Wride v Schulze

REASONS FOR JUDGMENT THE COURT: 1 These two applications for leave to appeal relate to the judgments of Lander J given on 23 March 2004 in the connected matters S175 of 2002 and S176 of 2002. By the notices of motion filed on 30 March 2004 the applicant ("Mr Wride") seeks leave to appeal the decisions of Lander J. On the hearing of the applications, the parties in S 50 of 2004 consented to the substitution of the Commonwealth of Australia for IP Australia, as the proper description of the respondent. 2 On 23 April 2004 Finn J ordered that the applications for leave to appeal in S49 of 2004 (the "patent attorney proceeding") and S50 of 2004 (the "IP proceeding") be heard by a Full Court. 3 The matters have continued to be heard together due to the similarity of the issues raised in the proceedings. 4 By the original application filed in the patent attorney proceeding on 19 July 2002, Mr Wride claimed: '1. Compensation for loss of income from patent rights that were fraudulently taken away from the inventor, DC Wride, by his patent agents Mr JC Schmidt and Mr GE Habel in collusion with the Australian Patent Office who the commissioner at that time was Mr KB Petersson, who in turn were in collusion with the Federal Liberal Party and government. 2. All monies paid, for patents and services over this whole period of time, reimbursed to the inventor.' 5 The original application filed in the IP proceeding was in substantially the same terms. 6 The proceedings were initially heard together in the Federal Court where it was held that the Court did not have jurisdiction to entertain the proceedings. On an appeal to the Full Court, the parties consented to the Court setting aside the orders of the single judge and remitting the matters for hearing. 7 On 2 December 2003 the respondents in the patent attorney proceeding filed a notice of motion seeking an order dismissing the applicant's application on the grounds that no reasonable cause of action had been disclosed: see O 20 r 2(1)(a) of the Federal Court Rules. The respondent in the IP proceeding filed a notice of motion in the same terms on 27 November 2003. Each notice of motion also sought that the respective amended statements of claim filed 17 November 2003 be struck out pursuant to O 11 r 16 of the Federal Court Rules. 8 The amended statements of claim filed in each matter on 17 November 2003 are eighteen pages long. Each statement of claim has attached a twenty-five page section entitled "Story" which outlines Mr Wride's 'story of forty years of inventing, and trying to succeed in what [he] did.' 9 The applicant's pleadings are summarised in detail in the judgment of Lander J at pars 23-33: 'The applicant has pleaded that in 1950 Thomas Playford, the then Premier ofSouth Australia, abused his public office and engaged in a conspiracy with the applicant's uncle and the applicant's cousin to illegally acquire a property apparently in the estate of the applicant's father. It is not possible to understand how this matter is relevant to any claim against the respondents but the statement of claim suggested that particular matter "was only the beginning of the harassment and continuous monitoring and destroying of the Wride family of WG Wride as that government assessed them to be uneducated fools"… Next, it is pleaded that Sir Robert Menzies' government "went into collusion" with Sir Thomas Playford to destroy the applicant and to prevent the Australian people from knowing that they were using the applicant's inventions. To that end, it is claimed that Sir Robert Menzies used "his Patent Office and its commissioner, Dr KB Petersson, to steal the inventions of the inventor DC Wride and destroy others so he would never be known as a true inventor." Next, it is pleaded that in doing so "the breached the Patents Act of 1952 and 1990". It is complained that the breach arose by the Commissioner giving the applicant bogus provisional patents for two of his inventions in July 1965. He claims that his patent attorneys had a conflict of interest and, moreover, conspired with the State and Federal governments and lied to the applicant about the patentability of his inventions. It is pleaded that another person benefited by reason of the conspiracy. Next, it is claimed that "Gillette" stole his patent for a twin-blade razor. … Next, he claims that in 1969 he invented a new type of power hacksaw and obtained a provisional patent in respect of it but that it was allowed to lapse. I think it is alleged that occurred by reason of the default of his attorneys. … Next, he claims that the patent office involved itself with "premeditated fraud" which gave rise to his razor designs being stolen. He claims that he was a victim of fraud in relation to the patenting of a hydraulic jack which he invented. He claims that he invented a retractable light tower which should have been used at the Adelaide Oval but his invention was refused by the Lord Mayor. He claims that to be a conspiracy to defraud to "keep the public from knowing the full potential of the inventor DC Wride". He details other claims which he said arose out of the failure of the patent office to deal with his applications appropriately. He claims that he has been the victim of a widespread conspiracy which included as conspirators the State and Federal Liberal Parties and the State and Federal governments, patent attorneys and IP Australia.' 10 The amended statements of claim fail to comply with O 11 of the Federal Court Rules in several material respects. Lander J identified the failure of the statements of claim to be divided into paragraphs: O 11 r 1(a); the failure of the matters to be pleaded in separate paragraphs: O 11 r 1(b); the failure of the paragraphs to be numbered: O 11 r 1(c); the failure of the statements of claim to comprise of only material facts: O 11 r 2(a); the failure of the statements of claim to be drafted briefly: O 11 r 3; and the failure of matters to be appropriately particularised: O 11 r 10. 