Microsoft Corporation v Crosslink Marketing Group (CMG) Pty Ltd [2005] FCA 216

Microsoft Corporation v Crosslink Marketing Group (CMG) Pty Ltd [2005] FCA 216

The first respondent had misunderstood its discovery obligation by treating company documents held by its sole director as outside the company's possession, custody or power, and a company cannot claim privilege against self-incrimination. The first and second respondents were therefore required to make proper discovery and the second respondent was required to produce for inspection documents that were the property of the first respondent. The applicants were required to provide hot line reports except for documents over which legal professional privilege was upheld, and to provide further affidavit evidence concerning any other claim to privilege over private investigators' reports.

Jurisdiction
Australia
Judgment Date
09 February 2005
Procedural Posture
Federal Court Civil Proceeding / Interlocutory Orders Concerning Discovery, Inspection, Privilege, Affidavits and Trial Listing
Outcome
Interlocutory orders made; costs reserved.
Legal Topics
['discovery' 'inspection of Documents' 'legal Professional Privilege' 'privilege Against Self Incrimination' 'copyright' 'trade Marks']
['civil Procedure' 'evidence' 'intellectual Property'] ['discovery' 'inspection of Documents' 'legal Professional Privilege' 'privilege Against Self Incrimination' 'copyright' 'trade Marks']

Case Brief

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Procedural Posture

Federal Court Civil Proceeding / Interlocutory Orders Concerning Discovery, Inspection, Privilege, Affidavits and Trial Listing

Legal Issues

  1. 1 ['Whether the first and second respondents had made adequate discovery of documents in their possession, custody or power.' 'Whether documents listed by the second respondent could be withheld on the basis that discovery may expose a respondent to prosecution for a criminal offence.' 'Whether the first respondent company could claim privilege against self-incrimination.' "Whether the applicants were required to provide hot line reports and further evidence concerning claims to privilege over private investigators' reports."]

Ratio Decidendi

The first respondent had misunderstood its discovery obligation by treating company documents held by its sole director as outside the company's possession, custody or power, and a company cannot claim privilege against self-incrimination. The first and second respondents were therefore required to make proper discovery and the second respondent was required to produce for inspection documents that were the property of the first respondent. The applicants were required to provide hot line reports except for documents over which legal professional privilege was upheld, and to provide further affidavit evidence concerning any other claim to privilege over private investigators' reports.

Court Disposition

Interlocutory orders made; costs reserved.

Orders

  • ['The first and second respondents make discovery on oath of all documents in its/his possession, power or custody which are relevant to the matters in issue between the parties in these proceedings.' 'The second respondent produce for inspection by the applicants all documents in his possession, custody or power...