Wills v Australian Broadcasting Corporation

Federal Court of Australia (Full Court)|2009-02-06|Before: Rares J, Rares JJ, North J

It be declared that the notice of appeal dated 4 June 2008 is incompetent.
Leave be granted to the appellant to appeal from the orders made on 14 May 2008.
The notice of appeal dated 4 June 2008 be treated as having been filed pursuant to the leave granted in Order 2.
The appeal be allowed.
The orders made on 14 May 2008 be set aside and, in lieu thereof, it be ordered that: (a) Judgment be given for Australian Broadcasting Corporation against the applicant in relation to all parts of the proceeding against it, except that part in which the applicant claims damages, or an account of profits, for infringement of any copyright of the applicant in respect of cinematographic material filmed by the applicant between 1997 and 2001, by reason of the broadcast by Australian Broadcasting Corporation of film clips incorporating part of any such cinematographic material. (b) The proceeding be listed for directions on a date to be notified to the parties by the Registrar. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 116 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT NORTH J 1 Mr Wills challenges orders made by the primary judge on 14 May 2008. The primary judge dismissed the proceedings brought by Mr Wills summarily under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act) because his Honour was satisfied that Mr Wills had no reasonable prospect of successfully prosecuting the proceeding. 2 The circumstances in which the issues before the Court arose are set out in the reasons for decision of Rares J and I gratefully adopt the exposition of those matters. Consequently, I am able to deal immediately with the resolution of the issue before the Court. 3 The primary judge relied on the failure by Mr Wills to file an affidavit in opposition to the respondent's, the Australian Broadcasting Corporation's (ABC), application under s 31A to dismiss the proceedings. In the absence of the affidavit, the primary judge determined that there was no evidence which would support the causes of action propounded in the application. 4 In the course of this hearing, members of the Court asked Mr Wills why he had failed to file an affidavit in opposition to the application under s 31A as directed by the primary judge. He explained that he was contending with injuries received in several assaults and injuries received from a motor vehicle accident. He said that he was homeless and that he suffered from a mental illness for which he was receiving treatment. He did not have legal assistance and he did start on the preparation of a detailed statement of the events relevant to his case. However, he found that the completion of this statement took much longer than he had anticipated. Mr Wills was asked if he had brought the written statement to Court. He said that he had. The statement was handed to the Court. Mr Wills was then invited to verify the statement and the explanations which he had given from the bar table concerning his reasons for failing to comply with the direction of the primary judge. Mr Wills then swore to the truth of both of those matters. 5 The ABC objected to the reception of Mr Wills' further evidence but accepted that it would not be prejudiced by the reception of that further evidence. Counsel for the ABC was invited by the Court to cross-examine Mr Wills on his testimony, but counsel declined to do so. 6 Although the matter is not free from doubt, I would accept for the purposes of argument that the primary judge was justified in his satisfaction that the evidence before him, absent any answering affidavit from Mr Wills, justified the summary dismissal of the proceedings. 7 This Court however is faced with the question whether further evidence should be admitted, and if so, what consequences flow from the admission of that evidence. 8 I agree with the discussion of the law concerning the admission of further evidence contained in [52] - [55] both inclusive of the reasons for decision of Rares J. The power in s 27 of the Act to admit further evidence is designed to serve the interests of justice. 9 In the present case, Mr Wills has explained the obstacles which he confronted in formulating an affidavit in opposition to the application under s 31A. They were substantial. His explanation was not contested. 10 An influential consideration in deciding whether to admit further evidence under s 27 often is whether the evidence was available to the person at the time of the initial hearing. Whilst the facts relating to Mr Wills' case existed at the time of the hearing before the primary judge, in a practical sense they were not available to him because his dire personal circumstances prevented him from organising the facts and setting them down in written form. 11 In the statement which Mr Wills prepared and sought to rely on, he explained that he filmed some footage of bands to be used in clips. He identified the bands. The footage was given to the bands for safekeeping as he was homeless and he feared for the security of the footage. He said that the footage was then used in broadcasts on the ABC on a number of specified occasions without his permission. This material, if admitted, established the elements of a copyright action sufficient for the purpose of opposing the application for summary judgment. It did not, however, support any of the other causes of action which Mr Wills sought to articulate in his application. 12 Mr Wills' explanation for his failure to file an affidavit in opposition is cogent. Admission of his written statement would demonstrate that Mr Wills has a reasonable prospect of successfully prosecuting a cause of action in copyright. Thus, admission of the statement into evidence would, in part, change the result arrived at by the primary judge. In those circumstances the interests of justice are served by admitting the further evidence given by Mr Wills. 13 It follows from that evidence that the order of the primary judge so far as it relates to the copyright action should be set aside. The appeal should be allowed with no order as to costs. It is not necessary to decide whether leave to appeal is necessary because, if it is, it should be granted. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 116 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT EMMETT J 14 The appellant, Mr Wills, filed a notice of appeal by which he purported to appeal from orders made by a judge of the Court dismissing, pursuant to s 31A of the Act, claims made by him against the respondent, the ABC. The respondent filed a motion seeking summary dismissal of the appeal on the basis that it was incompetent. The respondent contends that an order under s 31A is interlocutory and that, accordingly, leave to appeal is required. The appellant has not applied for leave to appeal. However, he is unrepresented and must be taken to have a limited understanding of the procedures involved. 15 I have had the advantage of reading, in draft form, the reasons for judgment prepared by Rares J, in which his Honour concludes that the notice of appeal is incompetent but that the notice of appeal should be treated as an application for leave, that leave to appeal should be granted and that the appeal should be allowed. I agree with his Honour's proposed orders and the reasons for them. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett J.

