Microsoft Corp v Compustar Australia Pty Ltd

[1999] FCA 1826

FEDERAL COURT OF AUSTRALIA

Microsoft Corp v Compustar Australia Pty Ltd [1999] FCA 1826

MICROSOFT CORPORATION AND MICROSOFT PTY LIMITED v

COMPUSTAR AUSTRALIA PTY LTD AND THERESA MILOSEVIC
N 1123 OF 1999

TAMBERLIN J
SYDNEY
10 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1123 OF 1999

BETWEEN:

MICROSOFT CORPORATION
FIRST APPLICANT

MICROSOFT PTY LIMITED
SECOND APPLICANT

AND:

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

THERESA MILOSEVIC
SECOND RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

10 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   Leave is granted to Mr Andrew Roth to appear for the Respondents in this application for interlocutory relief.

2.   Orders 1, 2, 3, 4, 5 and 6 in the Claim for Interlocutory Relief contained in part B of the Application are made.

3.   The Respondents pay the Applicants’ costs of the application for interlocutory relief.

4.   Each party have liberty to apply on two days’ notice.

5.   The Applicants are to send draft directions to the Respondents two weeks before the next directions hearing.

6.   The proceedings are stood over for further directions at 9.30am on 3 February 1999.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1123 OF 1999

BETWEEN:

MICROSOFT CORPORATION
FIRST APPLICANT

MICROSOFT PTY LIMITED
SECOND APPLICANT

AND:

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

THERESA MILOSEVIC
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, I am concerned with a claim for interlocutory relief against the first and second respondents and I have had evidence produced to me by the applicant in the proceeding.  There has been no cross-examination of that evidence nor has any evidence been tendered to rebut it.  There have been assertions from the bar table but insofar as they are not based on any evidence before me, I do not attach any significant weight to the assertions which have been made, apart from observations which have been made in relation to evidentiary material that is before me.

2. In all the circumstances, I am satisfied that there is, in this case, a serious question to be tried and that the balance of convenience falls in favour of granting the claims for interlocutory relief which have been sought by the applicant against each of the respondents.  Accordingly, I make the orders which are set out in the claim for interlocutory relief.  I do not make, of course, any final determination in relation to the merits of the matter at this stage of the proceedings which are purely interlocutory.

3. I also note that any relief is predicated on the basis of an undertaking by the applicants to pay any damages which may be incurred to any person whatsoever, including parties and non-parties, as a result of the granting of the application. 

4. I make orders 1, 2, 3, 4, 5 and 6 in part B of the application.

5. I will grant the claim for interlocutory relief in the form that I have indicated with costs.

6. I add to these orders liberty to apply to either party if they wish to approach the Court for any reason on two days' notice.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             7 January 2000

Counsel for the Applicants:	R Cobden
Solicitor for the Applicants:	Mallesons Stephen Jaques
Representative appearing with leave for the Respondent:	A Roth
Date of Hearing:	10 December 1999
Date of Judgment:	10 December 1999