Bouvet v Silverstream Film Management
[2001] FCA 1822
•14 DECEMBER 2001
Bouvet v Silverstream Film Management [2001] FCA 1822
Courts
Bouvet v Silverstream Film Management [2001] FCA 1822
COURTS - practice and procedure - dismissal of proceeding on ground that pleadings do not disclose a reasonable cause of action
Rules of the Federal Court O 20 r 2
Dunn v Australian Society of Certified Practising Accountants (1998) 29 ACSR 1 - cited
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 - cited
ROBERT J BOUVET v SILVERSTREAM FILM MANAGEMENT PTY LTD & ORS
V 682 of 2001
JUDGE: MERKEL J
DATE: 14 DECEMBER 2001
PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V682 OF 2001
BETWEEN: ROBERT J BOUVET APPLICANT
AND: SILVERSTREAM FILM MANAGEMENT PTY LTD (ACN 079 054 630)
FIRST RESPONDENT
BANGALOW PRODUCTIONS (AUSTRALIA) PTY LTD (ACN 093 103 907)
SECOND RESPONDENT
RIMFIRE FILMS PTY LTD
(ACN 002 914 276)
THIRD RESPONDENT
JUDGE: MERKEL J DATE OF ORDER: 14 DECEMBER 2001 WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
2. The applicant pay the respondents' taxed costs of and incidental to the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V682 OF 2001
BETWEEN: ROBERT J BOUVET APPLICANT
AND: SILVERSTREAM FILM MANAGEMENT PTY LTD (ACN 079 054 630)
FIRST RESPONDENT
BANGALOW PRODUCTIONS (AUSTRALIA) PTY LTD (ACN 093 103 907)
SECOND RESPONDENT
RIMFIRE FILMS PTY LTD
(ACN 002 914 276)
THIRD RESPONDENT
JUDGE: MERKEL J DATE: 14 DECEMBER 2001 PLACE: MELBOURNE
REASONS FOR JUDGMENT
1 On 25 June 2001 the applicant filed in the Court an Application and Statement of Claim. The Application and the Statement of Claim were drawn by the applicant, who is a lay person and is not legally represented. The applicant also filed an affidavit in support of the Application and the Statement of Claim. On 9 July 2001 the respondents filed a Notice of Motion seeking that the Application and the Statement of Claim be struck out.
2 The Motion came before the Court on 20 July 2001. The applicant represented himself. I explained to the applicant that his Application and Statement of Claim did not comply with the rules of pleading, that his pleadings failed to set out with any clarity his cause of action against the respondents and the pleadings were liable to be struck out under O 11 r 16 or O 20 r 2 of the Court. I indicated that I proposed to give the applicant a second opportunity to replead his claim but informed him that the nature of the claim was such that he should seek some legal assistance in formulating it. I ordered that the Statement of Claim dated 25 June 2001 be struck out but granted the applicant leave to apply to file an Amended Statement of Claim and also to apply for leave to amend the Application which application was to be made by 7 September 2001.
3 On 3 September 2000 the applicant filed an amended version of the Application and a proposed Amended Statement of Claim and a Motion seeking leave to file those documents.
4 When the matter was returned before me on 14 September the applicant again represented himself. The respondents opposed the grant of leave on the basis that the proposed Amended Application and the proposed Amended Statement of Claim still suffered from the same defects as the earlier pleadings and were also liable to be struck out under O 11 r 16 and O 20 r 2. I indicated to the applicant that the respondents' submissions appeared to be correct and that his documents still suffered from the same fundamental defects as his earlier documents. I indicated that I would not grant the leave sought by the applicant but would allow him a further opportunity to file documents that comply with the Rules of Court. I also informed the applicant that this third opportunity may be the last opportunity afforded to him.
5 The applicant has served a further Notice of Motion filed 28 November 2001 together with a number of other documents, including a further draft Amended Statement of Claim and a further proposed Amended Application. The application for leave to file and rely upon the further Amended Application and the further Amended Statement of Claim came on before me today. It was opposed by the respondents who filed detailed written submissions on 6 December 2001.
