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

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

The threatened website publication was not merely an accurate recitation of the litigation; on the evidence before the Court it was inaccurate and intemperate, disclosed without prejudice settlement communications, used an unread affidavit for a purpose outside the proceedings, and misrepresented the current pleadings and a refused cross-claim. Having regard to the apparent purpose of pressuring Microsoft in pending proceedings, interim restraints were justified on the usual undertaking as to damages until the Court could hear from Mr Davis.

Jurisdiction
Australia
Judgment Date
31 January 2003
Procedural Posture
Notice of Motion for Interim and Ex Parte Injunctive Relief in Pending Federal Court Proceedings / Interim Ex Parte Application During the Fixed Vacation
Outcome
Interim ex parte injunction granted in amended terms; costs reserved.
Legal Topics
['interim Injunction' 'publication of Website Material About Pending Proceedings' 'without Prejudice Communications' 'unread Affidavits and Court Documents' 'legal Professional Privilege and Implied Undertaking' 'open Justice and Freedom of Speech']
['copyright' 'trade Marks' 'trade Practices' 'fair Trading' 'contempt of Court' 'civil Procedure'] ['interim Injunction' 'publication of Website Material About Pending Proceedings' 'without Prejudice Communications' 'unread Affidavits and Court Documents' 'legal Professional Privilege and Implied Undertaking' 'open Justice and Freedom of Speech']

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Procedural Posture

Notice of Motion for Interim and Ex Parte Injunctive Relief in Pending Federal Court Proceedings / Interim Ex Parte Application During the Fixed Vacation

Legal Issues

  1. 1 ['Whether interim ex parte orders should restrain the respondents from publishing or communicating website material concerning the pending proceedings.' 'Whether publication of court documents, an unread affidavit and without prejudice settlement communications should be restrained.' 'Whether the threatened publication was inaccurate, intemperate or calculated to influence a party in pending civil proceedings so as to constitute contempt of court.' 'Whether the breadth of the restraint sought by the applicants should be narrowed.']

Ratio Decidendi

The threatened website publication was not merely an accurate recitation of the litigation; on the evidence before the Court it was inaccurate and intemperate, disclosed without prejudice settlement communications, used an unread affidavit for a purpose outside the proceedings, and misrepresented the current pleadings and a refused cross-claim. Having regard to the apparent purpose of pressuring Microsoft in pending proceedings, interim restraints were justified on the usual undertaking as to damages until the Court could hear from Mr Davis.

Court Disposition

Interim ex parte injunction granted in amended terms; costs reserved.

Orders

  • ['Leave granted to the Applicants to file the notice of motion and supporting affidavits in court and the notice of motion made returnable instanter.' 'The hearing of the notice of motion to take place during the fixed vacation.' 'Up to and including 4 pm on 4 February 2003, the Respondents restrained from...