Wilson v Alexander

REASONS FOR JUDGMENT 1 The respondents to these proceedings ("Minters") have moved under O 32 r 2(1)(d) of the Rules of the Federal Court for the Court to proceed with the trial in the absence of the applicant. Minters seek orders pursuant to that Rule that the proceedings be dismissed with costs in the circumstances set out below. 2 The applicant ("Mr Wilson") commenced the proceedings by an application filed on 21 January 2002. The application seeks an injunction, damages and other orders arising out of a claim set out in the Statement of Claim which alleges copyright infringement, breach of a Court order made under s 50 of the Federal Court Act 1975 (Cth) and "tampering" with exhibits. There were other claims made in the Statement of Claim but they do not give rise to any possible cause of action. 3 Mr Wilson claims that Minters infringed his copyright in a 24 page manuscript ("the Work") by having access to it in the Registry of the Federal Court and, apparently, by photocopying the document. The Statement of Claim also alleges that this amounts to a breach of an order made by Emmett J on 26 March 2001 in relation to earlier proceedings (Wilson v Australian Copyright Council [2001] FCA 394) ("the Copyright Council proceedings") in which his Honour delivered judgment on 23 March 2001 adversely to Mr Wilson. In oral argument and in his particulars, Mr Wilson also alleged that Minters had breached an undertaking given to him in a letter dated 3 April 2001 referred to below. 4 In the Copyright Council proceedings, Mr Wilson alleged that the Australian Copyright Council ("the Council") infringed his copyright in the Work by photocopying it without Mr Wilson's authority. Minters were the solicitors for the Council in the Copyright Council proceedings. Mr Wilson's evidence before Emmett J was that on 30 August 2000 he had taken the Work to the Council to seek advice. He said that the Council made a photocopy of the Work in circumstances set out in paragraphs [5]ff of his Honour's judgment. 5 Evidence was given to his Honour by employees of the Council including Ms Libby Baulch, the Council's Executive Officer. The thrust of the Council's evidence was that Mr Wilson was told that he would need to leave the Work with the Council and that photocopies were made of the Work to enable the Council's employed lawyers to consider it. 6 Mr Wilson complained to the Council that the copies which were made were "useless", ie, of poor quality. 7 On 5 September 2000, Mr Wilson wrote a letter addressed to "The Chairman" of the Council. The Chairman was Mr Peter Banki. The letter complained that the Council did "purloin" Mr Wilson's copyright in the Work "for free" and "by way of deception". The letter also complained about the price charged for the photocopying which was $5.00 and about being overcharged for the supply of certain information material which was given to him. The cost of that material was $5.50. 8 The letter of 5 September 2000 was Exhibit 7A before his Honour. It was Exhibit T before me. It is relevant to the allegation of "tampering" and I will refer to it again below. 9 By letter dated 3 October 2000, Mr Banki wrote to Mr Wilson. The letter stated, inter alia, that in an effort to assist Mr Wilson, the Council photocopied the material for him and that the Council was of the view that it could assist him by providing information sheets. The letter also stated that Mr Banki understood that Mr Wilson had not found the information helpful and Mr Banki apologised for this. The letter was in evidence before Emmett J. 10 His Honour said at [37] that Mr Wilson submitted that an inference should be drawn that Ms Baulch and two other Council employees agreed among themselves to obtain the Work for their benefit. However, his Honour rejected that submission. He said at [38] to [40] that in view of the portions of the Work he had read, even if the employees had read the Work, they would not have regarded it as something they would want to keep or take for themselves. 11 The nub of his Honour's judgment is at [48] where his Honour found that, even accepting Mr Wilson's version of the facts, there was an implied licence granted to the Council to make copies of the Work. 12 On 26 March 2001, Emmett J made an order that access to Exhibits 1A, 4A and 5A (in that matter) be limited to the solicitor for the Council and otherwise not be published. Exhibit 1A was the original Work. Exhibits 4A and 5A were the copies of the Work which were made by the Council. Those documents were not in evidence before me but they are described by those exhibit numbers on a list of exhibits made by Emmett J's then associate in the course of the hearing before his Honour. 