Microsoft Corporation & Ors v Mayhew (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MICROSOFT CORPORATION & ORS v MAYHEW (No.2) [2008] FMCA 252

COPYRIGHT – COSTS – Copyright infringement – award of indemnity costs – conduct of the respondent and his lay advocate in the proceedings – unwarranted frustration of the carriage of the matter by the respondent and his lay advocate.

Federal Magistrates Act 1999 (Cth), s.79
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)

Calderbankv Calderbank [1975] 3 WLR 586
Cummings v Lewis [1992] FCA 247
JL Holdings Pty Ltd v State of Queensland [1998] FCA 1032
Microsoft Corporation & Ors v Mayhew [2008] FMCA 121
Oshlack v Richmond River Council (1998) 193 CLR 72

First Applicant: MICROSOFT CORPORATION

Second Applicant: MICROSOFT PTY LIMITED

Third Applicant: MICROSOFT LICENSING, GP

Respondent: RODNEY MAYHEW TRADING AS RODNEY’S COMPUTERS

File number: SYG 1969 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 26 January 2008

Delivered at: Sydney

Delivered on: 6 March 2008

REPRESENTATION

Solicitors for the Applicants: Mr G Hansen of Harris & Company

Advocate for the Respondent: No appearance

ORDERS

1. The respondent pay the applicants’ disbursements in the sum of $13,465.45, exclusive of GST.

2. The respondent pay the applicants’ counsel fees in the sum of $1,250, exclusive of GST.

3. The respondent pay the applicants’ party-party costs to 22 August 2007 in the sum of $4,141.60.

4. The respondent pay the applicants’ costs on an indemnity basis incurred from 23 August 2007 in the sum of $24,799.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1969 of 2007

MICROSOFT CORPORATION

First Applicant

And

MICROSOFT PTY LIMITED

Second Applicant

And

MICROSOFT LICENSING, GP

Third Applicant

And

RODNEY MAYHEW T/AS RODNEY’S COMPUTERS

Respondent

REASONS FOR JUDGMENT

1. These are the reasons for cost orders in relation to the proceedings between the applicants and the respondent up to and including determination of liability.  Judgment was given in the principle proceedings on 12 February 2007: Microsoft Corporation & Ors v Mayhew [2008] FMCA 121. The proceedings concerned an infringement of copyright by the unauthorised copy of computer software programs and operating systems onto computers for sale as a package. This made the portable computers more attractive to purchasers. The respondent’s breach was made in the knowledge of the applicants’ rights. The respondent’s computer package contained unauthorised copies of the applicants’ software when it was sold to the applicants’ investigators. The applicants succeeded in relation to liability against the respondent.

2. The applicants now seek an order in proceedings SYG1969 of 2007 that the respondent pays the applicants’ costs with respect to their claim up to and including the day their Calderbank offer was made.  They seek costs assessed on a party/party basis and that the respondent pay their costs thereafter assessed on an indemnity basis.

Evidence

1. For the purposes of this cost application, the applicants tendered and applied for the following affidavits which was admitted into evidence:

   a)Affidavit of Melanie Ang, affirmed on 12 February 2008.  Attached to this affidavit is the schedule of costs in relation to the fees and disbursements incurred by the…