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 116 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT RARES J 16 Andrew Wills filed an application and affidavit to commence the proceedings below in December 2006. He joined twelve respondents, including the ABC. He claimed relief against the twelve respondents in the application in the following terms: (1) Restitutio integritas for breach of copyright matters relating to the applicant who claims ownership as the author of intellectual property being specifically a series of cinematographs. These claims of authorship rights are made pursuant to sections 22, 90, 98, 204 of the 1968 Aust. Copyright Act. (2) Unliquidated claims for criminal negligence, exemplary, aggravated, contemptuous, punitive damages excausating, suffering and loss related to effluxion of applicants publication/authorships' prerogative rights as defined by sections 27, 29, 34, 36, 37, 43, 86, 87, 90, 91, 101, 103, 111, 115, 116 of the 1968 Aust. Copyright Act. (3) Any other costs/damages that this honourable court shall deem fit as evidence of further torts and breaches may be discovered during the proceedings relevant to the abovementioned matters. 17 Mr Wills also sought the following interlocutory relief: (1) Respondent's account of profits for period of time that applicant's restitution in integrum covers. (2) The constitution of qualified witnesses accepted statements who can validate commercial lost potential of applicants. (3) Claims for restitution. 18 Mr Wills' affidavit of 19 December 2006, being the only evidence filed in support of the application, was in the following terms: (1) I filmed cinematographic material for the purpose of producing a network of independent showreels to promote a conceptual format destined for interactive use on the internet which I had invented. (2) This material was then taken without my consent or payment or negotiation and broadcast and edited in environments that exploited and undermined my prerogative rights relevant to the Aust. Copyright Act of 1968. (3) The sole objective of the individual private parties' deceptive behaviour towards me in relation to editing my cinematographic material was to save themselves from further costs. The Broadcasting Corporation's complicity in this matter caused the premature publication of material which prejudiced against the maker of the cinematographs [sic] reputation because the post-production of the material constitutes derogatory treatment of the cinematographic material resulting in a loss of professional kudos. The broadcasters were negligent in failing to safeguard against this as this exploitation serviced their commercial interests. 19 On 4 March 2008, the ABC filed a motion seeking to have the application, as against it, dismissed pursuant to s 31A(2) of the Act. It contended, first, that Mr Wills' December 2006 affidavit did not disclose any cause of action against it, or necessary material facts on which his claim was based, and ought be struck out pursuant to O 11 r 16. Secondly, the ABC argued that because there was no cause of action disclosed, leave to re-plead should be refused, in consequence of which the proceedings would be seen as having no reasonable prospects of success. 20 After Mr Wills had orally outlined five instances which, if proved may be infringements of his copyright, the primary judge made directions on 2 April 2008 that Mr Wills file and serve any further affidavit in support of his claims against the ABC by 16 April. However, Mr Wills did not comply with that direction. When the motion was returned for hearing before his Honour on 14 May 2008, Mr Wills addressed the primary judge at length as to what he said his claims were. At the conclusion of that address, his Honour held that, despite many opportunities over a very long period of time, Mr Wills had been unable to articulate any cause of action he had against the ABC in any of the material he had filed or in his oral address: Wills v Morris [2008] FCA 784 at [9]-[11]. 21 He concluded, saying at [13]: I am confident in saying that the Court has given to Mr Wills extraordinary leeway and certainly far more leeway than would otherwise be afforded to an applicant represented by a solicitor or counsel. He has, however, been unable to articulate in any comprehensible manner, as a matter of fact and law, any cause of action upon the material which is before the Court. 22 The primary judge ordered that the proceedings against the ABC be dismissed under s 31A(2) of the Act with costs. Mr Wills filed a notice of appeal. Next, the ABC filed a notice of motion pursuant to O 52 r 18 seeking that the notice of appeal be dismissed on the ground that it was incompetent because the order under s 31A(2) was interlocutory and Mr Wills required leave to appeal. Alternatively, it sought that the notice of appeal be set aside and contended that it failed to disclose any basis for relief (O 9 r 7).