13 In March or April 2001, Mr Wilson filed a notice of appeal against the judgment of Emmett J. 14 On 3 April 2001, Mr Wilson had a number of telephone conversations with Mr Matthew Darke who was then employed by Minters. Mr Darke appeared as a solicitor advocate in the hearing before Emmett J. The conversations are referred to in a letter dated 3 April 2001 from Minters to Mr Wilson. The letter was signed by Mr Charles Alexander, a partner of Minters. 15 The letter states that Mr Wilson asked Minters to agree not to inspect the Work which was Exhibit 1A before his Honour or the copies of it which were Exhibits 4A and 5A. The letter states that Minters undertook not to inspect the work or the copies prior to the earlier of a review of any appeal book or the hearing of any appeal from the judgment of Emmett J without first giving Mr Wilson 48 hours notice. 16 Following this, Mr Wilson made numerous attendances at the Court Registry. He complained that exhibits were missing. He also complained that an exhibit had been tampered with. The exhibit about which complaint was made was Exhibit 13A before Emmett J. It was Exhibit U before me. It was a poor photocopy of the letter of 5 September 2000 to which I have referred above. 17 On 1 August 2001, Minters wrote to Mr Wilson. The letter referred to a conversation with Mr Darke and stated that, in order to prepare for the appeal, two photocopies would be made of the exhibits in the proceedings before Emmett J. 18 However, the letter specifically stated that this would not be done until Mr Wilson was given an opportunity to raise the matter before Wilcox J at the hearing of a motion brought by Mr Wilson. The motion was listed for hearing on 3 August 2001. 19 On 3 August 2001, Wilcox J made orders including an order that no variation be made to Emmett J's order of 26 March 2001. 20 The appeal from Emmett J was heard by a Full Court (Wilcox, Weinberg and Hely JJ) on 13 August 2001. The appeal was dismissed: see Wilson v Australian Copyright Council [2001] FCA 1918. 21 On 25 October 2001, the associate to Wilcox J wrote to Mr Wilson stating that, on 13 August 2001, all of Mr Wilson's exhibits had been returned to him. 22 On 21 January 2002, Mr John Mathieson, District Registrar of the Federal Court, wrote to Mr Wilson referring to telephone discussions which had taken place on 18 January 2002. The letter states that Mr Wilson asked for a document but that Mr Wilson told Mr Mathieson that the document which Mr Mathieson had sent to him was not the document he was seeking. The letter continues as follows:- "In our discussions you advised me that this was not the document you were seeking and that the correct document was a document which had been shown by the "Lady on the desk" in the New South Wales Registry acknowledging that an individual had had access to the relevant exhibits. As we also discussed, one of the procedures followed by the Court is to require any person accessing a document or other thing produced to the Court to complete and sign a "request for inspection" form. Following our discussions, as I promised, I inspected the request for inspection forms retained by the Court and could find no such document in relation to your proceedings. On making further enquiries I was advised that one of the Court's female client service officers recalls speaking to you last year when you brought to the Registry a letter you had received from the Respondent's Solicitors in which they indicated to you that, notwithstanding that they had a right to inspect the relevant exhibits, they did not intend to exercise that right but that you were concerned that they had already done so. She recalls that the folder in which the requests for inspection forms are stored was shown to you so that you could satisfy yourself whether the document had been inspected or not and that, consistent with what I have found, no trace could be found of any form which indicated that any document had been accessed in your proceedings. As no record can be found of the document the Court is therefore not in a position to provide you with a copy." (emphasis added) 23 These proceedings were commenced on 21 January 2002 which was the day on which Mr Mathieson wrote his letter. 24 Mr Wilson filed an affidavit in support of his application. The affidavit is undated but it was filed on 23 September 2002. 25 The affidavit contained evidence most of which was inadmissible but I admitted large portions of it over objection. The evidence which I admitted was received upon the basis that it was subject to relevance and that the conversations set out in the affidavit were not admitted as proof of the facts. They were admitted only as evidence of the conversations. 26 The affidavit evidence does not prove any of the allegations made in the Statement of Claim. It deposes, inter alia, to a number of conversations with employees of the Registry including Mr Peter Wilson, Mr Tony Tesoriero and a number of employees described only by their first names as "Bree" and "Suzanne". 