Robert Geoffrey Brown v Eilleen Edwards Alias Shania Twain and Anor [2001] FCA 1169 (16 August 2001)

Last Updated: 26 September 2001

FEDERAL COURT OF AUSTRALIA

Robert Geoffrey Brown v Eilleen Edwards Alias Shania Twain and Anor

[2001] FCA 1169

PRACTICE AND PROCEDURE - pleadings- whether cause of action disclosed - pleadings struck out - action dismissed.

Matter No S29 of 2001

ROBERT GEOFFREY BROWN v EILLEEN EDWARDS ALIAS SHANIA TWAIN AND ANOR

von DOUSSA J

16 AUGUST 2001

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 29 OF 2001

BETWEEN:	ROBERT GEOFFREY BROWN APPLICANT
AND: AND:	EILLEEN EDWARDS ALIAS SHANIA TWAIN FIRST RESPONDENT UNIVERSAL MUSIC AUSTRALIA PTY LTD SECOND RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	16 AUGUST 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The statements of claim filed on 13 July 2001 and 10 August 2001 be struck out.

2. The proceedings against both respondents be dismissed.

3. There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 29 OF 2001

BETWEEN:	ROBERT GEOFFREY BROWN APPLICANT
AND: AND:	EILLEEN EDWARDS ALIAS SHANIA TWAIN FIRST RESPONDENT UNIVERSAL MUSIC AUSTRALIA PTY LTD SECOND RESPONDENT

JUDGE:	von DOUSSA J
DATE:	16 AUGUST 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 12 March 2001 the applicant presented at the South Australia District Registry of this Court a document in the style of a Form 5 application under the Rules of Court, with many attachments. It appeared that the applicant was seeking equitable remuneration under section 135ZU of the Copyright Act 1958 (Cth) from two respondents. The attachments referred to many sections of the Copyright Act and to provisions of the Rules of Court, but the documents for the most part were unintelligible. Overall, they failed to disclose any basis for a claim under s 135ZU. An affidavit filed in support of the claim actually contradicted the possibility of such a claim. Rather than direct that the documents not be accepted, the registrar allowed them to be received as an application but directed that they be listed before a docket judge at short notice.

2 On 19 March 2001 the applicant appeared before me on an ex parte hearing as the documents had not been served. The applicant informed the Court of background facts which he said entitled him to a share of royalties from the performance of certain songs which he claimed to have co-authored with one of the respondents. He said his entitlement arose under the terms of an assignment of his copyright to one or other of the respondents. I endeavoured to explain the requirements for a valid application, and on that occasion I gave him leave to amend the application by removing all the attachments and amending the relief claimed to reflect a claim for seven cents per record sold of the song From This Moment On and any other songs to be specified by name for which he alleged that he and the first respondent were the co-authors.

3 On 23 March an amended application was filed by the applicant. The attachments had been removed but the application and the new supporting affidavits failed to give details of how the remedy the applicant sought could possibly have a basis in law.

4 On 9 May 2001 the first directions hearing occurred on the application. The second respondent was represented by counsel and consented to the second respondent's name being amended to cure a misdescription in the application. There was lengthy discussion between the applicant and the bench about the shortcomings of his amended application and affidavits. I endeavoured to explain why the provisions of the Copyright Act and the Rules of Court on which the applicant was relying did not have the effect he asserted, and to suggest what steps he might take to remedy the defects in his document. Regrettably, the time spent in this endeavour appears to have achieved nothing more than providing the applicant with an opportunity to tell the Court that I had no understanding of the relevant law. The directions hearing was adjourned.

