Francis v Allen and Unwin (No 2)

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FEDERAL COURT OF AUSTRALIA

Francis v Allen & Unwin (No 2) [2015] FCA 229

Citation: Francis v Allen & Unwin (No 2) [2015] FCA 229
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: 16 March 2015
Catchwords: COSTS ‑  proceeding discontinued at applicant’s request after she was served with compelling evidence going to the factual dispute at the heart of the proceeding – whether applicant should pay respondents’ costs – where evidence could have been given to the applicant earlier  – Federal Court Rules 2011 (Cth), r 26.12(7)
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N(1)
Federal Court Rules 2011 (Cth) r 26.12
Cases cited: Armstrong v Australian Community Pharmacy Authority [2012] FCA 577
Francis v Allen & Unwin [2014] FCA 1027
Inground Constructions Pty Limited v Federal Commissioner of Taxation (1994) 27 ATR 513; (1994) 94 ATC ¶4046
Lo v Australian Community Pharmacy Authority [2013] FCA 639
O’Neill v Mann [2000] FCA 1680
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Wotton v Queensland (2009) 109 ALD 534; [2009] FCA 758
Date of hearing: Heard on the papers
Date of last submissions: 17 December 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 38
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the First, Second, Fifth and Sixth Respondents: Mr P Banki of Banki Haddock Fiora
Counsel for the Fourth Respondent: The Fourth Respondent did not appear

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:

16 MARCH 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The applicant pay the respondents’ costs up to and including 27 October 2014.

2.Thereafter there be no order as to 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:

16 MARCH 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. In this proceeding the applicant, Janette Francis, alleged that the publisher and the authors of a book had infringed her copyright and moral rights in a photograph published in the book.  Ms Francis claimed that the photograph was of herself, aged about 27, which she had taken in a photo booth and for which she had posed.  In short, it was her artistic work. 

  2. The book was entitled “Brothers in Arms: The inside story of two…

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Details
Case
[2015] FCA 229
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Francis v Allen and Unwin (No 2) involved a dispute between the applicant, Ms Francis, and the respondents, Allen & Unwin, Lindsay Simpson, and Rex and Lorraine Walters. The primary issue at hand was the question of costs, specifically whether Ms Francis should be ordered to pay the respondents' costs after she voluntarily discontinued the proceedings. The dispute arose from a previous case where Ms Francis alleged that a photograph in a book published by Allen & Unwin depicted her, a claim the respondents denied, asserting that it was a photograph of Mr Walters' daughter. After an initial application for summary judgment was dismissed, Ms Francis applied for and was granted leave to discontinue the proceedings.

The legal issues before the court were centered on the appropriate allocation of costs following the discontinuation of the proceedings by the applicant. The court had to consider whether the applicant's decision to discontinue the case warranted an order for her to pay the respondents' costs. The Federal Court Rules 2011, particularly rule 26.12(7), were relevant to the court's determination. The court examined whether the evidence provided by the respondents was compelling enough to be disclosed to the applicant earlier and whether the applicant could have been expected to respond differently if she had received this evidence in a timely manner.

The court reasoned that while the applicant had the right to discontinue the proceedings, the fact that she was served with compelling evidence going to the factual dispute at the heart of the proceeding should be considered. The court held that the evidence provided by the respondents was significant enough to potentially alter the outcome of the case. Given that Ms Francis had the opportunity to review this evidence and chose to discontinue the proceedings, the court determined that it was appropriate to order her to pay the respondents' costs up to the date of discontinuation. The court also noted that there would be no order as to costs incurred after the discontinuation date.

The final orders of the court were that the applicant, Ms Francis, pay the respondents' costs up to and including 27 October 2014. No order was made regarding costs incurred after that date.

Orders

Orders of the court

1. The applicant pay the respondents’ costs up to and including 27 October 2014.

2. Thereafter there be no order as to costs.

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

Background

Background to the litigation

On 18 July 2014, the respondents applied for summary judgment. I dismissed that application on 22 September 2014 (Francis v Allen & Unwin [2014] FCA 1027) and arranged for Ms Francis to receive legal assistance but Ms Francis sacked the lawyer who had agreed to act for her. I also made orders for the parties to file their evidence for the trial of the action. After the respondents filed their evidence, Ms Francis applied for leave to discontinue the proceeding. Leave was granted, but there is a dispute about costs. The respondents seek an order that Ms Francis pay their costs. Ms Francis submits that such an order should not be made.The background to the present application The originating application was filed on 1 April 2014. It was accompanied by a statement of claim. A joint defence was filed by Allen & Unwin, Lindsay Simpson and Rex and Lorraine Walters. An earlier attempt by Ms Francis to sue Allen & Unwin in the South Australian Supreme Court was summarily dismissed. The substantive issue on the question of liability in the present proceeding was whether the photograph in question was a photograph of Ms Francis as she alleged or a photograph of Mr Walters’ daughter, as the respondents maintained. Before the pleadings closed, the respondents filed an interlocutory application seeking to have this proceeding summarily dismissed also. The basis of that application was that there were no reasonable prospects of success because, as the respondents put it in their submissions:The allegation that the Photograph depicts [Ms Francis] is fanciful, implausible and improbable and contrary to all available material. The likelihood of [Ms Francis] proving the contention on the balance of probabilities at trial is non-existent. In the absence of the allegation, [Ms Francis’s] pleaded case falls away. I held otherwise, dismissing the interlocutory application. In short, I did so because on the material tendered by both parties, I was not persuaded that Ms Francis’s allegation was fanciful or implausible, even if it might have been improbable. The mere fact that an allegation might be improbable is a manifestly insufficient basis for summary dismissal. After referring to the evidence upon which Ms Francis relied I said (at [22]):Against that, all the respondents offer is hearsay and innuendo. While hearsay evidence is admissible on an interlocutory application (Evidence Act 1995 (Cth), s 75), it is generally entitled to less weight than direct evidence. It was open to the respondents to proffer sworn evidence from Mr Walters but they elected, without explanation, not to do so. I do not doubt for present purposes that Mr Walters honestly believes that the photograph is a photograph of his daughter but the statement attributed to Mr Walters is a bare assertion. Without more, it is insufficient to persuade me that it renders Ms Francis’s case fanciful, frivolous or vexatious. The fact that he instructed lawyers to bring this application may speak to the genuineness of his belief but no more than that. That the authors of the book expressed gratitude for Mr Walters’ (scil.) assistance tells us nothing about the subject matter of the photograph. The source of the photograph is not said to be Mr Walters. That Mr Walters attended the launch of the book and kept a copy of it sheds no further light on the matter.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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