11 The statements of claim also make allegations against non-parties to the proceedings. 12 On 23 March 2004 Lander J ordered in each matter that: '1. Pursuant to Order 11 rule 16 the amended statement of claim is struck out. 2. Pursuant to Order 20 rule 2 the applicant's application is dismissed. 3. The applicant pay the respondent's costs including the costs ordered by the Full Court to be costs in the cause.' 13 At par 45 of Lander J's reasons his Honour said: 'In my opinion, there is no possibility that Mr Wride can identify a cause of action on the material presently before me without the assistance of a legal practitioner. I am also satisfied that upon the material before me no cause of action could be identified by a legal practitioner.' 14 In his affidavits filed 30 March 2004 supporting the notices of motion of the same date, the applicant said 'that the ruling of Justice Landers, that there was no case to answer, a miscarriage of justice.' In an attached statement the applicant set out his grounds for complaint. In summary they are: (1) the ruling of Lander J that there was no case to answer constitutes a miscarriage of justice; (2) the affidavit and evidence of Mr David Herald, Deputy Commissioner of Patents, was not relevant to the case as the patent documents did not carry the copy certification stamp of the Patent Office; (3) all documents displayed by the respondent's lawyer should be signed by an officer of the Patent Office; (4) the respondent's lawyers were not technical lawyers and would not understand and evaluate what was explained to them; (5) Lander J did not understand what the applicant explained to him, namely that the applicant could not obtain a lawyer as no lawyer would take the applicant's case. 15 Pursuant to s 24(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act") an appeal lies from the judgment of a single judge to the Full Court. However, where the judgment is interlocutory in nature that appeal may proceed only with leave of the Court or a judge: s 24(1A) of the Act. 16 The test for finality of a decision was articulated by Lee and Cooper JJ in Meredith v Commissioner of Taxation (2002) 192 ALR 418 at 425 as being: 'whether the judgment or order as made finally disposes of the rights of the parties to the proceedings in relation to the issues presented for decision in them.' Their Honours further held that: '[i]t is the legal effect of the order, and not its practical effect, which is relevant to the issue of whether or not proceedings are finally determined between the parties.' 17 In Re Luck (2003) 203 ALR 1 at 4 per McHugh ACJ, Gummow and Heydon JJ: 'An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.' 18 See also the comments of Gibbs CJ in Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248. 19 The decision of Lander J is interlocutory in nature. The orders do not preclude the applicant from bringing an application disclosing a cause of action that the applicant says exists but is currently not decipherable from the papers. 20 As earlier noted, Finn J ordered on 23 April 2004 that the applications for leave to appeal be heard by a Full Court. The applicant has complied with the requirements of O 52 r 10(2) of the Federal Court Rules in filing the notices of motion. 21 The bringing, hearing and determination of an application for leave to appeal is within the Court's appellate jurisdiction: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 432. 22 In the Full Court decision of Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 104 ALR 165 French J outlined the policy considerations behind the requirement for leave following interlocutory orders. His Honour said at 176 : 'The leave requirement for appeals from interlocutory decisions reflects a policy of restraint on the part of the court in the discharge of its appellate functions with respect to the decisions of its judges taken in the exercise of original jurisdiction regulating the preparation and progress of matters for trial.' French J continued at 176-177: '[e]ven when leave is granted, the court on appeal will not in such a case interfere with the exercise of judicial discretion unless it is satisfied that there has been some error of law or logic or some unfairness which is either apparent on the face of the reasons or implicit in an unreasonable result: Squire v Rogers (1979) 27 ALR 330 at 337-8; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200 at 206.' 23 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ said at 128-129: 'the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.' The Chief Justice later said at 130: '... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' 24 Mr Wride appears on his own behalf and drafted his claims in the primary proceedings without the benefit of legal assistance. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Kirby P (as he then was) said at 537: '... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out ...' 25 In Dare v Pulham (1982) 148 CLR 658 at 664, the High Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) identified the requirements of pleadings and said: 'Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq) (1916) 22 C.L.R. 490, at p. 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron (1936) 54 C.L.R. 572, at pp. 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 C.L.R., at pp. 