Quanta Software International Pty Ltd v Quanta Systems Ltd

[2003] FCA 1007

FEDERAL COURT OF AUSTRALIA

Quanta Software International Pty Ltd v Quanta Systems Ltd
[2003] FCA 1007

QUANTA SOFTWARE INTERNATIONAL PTY LTD v QUANTA SYSTEMS LTD
N 1193 OF 2003

WHITLAM J
3 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1193 OF 2003

BETWEEN:	QUANTA SOFTWARE INTERNATIONAL PTY LTD APPLICANT
AND:	QUANTA SYSTEMS LTD RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	3 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The orders made on 27 August 2003 are discharged forthwith.

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 1193 OF 2003

BETWEEN:	QUANTA SOFTWARE INTERNATIONAL PTY LTD APPLICANT
AND:	QUANTA SYSTEMS LTD RESPONDENT

JUDGE:	WHITLAM J
DATE:	3 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding was commenced on 27 August 2003.  It is an action for infringement of copyright in a computer software system known as “EUNICE”.  The applicant claims an exclusive licence to distribute that system in Australia pursuant to an agreement dated 2 February 1991 with the respondent, the owner of the copyright in the system. 

2. On 27 August 2003 the applicant sought urgent relief on an ex parte basis, and the duty Judge granted injunctions until further order restraining the respondent from reproducing, selling or distributing the EUNICE software.  His Honour stood the application over until today.  The applicant now seeks a continuation of the orders made ex parte.  The respondent opposes continuation of those orders.  The respondent also applies to have those orders discharged on the basis of the well known principles stated by Isaacs J in Thomas A. Edison Limited v Bullock (1912) 15 CLR 679 at 681-682.

3. The evidence relied on at the ex parte hearing consisted of affidavits made by Erroll Williams, Bruce Davies and Stephen Kerrigan.  Broadly speaking, those affidavits set out, in a rather sketchy fashion, the basis of a claim resting primarily on what was said and done by Grant Lester, an employee of the respondent.  Mr Davies annexed to his affidavit a series of emails commencing in June 2003 and running through to August 2003 from Mr  Lester addressed, first, to Tim McMahon and, then to himself.  Mr Davies is the Chief Executive Officer of a company called Trilogy CSI Pty Ltd (“Trilogy CSI”) which he says acts as the agent for the applicant in the marketing, billing and support of EUNICE software.  It is not necessary to describe the contents of those emails except to say that they indicate that Mr Lester was seeking to have Trilogy CSI distribute the EUNICE software in Australia or at least an adaptation of it.  In a letter dated 7 August 2003 which is annexed to Mr Williams’ affidavit, Mr Lester proposed that Trilogy CSI take up the role of reseller of the EUNICE software in Australia.  A key paragraph in that letter from Mr Lester and one singled out by…