Microsoft Corporation & Ors v Ben Zhong Fan [2003] FCA 1026

Microsoft Corporation & Ors v Ben Zhong Fan [2003] FCA 1026

The chronology showed that, after the earlier proceedings, Microsoft monitored the Respondent through TMIS with a view to commencing fresh proceedings or filing a contempt motion. From at least 26 March 2001 there was a real prospect of litigation, and the documents were prepared for the dominant purpose of obtaining legal advice or use in or in relation to that litigation. The documents were therefore privileged, so the motion challenging privilege was dismissed.

Jurisdiction
Australia
Judgment Date
10 October 2003
Procedural Posture
Interlocutory Notice of Motion in Copyright Infringement and Trade Mark Infringement Proceedings / Respondent's Notice of Motion Challenging Claims of Legal Professional Privilege Over Discovered Documents
Outcome
The Respondent's notice of motion was dismissed with costs.
Legal Topics
['legal Professional Privilege at Common Law' 'litigation Privilege' 'dominant Purpose Test' 'reasonable Prospect of Litigation' 'discovery' 'necessity for Production of Documents']
['evidence' 'practice and Procedure' 'intellectual Property'] ['legal Professional Privilege at Common Law' 'litigation Privilege' 'dominant Purpose Test' 'reasonable Prospect of Litigation' 'discovery' 'necessity for Production of Documents']

Case Brief

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Procedural Posture

Interlocutory Notice of Motion in Copyright Infringement and Trade Mark Infringement Proceedings / Respondent's Notice of Motion Challenging Claims of Legal Professional Privilege Over Discovered Documents

Legal Issues

  1. 1 ['Whether the documents were prepared or brought into existence for the dominant purpose of use in or in relation to litigation.' 'Whether litigation was in reasonable prospect when the documents were produced or brought into existence.' 'Whether an order for production of documents should be made only if necessary under O15 r15 of the Federal Court Rules.']

Ratio Decidendi

The chronology showed that, after the earlier proceedings, Microsoft monitored the Respondent through TMIS with a view to commencing fresh proceedings or filing a contempt motion. From at least 26 March 2001 there was a real prospect of litigation, and the documents were prepared for the dominant purpose of obtaining legal advice or use in or in relation to that litigation. The documents were therefore privileged, so the motion challenging privilege was dismissed.

Court Disposition

The Respondent's notice of motion was dismissed with costs.

Orders

  • ['The notice of motion filed on 7 August 2003 is dismissed.' "The Respondent pays the Applicants' costs of the motion."]