Hill v Lang

REASONS FOR JUDGMENT 1 On 28 January 2010 a Federal Magistrate made an order pursuant to s 17A of the Federal Magistrates Act 1999 (Cth) (the FM Act) dismissing the appellant's proceedings on the basis that there was no reasonable prospect of the appellant successfully prosecuting those proceedings. 2 On 2 February 2010 the appellant applied for leave to appeal from that order and the consequential order for costs which was made by the Federal Magistrate. 3 On 24 March 2010 I made an order granting leave to the appellant to appeal from the Federal Magistrates order on the ground that the Federal Magistrate erred in summarily dismissing the applicant's claim pursuant to s 17A of the FM Act in circumstances where there was a factual dispute between the applicant and the respondent in relation to the applicant's role in the preparation of the film relating to a group called "Hoy-Hoy!". 4 On the same day I ordered that the appellant file and serve his notice of appeal within seven days and listed the appeal for hearing on 4 June 2010. 5 On 31 March 2010 Besanko J made an order that the time for service of the appellant's notice of appeal be extended to 1 April 2010. 6 The notice of appeal which is dated 31 March 2010 contains a number of grounds for which leave was not granted. 7 Leave to appeal was granted on the single ground to which I have referred. 8 The first substantial ground of appeal is: 2. Incorrect decision has been made on the grounds that summary dismissal and judgment (Sc17a) were ordered without full consideration of evidence properly brought forward by the magistrate while clearly factual dispute and real issues did exist. There were clear avoidance of issues, as well delay, and a failure to answer those issues, Federal Magistrates Act 1999 (Sc14), Federal Court Act 1976 (Sc22) Administrative Decisions (Judicial Review) Act 1977 (Sc5,5.2(j), 6, 7) In reference to my Affidavit filed 05/03/2010 it is clear not only does Frank Lang contradict himself but also the reality of circumstances. He carries no evidence of fact and has clearly treated the court with deception for monetary gain. It is clear the magistrate did not take these circumstances into consideration and assess what is a factual dispute under Sc5.1(f)(g)(h)(j). Therefore there is no relevance to (Sc17a) in this matter under Sc5.2(a)(b)3(b) Administrative Decisions (Judicial Review) Act 1977 Sc5,6 I will treat that ground as the ground for which leave was granted. 9 The remaining grounds which identify claims which were made under the Copyright Act 1968 (Cth) and other Commonwealth enactments make little sense but, in any event, leave to appeal was not granted in respect to those purported grounds. 10 The appellant's application in the Federal Magistrates Court was essentially for damages for breach of copyright. The application was accompanied by an affidavit in which the appellant claimed that he was a freelance cinematographer, director of photography and visual artist who offered to produce a film relating to a group called "Hoy-Hoy!" who, the appellant said, was represented by the respondent. 11 The appellant said he was appointed principal director. He made all arrangements and bookings for all of the equipment for the production of the film. He directed the other camera operators who were employed on the making of the film. During the film he operated one of the cameras and the other operators operated at his direction. 12 He arranged for the exposure of the visual images with the soundtrack. He said that whilst he was undergoing the task of editing the film the respondent and another person copied all of the original footage on to DVDs without his knowledge. He claimed the copyright in the film and asserted that the respondent was in breach of his copyright. 13 The respondent, on the other hand, claimed that he was the owner of the entity known as "Hoy-Hoy!" which is a music group which performs live. He arranged for a celebration performance of Hoy-Hoy! for its 18th birthday to take place at the Governor Hindmarsh Hotel to take place on 13 November 2005. He said that some time in June or July he arranged for a meeting at the hotel to discuss the project and invited a film producer and the appellant who has experience in film-making around Australia who he knew to be a music enthusiast. 14 He said that subsequent to the meeting the appellant agreed that he would accept a payment of $300 in the first instance and $200 subsequently to act as principal camera operator on the shoot and to edit all of the camera footage into a film for release as a commercial DVD. He said it was also agreed that the appellant would arrange for the hire of any extra equipment and videotapes required for use on the day of the shoot, and that the respondent would reimburse the appellant for those costs. 15 The respondent claimed that he paid the appellant $500 for his services, being $300 on 28 November 2007 and $200 on 19 December 2007. He also claimed that all of the equipment costs incurred by the appellant had been paid in full. 16 The appellant responded to the respondent's affidavit by deposing in a further affidavit that he had never been paid a service or licence fee by Hoy-Hoy! and there was no contract agreement in writing for any valuable consideration. 17 On 12 October 2009 the Federal Magistrate listed for hearing the respondent's application to summarily dismiss the appellant's proceeding. It does not appear that any such application was made in writing but that something said by the respondent was treated by the Federal Magistrate as an oral application of that kind. 18 The matter came on before the Federal Magistrate who said that he treated the respondent's application as an application pursuant to s 17A of the FM Act and rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (the FMC Rules). 19 The Federal Magistrate considered the circumstances in which a Court ought to exercise the power sought to be exercised by the respondent referring to an earlier decision of his own which he considered a decision of the Full Court of this Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 and a later decision of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720. He accepted that where a real issue of fact existed such as to preclude summary judgment the Court should draw all reasonable inferences in favour of the non-moving party citing Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (Formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 and Boston Commercial Services Pty Ltd 236 ALR 720. He referred to a decision of mine in Rana v Commonwealth of Australia [2008] FCA 907 where I said that notwithstanding that the purpose of s 31A of the Federal Court of Australia Act 1976 (Cth) was to relax the test relating to summary dismissal, the Court still needed to be cautious about finding that an applicant has no reasonable prospect of successfully prosecuting a proceeding. 20 The Federal Magistrate then referred to the broad outline of the facts referring to the affidavit material which was before him which was voluminous. Neither of the deponents was called upon to be cross-examined by the other deponent. 21 The Federal Magistrate concluded his reasons: 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. 22 In my opinion, this was not a case for dismissal under s 17A of the FM Act. There are a number of live issues of fact which could not be resolved upon the affidavits which were before the Federal Magistrate. On the one hand the appellant asserted that he had been engaged to produce a DVD of Hoy-Hoy!'s performance on 13 November 2005, as a result of which he was entitled to the copyright in the DVD. 23 On the other hand, the respondent asserted that the appellant had been engaged only to act as a camera operator and to subsequently edit the footage taken on 13 November 2005. 24 It is true, as the Federal Magistrate has said, that the respondent asserted that he had paid the appellant for the work that he carried out in accordance with the agreement which the parties had reached. 25 However, neither party's case was put to the other party nor was either deponent called to give evidence-in-chief or for the purpose of cross-examination. The Federal Magistrate simply had before him a dispute as to fact which, in my respectful opinion, could not be resolved in the manner in which the Federal Magistrate did. 26 It is of course difficult in a case such as this where both parties are unrepresented to put in place a structure where the parties' cases meet and a decision can be arrived at. However, in my opinion, it is not appropriate simply to decide the question by reference to the affidavit evidence in the absence of hearing the parties. This was not the type of case which, in my opinion, s 17A was designed to apply to.