ASIC v Share Trend Software P/L

[2001] VSC 359

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7162 of 2000

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Plaintiff
v
SHARE TREND SOFTWARE PTY. LTD. AND OTHERS	Defendants

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 SEPTEMBER 2001
DATE OF RULING:	18 SEPTEMBER 2001
CASE MAY BE CITED AS:	ASIC v. SHARE TREND SOFTWARE PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2001] VSC 359

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CATCHWORDS:      Ruling – Application to vary or revoke an interlocutory injunction – Computer software – Whether any change in circumstances – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Elliott	ASIC
In Person and for the First Defendant	Mr. R. Szatmari Mr. I. Thour

HIS HONOUR: 

1. This is an application to vary or perhaps revoke an injunction first made by Justice Mandie in this proceeding on 13 October 2000. By orders made that day His Honour restrained the defendants from "(a) doing any act in the marketing and sale or other dissemination or distribution to any person or entity of (i) any computer software known as Stockmarket Navigator V3 or (ii) any other computer software program that performs a similar function or functions to the Stockmarket Navigator V3 (including functions that enable them to be used as a tool which assists users to select shares listed on the Australian Stock Exchange or any other public market for the sale of shares or stocks, for purchase or sale, or which performs calculations and analysis and generates recommendations as to which shares are to be purchased or sold by the program's user) or that generates recommendations for users to buy or sell shares or other securities in breach of the Corporations Law, (collectively, "securities trading software"); (b) holding out that they are carrying on an investment advice business; (c) receiving any moneys from any person in connection with the purchase by that person of any securities trading software, or training in relation to any securities trading software; and (d) paying, transferring or otherwise parting with possession of, all or any of the moneys received from or on behalf of any person in connection with the purchase by that person of any securities trading software."

1. I pointed out to the parties yesterday that as a single judge of this court I have no power to vary or revoke an order of another judge unless there has been such a change in circumstances as would warrant a re-exercise of the discretion which a judge is properly entitled to exercise when deciding whether or not to grant or refuse an application for injunctive relief.

1. There has been no evidence put before me to suggest any material or relevant change in circumstances.  It is of course true that we are now faced with a trial date that will not be fixed until some time in the future and when fixed will not provide for the hearing of this matter (unless the court circumstances change) until, at the earliest, the second half of next year.

1. That circumstance, however, it seems to me, is not one which in the situation which presently confronts the court should determine any different exercise of discretion than that exercised by His Honour in October last year.  By a series of events, some of them not within the control of any of the parties, the matter was not able to be heard when set down first in December last year, then in March this year and again in September.

1. Whatever might be said of the events which led to the several vacations of those several trial dates, ASIC was in no instance in any way responsible; but more importantly, the additional time has been very largely put at the disposal of the defendants so as to enable them if possible to obtain the funds necessary to continue the retainer of their solicitors and counsel.  In particular, the trial date fixed for September this year was vacated at the request of the defendants in order to enable them to raise funds necessary to re-engage solicitors who had successfully applied for leave to withdraw on the basis that the funds required for the trial were not then available.

1. Given that it is the defendant's financial position that has caused the delay and the re-fixing of the trial date, that is not a circumstance it seems to me which, of itself, should affect the discretion exercised by Justice Mandie in October last year.  There is as I apprehend it no other circumstance which is put forward as warranting a variation of the injunction.

1. There has been a deal of time spent this morning and on past occasions when the matter has come before me in debate about the role of a software program called Stockmarket 2000.  That program is in its functions admittedly very similar to that of the Stockmarket Navigator V3 program specifically referred to in the injunction. 

1. It is put by Mr Szatmari for the defendants that Stockmarket 2000 is marketed by different means.  Its marketing is not accompanied with any sales pitch by the defendants but is simply conducted, to the extent that any active marketing is conducted at all, by those vendors who sell the product to the ultimate consumer.

1. That may or may not be the case.  Even if it were however it is, it seems to me, the functionality of Stockmarket 2000 which is important in determining whether or not it is covered by the injunction issued on 13 October.

1. In any event it is not my role to determine now whether or not Stockmarket 2000 falls outside or within the terms of the injunction.  That is not to say that the defendants should feel free to market Stockmarket 2000 on the basis that it is not encompassed by the terms of the injunction. 

1. It is clear from statements made from the Bar table by the defendants that in their view the functionality of Stockmarket 2000 is very similar to that of Stockmarket Navigator V3.  If that is the case then any attempt to deal in Stockmarket 2000 would necessarily infringe the injunction.  As I say however it is not my position to determine that issue.

1. I have before me an application to vary the injunction issued on 13 October last.  This is not an application to deal with Stockmarket 2000 on the basis that its sale or marketing would be an infringement of the injunction.

1. For the reasons I have given there are in my opinion no circumstances put before me which indicate that there should be any different exercise of discretion than that exercised by Justice Mandie in October last year.  For that reason the application is dismissed.

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