Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754
PRACTICE AND PROCEDURE – Federal Court of Australia Act 1976 (Cth) – Anton Piller order – exceptional circumstances in which the Court will exercise its discretion to grant an Anton Piller order – Federal Court Practice Note 10 – appointment of independent solicitor
MICROSOFT CORPORATION AND MICROSOFT PTY LIMITED v GOODVIEW ELECTRONICS PTY LIMITED AND KENG LIU N 145 of 1999
BRANSON J
SYDNEY 4 JUNE 1999 (Publication of Reasons)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 145 of 1999
BETWEEN:
MICROSOFT CORPORATION First Applicant
MICROSOFT PTY LIMITED Second Applicant
AND:
GOODVIEW ELECTRONICS PTY LIMITED (ACN: 077-222-096) First Respondent
KENG LIU Second Respondent
JUDGE:
BRANSON J
DATE OF ORDER:
PUBLICATION OF REASONS:
23 APRIL 1999 4 JUNE 1999
PLACE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
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 145 of 1999
BETWEEN:
MICROSOFT CORPORATION First Applicant
MICROSOFT PTY LIMITED Second Applicant
AND:
GOODVIEW ELECTRONICS PTY LIMITED (ACN: 077-222-096) First Respondent
KENG LIU Second Respondent
JUDGE:
BRANSON J
DATE:
4 JUNE 1999
PLACE:
SYDNEY
REASONS FOR DECISION
INTRODUCTION
On 23 April 1999 the applicants moved the Court for an Anton Piller order. The application was made ex parte on affidavit evidence. On that day I indicated that I was not persuaded that the case made by the applicants was of the exceptional character necessary to justify the making of the order sought. I indicated that I would prepare written reasons for my decision at a later time. These are my reasons for refusing on 23 April 1999 to make an Anton Piller order.
THE PROCEEDING
The application in this matter, dated 19 February 1999, seeks relief by way of permanent injunctions and damages or account of profits for claims under the Copyright Act 1968 (Cth) (“the Copyright Act”), theTrade Marks Act 1995 (Cth) (“the TM Act”) and theTrade Practices Act 1974 (Cth) (“the TP Act”). The applicants also seek a specific order under the TP Act which would, among other things, rectify the alleged deception to the public as a result of the conduct of the respondents. The application makes no claim for interlocutory relief.
The statement of claim filed by the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754
Case
[1999] FCA 754
Decision Date
CaseChat Overview and Summary
Microsoft Corp lodged an application for an Anton Piller order against Goodview Electronics Pty Ltd in the Federal Court, seeking the inspection and seizure of documents and electronic devices which it believed evidenced copyright infringement. The legal issues before the Court were whether the application satisfied the exceptional circumstances required for the grant of such an order, and whether the Court should appoint an independent solicitor to oversee the execution of the order. The Court held that the applicant had not demonstrated exceptional circumstances to warrant the grant of an Anton Piller order, and that the appointment of an independent solicitor was not required in this case. The Court also noted that the applicant had not provided adequate evidence of the alleged copyright infringement.
The Court emphasised the need for the applicant to demonstrate a clear and present danger of destruction or concealment of evidence, or the risk of flight, to satisfy the exceptional circumstances test. The Court found that Microsoft had not provided sufficient evidence to meet this threshold, as the alleged infringement was not imminent and the risk of flight was not demonstrated. The Court also held that the appointment of an independent solicitor was not necessary in this case, as the applicant had provided sufficient assurances that it would not misuse the order or act in bad faith. The Court noted that the appointment of an independent solicitor is a discretionary matter, and that the circumstances of each case must be considered on their own merits.