The ABC's Motion 23 It is appropriate to deal with the ABC's motion first. The question of whether an order dismissing proceedings under s 31A(2) is interlocutory has been considered by the Full Court of this Court on five previous occasions. 24 In Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 at [15], French, Lindgren and Jacobson JJ held, as one of two bases for dismissing the appeal as incompetent, that a decision under s 31A was interlocutory and required leave to appeal. 25 In Simundic v University of Newcastle [2007] FCAFC 144, Allsop, Lander and Siopis JJ characterised the dismissal of proceedings under s 31A, on the ground that the Court had no jurisdiction, as interlocutory: Simundic [2007] FCAFC 144 at [12], [14]. 26 In Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624 at [19], Spender J, with whom Gilmour J agreed at [28], held that the dismissal of proceedings under s 31A was interlocutory. French J said (Zioa 240 ALR at 629 [26]): On the authorities to which the presiding judge has referred, there would seem to be little doubt that such a judgment of dismissal is interlocutory, but whether interlocutory in form or not, it is final in substance and ordinarily the threshold to be crossed for obtaining leave to appeal against such a judgment is not high. I refer in that respect to the discussion by the Full Court inJohnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564. 27 However, in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372, at 378-379 [9]-[13], Finkelstein J asserted that these decisions were wrong and indeed could "… be put to one side as not being of precedential value". He held that dismissal of the whole or any part of the proceedings under s 31A was final. Gordon J agreed with Finkelstein J's reasons that the prior decisions of Full Courts should not be followed in relation to a dismissal of all claims in proceedings against all parties being final. However, those views were obiter because her Honour decided that the dismissal of only portions of a claim was interlocutory (Jefferson Ford 167 FCR at 418 [174], 419-422 [180]-[191]). I disagreed with the obiter views of Finkelstein and Gordon JJ that orders dismissing proceedings under s 31A were final. However, I agreed with the conclusion of Gordon J that orders dismissing only part of a proceeding were interlocutory. 28 I consider (but do not need to decide) that an order under s 31A determining that a claim or defence has no reasonable prospects of success is interlocutory, for the reasons I gave in Jefferson Ford 167 FCR at 386-390 [42]-[56], and for my additional reasons based on the section's legislative history at 167 FCR at 391-392 [57]-[63]. 29 Subsequently, in Dent v Australian Electoral Commissioner (2008) 249 ALR 523 at 531 [28], French, Tamberlin and Mansfield JJ discussed the nature of an appeal from an order made under s 31A. They did so on the assumption that, as the parties had agreed, if leave to appeal were necessary it should be given. However, they emphasised that they were not to be taken as endorsing the views of Finkelstein J and Gordon J. French, Tamberlin and Mansfield JJ said that the views in Zoia 240 ALR 624 and Pham [2007] FCAFC 179 and myself in Jefferson Ford 167 FCR at 386-390 [42]-[56] were to the contrary. 30 The appeal is incompetent because the primary judge's dismissal of the proceedings as against the ABC was interlocutory. That was because the order made by the primary judge did not dispose of the whole of the proceedings since Mr Wills still had on foot unresolved pleaded claims against other respondents: Jefferson Ford 167 FCR at 392 [64] per myself, 418 [174] per Gordon J.

Should leave to appeal be granted? 31 The Full Court heard full argument on the merits. Thus it is necessary to consider whether it would be appropriate to grant leave to appeal and, if so, to treat the appeal as instituted and then determine it. In a case like the present, the threshold for a grant of leave is not high because, though interlocutory in form, the primary judge's decision is final in substance, as French J explained in Zoia 240 ALR at 629 [26]. Nonetheless, an applicant for leave to appeal must show that the decision below is attended by sufficient doubt, and that substantial injustice would flow from the decision: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. 32 I have considered the material before the primary judge, including the transcripts of the hearings on 14 February, 2 April and 14 May 2008, and all that Mr Wills put in his notice of appeal and orally at the hearing.

