Autodesk Inc v Czarnocki, Wojciech t/as Pirated Software Group

[1998] FCA 1477

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 356 of 1998

BETWEEN:

AUTODESK INC
FIRST APPLICANT

AUTODESK AUSTRALIA PTY LIMITED
SECOND APPLICANT

ADOBE SYSTEMS INC
THIRD APPLICANT

ADOBE SYSTEMS PTY LIMITED
FOURTH APPLICANT

MICROSOFT CORPORATION
FIFTH APPLICANT

MICROSOFT PTY LIMITED
SIXTH APPLICANT

AND:

WOJCIECH CZARNOCKI
TRADING AS PIRATED SOFTWARE GROUP
RESPONDENT

JUDGE:	SACKVILLE J
DATE:	11 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   The six applicants proceed by way of notice of motion seeking relief against the respondent.  The relief sought includes orders permanently restraining the respondent from infringing the copyright in certain computer programs held by the applicant.  The applicants also seek permanent restraining orders relating to infringement by the respondent of trade marks held by some of the applicants.  In addition, orders are sought restraining the respondent from making representations in trade or commerce that are said to be misleading and deceptive.

The six applicants constitute, in effect, three groups each comprising two related corporations.  Each group is unrelated to the others, save that I have been informed that they belong to an association which has as one of its objectives the curtailment of piracy of intellectual property rights.  The reason why the three groups of applicants have been joined in the one proceedings is that the alleged infringements on the part of the respondent arose out of the same circumstances.

The application is based upon the default on the part of the respondent in filing a defence in the proceedings.  Federal Court Rules, Order 10, r 7(1)(b) provides that, in such circumstances, the other party may move the court on notice for judgment against the respondent.  In this case, the respondent was ordered to file and serve a defence by 21 August 1998 in response to a statement of claim that was filed and served on 16 June 1998.  No defence has been filed.

On 2 October 1998 I granted leave to the applicants to file a notice of motion pursuant to FCR, Order 10, r 7, seeking the relief that has ultimately been sought in the motion.  That notice of motion has been duly served. 

When the matter was called today the agent of the solicitors on the record for the respondent appeared and indicated that his principals had received no instructions from the respondent.  He also indicated that all the material served on the solicitors on the record had been forwarded to the respondent.

In these circumstances, it seems to me to be appropriate that the applicants receive the benefit of a judgment against the respondent.  It is clear that the respondent has defaulted in his obligations to comply with the orders of the Court.  It is also clear that he has had notice of the proceedings today and has chosen not to play any active part in opposition to the motion.

Mr Cobden, who appears for the applicants, has read a large number of affidavits in support of the claim by the applicants to the relief sought in the motion.  I do not intend to go through that evidence in any detail.  The written submissions that have helpfully been prepared by Mr Cobden analyse the effect of the evidence.  Those written submissions demonstrate that there is material that supports the elements of the causes of action available to each of the applicants.  I propose to place the written submissions with the file.  They will indicate the significance of the evidence that has been adduced on the part of the applicants.  It is enough for me to say that I am satisfied that the elements of the relevant causes of action have been made out.

I propose, then, to make the following orders:

1. An order in terms of paragraph 1 of the motion filed on behalf of the applicants on 15 October 1998.

1. An order in terms of paragraph 2 of the motion filed on 15 October 1998.

1. An order in terms of paragraph 3 of the motion filed on 15 October 1998.

1. An order that the respondent pay the costs of the applicants of the proceedings to date, including the costs of the motion.

I shall stand over the balance of the proceedings, including the balance of the motion, until 9.30 am on 18 December 1998.  On that day, time permitting, I shall hear from the applicants as to whether they wish to pursue their application for an order that there be an inquiry as to damages.  I shall also, depending upon the attitude of the applicants on that day, determine whether it is appropriate that the applicants be given leave to tax their costs.  As I have explained to Mr Cobden, it may or may not be possible to devote the time on that day to deal with the balance of the case.

I will also order that exhibits A and B be returned to the solicitors for the applicants.  Although I shall not make a formal order, those exhibits should be retained, intact, until the proceedings are finally disposed of.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             11 November 1998

Solicitor for the Applicant:	Mallesons Stephen Jaques
Solicitor for the Respondent:	E Fredericks
Date of Hearing:	11 November 1998
Date of Judgment:	11 November 1998