Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd - [1989] 3 NZLR 304

Copyright — Infringement — Artistic work — Ladies' clothing — Dress — Plaintiff's employees designed a dress, making in the process sketches, pattern pieces and a sample dress — Plaintiff then marketed the dress to retailers — Whether sample dress was merely a three-dimensional reproduction of an original artistic work — Whether copyright subsisted in the sample dress — Whether authors of original artistic work were resident in New Zealand at time of publication — Whether there was sufficient objective similarity between the dress marketed by the defendant and the plaintiffs dress — Whether, in the absence of evidence from the defendant the multiplicity of coincidences between the two dresses justified a finding that the plaintiff's dress was the source of the defendant's dress — Appeal from [1989] 1 NZLR 239 - Copyright Act 1962, ss 2, 7, 24 and 25.

Courts — Judiciary — Bias — Predetermination — Trial for infringement of copyright proceeded in two stages, first as to liability and second as to quantum — Judge expressed view at first stage that defendant's dress was "a particularly flagrant copy" of plaintiff's dress — Flagrancy was an issue to be determined at the second stage — Whether expression of view showed bias or predetermination of a kind which should disqualify the Judge — Whether there was a reasonable apprehension in fair minded people of prejudice or bias — Whether the question of quantum of damages should be tried before another Judge.

Practice and procedure — Pleadings — Statement of claim — Amendment to add an alternative remedy — Election between alternative forms of relief — Plaintiff in action for breach of copyright sought an account of profits — Whether the remedies were alternative — Whether original failure to plead alternative remedy amounted to an election not to pursue it — Whether doctrine of election could arise prior to judgment — Whether leave to amend should have been granted — Copyright Act 1962, ss 24 and 25 - High Court Rules, R 187. — Before trial, Judge granted leave to file an amended statement of claim seeking also damages for conversion (see [1989] 1 NZLR 234)

Practice and procedure — Trial — Separate trial of issues of liability and quantum — Plaintiff filed amended statement of claim on morning of trial, and Judge, to make the best use of the time available, determined to proceed with trial limited to issue of liability leaving the issue of damages to be determined at later stage — Whether Judge had correctly exercised his discretion to separate the trial into two stages — High Court Rules, RR 418 and 438.