Section 126(2) was inserted in the Act by the Raising the Bar Act and commenced operation on 15 April 2013.
The conduct which attracted the award of additional damages, however, occurred between August 2012 and September 2013. So, Quality Kebabs came back to argue that the award should be reduced to (about) $35,000; arguing that the Court could only award additional damages for the period from 15 April 2013.
Noting that the right to seek damages had been in place throughout the period and viewing s 126(2) as affecting the quantum only, Perram J rejected this argument. His Honour considered the situation was more like those cases where the amendment was treated as ‘procedural’ rather than ‘substantive’ and so could apply to all the conduct.
His Honour did note, however, that Quality Kebabs made no argument that additional damages were punitive in nature and so should be treated as a penal law – which would presumably not be permitted to have retrospective effect.
Hmm …. additional damages (at least in the context of copyright) are (at least in part) intended to punish the defendant and deter others from engaging in similar conduct. So this debate may well arise again.
The reasons also have a short determination on the form the corrective advertising for contravention of the ACL should take.
Perram J was able to entertain Quality Kebabs’ application because, the corrective advertising order not having been finalised, the decision was still interlocutory and not final.
Halal Certification Authority Pty Limited v Quality Kebab Wholesalers Pty Limited (No 2)  FCA 840
- See the discussion in Facton v Rifai  FCAFC 9 at  –  (Lander and Gordon JJ) and Vaysman v Deckers Outdoor Corporation  FCAFC 60 at  –  (Besanko J). Of course, s 115(4) of the Copyright Act does have all those “extra” paragraphs, but they are probably equally applicable to the Trade Marks Act and the Patents Act too. ?