Hill v Lang [2010] FMCA 40 (28 January 2010)

Federal Magistrates Court of Australia

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Hill v Lang [2010] FMCA 40 (28 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HILL v LANG

[2010] FMCA 40

COPYRIGHT – Proceedings summarily dismissed on the basis of no reasonable chance of success.

Federal Magistrates Act 1999 (Cth), s.17A Federal Magistrates Court Rules 2001 (Cth), r.13.10 Copyright Act 1968 (Cth), s.98(3)

Rana v Libraries Board of South Australia & Ors [2008] FMCA 911

Applicant:

BRENTON HILL

Respondent:

FRANK LANG

File Number:

ADG 100 of 2009

Judgment of:

Simpson FM

Hearing date:

4 November 2009

Date of Last Submission:

4 November 2009

Delivered at:

Adelaide

Delivered on:

28 January 2010

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Self-represented

ORDERS

(1) These proceedings be dismissed pursuant to section 17A of the Federal Magistrates Act 1999 (Cth).
(2) The applicant pay the respondent’s costs of, and incidental to, the proceedings, such costs to be agreed between the parties within fourteen (14) days or, failing such agreement, referred to a Registrar of this Court to be taxed pursuant to Order 62 of the Federal Court Rules 1979 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 100 of 2009

BRENTON HILL

Applicant

And

FRANK LANG

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application by the respondent, Frank Lang, (“Mr Lang”) seeking that the application brought by the applicant, Brenton Hill, (“Mr Hill”) be summarily dismissed. Neither party has had legal representation.
2. I have treated the respondent’s application as an application pursuant to s.17A of the Federal Magistrates Act 1999 (Cth) (“FM Act”) and rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”).

The legislative and legal background

3. In Rana v Libraries Board of South Australia & Ors[1], I had this to say on the summary dismissal provisions that apply in this Court:
   • 23. Significant amendments were made to the summary judgment provision contained in the FM Act and FMC Rules that came into effect on 1 December 2005. Section 17A of the FM Act provides:
     • (1) ...
     • (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
       • (a) the first party is defending the proceeding or that part of the proceeding; and
       • (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
     • (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
       • (a) hopeless; or
       • (b) bound to fail;
       • for it to have no reasonable prospect of success.
     • (4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
     • Section 17A of the FM Act is to the same effect as s.31A of the Federal Court of Australia Act 1975 (Cth) (“FCA Act”) which also came into effect on 1 December 2005.
   • 24. Amendment was also made to the FMC Rules to reflect the change to the FM Act. Federal Magistrates Court r.13.10(1) provides as follows:
     • The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
     • (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
     • (b) the proceeding or claim for relief is frivolous or vexatious; or
     • (c) the proceeding or claim for relief is an abuse of the process of the Court.
     • This rule should be read in light of s.17A of the FM Act.
   • 25. In the explanatory memorandum for the introduction of s.17A the Minister said:
     • “Subsection 17A(3) provides that for the purposes of giving summary judgment, a proceeding ... need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the Courts in construing the conditions for summary judgment by reference to the “no reasonable cause of action”.”
   • 26. In Howard v Australian Fisheries Management Authority [2006] FMCA 975, Lindsay FM considered both s.17A and r.13.10 of the FMC Rules in the light of the general legal principles. His Honour indicated that the new section moved away from the rigour of the approach taken previously by the Courts to summary dismissal under the general law. This decision was approved by Driver FM in Vivid Entertainment v Digital Sinima Aust Pty Ltd & Ors [2007] FMCA 157 at para.18.
   • 27. Section 31A of the FCA Act was recently considered in the Full Federal Court decision of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60 delivered on 15 April 2008. Commenting on the significant change in approach that the new summary judgment heralded Rares J said:
     • “By enacting s.31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s.31A that the Court need not, and does not ordinarily determine the proceedings of their merits after a full trial. A decision under s.31A is that the claim or defence has “no reasonable prospect of success”. It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence. Rather the power conferred by the section authorises the Court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication on the merits.” [Paragraph 45. Citation excluded]
   • 28. A little later in his reasons [at paragraph 57], His Honour said:
     • “The purpose of introducing s.31A into the Court’s armoury or dealing with litigation which ought not be allowed to go to trial was to expand the capacity of the Court summarily to dismiss matters.”
   • 29. In deciding these applications I take into account what Rares J said in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 esp at 731 [45] concerning the test to be applied under s.31A of the FCA Act [and therefore s.17A of the FM Act] which he paraphrased in Jefferson Ford as being whether there is “a real issue of fact or a real issue of law capable of being decided in (the applicant’s) favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way”. [Jefferson Ford supra at paras.73 and 74.]
   • 30. I also take into account what Gordon J said in Jefferson Ford in which he approached the application of s.31A somewhat differently by identifying a number of principles to be borne in mind when such applications are made. These principles are:
     • a) Section 31A imposes a different and less stringent test to that described in General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130 aimed at reducing cost and delay in proceedings without at the same time doing injustice to a party.
     • b) An assessment of whether a proceeding or part of a proceeding has no reasonable prospects of success should only be made after:
       • i) identification of the cause(s) of action pleaded;
       • ii) identification of the pleaded facts said to give rise to the cause(s) of action;
       • iii) a review of the evidence (if any) tendered in support of the claim for judgment;
       • iv) identification of the defence pleaded;
       • v) identification of any facts pleaded which are said to give rise to the defence; and
       • vi) a review of the evidence (if any) tendered in defence of the claim;
     • c) Each case must be considered separately. There are no particular hard and fast rules that can be set down, only general principles. One such principle is that the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success;
     • d) The trial Court’s decision to grant summary judgment is to be made as a question of law, not as the exercise of a discretion;
     • e) Where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success. A real issue of law does not necessarily preclude summary judgment; and
     • f) In determining whether a real issue of fact exists such as to preclude summary judgment, the Court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party. (Commonwealth Bank of Australia v ACN 000247601 Pty Ltd (in liquidation) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at (30); Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 at (45).
     • In relation to this final principle His Honour went on to say:
       • “I emphasise “reasonable” because it is on this point that the lowering of the bar affected by s.31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the Court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
   • 31. As was stressed by Lander J in Rana v Commonwealth of Australia (unreported decision, 17 June 2008, [2008] FCA 907), notwithstanding that the purpose of s.31A was to relax the tests, a Court need still to be cautious about finding that an applicant has no reasonable prospect of successfully prosecuting a proceeding.
4. The comments that I made in Rana v Libraries Board of South Australia (supra) are equally applicable in the current proceedings. I propose to deal with the current application for summary dismissal in light of the legislation and cases there referred to.