5 On 12 June 2001 the directions hearing resumed. By this time the second respondent had filed and served a notice of motion and supporting affidavit seeking to have the proceedings dismissed under Federal Court Rules O 22 r 2 or, alternatively, O 11 r 6. By this time it was clear that the first respondent resides in the United States of America, that she had not been served and that solicitors for the second respondent would not be instructed to act for her. Again the Court endeavoured to explain the shortcomings of the application and supporting affidavits and suggested that the applicant should file a statement of claim which set out in clear, simple terms the facts he relied on to found his claim. He was urged to stick to the facts and not to cite section numbers from Acts. The notice of motion and the directions hearing were once again adjourned, this time to 4 July 2001.

6 By 4 July 2001 the applicant had filed a host of documents. The fact that the applicant has obtained a certificate which relieves him from paying Court fees no doubt accounts for the fact that amongst those documents were no less than nine entitled Notice of Motion. There were also two affidavits, one document entitled Rule to Show Cause, two untitled documents probably intended to be further notices of motion, and two documents entitled statement of claim. After a further lengthy hearing, orders were made dismissing all the notices of motion but one. That one appeared to be an application under Federal Court Rules O 8 to serve the first respondent out of the jurisdiction. That notice of motion was adjourned to a date to be fixed, pending the hearing of the second respondent's notice of motion to determine whether a cause of action could be formulated in pleadings.

7 The statement of claims were also struck out, on the basis that they failed to disclose a cause of action. In fact, they were nonsensical. Again an attempt was made to explain to the applicant what was required of him to put together a meaningful statement of claim and he was given leave to make one more attempt to formulate his claim in a way that could be understood. The formal orders of the Court on that occasion were:

"1. The notice of motion filed by the first respondent dated 31 May 2001 to strike out the action is adjourned to 9 am on 16 August 2001.

2. The applicant has liberty to file a further statement of claim.

3. No further notices of motion are to be filed by Mr Brown before the next hearing.

4. Direct that a copy of today's transcript be posted to Mr Brown.

5. All notices of motion filed by the applicant are struck out save for the notice of motion filed on 22 June 2001 relying on Order 8."

8 The second respondent's hearing of the notice of motion resumed today. In the meantime the applicant has filed two documents entitled statement of claim. The first of these documents, filed on 13 July 2001, merely lists by section number some 85 sections of the Copyright Act and two Orders from the Federal Court Rules. The document pleads no facts whatsoever and specifies no relief. It is a completely meaningless document and it discloses no cause of action.

9 The second document, filed on 10 August 2001, comprises four pages of single spaced typing. It recites in a disjointed way principles of substantive law, of evidence law and of court procedures. The only exception to this description is the following passage at the foot of page 3 of the document, which reads:

"THAT I ROBERT GEOFFREY BROWN - THE APPLICANT COPYRIGHT OWNER IN ORIGINAL LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS

THAT AN INFRINGEMENT WAS COMMITTED BY UNIVERSAL MUSIC AUSTRALIA PTY LTD, 3 MUNN RESERVE, MILLERS POINT, SYDNEY, NEW SOUTH WALES, AUSTRALIA

OWED TO THE APPLICANT THE SUM PRESCRIBED

COPYRIGHT IN THE ORIGINAL LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS."

The document is nonsensical. It fails to reveal any factual basis that could support a claim of any kind, let alone disclose a cause of action.

10 In my opinion, sufficient opportunity and latitude has already been extended to the applicant to put his alleged claim into a meaningful form. He has failed to do so. The second respondent is entitled at this point in time to have the application against it dismissed. I propose to take that course of action. I propose also to dismiss the claim against the first respondent on the basis that it would be vexatious and an abuse of the process of the Court to allow the present proceedings to continue. Accordingly, the order of the Court will be that the present documents entitled statement of claim are struck out and that the action will be dismissed.

11 There being no application for costs by the second respondent, there will be no order for costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 22 August 2001

The applicant appeared in person.
Counsel for the First Respondent:	No appearance
Counsel for the Second Respondent:	Mr J Wilkinson
Solicitor for the Second Respondent:	Cowell Clarke
Date of Hearing:	16 August 2001
Date of Judgment:	16 August 2001