Marketing Advisory Services (MAS) v Football Tasmania Ltd

the applicant's case at first instance 3 The proceedings in this Court were commenced by the applicant on 25 January 2001 under the name "Marketing Advisory Services (MAS) a firm". In his amended application, which was filed by leave at the hearing held on 26 October 2001, the applicant was described as "John Wheaton trading as Marketing Advisory Services (MAS)". In this amended application, he sought damages and other relief against the respondent in respect of breach of copyright, pursuant to ss 31, 68, 88 and 101 of the Copyright Act 1968 (Cth). 4 No statement of claim accompanied the amended application. The applicant's case against the respondent was, however, outlined in an affidavit which was filed at a time when he was represented. The substance of the affidavit is as follows: "3. [The respondent] is a registered Australian company established with a number of objects, including the object contained in its Constitution as follows: '1.2.1 To take over and acquire the whole or any part of the real and personal property of the body known as Tasmanian Football League CAN 009 556 432 (hereinafter called 'the TFL') whether vested in trustees or not and to undertake all or any of the liabilities of and to carry on the work of the TFL'. 4. By agreement dated 25 January 1994, I obtained from the TFL the sole authorised publishing and distribution rights to a weekly publication called 'The Football Record' for a period of one year with an option to renew such rights for a further one year. 5. By the said agreement, I further agreed to prepare and print a TFL - AFL Football Guide and Huon TFL Football Guide for the 1994 season (hereinafter called the 'Football Guide'). 6. Pursuant to the said agreement, I prepared, published and distributed one artistic work and one original literary and artistic work (hereinafter called 'the Works'), each within 25 publications entitled 'The Football Record' which was published and distributed by me: (a) a proprietary graphic depicting the editor of 'The Football Record'; and (b) an advertisement with respect to Puma sporting apparel. 7. I was and am the owner of the Works and was and am the owner of all copyright and intellectual property that subsists in the Works. Particulars of the Works [No particulars are set out] 8. The TFL determined not to grant the option afforded by the agreement entered into on 25 January 1994. 9. During 1995, the TFL reproduced and authorised the reproduction of the Works and published reproductions of the Works in a material form in publications also entitled 'The Football Record', which document was published on 23 separate occasions throughout the 1995 Tasmanian Football Season without my licence or authority. 10. Pursuant to the said agreement I also designed, prepared and published the Football Guide for the 1994 season. This guide was an annual list of the football season events for that year. 11. I was and am the owner of the original published edition of the 1994 Football Guide and of the copyright and intellectual property in the Football Guide, including the design, layout, presentation, and colour coordination of the Football Guide. 12. During 1995, 1996, 1997, 1998 and 1999, the TFL reproduced and authorised the reproduction of a guide in substantially the same form as the Football Guide without my licence or authority, thereby infringing my rights as owner of the Football Guide and the copyright and intellectual property therein. 13. As a result of the infringement of my intellectual property and copyright in respect of the Works and the Football Guide, I have suffered loss and damage, such loss and damage being occasioned by the TFL. 14. As the assets and liabilities of the TFL have devolved to [the respondent] I seek that it satisfy the liability of the TFL in respect of its conduct." 5 We should note that the application originally filed by the applicant pleaded his case in a similar manner. Paragraph 12 of the original application was as follows: "The liabilities of the First Respondent devolved by novation upon the … Respondent and the… Respondent is liable to pay damages for loss of income and loss of profits and the Applicant/Claimant's inability to recoup financial losses during the 1995 contractual period and subsequently when "The Football Guide" has been printed utilising the successful design concepts developed and paid for by the Applicant/Claimant and their Associates."