The application

5. Mr Hill seeks the following final orders in his Amended Application filed on 16 June 2009:
   • 1. Payment of copyright licence fee or damages.
   • 2. Payment for copies and derogatory treatment to my original copyright material.
   • 3. Payment of damages for personal and economic loss, infringement of moral rights.
   • 4. An acknowledgement of cinematographers artistic craftsmanship.
6. It is clear from the relief sought that the claim by Mr Hill relies on him having copyright in the particular item of intellectual property the subject of the litigation.
7. On the hearing of the application for summary judgment Mr Lang relied upon his Affidavit sworn on 23 October 2009 and annexed (incorrectly) to his response filed on 23 October 2009. Mr Hill relied upon his Affidavits of 5 May 2009, 16 June 2009 (in similar terms to the Affidavit of 5 May 2009) and 16 November 2009.
8. It is clear from the material relied upon that the background to this dispute concerns the production of a DVD of a live performance of a music group known as ‘Hoy-Hoy!’. In submissions Mr Lang said that for all intents and purposes he was Hoy-Hoy! I take it therefore that he is the owner of the band and owns the right to the name Hoy-Hoy!
9. In early 2005 Mr Lang decided to create the DVD to promote the band and for commercial release. He approached Mr Hill and several other people to work on the project. Mr Hill agreed to do so and, according to Mr Lang, was paid a fee for his services to act as camera operator and to edit footage of the live performance. Mr Hill says that he was not paid but does not deny that there was an agreement that he would be paid. Mr Hill incurred expenses in relation to his work on preparing the DVD for which he was reimbursed.
10. Mr Lang organised, hired and paid for the musicians and production crew to perform the concert. He also organised, hired and paid two camera operators other than Mr Hill to film the concert. He also organised, hired and paid for an audio engineer to record the performance to be synchronised with the captured footage.
11. Mr Lang arranged and paid for and the appropriate licences from the Australian Mechanical Copyright Owners’ Society for all of the songs to be released on the DVD.
12. Mr Lang was concerned about problems that arose between Mr Hill and the audio engineer, Mr Davis. He says that these problems were delaying completion of the project. Mr Lang says that he had no significant issues with Mr Hill until January 2007 when Mr Hill made a “devastating claim of ownership of the entire project including its copyright”. At this time Mr Hill presented Mr Lang with a page from the Copyright Act 1968 (Cth), which he claimed supported his ownership of the project. Mr Lang immediately dismissed Mr Hill from his involvement in the project as it was clear, he says, that Mr Hill had no intention of completing the work. Mr Lang then hired a professional editor to edit the original camera footage and audio into the final version of the performance for release as a DVD. Mr Lang says that the completed DVD will contain no edits performed by Hill.

Decision

13. It is clear that s.98(3) of the Copyright Act 1968 (Cth) provides a complete answer to Mr Hill’s claim. Section 98(3) states:
    • Where:
      • (a) a person makes, for valuable consideration, an agreement with another person for the making of a cinematograph film by the other person; and
      • (b) the film is made in pursuance of the agreement;
    • the first-mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the film by virtue of this Part.
14. Mr Hill has failed to put any evidence before me to refute Mr Lang’s suggestion that there was an agreement for valuable consideration that Mr Hill would be assisting with the preparation of the film. In those circumstances, I conclude that Mr Hill has no reasonable prospect of successfully prosecuting the proceedings and that they should be dismissed. There is, in my view, no real issue of fact to be decided. In coming to this conclusion I take into account the fact that Mr Hill is not legally represented and that he is inexperienced in legal matters. Notwithstanding the allowance that I make for this I consider it appropriate to dismiss the proceedings so as to avoid the respondent being put to unnecessary further time and expense.
15. I make the orders to be found at the beginning of these Reasons.

I certify that the preceding 15Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifteenfifteen (15) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Ms N. Julius

Date: 28 January 2010

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[1] [2008] FMCA 911