Microsoft Corporation v Ezy Loans Pty Ltd [2003] FCA 37

FEDERAL COURT OF AUSTRALIA

Microsoft Corporation v Ezy Loans Pty Ltd [2003] FCA 37 Trade Practices Act 1974 (Cth) Copyright Act 1968 (Cth), s 115(2), (4), s 116 Trademarks Act 1995 (Cth) Trade Practices Act 1974 (Cth) Fair Trading Act 1989 (Qld) Federal Court Rules O 46 r 6 Nilsen Industrial Electronics v National Semiconductor Corporation (1994) 48 FCR 337, considered Complete Technology Pty Limited v Toshiba (Australia) Pty Limited (1994) 53 FCR 125, considered ACCC v Telstra Corporation Ltd (2000) 96 FCR 317, considered Dataquest (Australia) Pty Ltd v Dataquest Inc and Ors (unreported, 8 August 1996), cited Ballina Shire Council v Ringland (1994) 33 NSWLR 680, cited Commercial Bank of Australia v Preston [1981] 2 NSWLR 554, followed MICROSOFT CORPORATION and ORS v EZY LOANS PTY LTD (ACN 093 279 826) trading as HARMONY TELECOMMUNICATIONS AND BUSINESS EQUIPMENT and ANOR No N 1129 of 2000 SPENDER J BRISBANE 31 JANUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY N 1129 OF 2000

BETWEEN: MICROSOFT CORPORATION

FIRST APPLICANT

MICROSOFT PTY LTD (ACN 002 589 460)

SECOND APPLICANT

MICROSOFT LICENSING INC

THIRD APPLICANT

AND: EZY LOANS PTY LTD (ACN 093 279 826) trading as HARMONY TELECOMMUNICATIONS AND BUSINESS EQUIPMENT

FIRST RESPONDENT

EARL SEYMOUR DAVIS

SECOND RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 31 JANUARY 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. Leave be granted to the Applicants to file in court this notice of motion and supporting affidavits and that the notice of motion be returnable instanter. 2. The hearing of this notice of motion take place during the fixed vacation. 3. Up to and including 4 pm on 4 February 2003, the Respondents and each of them, whether by their servants, agents or otherwise, be restrained from publishing or communicating (whether orally or in writing, via email or otherwise): (a) the material (other than the Court documents reproduced) on the website http://www.microsoftvsearl.com as set out in Exhibit MCG2 to the affidavit of Maurice Charles Gonsalves affirmed on 30 January 2003 (the "Website") or statements to the effect of that material; (b) Court documents in these proceedings accompanied by the material referred to in paragraph (a) or statements to the effect of that material; (c) the affidavit of Anna Tran-Ngyuen sworn on 4 October 2001 for so long as that affidavit has not been read in evidence; and (d) any without prejudice correspondence from the Applicants' solicitors in these proceedings or the effect of those without prejudice communications concerning settlement. 4. Within 24 hours of service of this order, the Respondents will do all acts and things necessary to remove from the World Wide Web the content of the website. 5. Within 24 hours of service of this order, the Respondents do all acts and all things necessary to remove from all other World Wide Web sites the content of which is controlled by them, or either of them, including without limitation the website, any material of which the content is the same as, or substantially to the effect of the material restrained from publication by order 3. 6. Service of this order on Earl Davis by facsimile on (07) 3276 8844 will be deemed to be personal service on each of the Respondents in the first instance. In addition copies of Notice of Motion, supporting affidavits and the orders made today to be personally served on Mr Davis. 7. The time of service of the notice of motion and supporting affidavits be abridged. 8. The Applicants' application for interlocutory relief be listed for hearing at the Federal Court of Australia, Queensland District Registry at not before 11.00 am on 4 February 2003. 9. Entry of these Orders be expedited. 10. Each party to have liberty to apply to discharge or vary these Orders on 24 hours' notice. 11. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.