Francis v Allen and Unwin - [2014] FCA 1027

FEDERAL COURT OF AUSTRALIA
Francis v Allen & Unwin [2014] FCA 1027

Citation: Francis v Allen & Unwin [2014] FCA 1027

Parties: JANETTE GAIL FRANCIS v ALLEN & UNWIN PTY LIMITED, LINDSAY SIMPSON, PAMELA WALTERS, REX WALTERS and LORRAINE WALTERS

File number: NSD 339 of 2014

Judge: KATZMANN J

Date of judgment: 22 September 2014

Catchwords: PRACTICE AND PROCEDURE – application by respondents for summary judgment – whether applicant has reasonable prospect of successfully prosecuting the proceeding – claim of infringement of copyright and moral rights in artistic work – photograph – photograph alleged to be a self-portrait of the applicant – factual dispute about the identity of the subject – whether real issue of fact to be tried – whether applicant’s case that she is the subject of the photograph fanciful, frivolous, vexatious or an abuse of process – Federal Court of Australia Act 1976 (Cth), s 31A(2)

Legislation: Copyright Act 1968 (Cth) ss 10, 31, 31A, 35 , 36, 115, 189, 195AC, 195AI, 195AK, Division 6 of Part IX
Evidence Act 1995 (Cth), s 75
Federal Court of Australia Act 1976 (Cth) s 31A(2)

Cases cited: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Cachia v Hanes (1994) 179 CLR 403
George v Fletcher (Trustee) (No 2) [2010] FCAFC 71
George v Fletcher (Trustee) [2010] FCAFC 53
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Visscher v Teekay Shipping (Australia) Pty Limited (No 3) [2012] FCA 212

Date of hearing: 18 September 2014

Place: Sydney

Division: GENERAL

Category: Catchwords

Number of paragraphs: 28

Counsel for the Applicant: The Applicant appeared in person.

Counsel for the First, Second, Fifth and Sixth Respondents: Mr D Thomas

Solicitor for the First, Second, Fifth and Sixth Respondents: Banki Haddock Fiora

Counsel for the Fourth Respondent: No appearance.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 339 of 2014

BETWEEN:
JANETTE GAIL FRANCIS
Applicant

AND:
ALLEN & UNWIN PTY LIMITED
First Respondent

LINDSAY SIMPSON
Second Respondent

PAMELA WALTERS
Fourth Respondent

REX WALTERS
Fifth Respondent

LORRAINE WALTERS
Sixth Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

22 SEPTEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The interlocutory application filed by the first, second, fifth and sixth respondents on 18 July 2014 be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 339 of 2014

BETWEEN:
JANETTE GAIL FRANCIS
Applicant

AND:
ALLEN & UNWIN PTY LIMITED
First Respondent

LINDSAY SIMPSON
Second Respondent

PAMELA WALTERS
Fourth Respondent

REX WALTERS
Fifth Respondent

LORRAINE WALTERS
Sixth Respondent

JUDGE:

KATZMANN J

DATE:

22 SEPTEMBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On the first Sunday in September 1984 seven people were killed in a notorious shootout between two rival motorcycle gangs in the southwest of Sydney in what came to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 1027
Decision Date: 22 September 2014

CaseChat Overview and Summary

The matter involved a claim for infringement of copyright and moral rights in an artistic work, specifically a photograph. The plaintiff, Francis, alleged that the photograph in question was a self-portrait of hers, taken without her consent, and that the respondents had infringed her copyright and moral rights by publishing the photograph. The defendants, Allen and Unwin, along with several individuals, filed an interlocutory application for summary judgment, seeking to dismiss the plaintiff's claim on the basis that it had no reasonable prospect of success.

The central legal issue before the court was whether the plaintiff had a real prospect of successfully prosecuting her claim, given the factual dispute about the identity of the subject in the photograph. The court needed to determine if the plaintiff's case that she was the subject of the photograph was fanciful, frivolous, vexatious, or an abuse of process. The court also had to consider whether the dispute over the identity of the subject constituted a real issue of fact to be tried, or if the matter could be decided on the basis of the available evidence.

The court found that there was a genuine dispute about the identity of the subject in the photograph, and this constituted a real issue of fact that needed to be tried. The court held that the plaintiff's case was not fanciful, frivolous, vexatious, or an abuse of process, and that she had a reasonable prospect of successfully prosecuting her claim. The court dismissed the interlocutory application for summary judgment and ordered the respondents to pay the plaintiff's costs.

Orders

Orders of the court

1. The interlocutory application filed by the first, second, fifth and sixth respondents on 18 July 2014 be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Francis v Allen & Unwin [2014] FCA 1027
Parties:	JANETTE GAIL FRANCIS v ALLEN & UNWIN PTY LIMITED, LINDSAY SIMPSON, PAMELA WALTERS, REX WALTERS and LORRAINE WALTERS
File number:	NSD 339 of 2014
Judge:	KATZMANN J
Date of judgment:	22 September 2014
Catchwords:	PRACTICE AND PROCEDURE – application by respondents for summary judgment – whether applicant has reasonable prospect of successfully prosecuting the proceeding – claim of infringement of copyright and moral rights in artistic work – photograph – photograph alleged to be a self-portrait of the applicant – factual dispute about the identity of the subject – whether real issue of fact to be tried – whether applicant’s case that she is the subject of the photograph fanciful, frivolous, vexatious or an abuse of process – Federal Court of Australia Act 1976 (Cth), s 31A(2)
Legislation:	Copyright Act 1968 (Cth) ss 10, 31, 31A, 35 , 36, 115, 189, 195AC, 195AI, 195AK, Division 6 of Part IX Evidence Act 1995 (Cth), s 75 Federal Court of Australia Act 1976 (Cth) s 31A(2)
Cases cited:	Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 Cachia v Hanes (1994) 179 CLR 403 George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 George v Fletcher (Trustee) [2010] FCAFC 53 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Visscher v Teekay Shipping (Australia) Pty Limited (No 3) [2012] FCA 212

Date of hearing:	18 September 2014
Place:	Sydney
Division:	GENERAL
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the First, Second, Fifth and Sixth Respondents:	Mr D Thomas
Solicitor for the First, Second, Fifth and Sixth Respondents:	Banki Haddock Fiora
Counsel for the Fourth Respondent:	No appearance.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 339 of 2014

JUDGE:	KATZMANN J
DATE OF ORDER:	22 SEPTEMBER 2014
WHERE MADE:	SYDNEY

JUDGE:	KATZMANN J
DATE:	22 SEPTEMBER 2014
PLACE:	SYDNEY