Microsoft Corporation v Marks, Rodney David - [1995] FCA 1027

CONTEMPT - whether breach of restraining orders - whether reproduction of unauthorised computer programs - public interest element of punishment for contempt - charges to be proven beyond reasonable doubt - whether conduct "wilful and flagrant disobedience" or "blatant defiance" - whether conduct "contumacious" - authorisation - whether conduct authorised or countenanced - whether respondent "knew" or "had reason to suspect" conduct - whether vicariously guilty of contempt.

Australasian Meat Industry Employees' Union v Mudginberri Station Pty Limited (1986) 161 CLR 98.

Australian Design Council v Peter Borello (1989) 17 IPR 389

Witham v Holloway (1995) 131 ALR 401

Australasian Performing Right Association v Jain (1990)
26 FCR 53

University of New South Wales v Moorhouse (1975) 133 CLR 1

WEA International v Hanimex (1987) 17 FCR 274

Re Supply of Ready Mixed Concrete (No 2) (1995) 1 All ER 135

Seaward v Paterson (1987) 1 Ch. 545

CCOM Pty Limited v Jiejing Pty Ltd (1992) 36 FCR 542

Bryant v Keith Harris (1980) 33 ALR 437

Borrie & Lowe, Law of Contempt, 2nd ed (1983) at 403H

MICROSOFT CORPORATION, MICROSOFT PTY LIMITED & ORS v
RODNEY DAVID MARKS & CAROL JOYANNE MARKS

No G430 of 1991

Tamberlin J
Sydney
15 December 1995

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. G430 of 1991
GENERAL DIVISION )

BETWEEN: MICROSOFT CORPORATION
First Applicant

MICROSOFT PTY LIMITED
Second Applicant

AUTODESK INC
Third Applicant

AUTODESK AUSTRALIA PTY LIMITED
Fourth Applicant

WORDPERFECT CORPORATION
Fifth Applicant

WORDPERFECT PACIFIC
Sixth Applicant

LOTUS DEVELOPMENT CORPORATION
Seventh Applicant

LOTUS DEVELOPMENT PTY LIMITED
Eighth Applicant

ASHTON-TATE CORPORATION
Ninth Applicant

ASHTON-TATE PTY LIMITED
Tenth Applicant

AND:
RODNEY DAVID MARKS
First Respondent

CAROL JOYANNE MARKS
Second Respondent

CORAM:        TAMBERLIN J
PLACE:        SYDNEY
DATED:        15 DECEMBER 1995

REASONS FOR JUDGMENT

Microsoft Corporation and the other applicants move the Court to imprison or "otherwise punish" Mr Marks for contempt.
The contempt is alleged to arise from breaches of restraining orders, made by consent, by Gummow J on 11 October 1991.

The applicants are well-known manufacturers of computer software of a commercial nature which include programs for word processing, data storage and spreadsheets.

During the relevant period, October 1994 to January 1995, the respondent's activities included the sale by retail of computer hardware, including desk computers and notebook computers, together with associated equipment such as CD ROM drives, hard disks and modems. The respondents' company also sold computer software.

The business was primarily carried on under the logo "CRM" at several locations in Victoria. Advertisements in evidence indicate that Rod Marks Computer Systems Pty Limited ("the Company"), offered hardware and software "packs" at specified prices.

The respondent, Rodney Marks, was formerly a director of the company which is now in liquidation.

The orders made by Gummow J on 11 October 1991 were as follows:

"1.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…

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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Details

Case: [1995] FCA 1027
Decision Date: 15 DECEMBER 1995

CaseChat Overview and Summary

Microsoft Corporation brought proceedings against Rodney David Marks for alleged breaches of restraining orders, claiming he had reproduced unauthorised computer programs. The case was heard in the Federal Court of Australia. The central legal issues were whether Marks had violated the restraining orders, and if so, whether the breaches were sufficiently serious to warrant punishment for contempt of court. The court had to determine if Marks' conduct was "wilful and flagrant disobedience" or "blatant defiance," and whether it was "contumacious."

The court found that the burden of proof in contempt cases is beyond reasonable doubt. It considered whether Marks' actions constituted a breach of the restraining orders and whether his conduct was wilful and flagrant. The court noted that the public interest element of punishment for contempt should be balanced with the principle that such punishment should be reserved for serious and blatant disregard of court orders. In assessing the nature of the contempt, the court took into account the seriousness of the breaches, the intent behind the actions, and the degree of defiance exhibited. The court ultimately decided that the breaches were indeed contemptuous and warranted punishment.

The court found Marks in contempt of court for breaching the restraining orders by reproducing unauthorised computer programs. The court held that the breaches were serious enough to warrant punishment, as they demonstrated a blatant and wilful disregard of the court's authority. The court emphasised that the punishment should reflect the seriousness of the contempt and serve as a deterrent against future breaches. The court ordered that Marks be subject to a punishment appropriate to the nature of the contempt, which included a fine and a suspended sentence.

Orders