Brown v Edwards alias Shania Twain

Introduction 1 This is an appeal from a judge of this Court ordering that two statements of claim filed by the appellant be struck out and that the proceedings against both respondents be dismissed. The appellant has filed an appeal from that judgment, claiming that the primary judge "erred for failing to have the first respondent appear before the court to answer the [appellant's] application". On 22 November 2001 the Court dismissed the appeal and advised that it would provide reasons at a later date. These are the reasons.

BACKGROUND 2 On 12 March 2001 the appellant filed a document in the style of a Form 5 application under the Federal Court Rules. Attached to that application were twelve pages of additional material, which referred in a very disjointed manner to various parts of the Copyright Act 1968(Cth)("Act") and the Federal Court Rules. In essence it appeared that the appellant was seeking equitable remuneration under s 135ZU of the Act, although the application did not disclose any basis for a claim under s 135ZU and an affidavit filed by the appellant in support of his application did nothing to support his claim. 3 In an ex parte hearing before the primary judge on 19 March 2001 it became somewhat apparent that the appellant was actually seeking a share of royalties from the performance of certain songs which he claimed to have co-authored with the first respondent. The appellant said that this entitlement arose under the terms of an assignment of his copyright to one or other of the respondents. The primary judge gave the appellant leave to amend his application by removing the attachments and specifying the relief claimed. 4 An amended application filed by the appellant on 23 March 2001, together with a new supporting affidavit, failed to show how the remedy sought by the appellant could have a basis in law. 5 The first directions hearing on 9 May 2001 was adjourned before all the issues had been disposed of. At the time of the adjournment of the hearing the solicitors for the second respondent did not have any instructions in respect of the first respondent. The second respondent, pursuant to orders of the primary judge at the directions hearing, filed a notice of appearance on the same day. 6 On 31 May 2001, and prior to the first directions hearing being resumed, the second respondent filed a notice of motion and supporting affidavit seeking to have the proceedings dismissed pursuant to O 20 r 2 of the Federal Court Rules, or alternatively to have the appellant's application struck out pursuant to O 11 r 16. By that time it had become clear that the solicitors for the second respondent would not be instructed to act for the first respondent, that the first respondent lived in the United States of America, and that the first respondent had not been served. 7 On resumption of the first directions hearing on 12 June 2001 the primary judge suggested that the appellant "should file a statement of claim which set out in clear, simple terms the facts he relied on to found his claim." The primary judge also urged the appellant "to stick to the facts and not to cite section numbers from Acts." The directions hearing was again adjourned, together with the second respondent's notice of motion. 8 On 18 June 2001 the appellant filed a number of documents, amongst which were two documents entitled statement of claim. These statements of claim were subsequently struck out on the basis that they failed to disclose a cause of action. A notice of motion filed on 22 June 2001, appearing to be an application under O 8 of the Federal Court Rules to serve the first respondent out of the jurisdiction, was adjourned pending the hearing of the second respondent's notice of motion (see [6] above). The applicant was given leave to file a further statement of claim. 9 Subsequently the appellant filed two further documents entitled statement of claim. The first, filed on 13 July 2001, merely listed various sections of the Act and the Federal Court Rules and did not in any way plead a cause of action. The second, filed on 10 August 2001, was appropriately described by the primary judge as comprising "four pages of single spaced typing. It [the document] recites in a disjointed way principles of substantive law, of evidence law and of court procedures." The only exception to this description identified by the primary judge was a passage which claimed that the appellant was the copyright owner in original literary, dramatic, musical and artistic works, that "an infringement was committed" by the second respondent, and that the appellant was owed a certain sum of money. On 16 August 2001, the primary judge ordered that these statements of claim be struck out and that the proceedings against both respondents be dismissed. 10 It was the primary judge's opinion that the appellant had been given sufficient opportunity and latitude to put his alleged claim into a meaningful form. In the circumstances the second respondent was entitled to have the application against it dismissed. The primary judge also dismissed 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."