the deregistration of tfl 6 Although the applicant's affidavit did not say so, TFL was deregistered as a company on 3 March 2000, following a members' voluntary liquidation. The history of TFL's winding up was explained in an affidavit of the liquidator which was before the primary Judge. The sequence of events was as follows: · At the conclusion of the 1998 Tasmanian football season, the respondent was formed "under the auspices" of the Australian Football League ("AFL") to take over the control and management of Australian Rules football in Tasmania. · On 25 February 1999, a special general meeting of TFL was convened. At that meeting, the members, in the belief that there were no unpaid creditors of TFL, resolved by special resolution that the company be wound up as a members' voluntary liquidation. The special resolution was passed following declarations of solvency filed with the Australian Securities and Investments Commission pursuant to s 494 of the Corporations Law. · On 25 February 1999, a liquidator was appointed by ordinary resolution of the members of TFL. The liquidator proceeded to conduct the liquidation of TFL as a members' voluntary winding-up. · On 11 March 1999, the applicant notified the liquidator that he had a claim against TFL and others for damages for breach of contract and for breach of copyright. · On 24 March 1999, the liquidator advised the applicant that his claim against TFL was rejected. · On 26 March 1999, the applicant instituted proceedings in the Civil Division of the Magistrates Court of Tasmania at Hobart seeking damages for breaches of contract and copyright. Further reference will be made to these proceedings later. · The liquidator formed the view that if the claim against TFL succeeded, it would not be able to pay the debt in full or within twelve months of the commencement of the winding up of TFL. Accordingly, the liquidator called a meeting of creditors of TFL pursuant to s 496(1) of the Corporations Law. · The meeting of creditors took place on 13 August 1999. Three creditors attended the meeting, one of whom was the applicant. The meeting considered it not necessary to appoint any person other than the then liquidator to act as such. · The applicant did not, on 13 August 1999 or subsequently, lodge a formal proof of debt in respect of moneys which he claimed were owed to him by TFL. · On 28 October 1999, the liquidator informed the Magistrate's Court that TFL was in liquidation and was without funds and that, unless an order were made to the contrary, he intended to finalise the winding-up. No such order was made. · The liquidator gave notice in the Australian Government Gazette, pursuant to s 509 of the Corporations Law, of a final meeting of members and creditors of TFL to be held on 3 December 1999. · No members or creditors attended the meeting held on that day. In consequence, TFL was deregistered on 3 March 2000.

the magistrates court proceedings 7 The applicant commenced the first Magistrates Court proceedings in March 1999. The defendants were TFL (said to be in liquidation), the present respondent, the AFL and ABB Printing Company Pty Ltd. In those proceedings, the applicant claimed damages of $20,000 for breach of the 1994 contract between himself and TFL and damages for breach of copyright. 8 The claim was struck out on 16 June 1999, as against the respondent and the AFL. The applicant was ordered to pay the respondent's costs. The applicant applied to the Supreme Court of Tasmania for an extension of time in which to file an appeal, but the application was dismissed by Underwood J on 13 September 1999. 9 On 10 March 2000, the applicant filed an application in the same Magistrates Court proceedings, seeking an order, inter alia, that the respondent be "rejoined to [the] action". This application was dismissed by the Magistrates Court on 22 November 2000 and the applicant again ordered to pay costs. 10 On 26 April 2001, the applicant filed a fresh claim in the Magistrates Court, naming the respondent as defendant. The claim sought damages based on TFL's breach of contract and unconscionable conduct. The respondent was said to be liable by virtue of TFL's liabilities having devolved to it "by novation or, alternatively, voluntarily". The respondent pleaded that the claim was barred by virtue of the Limitation Act 1974 (Tas). At the time the primary Judge made orders in the proceedings in this Court, the second Magistrates' Court proceedings had not been resolved. It appears, however, that the claim was dismissed on 25 January 2002. The applicant has filed an appeal in the Supreme Court of Tasmania against that order.

the RESPONDENT'S motion 11 On 25 September 2001, the respondent filed a motion in the proceedings in this Court seeking an order that the application be dismissed on the ground that it disclosed no reasonable cause of action against the respondent or, alternatively, that it was an abuse of the process of the Court. The alternative prayer for relief appears to have been based on the fact that the applicant had instituted the two sets of proceedings in the Magistrates Court claiming damages arising out of the 1994 agreement between the applicant and TFL. The respondent filed several affidavits in support of the motion which was listed for hearing before the primary Judge on 26 October 2001.