6 The submissions of the respondents as to why the proceeding ought now to be dismissed or stayed can be summarised as follows:
* leave to amend should be refused because the proposed amended pleading does not disclose any reasonable cause of action;
* leave should be refused because each of the paragraphs offends against the rules relating to pleading (in the manner set out in a schedule to the submissions) but, in particular, there was a failure to plead material facts, there was a pleading of evidence, there was a pleading of conclusions, there was no particularity, and the pleading was embarrassing;
* the fact that the applicant is a litigant in person does not relieve him from the obligation to comply with the rules relating to pleading but, in particular, to plead a case that discloses a reasonable cause of action.
7 In the course of the hearing before me today I sought to obtain from the applicant the substance of his complaint against the respondents. It seemed that he was claiming to be the owner of copyright in an original manuscript or tape recording of the story of Crocodile Dundee and that he was claiming that the respondents' involvement in the making of the film Crocodile Dundee infringed his copyright. Yet the applicant appeared at one stage to say that was part of his claim but then later disavowed that claim saying that ultimately his claim was to royalties and that the respondents (or one of them) were obliged to consent to payment of royalties to him. However, the pleading fails to outline what cause of action arises in respect of royalties and why that cause of action can be brought against any of the respondents.
8 The applicant sought to rely upon his affidavits to explain his pleadings. I indicated that at this stage I was dealing with the matter on the basis of his Application and Statement of Claim as my primary concern was to be satisfied that there was a reasonable cause of action which is maintainable by him in the Court. Although the applicant was given ample opportunity to address me on the cause of action he was seeking to raise, in the result his explanations failed to make clear what cause of action was being claimed against the three respondents and on what basis he was entitled to relief against those respondents.
9 In Dunn v Australian Society of Certified Practising Accountants (1998) 29 ACSR 1 at 4 Burchett J said:
"...as the High Court...stated in Munnings v Australian Government Solicitor (No 2) (1994) 120 ALR 586 at 589:`[A]lthough the plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end (for example, Robertson v Commonwealth of Australia, High Court of Australia, 3 September 1985, unreported)'"
10 I accept, as was stated by Lindgren J in National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 that the power to strike out should be exercised sparingly and only in plain and obvious cases, that the mere fact that the case may be a weak one is not itself sufficient to justify the striking out, and that 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.
11 I have had regard to the above statements and also to the fact that the applicant is unrepresented and is seeking to raise before the Court issues that seem to be attended by some complexity. However, it is incumbent upon the applicant in his pleadings to outline material facts which raise a reasonable cause of action against the respondents. The applicant has had three opportunities to do so but in my view he has still failed to plead a reasonable cause of action or to comply with the rules of pleading.
12 On the last occasion I was reluctant to stay or dismiss this proceeding as was sought by the respondents and decided to give the applicant a further opportunity to get his pleadings into a form that raised a reasonable cause of action which was maintainable in the Court. He has failed to do so.
13 In considering whether I should now stay or dismiss the proceeding under O 20 r 2 I have considered whether I should permit the applicant a further opportunity to plead his cause of action. However, I am not satisfied, having given the applicant ample opportunity to remedy his pleadings, that any further amended pleading is likely to overcome the defects that have beset his pleadings to date.
14 In the circumstances I am satisfied that the present case is one in which O 20 r 2 applies in relation to the proceeding generally as no reasonable cause of action is disclosed, the proceeding appears to be frivolous and vexatious, and is an abuse of the process of the Court. It is unnecessary for me to outline all the details as to why I have arrived at that conclusion other than to say that the submissions of the respondents which detailed their criticisms of the pleading are, in my view, to be accepted.
15 In all the circumstances I propose to exercise my discretion to dismiss the proceeding with costs. I order that the proceeding be dismissed and that the applicant pay the respondents' taxed costs of and incidental to the proceeding.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.
Associate:
Dated: 21 December 2001
#DATE 14:12:2001
For the Applicant: Appeared in person Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 14 December 2001 Date of Judgment: 14 December 2001
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