Wilson v Alexander

The court 1 There is before the Court an application for an extension of time to file and serve a notice of appeal dated and filed 5 June 2003 against orders of the primary judge made on 12 March 2003 dismissing the applicant's application, ordering him to pay the respondents' costs and providing for the return of exhibits within 28 days unless an appeal was filed: Wilson v Alexander [2003] FCA 183. 2 The respondents have treated the application as one which also seeks leave to appeal to this Court from orders made by the primary judge on the previous day, 11 March 2003, by which the primary judge refused an adjournment application made by the applicant: Wilson v Alexander [2003] FCA 240. 3 Notwithstanding the limited terms of the application for an extension of time prepared and filed by the applicant it is appropriate that the respondents treated the application in that fashion and that the Court do likewise. The applicant is unrepresented. 4 To understand the matters with which the primary judge was dealing a little history of the proceedings is necessary. In January 2001 the applicant commenced proceedings against the Australian Copyright Council. These proceedings were heard by Emmett J on 20 and 23 March 2001. His Honour delivered judgment on 23 March 2001. His Honour dismissed the application of the applicant with costs. The primary judge explained succinctly in [4] to [12] of his reasons the nature of the proceedings before Emmett J. These paragraphs of the primary judge's reasons were as follows: [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. 5 The applicant brought an appeal within time against the judgment of Emmett J. A Full Court heard this appeal on 13 August 2001 and dismissed it with costs. 6 On 5 November 2002 the High Court (Gaudron J and Kirby J) refused an application by the applicant for an extension of time in which to file an application for special leave to appeal to the High Court. 7 On 21 January 2002 the applicant commenced these proceedings against Minter Ellison. Mr Alexander is a partner of that firm of solicitors. 8 The application against Minter Ellison sought a variety of orders. Read with the statement of claim it would appear that the applicant was alleging that Minter Ellison breached the applicant's copyright, covered that wrong up with misleading statements in which officers of this Court were apparently said to have participated, that Minter Ellison tampered with exhibits filed in this Court and that Minter Ellison contravened an order made under s 50 of the Federal Court of Australia Act 1976 (Cth). 9 The matter came on for directions on 7 June 2002 before the Duty Judge who happened to be Emmett J. Emmett J referred the matter to the primary judge to be heard on 14 August 2002. The matter was adjourned and commenced on 7 November 2002. On that day, the applicant, arguably, withdrew the allegations of breach by Minter Ellison of the order made under s 50 of the Federal Court of Australia Act 1976. The matter also proceeded on the following day, but at the end of the day remained part heard. His Honour stood the matter over to 11 March 2003 for further hearing. 10 On this day, 11 March 2003, the applicant made an application for an adjournment which was refused by the primary judge. The primary judge's reasons were delivered ex tempore and, in a settled form, were published on 24 March 2003. His Honour's reasons for refusing the adjournment were set out in the settled reasons. In substance, they were as follows: (a) The appeal against a Legal Aid Commission decision that it was not satisfied that the requirements laid down by the Commonwealth for legal aid for civil matters were met was not a reason for granting an adjournment of a part heard matter stood over for many months to enable whatever steps needed to be taken by the applicant in order to have the matter ready for hearing. (b) It was inappropriate to grant an adjournment on the ground of seeking legal assistance. The matter of legal assistance was raised by the applicant in September or October 2002 and the question of legal aid was apparently raised then. It was too late to be requesting the Court to adjourn part heard proceedings which were stood over for a lengthy period to enable the applicant to prepare for the hearing. (c) The applicant conducted the hearing for two days in person on 7 and 8 November. (d) On 8 November 2002 the primary judge, when listing the matter for hearing, 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. (e) The primary judge expressed the view that he was not bound by s 57 of the Legal Aid Commission Act 1979 (NSW). However his Honour said that he took into account the considerations raised in that provision. (f) The primary judge concluded that it was evident to him that the circumstances in which the application for legal aid was made gave rise to an inference that the applicant's purpose in seeking legal aid so late in the course of the proceedings was improperly to hinder or improperly to delay the conduct of the proceedings before him. 11 His Honour's settled reasons contained material which he did not utter when orally expressing them, being the matters referred to in (e) and (f) above. Given what appears to have been the unsettling nature of the hearing on the day, we see no bar to the judge adding material which in fact bore on the primary judge's decision in question at the time, but through the exigencies of the moment, were left out. 12 Section 57 of the Legal Aid Commission Act was in the following terms: Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so,