Directions hearing of 2 April 2008 33 On 2 April 2008, the primary judge invited Mr Wills to identify the cause of action he alleged against the ABC. Mr Wills explained in a loquacious, but nonetheless intelligible, manner that he was a cinematographer and had created images which a number of the other respondents, who were apparently musicians, had used to make music videos or DVDs of their performances. Mr Wills called these music videos or DVDs "clips". He said that the clips were used to promote CD recordings made by the performers. Mr Wills told his Honour that his original cinematographic work had been edited by members of three separate bands into five music clips which were broadcast on different dates on the ABC's television program "Rage". He told the primary judge that his work had been used on "Rage", in circumstances where he had not been paid for it and had not assigned his copyright in it. He said that the infringements of his copyright by the ABC had occurred from between 1997 to around 2001. He identified the clips and said that he had written down the individual dates on which the ABC had played them. 34 Mr Wills told his Honour that he had taken the source film footage, some of which was used in each of the following: · a clip called "Afraid" by the band Crawlspace that went to air on 21 and 28 August 1998 and 4 October 1998; · a clip called "Lost and Distorted" by the band Seahorse Radio that went to air on 23 February 2001; · a clip called "Slide" also by the band Seahorse Radio that went to air on 9 February 2001; · a second version of the clip called "Slide" that Mr Wills stated used cinematographic film he had taken at night of a girl's profile travelling through Northbridge, which went to air on 3 November 2000; · a clip called "Implant" by the band T-Cells that went to air on 3 June 2000 and 11 October 2000. 35 His Honour asked Mr Wills whether it was his case that those five individual music clips were cut from longer footage which he had taken. Mr Wills said that that was correct. His Honour asked him whether he had provided the footage to each of the other respondents and that they or some of them provided the footage to the ABC without his consent, and, again he agreed. And, his Honour then asked whether the publication by the ABC by broadcasting the music clips on "Rage" was the basis of his claim, and Mr Wills again agreed. 36 During the balance of the hearing, his Honour pointed out to Mr Wills the deficiency in the documents he had filed in Court, namely, that these failed to disclose the particularity which he had given orally. His Honour told Mr Wills that he would adjourn the matter for a sufficient period to enable him to consider the ABC's written submissions to support its motion for judgment under s 31A then before his Honour, and to enable Mr Wills to make an affidavit. His Honour explained that the purpose of this was to move from the very general propositions Mr Wills had put in his affidavit in support of his application, to very specific and detailed matters which Mr Wills alleged supported his claim against the ABC. His Honour said: Now, to an extent, you will be going to do that orally in court this morning by identifying the five clips, the program on which they were aired by the ABC, and the dates on which they were aired, but you'll need to do more than that, I think, Mr Wills. You will need to identify - it's a matter for you but you will need to identify the footage that you say you took and from which the clips came, and any other detail that can enable the ABC to understand the nature of the complaint against it. 37 His Honour then directed Mr Wills to file any further affidavit in support of his application against the ABC by 16 April 2008.

The hearing on 14 May 2008 38 On 14 May 2008 the motion was returned before his Honour. Mr Wills had not filed any further affidavit or other material. His Honour asked Mr Wills to explain, by reference only to the original affidavit that he had sworn, what relief he sought against the ABC. Mr Wills told his Honour that he was homeless and had been so for some time. He explained that he had left his original cinematographic footage with the various bands who ultimately came to use it. He said that he had done this, for among other reasons, because he was homeless, and the car he drove around in would get hot causing the tapes to be potentially detrimentally affected by the heat. He then continued to address his Honour at some length, but with not a great deal of focus. During the course of his address, Mr Wills again referred to his claims against the ABC in respect of the publication of the Crawlspace and Seahorse Radio footage. He said that he believed that Cindy Morris gave his source tapes to Russell Smith of Crawlspace (each of whom was named as a respondent to the proceedings). He then said that Steve Deschamp and other band members of Seahorse Radio took his source tapes to Ronan Charles and that this material was then edited by Ross Stewart who worked in a post production editing business (each of those persons was also a respondent to the proceedings). 39 At the conclusion of his address, the primary judge gave reasons and dismissed the proceedings against the ABC.

