Microsoft Corp v Compustar Australia Pty Ltd

[2000] FCA 1648

FEDERAL COURT OF AUSTRALIA

Microsoft Corp v Compustar Australia Pty Ltd [2000] FCA 1648

MICROSOFT CORPORATION AND MICROSOFT PTY LIMITED v
COMPUSTAR AUSTRALIA PTY LTD AND THERESA MILOSEVIC
N 1123 of 1999

TAMBERLIN J
SYDNEY
17 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1123 OF 1999

BETWEEN:

MICROSOFT CORPORATION
FIRST APPLICANT

MICROSOFT PTY LIMITED
SECOND APPLICANT

AND:

COMPUSTAR AUSTRALIA PTY LTD
(ACN 086 546 401)
FIRST RESPONDENT

THERESA MILOSEVIC
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	17 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, which was heard at the same time as N 244 of 1999, I am satisfied that the applicants have made out their case against both respondents.  I made orders in this matter on 7 November 2000 and I now set out below a brief summary of my reasons.

2. When the matter was called on for hearing on 7 November 2000 there was no appearance for the respondents.  I am satisfied that they were aware of the hearing date and that the matter had been listed for final hearing.  I therefore proceeded to hear the matter in their absence.  At the commencement of the hearing I made orders that the evidence in N 244 of 1999 be evidence in this matter, to the extent that such evidence was relevant, and I ordered that issues of liability and quantum should be heard separately.

3. I have considered the uncontradicted evidence of the applicants and have taken into account their written submissions and I am satisfied of the following matters:

   1.The first respondent has reproduced some of the Microsoft Programs identified by the applicants.

   2.Such reproductions were without the leave or licensee of either applicant.

   3.Such reproductions infringed the copyright which subsisted in the first applicant.

   4.The second respondent as director, secretary and sole shareholder of the first respondent authorised the reproduction by the first respondent of the infringing programs in the sense that she had the power to prevent the infringement and did not do so.

   5.The second respondent is also liable as a joint tortfeasor with the first respondent for the copyright infringement by the first respondent because the inference should be drawn from the evidence that she participated in the unlawful conduct and directed such conduct.

   6.The first respondent also infringed the copyright of the first applicant by supplying a copy of the program “Microsoft Works”: s 38 of the Copyright Act 1968.

   7.The second respondent impliedly procured or directed such infringement by reason of her relationship to the company referred to earlier.

   8.The respondents infringed the trade marks of the applicant, particularly the trade mark “MICROSOFT”.

   9.Both respondents have engaged in misleading and deceptive conduct within the meaning of s 52 of the Trade Practices Act 1974 as a consequence of which the applicants have suffered loss.

   CONCLUSION

4. The applicants have succeeded in their application and the respondents should therefore pay the costs of the applicants up to and including today.  I grant leave to the applicants to tax such costs forthwith.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             17 November 2000

Counsel for the Applicant:	R Cobden
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	No appearance
Date of Hearing:	7 November 2000
Date of Judgment:	17 November 2000