FEDERAL COURT OF AUSTRALIA

Microsoft Corporation v Crosslink Marketing Group (CMG) Pty Limited

[2005] FCA 1220

MICROSOFT CORPORATION, MICROSOFT PTY LIMITED AND MICROSOFT LICENSING GP v CROSSLINK MARKETING GROUP (CMG) PTY LIMITED, KELL WALKER, ROSALIND SUMNER aka PEE LOO TAN, WAYNE SUMNER

NSD 1325 OF 2004

DOWSETT J

19 AUGUST 2005

BRISBANE

THE COURT ORDERS THAT:

1.         The notice of motion filed on 26 July 2005 by the first and second respondents be dismissed.

2.         The first and second respondents pay the costs of and incidental to the motion on an indemnity basis, being the costs incurred by the first, second, and third applicants.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I am considering a motion filed on 26 July 2005 by the first and second respondent in these proceedings.  The proceedings have previously been disposed of pursuant to a compromise, however no final order has been made.  The motion is to set aside the compromise on the ground of fraud in connection with the production or disclosure of documents.  When the matter was called on today, it emerged that Mr Walker, who is the second respondent, had no evidence of authority to act on behalf of the first respondent.  I have previously, in this litigation, and perhaps in other litigation, indicated to him that he cannot expect to appear for a corporation of which he is a director, even the sole director, without producing some evidence of his authority to do so.  In those circumstances, I declined to hear him on behalf of the first respondent.  However I heard him in his own behalf.

2                     Since resuming after lunch, I have been dealing with certain objections to the admissibility of aspects of Mr Walker’s affidavits.  A number of the paragraphs have been excluded as irrelevant.  Many of the paragraphs were either so imprecise as to be irrelevant or were plainly argumentative.

3                     Unfortunately, Mr Walker has taken exception to views which I have expressed or, as he suggests, the way in which I have expressed them.  He has asserted that the affidavits need to be read as entities and not examined paragraph by paragraph.  I have tried to explain to him that the rules of evidence do not work in that way and that although he is entitled to seek to justify one part of the affidavit by reference to another, he may not simply assert that the whole of the affidavit is relevant and admissible, notwithstanding the fact that individual paragraphs are, themselves, objectionable.

4                     In the circumstances, he has asked me, as he put it, to “recuse” myself upon the basis that I am biased against him, this bias being demonstrated by the way in which I have dealt with him today.  He seems to have been satisfied with my dealings with him on previous occasions over, as he says, many years.  I declined to withdraw from the matter and indicated that I proposed to continue dealing with the objections against evidence and then to deal with the substantive issues.  However Mr Walker indicated that he wished to withdraw.  I indicated that I would not insist upon his remaining.  He has now withdrawn.  Since he has withdrawn and the first respondent has not appeared, it is no longer possible for the motion to proceed.  It was listed for argument today.  I dismiss the motion.

5                     Application is made for an order for costs on an indemnity basis against both respondents.  I am usually reluctant to make an order on that basis.  In the present case, the application is justified.  Nothing in what Mr Walker has said could lead to even the suggestion of an allegation of fraud.  It may be that some other argument could have been launched based upon other aspects of the material, but Mr Walker has chosen not to do so. 

6                     From what he has said to me, it seems that he has misconceived the circumstances in which he can seek to set aside an agreement freely entered into by him.  He apparently thinks that he is not, to any extent, bound by the way in which he has conducted himself.  He complains that he asked for documents which were either not provided or not provided until a late stage.  These were matters to be raised before the trial judge.  He seems not to have done that.  If he did so, he was unsuccessful and has not appealed.

7                     I suspect that such misunderstandings, if that is what they are, have generally influenced his attitude to this matter.  The application had no prospects of success.  In those circumstances, it is appropriate that I order costs on an indemnity basis.

8                     The order will be that the first and second respondents pay the costs of and incidental to the motion on an indemnity basis, being the costs incurred by the first, second, and third applicants.

Associate:

Dated:              2 September 2005