CONTEMPT, ATTACHMENT AND SEQUESTRATION - appeal from judgment dismissing application to punish litigant for contempt for breach of consent orders - objection to competency of proceedings - whether appeal as of right under s.24(1) of the Federal Court of Australia Act 1976 - whether proceedings constituted proceedings for criminal or civil contempt - treatment of distinction between civil and criminal contempt in Witham v Holloway(1995) 183 CLR 525 - procedural differences retained - whether proceedings are civil or criminal to be determined by "substance and object" of proceedings - issue to be decided upon institution of proceedings - charges in application of "mixed character" - "wilful and contumacious" breach of orders asserted - moving party continuing to trade - proceedings brought by individual litigant - case to be treated as civil proceedings in the "whole of the circumstances" - objection to competency dismissed
La Trobe University v Robinson and Pola [1973] VR 682
CONTEMPT, ATTACHMENT AND SEQUESTRATION - which party bears onus of proof - alleged breach of consent orders restraining infringement of copyright under s.36 of the Copyright Act 1968 - in infringement action onus of proving absence of licence lies upon party asserting infringement - whether lack of reference to consent or licence in consent orders reverses onus - several interpretations open - onus upon party alleging contempt - meaning of order ambiguous - dismissal of motion for contempt upheld
2.
CONTEMPT, ATTACHMENT AND SEQUESTRATION - standard of proof "beyond reasonable doubt" - alleged breach of consent orders restraining infringement of copyright under s.36 of the Copyright Act 1968 - in infringement action onus of proving absence of licence lies upon party asserting infringement - whether lack of reference to consent or licence in consent orders reverses onus - several interpretations open - onus upon party alleging contempt - doubt as to meaning of order reasonable - dismissal of motion for contempt upheld
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G082 of 1996 ) GENERAL…
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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AGLC
Microsoft Corporation v Marks (No 1) [1996] FCA 709
Case
[1996] FCA 709
Decision Date
CaseChat Overview and Summary
This appeal, from part of a judgment of Tamberlin J., has the following background. Microsoft Corporation and Microsoft Pty Limited (collectively "Microsoft") are members of a well-known group of corporations which supply, by wholesale, computer software providing programs for word processing, data storage and spreadsheets. The respondent, Mr. Marks, carries on the business of the supply, by retail, of computer equipment, both hardware and software. In 1991, Microsoft and other corporations instituted proceedings in this Court against, inter alia, Mr. Marks, claiming that the copyright in certain of Microsoft's computer programs had been infringed. The proceedings were resolved by the making of consent orders on 11 October 1991. The consent orders, which it appears were drafted by the parties, included the following injunction: "The Respondents and each of them by themselves their servants and agents and the servants and agents of each of them be restrained from: (a)reproducing or authorising the reproduction of the whole or a substantial part of any of the computer programs identified in Schedule 'A' to the Statement of Claim (`the Microsoft Programs'); (b)selling, offering for sale, supplying, offering to supply or distributing any unauthorised copy of any of the Microsoft Programs;" Schedule A to the statement of claim named 36 Microsoft computer programs. In March 1995, Microsoft, alleging that Mr. Marks had again breached the orders, applied to this Court, by notice of motion filed pursuant to O.40 r.5(1), for orders committing Mr. Marks to prison, or otherwise punishing him for contempt. Tamberlin J. dismissed Microsoft's application in this and other (presently immaterial) respects. Microsoft now appeals from this part of his Honour's judgment. The appeal raises two issues: (a) whether the appeal was properly brought as of right under s.24(1) of the Federal Court of Australia Act 1976; and (b) whether Tamberlin J. was correct in dismissing the application for punishment for contempt. In relation to the first issue, Microsoft contends that the appeal was properly brought as of right, relying on s.24(1)(a) of the Federal Court of Australia Act 1976. Mr. Marks contends that, in the light of the approach now adopted by the High Court in Witham v Holloway, the appeal was not properly brought, in that it was in substance, if not in form, an impermissible attempt to appeal against an acquittal in a criminal proceeding. This contention relies on the principle established in Thompson v Mastertouch TV Service Pty Ltd (No.3) (1978) 38 FCR 397 and Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co. Ltd. (1982) 59 FLR 48, that there is no right of appeal in a moving party who is unsuccessful at first instance if the contempt alleged is criminal. In relation to the second issue, Microsoft contends that Tamberlin J. was incorrect in dismissing its application for punishment for contempt, and that it is entitled to relief. Mr. Marks contends that Tamberlin J. was correct to dismiss the application. The Court dismissed the appeal. In relation to the first issue, the Court found that the appeal was properly brought as of right, relying on the principle that, in determining whether an appeal lies, the substance and object of the proceedings must be taken into account, and not the form of the proceedings. The Court rejected Mr. Marks' contention that the appeal was not properly brought, in that it was in substance, if not in form, an impermissible attempt to appeal against an acquittal in a criminal proceeding. In relation to the second issue, the Court found that Tamberlin J. was correct in dismissing the application for punishment for contempt. The Court held that the appeal from this part of the judgment failed by reason of the uncertainty inherent in order 1(a). The Court held that the appeal from this part of the judgment also failed because the evidence did not establish that the copy of the program "Microsoft Office" sold and supplied by Mr. Marks to Mr. Douglas on 25 January was made from an unauthorised copy of Microsoft's program. The appeal was dismissed. Costs at first instance to abide the decision of Tamberlin J. No order as to the costs of the appeal.