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) L.R. 25 Ind. App. 195, at p. 207).' Further, the pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A "reasonable cause of action" for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant. 26 In National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514, Lindgren J said at 529: 'In Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (13 September 1994, Fed C, unreported) Beaumont J quoted with approval the following summary of the general principles governing strike-out applications (at 24, from the editorial note at (1992) 66 ALJ 47 on Lonrho plc v Tebbitt, The Times, 24 September 1991): "(1) A 'reasonable cause of action' means one with some chance of success if regard be had only to the allegations in the pleadings relied upon by the claimant; in such a case, the claim cannot be struck out: Davey v Bentinck [1893] 1 QB 185. (2) The mere fact that the case appears to be a weak one is not of itself sufficient to justify the striking out of the action: cf Wenlock v Moloney [1965] 1 WLR 1238. (3) Normally, the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect: cf Hodson v Pare [1899] 1 QB 455. (4) It goes without saying that if a substantial case is involved in the claim, the power to strike out cannot be exercised. (5) Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point: cf Williams & Humbert v W & H Trade Marks [1986] AC 368.' Lindgren J continued at 529: 'For recent House of Lords authority for proposition (3) above see Lonrho plc v Fayed [1992] AC 448 (HL) at 469 (Lord Bridge, with whom all other members of the House agreed). I accept that this statement summarises some of the general principles applicable.' 27 The submissions of the respondent in the IP proceedings particularise the deficiencies in the amended statement of claim filed by the applicant as being: 'a. does not comply with the Federal Court Order 12 Rules 1 to 4 relating to pleadings; b. is vague and unintelligible, failing to particularise any of the allegations, causing embarrassment to the respondent; c. fails to state the material facts upon which the claim is based; d. fails to identify with any clarity the inventions the subject of the claim nor the material facts supporting the broad allegation of conspiracy over a forty-year period nor provisions of any legislation said to have been breached by the respondent nor any duty owed by the respondent to the appellant, precise breaches of such duties and when those breaches are alleged to have occurred; e. fails to provide particulars which might give substance to any cause of action which might have shown that there was any real and genuine controversy to be tried; f. is confusing , does not make sense, is vague and unfocussed; g. does not plead an extension of time which appears to be a further defect; h. the respondent, IP Australia, is not a statutory body but only an office within the Commonwealth of Australia and a division of the Department of Industry, Tourism and Resources… i. fails to take into account that neither IP Australia nor the Commonwealth can be vicariously liable for the acts of an agent or a servant who enter into a tort of conspiracy as such acts would be clearly outside their scope of employment… j. fails to make it clear whether the claim is for fraud and, if so, it is not clear what the fraud is and how said fraud leads to any loss to the appellant; k. fails to specify what damages are claimed.' 28 The amended statements of claim filed by the applicant fail to disclose any reasonable cause of action. Lander J undertook a careful consideration of the merits of the applicant's case given his self-representation and the applicant's obvious misunderstanding of correct Court procedures. His Honour found at par 45 of his reasons that, looking beyond the form of the pleadings to the facts alleged by the applicant, he was 'satisfied that … no cause of action could be identified by a legal practitioner.' 29 It is clear that the applicant feels passionately about the injustices that he perceives and the ongoing conspiracy that he asserts is aimed at destroying his career as an inventor. 30 The written submissions of Mr Wride on this application include the following: 'From June 1965 to August 12th 1971 the Commonwealth Patent Office was flawed by Prime Minister Robert Menzies, Prime Minister John Gorton and Prime Minister William McMahon. It was set up to destroy the Inventor D.C.Wride and steal his Razor inventions. … Prime Minister Robert Menzies flawed the Patent Office. Breached the Patents Acts of 1952-1990 and the Inventor D.C. Wride was never going to be allowed to succeed in his life as an Inventor. I would like to say to the court, in my request to reinstate my case, that this has been a very difficult case. … Or everything remained covered up and the perpetrators survive. It does not seem to me to be a suitable solution, when the country is decaying with conspirators and blackmailers, supreme. … I, have been manipulated, and my work destroyed by the Patent Office and its many Commissioners, and G.E. Habel and J.E. Schmidt conspirators. To save the Liberal Government and Parties of Australia. I would like the Court to reinstate my case for trial to finalise this traumatic tragedy for the good of this country. So it can get on track to progress in its own right. 31 The applicant has had, since the first issuing of his applications on 19 July 2002, both time and opportunity to plead his case but there appears no prospect of his achieving a proper pleading. Consequently, in the circumstances, his application ought to be brought to an end: Munnings v Australian Government Solicitor (1994) 120 ALR 586 at 589. 32 There is simply no basis for thinking that any error attends the assessment by Lander J of the extensive information provided by the applicant to the Court. 33 There is no utility in granting leave to appeal the interlocutory decisions of Lander J.