Ogawa v Spender

Section 195AJ defines "derogatory treatment", in relation to a literary work, as

"(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work, that is prejudicial to the author's honour or reputation; or (b) the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation." 8 Division 6 of Part IX - "Infringement of moral rights" - consists of ss 195AO to 195AX. Section 195AQ(2) provides: "A person infringes an author's right of integrity of authorship in respect of a work if the person subjects the work, or authorises the work to be subjected, to derogatory treatment." 9 Section 195AZA, which is in Division 7 of Part IX - "Remedies for infringement of moral rights" - provides that the relief a court may grant in an action for infringement of any of an author's moral rights in respect of a work includes: "(a) an injunction (subject to any terms as the court thinks fit); (b) damages for loss resulting from the infringement; (c) a declaration that a moral right of the author has been infringed; (d) an order that the defendant make a public apology for the infringement; (e) an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed." 10 The provisions set out at [7] to [9] are those appearing in the affidavit referred to at [7]. 11 It appears from the judgment of the primary judge that the appellant does not complain about the dismissal of her motion by Spender J. Rather her complaint is about his Honour's reproduction of the email to the Chief Justice. She wants it recalled from the Internet on the basis that it was irrelevant to the decision and a breach of her moral rights as an author. 12 The primary judge first dealt with a question of law arising out of the respondent's reliance on his judicial immunity as a defence to the appellant's application. The question concerned s 43(1) of the Copyright Act, which is as follows: "The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding." The appellant contended that s 43(1) provides judicial immunity in respect of copyright under s 32 ("Original works in which copyright subsists"), but not in respect of moral rights under Part IX. Accordingly, judicial immunity was not available to the respondent as a defence to her proceeding. 13 The primary judge did not accept the appellant's argument that because Part IX of the Act did not contain a provision equivalent to s 43(1), judicial immunity is not a defence to an action under that Part. Her Honour went on to uphold the defence: "I am satisfied that in dealing with the notice of motion … Justice Spender … was exercising jurisdiction vested in him as a Judge of the Federal Court. As a result of referring to the email correspondence that he referred to in the course of his reasons, he has the benefit of judicial immunity and cannot be pursued by Ms Ogawa for any infringement of moral rights under the Copyright Act." 14 Her Honour then accepted the respondent's submission that the appellant should pay his costs on an indemnity basis: "The fact is that she was notified of the intention of Justice Spender to rely on judicial immunity as soon as she had been served with the application, and the solicitors for his Honour … invited Ms Ogawa to discontinue the application forthwith or agree to it being dismissed, and forewarned that the respondent would seek costs on an indemnity basis if that were not done. I am satisfied that in those circumstances, it is appropriate to order costs on an indemnity basis." 15 In our view no error has been shown in the primary judge's rejection of the appellant's contention based on s 43(1). That sub‑section does not purport to reflect the judicial immunity doctrine. So far as presently material, it affords protection to those who reproduce works for the purposes of a judicial proceeding. The expression "judicial proceeding" is defined in s 10 as "a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath." The expressions "for the purposes of a judicial proceeding" in s 43(1) and "a proceeding before a court …" in the definition of "judicial proceeding", are directed to persons, including litigants and practitioners, who use copyright material in the course of proceedings in the court. The expressions are not directed to the court itself. Further, before the enactment of s 43 and its predecessors, a court was in no need of protection by legislative provision, though litigants and practitioners were. Hence s 43. A related consideration is contained in the observations of Kirby J in Re East; Ex parte Nguyen (1998) 196 CLR 354 at [80]: "When the Act was enacted the Parliament would have been well aware of the importance of the independence of judicial officers and of their immunity from personal suit or other proceedings in respect of conduct performed judicially. If it had been the object of the Parliament to render such conduct in a particular case, unlawful, well established principle would require that the Parliament should say so expressly." See also at [30] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. That observation is applicable to the insertion of Part IX into the Act by the Copyright Amendment (Moral Rights) Act 2000. Finally, there is no suggestion in the copyright texts that s 43(1) and its equivalents are concerned with, or are apt to include, the protection of the court itself. See, for example, Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs 3rd ed (2000) vol 1 par 20.41, where the examples of the scope of s 45(1) of the Copyright, Designs and Patents Act 1988 (UK) are confined to matters such as photocopying documents disclosed on discovery, copying a work in order to submit it to counsel once proceedings are contemplated, and reproducing a photograph in the press in an advertisement for a potential witness. 16 Accordingly, the presence of s 43(1) in Part III of the Act cannot mean that there is no judicial immunity available in a proceeding under Part IX. All that can sensibly be derived from the presence of s 43 in Part III and the absence of a comparable provision in Part IX is that parties and their advisers have no protection in respect of such a proceeding under the latter. 17 What we have said disposes of the grounds of appeal in par 2(ii), (ix) and (x) of the notice of appeal. The related ground in (i) is that the primary judge erred in holding that s 43(1) provides immunity "only to parties to judicial proceedings other than judges". Her Honour did not expressly so hold, though it may be a consequence of her decision. For the reasons we have given, so to have held would not have involved error. 18 No error has been shown in the primary judge's application of the immunity to the respondent. In Fingleton v The Queen (2005) 216 ALR 474 at [36] Gleeson CJ approved the following passage from the judgment of Lord Denning MR in Sirros v Moore [1975] QB 118 at 132: "Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action." 19 The Chief Justice went on to say: "An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In re McC (A Minor), Lord Bridge of Harwich said: 'It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. … But, as Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670: 'the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.'" 