated facts.
In the given case study, Water Adventures did not have the permission to conduct their business on the given property that was owned by Forest Enterprises. Forest Enterprises was not interested in renewing the contract as they intended to protect the wildlife of the river. Additionally, Forest Enterprises wrote a letter to Water Adventures asking them to stop their trespass. However, Water Adventures continued with the use of the river and ignoring the letter with the hope that Forest Enterprises would never detect their unlawful use of the land. This depicted wrongful intention on the part of Water Adventures and they should have acted on the letter immediately they received from Forest Enterprises. One important criterion to make a person liable for trespass to land is “wrongful interference with someone else’s possessory rights in real or intangible property.” In this case, Water Adventures wrongfully carried out the business on the land of Forest Adventures by using their land for reaching the river. Forest Enterprises can claim wrongful interference of Water Adventures in their possessory rights. Forest Enterprises wrote a letter to Water Adventures informing them about their action of trespass, however, Water Adventures ignored this and they continued exploitation of the land. Such an action on the part of Water Adventures gives enough chances to Forest Enterprises to bring an action against Water Adventures. To prove Trespass against Water Adventures it is not sufficient for Forest Adventures to prove that they have suffered financial loss or harm by the usage of land. Once any of the parties to the case have caused interference to land, the person may become liable for trespass under Tort Law in Australia. However, the likelihood of success of Forest Adventures is not high because the tort law of Australia states that interference is not sufficient to make a person liable for trespass. The person should have physical access to land, in this Water Adventures did not have physical access to land, to reach the river Water Adventures had to abseiling down the cliffs or by boat on the river itself instead of using the adjacent land owned by Forest Enterprises. Additionally, it may also be stated that Water Adventures already owned the Rocky River over which they were conducting their business. They did not use the land of Forest Enterprises for conducting their business. Hence, it may be stated that though Forest Enterprises can bring a successful action against Water Adventures for trespass however, the chances of success remains low as because the prevailing issue in question whether Water Adventures interfered with the possessory rights of Forest Enterprises remains in doubt.
Water Adventures Pty Ltd has copied designs owned by River Rafting Pty Ltd. For the purpose of manufacturing boats. They have even sold the boats to the public. Through the sale of boats, an income amounting to $ 1.5 million was generated for Waters Adventures Pty Ltd over the past five years. Therefore, River Rafting Pty Ltd. will possibly seek remedy against Water Adventures Pty Ltd for infringement of the design. If River Rating Pvt. Ltd is able to prove that the design used by Waters Adventures Pty Ltd is an imitation of its design, then it can obtain a possible remedy against Water Adventures.
However, Water Adventures can defend the suit by arguing that the design used by Water Adventures was not similar to that of the River Rafting. The design which the Water Adventures used was substantially different from that of the River Rafting. Water Adventures needs to show before the Court that though both the designs had the same function with respect to the manufacturing of boats but their features were not the same. The boats which have been designed by Water Adventures have novelty and they are unique in their own style. Further, the visual appearances of the boats manufactured by Water Adventures also differed from that of the River Rafting. Design protection is available only in respect of a product but not of its functions. Therefore, the chances of success of legal remedies against Water Adventures can be decreased by putting forward the above mentioned defences. Further, fraudulent imitation of the design on the part of Water Adventures needs to be strongly defended in order to safeguard itself from the legal remedies which may flow from the action of River Rafting.
Conclusion:
In case of trespass, the person who is held liable for unlawful and wrongful interference in the land of another he or she may have to pay compensatory damages to the plaintiff[23]. However, this can only be awarded if the person has obtained any benefit from the land of the plaintiff. Additionally, the Court may also pass on order of injunction against the defendant, to restrain from unlawful interference of the land[24]. This is regarded as one of the most effective remedy to stop the intrusion to land. Hence, if Forest Enterprises is able to convince the Court that Water Adventures wrongfully carried out trespass the Court may pass an order for any of the above-mentioned awards in favor of the plaintiff.
It is important to state here frankly that the River Rafting has got a good chance of obtaining successfully the remedies available under Design Protection. In the light of the stated facts, Water Adventures has copied the design of River Rafting without its consent which indicates a clear infringement the rights of the owner of the registered design. Had the design not been copied or had it been slightly different from the registered design, the defences would have become strong.
Barker, Kit, et al. The law of torts in Australia. Oxford University Press, 2012.
Bently, Lionel, and Brad Sherman. Intellectual property law. Oxford University Press, USA, 2014.
Bruun, Per. Design and construction of mounds for breakwaters and coastal protection. Vol. 37. Elsevier, 2013.
Cane, Peter, and Patrick Selim Atiyah. Atiyah’s Accidents, compensation and the law. Cambridge University Press, 2013
Caruana, Alex. “Understanding trespass.” Agent, The 46.2 (2013): 12.
Cozens, Paul, and Marc Tarca. “Exploring housing maintenance and vacancy in Western Australia: perceptions of crime and crime prevention through environmental design (CPTED).” Property Management 34.3 (2016).
Davison, Mark, Ann Monotti, and Leanne Wiseman. Australian intellectual property law. Cambridge University Press, 2016.
Deakin, Simon F., Angus Johnston, and Basil S. Markesinis. Markesinis and Deakin’s tort law. Oxford University Press, 2012.
Du Mont, Jason J., and Mark D. Janis. “Origins of American Design Patent Protection, The.” Ind. LJ 88 (2013): 837.