27 The substance of Mr Wilson's case was that Mr Darke and Mr Alexander accessed the work in the Registry at some time before 3 April 2001. He was unable to specify the date with more precision. In his written submissions entitled "Summation for 21 October 2002", Mr Wilson said that, on 16 July 2001, a female court employee named "Kate" showed him a request for inspection form on which she stated there were signatures. She did not, at least according to the Summation document, state whose signatures appeared on the form. 28 It is not easy to understand precisely what Kate is alleged to have said but it is to be noted that paragraph 8 of the Summation document does not contend that there was any conversation with her in which she said that Minters had accessed the work. Mr Wilson attempted to prove that there was such a conversation in paragraph 10 of his affidavit but I rejected it. 29 The "Summation" refers to other conversations between Mr Wilson and Registry employees in which Mr Wilson says he was informed that persons, who he does not name in the Summation document, had accessed the Work. 30 The "Summation" states in paragraph 4 that Mr Wilson needs for his presentation the following witnesses: Mr Peter Banki, Mr Peter Wilson, Bree, Suzanne. Kate and Mr Tesoriero. 31 When the matter came on for hearing before me on 7 November 2001, Mr Wilson, who appeared in person, made applications which were, in effect, applications to issue subpoenas to those persons to give evidence. He also sought to subpoena Ms Libby Baulch. It was evident that he had not made any arrangements to subpoena those witnesses to give evidence at the hearing. 32 I refused leave to issue subpoenas to Bree, Suzanne and Kate upon the basis that those persons were not sufficiently described to grant leave to issue subpoenas to them. 33 I refused leave to issue subpoenas to Mr Banki and Ms Baulch. I could not see how, on any view of Mr Wilson's case, they could give any relevant evidence. 34 I arranged for a message to be sent to the Registry to see whether Mr Peter Wilson and Mr Tesoriero would be prepared to come to Court to give evidence without the need to issue subpoenas. 35 Mr Peter Wilson came to Court and Mr Wilson called him to give evidence in his case. Mr Peter Wilson is the team leader, Subpoenas and Exhibits, of the Federal Court Registry. His evidence was plain. He said on no less than three occasions that no access had been given. He said that the Registry went through their records and could find no evidence of any access. 36 Mr Tesoriero also came to Court without a subpoena. However, Mr Wilson insisted that he wanted to call Kate, Bree and Suzanne before he called Mr Tesoriero to give evidence. As a result, Mr Tesoriero was not called. 37 Late on the second day of the hearing, Mr Wilson stated that he wanted to call Mr Darke and Mr Alexander to give evidence. He asked for subpoenas to be issued to them. I ruled that Mr Wilson could call Mr Darke and Mr Alexander. Mr Michael Green of counsel, who appeared for Minters, stated that they would be prepared to attend without the need for subpoenas. 38 I should add that affidavits sworn by Mr Darke and Mr Alexander were filed by Minters but, in Mr Green's written submissions, filed in advance of the hearing, he indicated that, on the case outlined by Mr Wilson, Minters did not intend to call Mr Alexander or Mr Darke. 39 On Friday afternoon, 8 November 2002, I adjourned the matter part-heard to 10 March 2003. I said:- "Now I don't want this matter to be part heard again after the resumption next year. I propose to set aside enough time to ensure that the case is completed." 40 Accordingly, I fixed the matter for three days commencing on 11 March 2003. 41 When the matter was called on for hearing on 11 March, Mr Wilson sought an adjournment. The grounds of the application were that he had applied for legal aid which had been refused but that he had been notified by a letter from the Legal Aid Commission dated 5 March 2003 that he was entitled to appeal against the refusal of legal aid. The letter was signed by Mr Peter Mcdougall "For Legal Aid Commission". 42 I refused the adjournment. My reasons were set out in my judgment delivered on the morning of 11 March 2003. However, Mr Wilson interrupted me while I was delivering my judgment and I intend to supplement my oral extempore reasons when completing the judgment in written form. 43 After I refused an adjournment, Mr Wilson demanded that he have an adjournment for at least half an hour to talk to his "solicitor", Mr Peter Mcdougall. I could not see how Mr Mcdougall was Mr Wilson's solicitor. The letter of 5 March 2003 indicated no more than that he was the author of the letter. I refused the "request" for an adjournment. However, Mr Wilson responded by walking out of Court, even whilst I attempted to warn him of the consequences of such a course. 