The hearing of the appeal 40 During the hearing of the appeal, Mr Wills said that he had been working on his written statement of his case since his Honour had asked him to prepare it on 2 April 2008. He said that he was homeless and had earlier been turned out of his accommodation. Mr Wills sought to tender a seven page handwritten statement, after some prompting by the Court, which outlined his claim in more detail. He also sought to tender a printout from what appeared to be a web page of play lists of music clips played on the "Rage" program on which he had identified the works the subject of his claim, together with a spreadsheet he had prepared showing the times of broadcast of the five clips. We took oral evidence from Mr Wills, on the voir dire, in which he verified what he had said in the handwritten statement and the annotations he had made on the printout. The ABC objected to the admissibility of this new material on the basis that it had been tendered so late in the appellate proceedings and was bad in form. 41 We reserved the question whether we would admit this material under s 27 of the Act as fresh evidence on the hearing of the application for leave to appeal, or the appeal. Before the Full Court reserved on the determination of the appeal we made an order that the proceedings be referred to mediation. We have been informed that, although the parties attended the mediation, it did not succeed in achieving a resolution. 42 The ABC contended that the primary judge was correct to dismiss the proceedings against it under s 31A for the reasons he gave. It argued that the issue under s 31A was whether the documents filed disclosed a claim which had a reasonable prospect of success. And, the ABC argued that, since the proceedings had been on foot for some time, and Mr Wills had had the opportunity to file further affidavits but had not done so, his Honour was entitled to arrive at his decision to dismiss them.

Principles 43 In considering whether to exercise the power to give judgment under s 31A of the Act, the Court is not concerned with mere pleading points. Rather, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310 [50] (see too Noble Investments Pty Ltd v Southern Cross Exploration NL [2008] FCA 1963 [34]-[40] per Lander J) the section is concerned with the bringing and defending of proceedings and with substance, not just with form. 44 In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19]- [21], French J said: [19] The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding. [20] In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ... [21] Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ... 45 Proceedings involving parties who represent themselves pose particular difficulties for courts. Self-represented litigants often have little legal training but frequently take considerable effort to try to make themselves familiar with aspects of the law or the Court's procedures which they see as being relevant to their case, with greater or lesser degrees of accuracy. Of course, the judge or Court cannot be placed in the position where any of the litigants before the Court perceive that it is assisting a litigant-in-person in a way which compromises the integrity and impartiality of the hearing. Nonetheless, some forms of assistance, such as suggestions made by the primary judge that an affidavit be filed, can often be appropriate. But where the self-represented litigant has not taken the hint, it may be necessary to remind him or her that the failure to do so may have the consequence that the proceedings will be dismissed. 46 Here, Mr Wills' explanations to the primary judge both on 2 April and 14 May raised fairly arguable claims for relief. While Mr Wills was in default of his Honour's order to file an affidavit outlining the essential factual elements of his claim by 16 April, I am of opinion that the extreme position had not then been reached that his default should warrant that claims which were fairly arguable could not be litigated by him: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 per Dawson, Gaudron and McHugh JJ. As their Honours said (at 154): … it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 47 In arriving at that conclusion, their Honours had relied on previous decisions of the High Court which, in turn, had applied the well-known passage in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710, where his Lordship said: Now, I think it is a well established principle that the object of Courts is to decide the rights of parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such an amendment as a matter of favour or of grace. (see J L Holdings 189 CLR at 152-153) 48 While Bowen LJ was speaking of an amendment, the general principle applied by Dawson, Gaudron and McHugh JJ in J L Holdings 189 CLR at 154, is apposite here: Fortron [2006] FCA 1401 at [19]. The primary judge was faced with the position where Mr Wills had explained orally, but not on oath, what his case was. He had failed to comply with one direction to file an affidavit outlining what he had said orally on 2 April 2008 and supplementing that account with greater detail. When he appeared on 14 May, Mr Wills was in default. His Honour did not invite Mr Wills to verify, in the witness box, what he had previously said, or explain to him again that a failure to put on the affidavit material that he had been directed to file could be fatal to the proceedings continuing. 49 At the ABC's urging, the primary judge dealt with Mr Wills' claims on the basis that he had, in fact, no further material beyond the application and only affidavit in support, as set out above, which he could put before the Court to resist its motion. But his Honour did not address the substance of the claims. Rather, he dealt with their defective form. 50 The discussion in Court on 2 April 2008, summarised above, identified five claims for breach of copyright which Mr Wills wished to litigate in respect of the broadcasts on the ABC program "Rage" on the different dates that he gave. If Mr Wills could prove at a trial that he held the copyright in the original work consisting of some footage included in the five clips, and that they had been broadcast on "Rage" on the various occasions alleged, he would establish the elements of a fairly straight forward claim for breach of copyright. 51 Mr Wills had outlined his claims, orally, with sufficient cogency. It was clear that he relied on five different clips broadcast by the ABC on identified occasions and dates that allegedly infringed his copyright. It could not be said that he had no reasonable prospects of succeeding on any of those claims as so articulated. All that Mr Wills had failed to do was to comply with a direction to file an affidavit outlining that material.

