Microsoft Corporation and Ors v CPL Notting Hill Pty Ltd and Anor (No.2)

[2017] FCCA 1838

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICROSOFT CORPORATION & ORS v CPL NOTTING HILL PTY LTD & ANOR (No.2) [2017] FCCA 1838

Catchwords:
PRACTICE AND PROCEDURE – Interlocutory application – objection to the tendering of part of an affidavit – documents on their face appear relevant – paragraph 4 of the affidavit admitted.

Cases cited:
National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309

First Applicant:

Second Applicant

Third Applicant

MICROSOFT CORPORATION

MICROSOFT PRT LTD (ACN 002 589 460)

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: 4 August 2017

Date of Last Submission: 4 August 2017

Delivered at: Sydney

Delivered on: 4 August 2017

REPRESENTATION

Counsel for the Applicants: Mr A Fox

Solicitors for the Applicants: Harris & Company

Counsel for the Respondents: Mr R Webb SC

Solicitors for the Respondents: Smith & Associates

ORDERS

THE COURT ORDERS THAT:

1. The Court admits into evidence paragraph 4 of the affidavit of Alvin Ng affirmed 3 August 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1205 of 2016

MICROSOFT CORPORATION & ORS

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. Objection was taken by the respondents to the tender of paragraph 4 of the affidavit of Alvin Ng affirmed 3 August 2017. That affidavit in paragraph 4 identifies material in relation to invoices.

2. Mr Webb of counsel, has taken the Court to National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 and in particular the reasoning of the learned Bryson J at [17] and [18].

3. The Court is satisfied on this interlocutory application in which the Court is dealing with competing applications for discovery and alleged non-compliance of an order made by the Court in respect of the refurbisher program and certificates of authenticity, that the documents are on their face relevant. This is not a final hearing in relation to the determination of the issues of infringement. 

4. Mr Webb of counsel has submitted that as some documents originated from the Commissioner of Police, and that there has apparently been some person the subject of a prosecution that the authenticity of the documents should be strictly proved. I am not satisfied on an interlocutory application of this kind that any such step is required, given that the documents on their face appear relevant and the entity referred to is an entity which the respondents have identified and relied upon in purported compliance with an order made by the court to identify the relevant software programs that had been the subject of sale by the respondents. 

5. It is in these circumstances the Court admits paragraph 4 of the affidavit of Alvin Ng affirmed 3 August 2017.

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

Associate: 

Date:  30 August 2017