The majority was of the view that purpose of an account of profits is not to punish the defendant but to prevent their unjust enrichment.
Per Mason CJ, Deane, Dawson and Toohey JJ at 111:
Damages and an account of profits are alternative remedies ((6) See Neilson v. Betts (1871) LR 5 HL 1, at p.22; Lever v. Goodwin (1887) 36 ChD 1, at p.7; Patents Act 1990 (Cth), s.122(1).).
An account of profits was a form of relief granted by equity whereas damages were originally a purely common law remedy ((7) cf. Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), pp.659-660.). As Windeyer J pointed out in Colbeam Palmer Ltd. v. Stock Affiliates Pty. Ltd. ((8) [1968] HCA 50; (1968) 122 CLR 25, at p.34.), even now ((9) See Patents Act 1952 (Cth), s.118(1); Patents Act 1990 (Cth), s.122.) an account of profits retains its equitable characteristics in that a defendant is made to account for, and is then stripped of, profits which it has dishonestly made by the infringement and which it would be unconscionable for it to retain. An account of profits is confined to profits actually made, its purpose being not to punish the defendant but to prevent its unjust enrichment ((10) My Kinda Town Ltd. v. Soll (1983) RPC 15, at p.55; Potton Ltd. v. Yorkclose Ltd. (1989) 17 FSR 11, at pp.14, 15; Sheldon v. Metro-Goldwyn Pictures Corp. [1940] USSC 57; (1940) 309 US 390, at
p.399.). The ordinary requirement of the principles of unjust
enrichment that regard be paid to matters of substance rather than
technical form ((11) See Baltic Shipping Co. v. Dillon [1993] HCA 4; [1993] HCA 4; (1993) 176 CLR 344, at p.376.) is applicable.
Per McHugh J at 123:
The object of an account of profits is to make the infringer give up its gains in order to prevent its unjust enrichment. No element of punishment is involved.
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