Microsoft Corporation v Ferguson

[2002] FCA 833

FEDERAL COURT OF AUSTRALIA

Microsoft Corporation v Ferguson
[2002] FCA 833

MICROSOFT CORPORATION and MICROSOFT PTY LIMITED v DONALD WAYNE FERGUSON trading as COMPUTER REPAIRS & UPGRADES and TOPGATE HOLDINGS trading as COMPUTER REPAIRS & UPGRADES
N 80 OF 2002

GYLES J
SYDNEY
4 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 80 OF 2002

BETWEEN:

MICROSOFT CORPORATION
FIRST APPLICANT

MICROSOFT PTY LIMITED
SECOND APPLICANT

AND:

DONALD WAYNE FERGUSON trading as COMPUTER REPAIRS & UPGRADES
FIRST RESPONDENT

TOPGATE HOLDINGS trading as COMPUTER REPAIRS & UPGRADES
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

4 JUNE 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The amended application referred to in paragraph 5 of the affidavit of Geoffrey Lyndon Davis, sworn 28 May 2002, be taken to have been served on Donald Wayne Ferguson on 24 May 2002;

2.A copy of the statement of claim be taken to have been served on Donald Wayne Ferguson on 24 May 2002;

3.The time for service of the amended application and the statement of claim be abridged to one day before the return date;

4.No order is made as to the costs of this application;

5.        This proceeding be adjourned for directions to 1 July 2002;

6.This proceeding be transferred to the Western Australia Registry of the Court;

7.These orders be served by being left for Donald Wayne Ferguson at 3 Gutha Retreat, Hocking in the State of Western Australia.

8.The exhibit be returned.

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 80 OF 2002

BETWEEN:

MICROSOFT CORPORATION
FIRST APPLICANT

MICROSOFT PTY LIMITED
SECOND APPLICANT

AND:

DONALD WAYNE FERGUSON trading as COMPUTER REPAIRS & UPGRADES
FIRST RESPONDENT

TOPGATE HOLDINGS trading as COMPUTER REPAIRS & UPGRADES
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	4 JUNE 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter I am satisfied that orders pursuant to O 7 r 9 and r 10 can be made regularising service, and I intend making those orders.  I will not make any order for costs, however, on this application.  I am not satisfied that the matter has been handled on the part of the applicants with due regard for the Rules of Court, and I do not think the defendant or respondent should be visited with costs on that account.

2. A question has arisen as to the proper venue for the future conduct of the matter.  When the matter was first before me, I raised this question with the solicitor for the applicants who tells me that he has since informed the person who he believes to be the first respondent of his rights in relation to that question as I had required.

3. It seems to me the time has now been reached to make that decision.  The orders I will make as to the regularising of service and the attempted filing of a notice of appearance, albeit informally, on behalf of the first respondent and service upon the second respondent mean that the matter will be proceeding, although whether to a contested hearing is impossible to know until defences are filed.

4. The time has now come for the respondents to make up their mind as to how they respond to this application.  They may well either wish to obtain legal advice on that issue and then retain solicitors or to pursue the matter themselves.  In either event it is plainly impractical, or at least highly inconvenient, for them to be dealing with a matter being conducted in the Sydney Registry of the Court when they are located in Western Australia.

5. The solicitor for the applicants has pressed me with a number of factors.  I will not fully repeat all of his submissions, as they are sufficiently recorded in the transcript. They include matters both particular to this case, that is, reference to the evidence which will be necessary to be called on behalf of the applicants, and general considerations as to the systems which these applicants must set up to protect their intellectual property, and the advantages to them in being able to centralise control and direction of these and like proceedings.  It has also been pointed out that the respondents have, if not evaded service, been difficult to serve, and that they have taken no steps to come to the Court and ask for any change of venue.  It is put that this means that any transfer at the moment would be premature, and should await a properly formulated request on the part of the respondents. 

6. Whilst I have some sympathy for the position of the applicants in this matter, I do not think that it is fair to these respondents to conduct this kind of proceeding in a Registry so far from where they live.  I should make it clear that this decision is not intended to lay down any general policy, either for myself as to my docket or more generally.  Nor is it implicit in what I have said that it was inappropriate to commence the proceedings here.  That is not a judgment which I am called upon to make at the moment.

7. I appreciate that it is conceivable that at the end of the day, if there is a contested hearing, it might best be conducted in Sydney.  That is a decision which can be made at the time if it is the appropriate order to be made.  Under all the circumstances the orders I make are as follows:

   1.The amended application referred to in paragraph 5 of the affidavit of Geoffrey Lyndon Davis, sworn 28 May 2002, be taken to have been served on Donald Wayne Ferguson on 24 May 2002;

   2.A copy of the statement of claim be taken to have been served on Donald Wayne Ferguson on 24 May 2002;

   3.The time for service of the amended application and the statement of claim be abridged to one day before the return date;

   4.No order is made as to the costs of this application;

   5.        This proceeding be adjourned for directions to 1 July 2002;

   6.This proceeding be transferred to the Western Australia Registry of the Court;

   7.These orders be served by being left for Donald Wayne Ferguson at 3 Gutha Retreat, Hocking in the State of Western Australia.

   8.The exhibit be returned.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             28 June 2002

Solicitor for the Applicants:	G Hansen of Harris & Co
No appearance for the Respondents
Date of Hearing:	4 June 2002
Date of Judgment:	4 June 2002