MICROSOFT CORPORATION v CPL Notting Hill Pty Ltd

[2017] FCCA 1232

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICROSOFT CORPORATION & ORS v CPL NOTTING HILL PTY LTD & ANOR [2017] FCCA 1232

Catchwords:
COPYRIGHT – Recusal application – no conduct by which a fair-minded lay observer might reasonably apprehend that this Court might not bring an independent and impartial mind to the determination of the matter on its merits – interlocutory application dismissed.

First Applicant: MICROSOFT CORPORATION

Second Applicant: MICROSOFT PRT LTD (ACN 002 589 460)

Third Applicant: MICROSOFT REGIONAL SALES CORPORATION

First Respondent: CPL NOTTING HILL PTY LTD

Second Respondent: WEI LEI

File Number: SYG 1205 of 2016

Judgment of: Judge Street

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicants: Mr A Fox

Solicitors for the Applicants: Harris & Company

Solicitors for the Respondents:

Mr S Smith

Smith & Associates

ORDERS

1. Direct the respondents to file and serve any application in a case together with supporting affidavits in respect of the alleged non-compliance with the Court’s order of 7 September 2016 on or before 22 June 2017.

2. Direct that the respondents file and serve any affidavits in response to the respondents’ application in a case on or before 13 July 2017.

3. Direct the respondents file and serve any affidavit evidence in response to the applicants’ application in a case of 7 June 2017.

4. Direct the applicants to file and serve any affidavit in response in respect of the Applicants’ application in a case on or before 13 July 2017.

5. Direct the applicants to file submissions in respect of the application in a case on or before 27 July 2017.

6. Direct the respondents to file and serve any submissions in respect of the application in a case on or before 27 July.

7. Fix the interlocutory applications in a case for hearing at 9:30am on 4 August 2017.

8. Direct that the subpoena relevant to the application in a case be filed and served on or before 23 June 2017.

9. Direct that any challenge to a subpoena will be made returnable to me at 9:30am on 30 June 2017.

10. Grant leave to the respondents’ solicitor to appear on any challenge on 30 June 2017 by telephone.

11. Costs of today are reserved.

12. Application by the respondents for the Court to disqualify itself is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1205 of 2016

MICROSOFT CORPORATION

First Applicant

MICROSOFT PTY LTD (ACN 002 589 460)

Second Applicant

MICROSOFT REGIONAL SALES CORPORATION

Third Applicant

And

CPL NOTTING HILL PTY LTD

First Respondent

WEI LEI

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the respondent for the Court to recuse itself on the basis of a directions hearing that has been held before the Court today. Mr Smith has alleged that every time he sought to raise an issue, he has been prevented from doing so. On a number of occasions, Mr Smith has sought to talk over the Court. On those occasions, the Court has interrupted Mr Smith. On a number of occasions, Mr Smith has raised matters that are non-responsive to what the Court has asked Mr Smith. Nevertheless, it is one in respect of which the response by the Court did not prevent Mr Smith fully articulating any matter he wished to raise.

2. Mr Smith’s disquiet in relation to the proposition that he was brought to the Court on short notice occurred in circumstances where there had been a mediation ordered which concluded in March. An application was made to the Court by the applicants to have the matter relisted and the court relisted the matter at the earliest opportunity. The application for recusal identified an issue as to alleged non-compliance with a court order. Mr Smith wished to complain about that early listing and the inconvenience to him and his clients.

3. At the commencement of the directions hearing, the Court did identify to Mr Smith its displeasure in relation to his telephone communications with the Court’s associates and raising in essence complaint with the Court’s associates as to the orders made by the Court in chambers. Whether Mr Smith seeks to appear in person or to instruct an agent or counsel to appear is a matter for him and his client. Informing Mr Smith not to telephone the Court’s associates but to communicate in writing copied to the other parties is not conduct by reason of which a fair‑minded lay observer might reasonably apprehend that this court might not bring an independent and impartial mind to the determination of the matter on its merits. 

4. The conduct of proceedings before the Court are a matter for the Court and as the mediation was unsuccessful the matter needs to be brought swiftly to final hearing. I do not regard any of the conduct identified by Mr Smith as being conduct in respect of which a fair-minded lay observer might reasonably apprehend that this Court might not bring in a fair and impartial mind to the determination of the matter on its merits. The Court maintains an open mind in relation to the subject matter both of the interlocutory application and the substantive applications.

5. The application by the respondents for the Court to recuse itself is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 June 2017