the adjournment application 12 Both parties were represented at the hearing. At the outset, the primary Judge suggested that orders be made removing TFL as a party to the proceedings and giving leave for the amended application to be filed. Neither counsel objected to this course of action. The respondent therefore became the only party against whom the applicant sought relief. 13 The applicant's counsel then applied for an adjournment on the basis that the applicant "had not had any time to consider with any adequacy the contents of the affidavits filed on behalf of the respondent". The primary Judge pointed out that the affidavits had been served on the applicant's solicitors on 11 October 2001 in conformity with directions of the Court. The applicant's counsel accepted this but said that she had been instructed that the applicant had received the affidavits only on Wednesday, 24 October 2001, at 9 a.m. (that is, two days earlier). Counsel said that "no instructions had hitherto been received" from the applicant, but that it was not appropriate for her to "go down that line". She said that she had been instructed that the applicant wished to file further affidavits. She did not say what those affidavits would contain or what issues they would address. 14 The primary Judge refused the adjournment, giving brief reasons as follows: "I see no reason why I should not consider service on the applicant's solicitor, being the solicitor on the record, to be service on the applicant and the applicant has complied with the order made on Monday by myself by putting in some further material. There is also the fact that notice of an adjournment could have been made any time between early Monday and late Wednesday but there was nothing forthcoming foreshadowing that intention until this morning so I am not minded to adjourn the motion." 15 His Honour then proceeded to hear evidence and argument on the motion. The argument concluded shortly after 11 am and his Honour delivered judgment on the motion at 4.30 pm.

the judgment on the summary dismissal application 16 In his reasons for judgment, the primary Judge first briefly recounted the history of the matter. He then noted that the applicant had filed four affidavits, but that none had been of any assistance on the issues facing the Court on the motion. 17 His Honour next summarised the affidavit evidence for the respondent. The evidence was to the following effect: · Mr Bowes, the Senior Administrator of the respondent, had given evidence that the respondent had not entered into any commercial or contractual arrangements whatsoever with the applicant. · The liquidator had given evidence, to which reference has already been made, concerning the winding-up and deregistration of TFL. · The respondent's solicitor recounted, inter alia, the history of the proceedings in the Magistrates Court. 18 The primary Judge observed (at [12]) that the "evidence before me discloses that [the respondent] has not itself had any commercial dealings with Mr Wheaton that would render it liable to pay him any money. Mr Wheaton has asserted in the affidavit accompanying his amended application that [the respondent] is liable because the 'liabilities of the TFL have devolved to [the respondent]. There is no evidence to support that assertion. No legal argument was advanced in any cogent way to attempt to make good the assertion." 19 The primary Judge accepted the respondent's submission that it had no legal relationship with TFL, notwithstanding that the respondent's objects included undertaking "all or any of the liabilities of and carry[ing] on the work of the TFL". He did so for the reasons set out the respondent's written submissions, which his Honour incorporated in the judgment. The substance of those submissions is set out in the following three paragraphs. 20 The Service Agreement dated 25 January 1994 was between Marketing Advisory Services and the TFL. The respondent was not a party to that agreement and there was no term to the effect that the agreement bound the TFL's successors or assigns. The liabilities of the TFL could not have "devolved" to the respondent so as to make it liable for any alleged infringement of copyright by the TFL. It had been open to the applicant to lodge a proof of debt with the liquidator of the TFL, but he had not done so. The failure to lodge such a proof was not fatal to the applicant's claim against the TFL for damages, but he would have had to secure the leave of the Court, pursuant to s 500(2) of the Corporations Law (then in force), to pursue the proceedings. He did not take that course either. Indeed, it was still open to the applicant to seek to have the TFL reregistered. 21 By virtue of s 140 of the Corporations Act 2001 (Cth) ("Corporations Act") (previously s 140 of the Corporations Law), a company's constitution has the effect of a contract between · the company and each member; · the company and each director and company secretary; and · a member and each other member, under which each person agrees to observe and perform the constitution and rules so far as they apply to that person. A company need not carry out its objects. In any event, the objects do not create a legal relationship between the company and outsiders. It followed that the object in the respondent's constitution on which the applicant relied could not render the respondent liable to him. 22 There had been no allegation that the interest of the TFL in the Service Agreement had been assigned or novated to the respondent. Nor had any allegation been made that the applicant and respondent had entered an agreement or that the respondent had infringed the applicant's copyright. 23 Since he accepted these submissions, the primary Judge held that no case had been made out against the respondent "on the current state of the evidence". The applicant's counsel had not disagreed with that conclusion. His Honour concluded as follows (at [17]): "In my view, the application in this Court in the form of the amended application is bound to fail on the basis of the evidence currently before the Court. See Webster v Lampard (1993) 177 CLR 598. Consequently, the relief sought in paragraph 1 of Football Tasmania's Notice of Motion should be granted. The Notice of Motion will otherwise be dismissed." 24 It will be noted that the primary Judge, having concluded that the amended application was bound to fail on the basis of "the evidence currently before the Court", did not independently consider whether the applicant should be given leave to file a fresh statement of claim or a further amended application. The reference in the judgment to Webster v Lampard was to a case where the High Court reiterated the well-known principles concerning summary dismissal of proceedings: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 129; Fancourt v Mercantile Credits Ltd (1983) CLR 87, at 99. His Honour did not explain why he considered it appropriate to dismiss the proceedings, bearing in mind that the applicant had foreshadowed his desire to put on further evidence. 25 The relevant orders made by the primary Judge were as follows (we have renumbered them): "1. The substantive application be dismissed. 2. Paragraph 1 of the relief sought in the respondent's Notice of Motion dated 24 September 2001 be granted. 3. The Notice of Motion dated 24 September 2001 otherwise be dismissed." It is not clear why his Honour made order 1 as well as order 2, since the latter provided for the "application [to] be dismissed on the ground that it discloses no reasonable cause of action against the respondent".

