Wilson v Australian Copyright Council [2000] FCA 1929 (15 December 2000)

Last Updated: 28 December 2000

FEDERAL COURT OF AUSTRALIA

Wilson v Australian Copyright Council [2000] FCA 1929

PAUL WILSON v AUSTRALIAN COPYRIGHT COUNCIL

N 1146 OF 2000

EMMETT J

15 DECEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1146 OF 2000

BETWEEN:	PAUL WILSON APPLICANT
AND:	AUSTRALIAN COPYRIGHT COUNCIL RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	15 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The statement of claim be struck out.

2. The applicant be granted leave to file and serve an amended application and statement of claim by 2 February 2001.

3. The respondent file and serve no later than 16 February 2001 any further affidavits intended to be relied on in support of its motion.

4. The motion be stood over part heard to Friday, 23 February 2001 at 9.30 am.

5. The applicant pay the respondent's costs of the motion to date.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1146 OF 2000

BETWEEN:	PAUL WILSON APPLICANT
AND:	AUSTRALIAN COPYRIGHT COUNCIL RESPONDENT

JUDGE:	EMMETT J
DATE:	15 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Mr Paul Wilson, commenced this proceeding by application and statement of claim filed on 26 October 2000. The respondent has applied by notice of motion for either summary dismissal pursuant to Order 20 rule 2 of the Federal Court Rules or, alternatively, an order that the statement of claim that has been filed in the proceeding be struck our pursuant to Order 11 rule 16. Those provisions are as follows:

"Order 20

2. (1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:

(a) no reasonable cause of action is disclosed;

(b) the proceeding is frivolous or vexatious; or

(c) the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).

...........................

Order 11

16. Where a pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay I the proceeding; or

(c) is otherwise an abuse of the process of the Court;

the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out."

2 Mr Wilson's application contains 13 paragraphs that are in language that I myself find difficult to follow. The substance of Mr Wilson's application, however, is to claim orders relating to alleged infringement of copyright subsisting in a literary work of which Mr Wilson claims to be the author.

3 The statement of claim consists of a single paragraph as follows:

"I am entitled to sue the respondent a private company registered in New South Wales copyright subsists and at all material times has subsisted in the literacy intellectual work of applicant under Copyright Act 1968."

There then follow 31 numbered paragraphs under the heading, "Particulars". Many of the paragraphs in the "Particulars" are unintelligible and many of them do not constitute complete sentences. However, it is possible to glean from those statements a number of relevant assertions on the part of Mr Wilson.

4 The first is that he was the author of a literary work which is described as follows:

"a physical literary intellectual works of how way in one a re-readable reusable finished Business Plan - a Business Dot Com of in itself perpetuate as is - a Business Manuscript Book - Legal - Social Books."

Next, there is an assertion that on 30 August 2000 there were communications between Mr Wilson and officers of the respondent at the respondent's premises. The particulars allege as follows:

"I spoke to and was attended to by a female where I was robbed and screwed."

Later there is an allegation that the respondent "did infringe and breach my copyright." There is also an allegation in the following terms:

"The respondent did never ask for the rights that are mine only to use and did wrongly photocopy without permission or did I give to own or hold in situefor [sic] me or any good reason to have in possession of."

5 The thrust of the complaint by Mr Wilson seems to be that he entrusted a copy of some literary work to officers of the respondent on 30 August 2000 and that a copy was made without his authority. It appears that he claims that the alleged unauthorised copy has been retained by the respondent and has not been redelivered to him. However, that is by no means clear. Nevertheless, I am not persuaded, in the absence of any evidence, that no reasonable cause of action is disclosed.

6 On the other hand, I am satisfied that the statement of claim ought to be struck out as embarrassing and for non-compliance with the rules. A pleading should contain and contain only, a statement in a summary form of the material facts on which the party relies but not the evidence by which those facts are to be proved - see Order 11, rule 2. Under Order 11, rule 3, a pleading must be as brief as the nature of the case admits.

7 Under Order 12, rule 1 a party pleading must state in the pleading or in a document filed and served with it, the necessary particulars of any claim pleaded by him. The statement of claim does not adequately identify the work in respect of which copyright is alleged to subsist. Nor does it clearly indicate what is said to have been done with the works and when and in what ways the copyright was infringed.

8 The application in its first prayer for relief claims as follows:

"An order that the respondent whether by it's [sic] servants, agents or otherwise. however be restrained from infringing the applicants copyright by reproducing or viewing or else permitted applicant."

Claim 2 is as follows:

"An order that the respondent whether by itself, it's [sic] servants, agents or otherwise howsoever return any and all copy or parts of said copyright in possession of they or others that they should not have and DESTROY all HARDCOPY FACSIMILE."

The other paragraphs claim injunctions and orders for damages. Many of the paragraphs are quite unintelligible.

9 I propose to order that the statement of claim be struck out and that the applicant be given leave to file an amended application and an amended statement of claim no later than 2 February 2001. I will also give the respondent leave to file any further evidence on which it intends to rely in support of its prayer for summary dismissal of the proceedings. Any such affidavit must be filed and served no later than 16 February. I propose to stand over the motion, part heard, to Friday, 23 February 2001.

10 I will order the applicant to pay the respondent's costs of the motion to date.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 21 December 2000

The applicant appeared in person
Solicitor for the Respondent:	Mr M Darke for Minter Ellison
Date of Hearing:	15 December 2000
Date of Judgment:	15 December 2000