20 Gleeson CJ explained the rationale for the privilege at [38]‑[39] as follows: "This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. … … the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions." 21 The appellant contends that the immunity was not available to the respondent for a number of reasons. Paragraph 2 of her notice of appeal alleges the following errors on her Honour's part: "(iii) holding that the common law judicial immunity applies to acts of judges beyond the extent that the protection of acts is required for the judge to discharge their duties free from favour. … (vi) holding that the Respondent's acts to search and rely upon the Appellant's email … which was never filed, submitted and/or tendered to the court in the matter QUD478 of 2005 are the acts in the proceeding of [that matter]. … (xi) failing to hold that the Respondent's acts in searching and relying upon an evidentiary document which are not the judge's acts in an adversarial legal system fall outside the scope of the common law judicial immunity. (xii) failing to hold that a suit for a reversal of derogatory treatment in respect of a work used in a judgment, a suit for which there was no precedent, is different from a suit for damages against a judge who delivered judgment or for quashing the judgment delivered by a judge, a suit for which there were a number of precedents." 22 The common law judicial immunity is not limited in the manner contended for in ground (iii). The policy behind the privilege is that stated by Gleeson CJ in Fingleton. 23 There is no substance in ground (vi). The appellant wanted an adjournment and the provision of an interpreter. The two emails were doubtless passed on to the respondent as the judge hearing the motion so that he would be aware of the appellant's wishes in those respects. The requests were relevant to the motion, and it is immaterial that they were not formally tendered in court. Having put her requests in writing, it does not lie in the appellant's mouth to complain that they were drawn to the attention of the judge who had to decide whether to grant them. We agree with the primary judge's observations on this issue: "it is unremarkable that email correspondence involving a litigant in person who was seeking an adjournment of the notice of motion was brought to the attention of the Judge [who] was to hear that notice of motion." 24 What we have said at [23] disposes of ground (xi). 25 Ground (xii) misunderstands the doctrine of precedent. There seems to be no reported instance of judicial immunity as a defence to a claim under Part IX. However the principle explained in Fingleton is as applicable to such a claim as it is to an action for damages against a judge for something said or done in the course of the exercise of jurisdiction. 26 Ground (iv) asserts error in "holding that common law conferred jurisdiction on judges to search and rely upon evidence to assist a party who attends a proceeding where the other party is absent from the proceeding." This appears to be a contention that the respondent acted outside his jurisdiction. The fact on which the so‑called excess of jurisdiction is based is not established. The respondent did not use the emails to assist the respondent to the motion. Rather, as we have said, they were used to alert him to the case the appellant wanted to advance, namely to obtain an adjournment and an interpreter. In addition, there is no evidence that the respondent searched out the emails. As we have said, the proper inference is that they were drawn to his attention by the Court's administrative staff so that he would be aware of what the appellant would be asking him to do. Further, the appellant's decision not to appear on the hearing of her own motion cannot affect the ambit of the judicial immunity defence. The jurisdiction a judge exercises in such a case is the same as that exercised in the presence of all parties affected. 27 Ground (v) asserts error in holding that the Respondent's acts that infringe the private rights of others are equivalent to her Honour's customary act of shouting at parties in court which does not infringe anyone's rights." We do not understand this ground. 28 Two grounds relate to the order for indemnity costs: "(vii) holding that one of the party's expressions to the other about his views of the contested issue prior to the hearing can be a basis for an indemnity costs order. (viii) holding that the unrepresented Appellant's intellectual ability can be a basis of an indemnity costs order while there were no precedents of an indemnity costs order in suits by represented litigants against judges." 29 It is established that indemnity costs may be appropriate where it appears that an action has been commenced or continued in circumstances where a litigant, properly advised, should have known there was no chance of success. In such a case, an ulterior motive must be presumed, or wilful disregard for the known facts or established law. See Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401, John S Hayes & Associates Pty Ltd v Kimberley‑Clark Australia Pty Ltd (1994) 52 FCR 201 at 203 and MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (1996) 70 FCR 236. 30 We discern no error in her Honour's award of costs on an indemnity basis. The immunity claim was strong. The appellant's answer to it was specious. As the primary judge said, the appellant has some legal knowledge. Her Honour was impressed with the appellant's ability to "articulate the arguments". She must have realised that her answer to the immunity defence was unsound. Soon after the respondent was served with the application, his solicitors wrote to the appellant drawing attention to their client's intention to rely on his judicial immunity, and inviting her to discontinue the application forthwith or agree to a consent order that it be dismissed. What they said in the letter has been entirely vindicated. Further, prior to the hearing before the primary judge, the respondent's written outline of argument was provided to the appellant. It expounded the respondent's claim to immunity, and we infer from the primary judge's reasons that it answered the appellant's reliance on s 43(1). She nevertheless persisted with the appeal. In all those circumstances, the primary judge did not err in awarding the respondent indemnity costs. 31 As appears from [30], there is no substance in grounds (vii) or (viii). 32 The notice of appeal includes ground (xiii). It is "such and other grounds that are currently not within the apprehension of the unrepresented appellant". If ground (xiii) is meant to convey that the appellant might later seek to raise further grounds of appeal, she has not done so. Leaving aside grounds (i) to (xii), we otherwise find no error in her Honour's judgment. 33 The appeal must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Kenny and Gyles.

Solicitor for the Respondent: Woods Prince Lawyers