the costs order 26 After delivering judgment, his Honour heard submissions as to costs. The applicant's counsel, in opposing the respondent's application for indemnity costs, stated that her instructions had been that the applicant had made "vigorous attempts" to obtain the evidence necessary to support his case. The primary Judge commented that if he had been told that on the application for adjournment he may have formed a different view. In the event, his Honour made the following order in relation to costs: "The costs of the respondent ordered to be paid by the applicant shall be paid as follows: (a) those costs incurred on or before 23 September 2001 shall be paid on a party and party basis; (b) those costs incurred after that date are to include all costs except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions, the respondent will be completely indemnified by the applicant for his costs."

the judgment: final or interlocutory? 27 There is no doubt that the primary Judge's decision to refuse an adjournment was interlocutory in character and that leave is required to appeal from that judgment: Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"), s 24(1A). It is also clear that the application for leave to appeal from that judgment was filed outside the seven day period prescribed by FCR, O 52 r 10(2)(b). The applicant therefore requires an extension of time in which to file and serve the application for leave to appeal: FCR, O 52 r 10(b). Since the applicant was unrepresented before us, we are prepared to treat his application for leave as including such an application for extension of time. 28 Both parties treated the orders dismissing the proceedings as final orders. The respondent submitted, however, that the appeal was incompetent because it had not been served (although it had been filed) within 21 days after the judgment was pronounced as required: FCR, O 52 r 15(1)(i). The term "judgment" includes "judgment decree or order": FCR, O 52 r 1. 29 In our view, the orders made by the primary Judge dismissing the proceedings were interlocutory. It is well established that an order summarily dismissing proceedings on the ground that no reasonable cause of action has been disclosed is interlocutory: see Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101 (and cases cited there); Dai v Telstra Corporation Ltd (2000) 171 ALR 348, at 352. It is not entirely clear why his Honour made two separate orders dismissing the proceedings, but it is clear enough that his intention was to dismiss the proceedings summarily because of the applicant's failure to disclose a reasonable cause of action. 30 It follows that the purported notice of appeal is incompetent and the applicant requires leave to appeal from the orders summarily dismissing the proceedings. Moreover, the applicant requires an extension of time in which to file the application for leave to appeal, since the "Application for Leave to Appeal" was not filed with the prescribed period of seven days from the judgment. We shall approach the matter as if the applicant has made the necessary applications.

the adjournment issue 31 The applicant has submitted that the primary Judge erred by not adjourning the proceedings to allow him to put on further affidavits in opposition to the respondent's motion. He has also submitted that the primary Judge should have given greater weight to the fact that him only became aware of the respondent's affidavits two days prior to the hearing and that the day before the hearing (25 October 2001) was a public holiday. 32 The difficulty facing these submissions is that the applicant's counsel gave no adequate explanation to the primary Judge as to why the applicant had not received the respondent's affidavits, which had been duly served in compliance with the Court's directions two weeks before the hearing until two days before the hearing. Nor did she make any submissions, let alone seek to adduce any evidence, as to the nature of the additional affidavit evidence the applicant wished to file or any efforts he may have made to obtain further evidence. In these circumstances, there was no error in the primary Judge exercising his discretion to refuse the adjournment. 33 We therefore decline to extend time for filing an application for leave to appeal against his Honour's refusal to grant an adjournment.

