Atkins v Master Builders Association of NSW [2006] FCA 142 (17 February 2006)

Last Updated: 23 May 2006

FEDERAL COURT OF AUSTRALIA

Atkins v Master Builders Association of NSW [2006] FCA 142

KEITH RAYMOND ATKINS v
MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES

NSD 965 OF 2005

LINDGREN J
17 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 965 OF 2005

BETWEEN:	KEITH RAYMOND ATKINS APPLICANT
AND:	MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	17 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The proceeding be dismissed.

2. The applicant pay the respondent’s costs of the proceeding not covered by previous orders or costs against him.

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	NSD 965 OF 2005

BETWEEN:	KEITH RAYMOND ATKINS APPLICANT
AND:	MASTER BUILDERS ASSOCIATION OF NEW SOUTH WALES RESPONDENT

JUDGE:	LINDGREN J
DATE:	17 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The respondent, Master Builders Association of New South Wales (‘the MBA’), moves for summary dismissal of this proceeding, or, in the alternative, for a striking out of the statement of claim.

FACTS

2 The applicant, Keith Raymond Atkins (‘Mr Atkins’), commenced the proceeding on 15 June 2005 by filing an application supported by an affidavit sworn by him. Mr Atkins was not legally represented.

3 On 3 August 2005, I ordered that Mr Atkins file and serve a statement of claim properly particularised by 23 August 2005, and that the respondent file and serve its defence by 30 August 2005. The proceeding was stood over to 31 August 2005.

4 Mr Atkins filed a statement of claim on 23 August 2005 and the MBA filed its defence on 30 August 2005. When the proceeding was before the Court on 31 August 2005 I directed the MBA to file and serve any notice of motion seeking to have the statement of claim struck out, returnable on 26 September 2005. On 26 September 2005 I ordered that the statement of claim be struck out with costs, and that Mr Atkins have leave to file and serve an amended statement of claim by 17 October 2005 (see Atkins v Master Builders Association of NSW [2005] FCA 1402). The proceeding was stood over to Wednesday, 19 October 2005.

5 On 17 October 2005, Mr Atkins filed a document entitled ‘Statement of Claim’ which was in fact an amended statement of claim. When the proceeding was before the Court on 19 October 2005 I granted the MBA leave to file and serve a notice of motion seeking a striking out of that document or summary dismissal, returnable on 16 November 2005. The MBA filed such a notice of motion on 8 November 2005.

6 When the matter was before the Court on 16 November 2005, by consent I ordered that the amended statement of claim filed on 17 October 2005 be struck out with costs, but Mr Atkins was granted leave to file and serve a further amended statement of claim by 7 December 2005. As well, I directed that if he failed to do so, the proceeding should stand dismissed as from that date. Subject to this, the proceeding was stood over to Friday, 9 December 2005.

7 On 7 December 2005 Mr Atkins faxed to the Court a document headed ‘Statement of Claim – Defamation and Infringement of Copyright’. The matter was before the Court on 9 December 2005. I ordered that the document, which was in fact a further amended statement of claim, be filed in Court, and that to the extent necessary, the order for ‘self-executing dismissal’ made on 16 November 2005 be set aside (it was arguable that Mr Atkins had not "filed" by 7 December, 2005). I ordered that the MBA’s motion be fixed for hearing today. It was understood that although the notice of motion filed on 8 November 2005 had referred to Mr Atkins’s amended statement of claim dated 17 October 2005, it was now to operate in relation to the document filed in Court on 9 December 2005.

8 I also directed on 9 December 2005 that if Mr Atkins wished to support a different statement of claim (that is, different from the further amended statement of claim filed in Court on 9 December 2005) at the hearing of the motion today, he must serve a copy of the proposed document on the MBA by Friday, 10 February 2006. I also ordered that Mr Atkins pay MBA’s costs of 9 December 2005, and granted the MBA leave to tax its costs the subject of all existing costs orders.

9 Mr Atkins did in fact serve a different ‘statement of claim’ on the MBA. It is dated 21 January 2006 and I assume that it was served on the MBA by last Friday, 10 February 2006.

CONSIDERATION

10 This latest document is headed ‘Statement of Claim – Defamation and Theft of Original Ideas’. It omits any reference to infringement of copyright. The intention now appears to be to assert that the MBA took Mr Atkins’s ideas without acknowledgment, but not to assert the reproduction of a literary work.

11 The allegations of defamation are made in very broad terms and do not inform the MBA of the defamatory statement or statements relied upon, the imputations which they are said to bear, or their effect on Mr Atkins.

12 When the proceeding was last before the Court on 9 December 2005, I informed Mr Atkins that this Court did not have jurisdiction in respect of a defamation claim standing alone, but that if such a claim was appropriately bound up with a federal cause of action in respect of which the Court had jurisdiction, the Court would have jurisdiction to entertain the claim of defamation as part of its accrued jurisdiction. A question arises whether the Court has jurisdiction in respect of the claim of defamation, having regard to the fact that the former claim of infringement of copyright is no longer made. I have also mentioned to Mr Atkins that the non-pursuit of a federal claim, assuming it to have been brought bona fide in the first place, would not automatically mean that the Court would not have jurisdiction to hear and determine the surviving claim of defamation.

13 I have pointed out to Mr Atkins that there is no cause of action of ‘theft of original ideas’.

14 All things considered, and, in particular, having regard to the fact that this is the third (or fourth) attempt by Mr Atkins to plead claims cognisable at law, the appropriate course is to dismiss the proceeding under Order 20 rule 2 of the Federal Court Rules on the basis that no reasonable cause of action is disclosed.

15 This is not an adjudication on the merits of any claim which Mr Atkins may have and the dismissal does not prevent him from commencing a fresh proceeding. Having said that, I have emphasised today as on previous occasions the strong desirability that Mr Atkins have thorough and considered legal advice in relation to his undoubtedly strongly felt grievances in relation to the MBA.

16 There is one further matter. On 11 November 2005 there was filed a notice of appointment of solicitor. According to the document, Mr Atkins appointed David Legg of Burridge and Legg as his solicitor. Mr Legg appeared for Mr Atkins on 16 November 2005, but Mr Atkins appeared in person on 9 December and again today, and all documents filed on his behalf have been filed by him. Mr Atkins informed me that Mr Legg does not now represent him.

CONCLUSION

17 For the above reasons, the proceeding should be summarily dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 27 February 2006

The Applicant appeared in person.
Counsel for the Respondent:	Mr G M Colman
Solicitor for the Respondent:	MBA Lawyers
Date of Hearing:	17 February 2006
Date of Judgment:	17 February 2006