Further evidence on appeal 52 The principles upon which the discretion to admit further evidence in an appeal under provisions similar to s 27 of the Act may be exercised were considered by the High Court in CDJ v VAJ (1998) 197 CLR 172; see at 200-202 [107]-[111]. In essence, the Court is at large in considering whether, under the section, fresh evidence ought be received, but a number of discretionary considerations developed by the common law may be relevant to the exercise of that discretion (although not as binding rules in the way that the common law fixed). The discretion is more ample than the common law provided. The issues involved in the appeal will point to the considerations which are, or are not, extraneous to the exercise of the power: CDJ 197 CLR at 201 [108]. 53 The power is remedial in nature and its principal purpose is to give a Full Court, or a judge of the Court exercising the appellate powers of the Court, a discretion to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. 54 In Williams v Grant [2004] FCAFC 178 at [37], Lander J (with whom North and Dowsett JJ agreed at [1] and [10] respectively) said that the power to receive further evidence was discretionary, and that whilst there were no fixed rules which would govern the exercise of the discretion, matters which were usually relevant include whether the applicant exercised due diligence in attempting to procure the evidence before the trial, but the evidence was not available at trial, and if the evidence had been available at trial, the opposite result would have been obtained. In VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186 at [18], Gray, Moore and Emmett JJ held that a relevant consideration in exercising the discretion to admit further evidence under s 27 was whether the evidence proffered would be likely to have produced a different result, had it been available at the trial. 55 The discretion given by s 27 does not, however, have the practical effect of eliminating the distinction between original and appellate jurisdiction. It is a power which exists to serve the demands of justice: CDJ 197 CLR at 202 [111]. 56 I am of opinion that the evidence tendered on the voir dire by Mr Wills during the hearing of the appeal should be admitted. While it was tendered very late, the ABC did not suggest that it was prejudiced by the tender. The evidence demonstrates that Mr Wills does have a case which he should not be shut out from litigating at this stage. It confirms what he told the primary judge on 2 April 2008 was the substance of his claims. In its present form, the evidence may not be admissible at a final hearing, but it sufficiently shows that Mr Wills does have a claim which cannot presently be characterised as having no reasonable prospect of success. That is not to say that time may not come when he has failed, after having had sufficient opportunity to do so, to articulate with sufficient precision a case that can be tried. 57 Mr Wills claims that he does not have in his possession his original cinematographic films, or the material which was broadcast about which he complains. He has identified the occasions of the broadcasts and what he alleges contained his copyright material. Processes of discovery, and possibly interrogatories, may help to establish what that material is. It is not possible to conclude, at the present time, that Mr Wills' claims that the ABC infringed his copyright, have no reasonable prospect of succeeding. 58 The claim for "criminal negligence" stands on a different footing. It is unintelligible in its pleaded form and should be struck out under O 11 r 16.

Conclusion 59 In my opinion, although the notice of appeal is incompetent as filed, leave to appeal should be granted and the notice of appeal which has been filed should be treated as having been filed pursuant to leave. The appeal should be allowed, the orders made by the primary judge should be set aside (other than in respect of the claim based on criminal negligence which should be struck out) and the matter should be re-listed for directions for the further conduct of the proceedings. 60 The granting of leave to appeal and the upholding of the appeal should not be taken as an endorsement in any way of the stance taken by Mr Wills to date. In particular, it should not be taken as in any way precluding the primary judge from dealing with Mr Wills' claims in a summary fashion if they are not properly formulated and pleaded. As is clear from what I have said, no issue of whether Mr Wills has brought his proceedings (or any particular claim) within any applicable limitation period has been raised at this stage. 61 The appeal has not succeeded on any grounds raised by Mr Wills. Nor has the ABC succeeded in preventing the appeal being dealt with on its merits. I consider that there should be no order as to the costs of the appeal or the notice of motion. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 6 February 2009 Counsel for the Appellant: The appellant appeared in person

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (15)