the order for summary dismissal 34 We think that the primary Judge was clearly correct in concluding that, on the evidence before him, the application disclosed no reasonable cause of action. This is so essentially for the reasons given in the judgment. 35 There was no evidence before the primary Judge that there had been any contract, agreement or an arrangement entered into between the applicant and the respondent. Indeed, the evidence was to the contrary. There was also nothing to suggest, for example, that the applicant had relied to his detriment on anything the respondent had said or done, or on anything contained in the respondent's constitution so as to give rise to a legal relationship between him and the respondent. The only basis on which the applicant could put his case, having regard to the evidence, was that the objects of the respondent included undertaking the liabilities of the TFL and that the TFL had incurred a liability to the applicant by reason of its alleged breaches of contract or copyright. 36 The effect of the statutory contract created by s 140 of the Corporations Act [see [21] above) is summarised in Ford's Principles of Corporations Law, at [6.040] as follows: "It has always been clear that the original statutory provision making the rules a contract did not cause the contract to impose duties on outsiders. Nor did the legislation create a deemed contract for the benefit of anybody other than the company and the members. That was established by Eley v Positive Government Security Life Assurance Co Ltd (1875) 1 Ex D 20 affirmed (1876) 1 Ex D 88. The plaintiff, a solicitor, sued a company for breach of contract for ceasing to employ him as the company's solicitor. He relied on a clause in the articles in which it was stated that he should be the company's solicitor. He failed in his action. The statutory contract was held to be a deemed contract only as between the persons referred to in the Act. Those limitations still apply to the current provision in s 140(1) so that it creates no rights or duties for outsiders." These principles are well established: Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399, at 410, per Brennan CJ, Deane and Dawson JJ; at 437-438, per McHugh and Gummow JJ. 37 It is clear, therefore, that the mere fact that the respondents objects included undertaking all the liabilities of the TFL could not, of itself, entitle the applicant to enforce any claim he had against the TFL directly against the respondent. It would be necessary for the applicant to show that there was an independent basis, whether in contract, under statute or otherwise, whereby the respondent incurred a liability directly to him. The evidence before the primary Judge was plainly insufficient to establish any such liability. 38 While the primary Judge was clearly right to hold that the applicant had not disclosed any reasonable cause of action, we would have been sympathetic to an application to extend time for filing an application for leave to appeal had the applicant filed any evidence suggesting that he might be able to make out a case against the respondent. Such evidence would have been material to the question, not considered by his Honour, whether the applicant should have been given a further opportunity to file evidence supporting his claim against the respondent. The evidence would have provided a basis for holding that the primary Judge ought not to have shut the applicant out finally from seeking to particularise and prove the case that the liabilities of TFL had "devolved by novation" to the respondent. 39 The applicant did file a number of further affidavits, which he read in support of his application for an extension of time and for leave to appeal. None of the affidavits, however, advances his case. 40 Mr Wheaton's own affidavits, to the extent that they are admissible, contain nothing that is capable of establishing that the respondent is liable to him, whether on the basis of TFL's liability in copyright or otherwise. The affidavit of Mr Kent, the Chief Commissioner for the TFL, although expressing a view as to why the respondent's objects were framed as they were, does not show that the respondent had done anything that would make it liable to the applicant. 41 In the course of argument the applicant was given every opportunity to identify any additional evidence that might assist his case. In particular, he was given an opportunity to identify evidence that might be given by Mr Kent to substantiate his bold statement (of itself of no probative value) that he was aware that the respondent "took on [the] possible liability [to the respondent]". The applicant was unable to do so. Nor was he able to point to any documentary evidence that would address the defect in his case that caused the primary Judge to dismiss the application. 42 In these circumstances, there is no basis for extending the time for the applicant to file an application for leave to appeal from the summary dismissal order. He has had ample opportunity to show that he has an arguable case. He has not done so. The proceedings should be brought to an end.

orders 43 The purported appeal and application for leave to appeal should be dismissed as incompetent. No extension of time should be granted for the filing of any application for leave to appeal. The applicant should pay the respondent's costs of the purported appeal and application for leave to appeal and of the application for extension of time. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE, KENNY & ALLSOP JJ.

Associate: Dated: 31 May 2002 The applicant was self-represented. Counsel for the Respondent: Mr G Abel

Solicitor for the Respondent: Wallace Wilkinson Webster