Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20

Federal Court of Australia

Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20 Appeal from: Microsoft Corporation v CPL Notting Hill Pty Ltd (No 7) [2022] FedCFamC2G 590 Microsoft Corporation v CPL Notting Hill Pty Ltd (No 8) [2022] FedCFamC2G 1033

File number: NSD 1126 of 2022

Judgment of: NICHOLAS, ROFE AND JACKMAN JJ

Date of judgment: 4 March 2024

Catchwords: APPEAL AND NEW TRIAL – proceeding brought by appellants against respondents for (inter alia) alleged infringement of copyright in computer programs – whether appellants were denied procedural fairness as a consequence of primary judge disallowing questions in cross-examination or otherwise curtailing cross-examination of respondents' witnesses – whether questions proposed to be put to witnesses tendered and rejected – whether rejection of any questions or line of questions had the effect of denying the appellants the opportunity to put their case or depriving them of a fair trial – whether primary judge failed to consider the inherent improbability of respondents' case as a whole – whether evidence of events given by respondents' witnesses was glaringly improbable – where primary judge's acceptance of respondents' witnesses' evidence heavily influenced by demeanour – relevance of lengthy delay between hearing and judgment PRACTICE AND PROCEDURE – whether allegation that a witness has given a false account of events or has fabricated, concealed or destroyed evidence constitutes an allegation of fraud which must be pleaded in circumstances where such conduct is not an element of the cause of action PRACTICE AND PROCEDURE – where appellants claimed additional damages under s 115(4) of the Copyright Act 1968 (Cth) relying upon (inter alia) alleged fabrication, concealment and destruction of documents – whether appellants required to plead or particularise such allegations in support of claim for additional damages Held: appeal allowed - new trial ordered