Berger, in the matter of Berger

[2003] FCA 381

FEDERAL COURT OF AUSTRALIA

Berger, in the matter of Berger [2003] FCA 381

ABUSE OF PROCESS – Order 46 rule 7A of the Federal Court Rules – leave to file refused.

IN THE MATTER OF SANDOR BERGER; SANDOR BERGER
N 502 of 2003

ALLSOP J
30 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 502 of 2003

SANDOR BERGER APPLICANT
JUDGE:	ALLSOP J
DATE OF ORDER:	30 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.That leave to file the application and statement of claim in the form presented to Allsop J on 10 April 2003 be refused.

THE COURT DIRECTS THAT:

2.A photocopy be made of the applicant’s documentation being the “application”, “statement of claim” and later supporting letter and retained on the file for record purposes.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 502 of 2003

SANDOR BERGER
APPLICANT

JUDGE:	ALLSOP J
DATE:	30 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 1 April 2003 Mr Sandor Berger, to whom I will refer as the applicant attempted to file in the Registry an application and statement of claim.  The Deputy Registrar took the view that the documents should not be accepted for filing.  In doing so reliance was placed on Order 46 Rule 7A of the Federal Court Rules which states as follows:

   If a document presented to a Registrar in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him –

   (a)to accept or issue it; or

   (b)to refuse to accept or issue it; or

   (c)to refuse to accept or issue it without the leave of a Judge first had and obtained.

2. Thereafter the matter was referred to Sackville J who on 3 April 2003 directed the Registrar:

   To refuse to accept or issue it without the leave of a Judge first had and obtained.

3. Thereafter, on 10 April 2003 the applicant presented for filing an application and statement of claim.  Leave is sought from me to permit the Registrar to accept the document and for the document to be filed and for the proceedings to commence.

4. I marked the application and statement of claim “MFI 1”.  This was a marking of the application and the statement of claim.  I have reviewed the documents.  It is unclear who the proposed respondents are.  They are listed in the statement of claim as:

   MacDonald; Futura; Omega; Warner; (Little Brown & Company U.K.) Northern Songs Limited; Wise Publications; (and Ray Connolly) Music Sales Pty Ltd, John & Yoko; EMI (BAG) USA and United Kingdom; and Sony ATV Songs LLC.

5. The statement of claim is largely handwritten.  Dispersed amongst the handwriting are various photocopies of material.  As best as I can understand it there appears to be a claim that many well known songs such as “Give Peace A Chance” and other material were written by the applicant.  It is difficult to understand precisely what the claim is given the, I am forced to say, incoherent nature of the documentation.

6. The documentation is in no sense a statement of claim.  It is a collection of handwritten or typed material that may or may not contain within it the basis of some viable application.  However, I cannot discover any such basis and in its current form it would be an abuse to allow the matter to proceed.  I refuse leave to file the application. 

7. The original document, should be returned to Mr Berger.  However, I will direct that a photocopy of the documentation be made and retained on the file for record purposes.

8. My Associate has received a letter from the applicant which I have stapled and read.  I have marked it and the envelope “MFI 2” and “MFI 3” respectively.  I do not propose to set out in detail the content of that letter.  It does not address the patent deficiencies of the applicant’s “application” and “statement of claim”.

9. The orders of the Court will be:

   1.That leave to file the application and statement of claim in the form presented to Allsop J on 10 April 2003 be refused.

   The Court directs:

   2.That a photocopy be made of the applicant’s documentation, being the “application” “statement of claim” and supporting letter and retained on the file for record purposes.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             30 April 2003

The applicant appeared in person
No appearance by the respondent
Date of Hearing:	10 April 2003
Date of Judgment:	30 April 2003