Dataflow Computer Services Pty Ltd v Nicholson

[1999] FCA 238

Dataflow Computer Services Pty Ltd and Cedant Software Corporation v Daniel Nicholson
[1999] FCA 238
No. NG 1322 of 1998
Number of pages - 3

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTHN WALES DISTRICT REGISTRY

GENERAL DIVISION

EMMETT J

SYDNEY, 9 March 1999 (hearing and decision)

#DATE 9:3:1999

Appearances

Counsel for the Applicant: D.L. Williams

Solicitor for the Applicant: Abbott Tout

Without prejudice to any entitlement of the applicants to seek further relief in further proceedings relating to the matters which are the subject of the Statement of Claim filed on 3 December 1998,

THE COURT DECLARES THAT:

1. By offering for sale and selling computer software programs known as "StarCraft", "Grand Prix Legends" and Caesar III" the respondent has:

(a) engaged in conduct that constitutes misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974;

(b) infringed the copyright of the second applicant in these programs.

THE COURT ORDERS THAT:

1. The respondent whether by himself, his servants or agents be permanently restrained from importing into Australia without the licence of the first and second applicants any products of the second applicant including but not limited to the computer software programs known as "StarCraft", "Grand Prix Legends", "Caesar III", "Swat 2", "Kings Quest VIII" and Half Life" ("the Programs") for the purpose of:

(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the Programs;

(b) by way of trade exhibiting the Programs in public.

2. The respondent whether by himself, his servants or agents, be permanently restrained from selling, letting for hire, by way of trade offering or exposing for sale or hire or by way of trade exhibiting in public the Programs without the licence of the first and second applicants.

3. The Programs which the respondent produced to the Court pursuant to orders of the Court made on 11 December 1998 be delivered up into the possession of the first applicant at the expiration of 21 days after filing an affidavit proving that notice of this Order has been sent to Acesoft Interactive, such notice to be given by letter addressed to Acesoft Interactive at its office at #02-14, Golden Mile Tower, 60001 Beach Road, Singapore 199589.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EMMETT J

1. This matter first came before me on 3 December 1998 when I granted leave to the applicants to file a statement of claim and affidavit and a notice of motion seeking interlocutory relief. The proceedings were made returnable before me on 7 December 1998 as duty judge. On 7 December I granted leave to the applicants to file an amended application. By the amended application, the applicants sought relief and damages against the respondent in relation to the sale of software in Australia in breach of the copyright of the second applicant. In addition, the amended statement of claim sought declarations that the respondent had engaged in conduct which contravened Section 52 of the Trade Practices Act 1974. The applicants claimed damages or an account of profits in the alternative.

2. On 7 December 1998 I also granted injunctions together with an order that the respondent file and serve an affidavit setting out details of persons whom he knew to have received or bought or had in their possession copies of the programs and details of all places at which the respondent had stored copies of the programs. The original application was served on the respondent and on 10 December 1998 a notice of appearance was filed on behalf of the respondent. There was an appearance for the respondent on that day when I ordered that the time for compliance with orders which I had made previously be extended.

3. On 11 December 1998, an affidavit was filed on behalf of the respondent in compliance with that order. On 11 December, I continued the injunctions and made further orders including the adjournment of the proceedings to the 18 December 1998. On that day the proceedings were again adjourned to 12 February 1999. On 18 December, a Notice of Ceasing to Act was also filed so that from that time the respondent was unrepresented. On 12 February 1999 there was no appearance for the respondent. At the request of the applicants, I fixed the matter for hearing today and directed the applicants to file and serve any further evidence on which they sought to rely no later than 19 February 1999. I also directed the applicants to notify the respondent of the time set for the hearing and that the matter would be dealt with as a final basis on that day.

4. I also directed the applicant to inform the respondent of the effect of the Rules as to failure to file a defence. When the matter came on for hearing this morning, there was no appearance for the respondent. I am satisfied that my directions concerning notification to the respondent have been complied with. Accordingly, the applicants now seek final relief on the basis of the evidence previously filed and on the basis of admissions flowing from the failure by the respondent to file a defence.

5. I am satisfied on the basis of that evidence that the respondent has infringed the copyright of the second applicant in relation to certain programs known as StarCraft, Grand Prix Legends and Caesar III and that by selling such programs the respondent engaged in conduct in contravention of section 52. One of the orders which I made in the earlier hearing was for delivery up to the Court of copies of the offending programs. That order was complied with and there are presently in Court, programs which constitute infringements of the copyright of the Second Applicant.

6. The respondent in his affidavit said that the programs that were delivered to the Court belong to Acesoft Interactive. I have evidence before me of the address of Acesoft Interactive in Singapore. The applicants seek an order that the programs be delivered up to the possession of the first applicant. I have intimated that I would be prepared to make such an order that was to be operative only at the expiration of 21 days after filing an affidavit proving that notice of such an order had been sent to Acesoft Interactive. If after such notice is served, Acesoft Interactive made any application for variation or recision of that order, that application can be dealt with at the appropriate time.

7. Assuming no application is made however, there appears to me to be good reason why the offending programs should be delivered to the applicants. In the circumstances, I am satisfied that the applicants are entitled to final relief in the absence of any defence and in the absence of any appearance on behalf of the respondent to resist such orders. The applicants however, have been concerned that there may have been other infringements by the respondent in relation to other programs and accordingly, it seems to me to be appropriate that the orders I make at this stage be without prejudice to the entitlement of the applicants to seek further relief in the future in relation to the matters which are the subject of the statement of claim which has been filed in the proceedings.

8. In the circumstances, I make orders in accordance with the short minutes as amended by me which I have initialled dated with today's date and placed with the papers. I will order that the applicants can have access to the programs produced pursuant to the order that I made on 11 December 1998.