Field, Rachel, James Duffy, and Colin James, eds. Promoting Law Student and Lawyer Well-Being in Australia and Beyond. Routledge, 2016.
Fitzsimons, James, et al. “Development by design in Western Australia: overcoming offset obstacles.” Land 3.1 (2014): 167-187.
Foster, Neil J., et al. “Discussion of the Tort of Breach of Statutory Duty.” (2016).
Goudkamp, James. “Reforming English Tort Law: Lessons from Australia.”Damages and Compensation Culture: Comparative Essays, Forthcoming(2016).
Greer, Guy, and Alysha Dinardo. “Trespass, illegal mining and private land.”Australian Resources and Energy Law Journal 33.2 (2014): 130.
Lloyd, Ian. Information technology law. Oxford University Press, USA, 2014.
McCausland, Clare, Siobhan O’Sullivan, and Scott Brenton. “Trespass, animals and democratic engagement.” Res Publica 19.3 (2013): 205-221.
Mendelson, Danuta. The new law of torts. Oxford University Press, 2014.
Mitchell, Paul. A History of Tort Law 1900–1950. Vol. 8. Cambridge University Press, 2014.
Nimmer, David. Nimmer on copyright. LexisNexis, 2013.
Poisel, Tim. “Landowners awarded almost US $3 million in the first fracking verdict in Texas: A sign of things to come in Australia?.” Australian Resources and Energy Law Journal 33.3 (2014): 291.
Simons, Kenneth W. “Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law.” Journal of Tort Law 8.1-2 (2015): 29-66.
Stickley, Amanda P. “The issue of consent: For the plaintiff or defendant to prove in trespass to person?.” Australian Civil Liability 12.5 (2015): 90-92.
Trotter, Andrew, et al. “the sydney law review.” (2014).
Virgo, Graham. “Tort Law Defences. By James Goudkamp [Oxford: Hart Publishing, 2013. xlvi+ 221 pp. Hardback£ 60. ISBN 9781849462914.].” The Cambridge Law Journal 74.01 (2015): 160-163.
[1] Barker, Kit, et al. The law of torts in Australia. Oxford University Press, 2012.
[2] Poisel, Tim. “Landowners awarded almost US $3 million in the first fracking verdict in Texas: A sign of things to come in Australia?.” Australian Resources and Energy Law Journal 33.3 (2014): 291.
[3] Caruana, Alex. “Understanding trespass.” Agent, The 46.2 (2013): 12.
[4] Cane, Peter, and Patrick Selim Atiyah. Atiyah’s Accidents, compensation and the law. Cambridge University Press, 2013
[5] Cozens, Paul, and Marc Tarca. “Exploring housing maintenance and vacancy in Western Australia: perceptions of crime and crime prevention through environmental design (CPTED).” Property Management 34.3 (2016).
[6] Mendelson, Danuta. The new law of torts. Oxford University Press, 2014.
[7] McCausland, Clare, Siobhan O’Sullivan, and Scott Brenton. “Trespass, animals and democratic engagement.” Res Publica 19.3 (2013): 205-221.
[8] Mendelson, Danuta. The new law of torts. Oxford University Press, 2014.
[9] Mitchell, Paul. A History of Tort Law 1900–1950. Vol. 8. Cambridge University Press, 2014.
[10] Stickley, Amanda P. “The issue of consent: For the plaintiff or defendant to prove in trespass to person?.” Australian Civil Liability 12.5 (2015): 90-92.
[11] Deakin, Simon F., Angus Johnston, and Basil S. Markesinis. Markesinis and Deakin’s tort law. Oxford University Press, 2012.
[12] Field, Rachel, James Duffy, and Colin James, eds. Promoting Law Student and Lawyer Well-Being in Australia and Beyond. Routledge, 2016.
[13] Mendelson, Danuta. The new law of torts. Oxford University Press, 2014.
[14] Goudkamp, James. “Reforming English Tort Law: Lessons from Australia.”Damages and Compensation Culture: Comparative Essays, Forthcoming(2016).
[15] Virgo, Graham. “Tort Law Defences. By James Goudkamp [Oxford: Hart Publishing, 2013. xlvi+ 221 pp. Hardback£ 60. ISBN 9781849462914.].” The Cambridge Law Journal 74.01 (2015): 160-163.
[16] Bruun, Per. Design and construction of mounds for breakwaters and coastal protection. Vol. 37. Elsevier, 2013.
[17] Bently, Lionel, and Brad Sherman. Intellectual property law. Oxford University Press, USA, 2014.
[18] Fitzsimons, James, et al. “Development by design in Western Australia: overcoming offset obstacles.” Land 3.1 (2014): 167-187.
[19] Du Mont, Jason J., and Mark D. Janis. “Origins of American Design Patent Protection, The.” Ind. LJ 88 (2013): 837.
[20] Davison, Mark, Ann Monotti, and Leanne Wiseman. Australian intellectual property law. Cambridge University Press, 2016.
[21] Nimmer, David. Nimmer on copyright. LexisNexis, 2013.
[22] Lloyd, Ian. Information technology law. Oxford University Press, USA, 2014.
[23] Greer, Guy, and Alysha Dinardo. “Trespass, illegal mining and private land.”Australian Resources and Energy Law Journal 33.2 (2014): 130.
[24] Barker, Kit, et al. The law of torts in Australia. Oxford University Press, 2012.
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