44 Mr Green very generously requested that the matter be adjourned for half an hour. Mr Wilson was not in Court when the request was made. Nevertheless, I adjourned for half an hour. 45 When the matter resumed at about 11:25 am, Mr Wilson was at the bar table and again demanded an adjournment. I refused it and he walked out of Court a second time. Once again, I endeavoured to warn him of the consequences but he made it plain by his words and conduct that he did not intend to take further part in the hearing. Mr Green then made an application to proceed with the trial in Mr Wilson's absence under O 32 r 2(1)(d). 46 O 32 r 2(1)(d) provides provisions that "if, when a proceeding is called on for trial, any party is absent", the Court may proceed with the trial in the absence of the party. 47 Where the Court proceeds with the trial in those circumstances, the Court has power, on a motion by that party, to set aside any order made in the party's absence; see O 32 r 2(2). 48 Mr Wilson was present when the matter was called on for trial at approximately 10:15 am on 11 March 2003. The question which then arises is whether it can be said that by deliberately absenting himself after I had refused his adjournment applications, Mr Wilson was absent when the matter was called on for trial. 49 In my view, he was not absent and O 32 r 2 is not enlivened but it does not follow from this that the Court does not have power to dismiss the claim. 50 By evincing an intention to play no further part in the proceedings, Mr Wilson effectively closed his case. A party cannot turn his back on the Court and expect that the proceedings will remain permanently in limbo without any final determination. 51 Mr Green addressed me on the evidence and I have reached a view on the matters which he has put to me. 52 It is plain on the evidence given by Mr Peter Wilson that Minters did not have access to the documents which were Exhibits 1A, 4A or 5A in the proceedings before Emmett J, that is to say, Minters did not have access in the Registry to the Work or to the photocopies of it. 53 It follows that Minters did not infringe Mr Wilson's copyright in the Work. This view is reinforced by the evidence given in Mr Mathieson's letter which I have set out at [22] above. 54 Mr Wilson's claim of copyright infringement apparently includes an allegation that Minters photocopied the Work. No particulars were supplied of this. Nor was there any evidence to support the allegation. 55 In any event, it follows from the finding which I have made that Minters did not have access to the Work in the Registry that they could not have photocopied it. 56 At the hearing, Mr Wilson did not pursue the allegation of breach of the order made by Emmett J on 26 March 2001. It is clear that even if there was access, which there was not, any such inspection would have been authorised by the express terms of the order. 57 Mr Wilson's substantial complaint was that Minters breached the obligation undertaken by them in their letter of 3 April 2001. It follows from what I have said that Minters did not breach this undertaking. 58 I note that Mr Wilson's case was that access took place at some time before 3 April 2001. It follows that even if there was access, which I have said there was not, Minters could not have breached an undertaking which was not given until after the date on which they are alleged to have inspected the Work. 59 As to the allegation of "tampering", I have examined Exhibit U carefully. It is a photocopy of the letter of 5 September 2000 to which I referred at [7]. The photocopy does not have an acknowledgment of receipt on it whereas the original letter does have an acknowledgment dated 7 September 2000. The reason for this is explained in [26] of Emmett J's judgment. 60 Exhibit U is a very poor photocopy of the letter of 5 September 2000. The only alteration to it is that two holes have been punched in the letter. I assume that this was done in order to place the photocopy document into a ringback folder. The holes did not remove any part of the text of the letter. 61 I find that the allegation of "tampering" with the letter is unjustified. 62 The allegations made by Mr Wilson in these proceedings are made against officers of the Court. They are very serious allegations. No explanation was ever offered as to why the named officers would have any reason for engaging in the alleged conduct. Serious allegations were also made, again without any explanation, against Registry staff. In my opinion, all of the allegations are without foundation. There is not, and never was, any basis for the claim. 63 Accordingly, I propose to dismiss the proceedings with costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.