Hill v Lang

[2010] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HILL v LANG [2010] FMCA 40

COPYRIGHT – Proceedings summarily dismissed on the basis of no reasonable chance of success.

Federal Magistrates Act 1999 (Cth), s.17A
Federal Magistrates Court Rules 2001 (Cth), r.13.10
Copyright Act 1968 (Cth), s.98(3)

Rana v Libraries Board of South Australia & Ors [2008] FMCA 911

Applicant: BRENTON HILL

Respondent: FRANK LANG

File Number: ADG 100 of 2009

Judgment of: Simpson FM

Hearing date: 4 November 2009

Date of Last Submission: 4 November 2009

Delivered at: Adelaide

Delivered on: 28 January 2010

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondent: Self-represented

ORDERS

1. These proceedings be dismissed pursuant to section 17A of the Federal Magistrates Act 1999 (Cth).

2. The applicant pay the respondent’s costs of, and incidental to, the proceedings, such costs to be agreed between the parties within fourteen (14) days or, failing such agreement, referred to a Registrar of this Court to be taxed pursuant to Order 62 of the Federal Court Rules 1979 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 100 of 2009

BRENTON HILL

Applicant

And

FRANK LANG

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application by the respondent, Frank Lang, (“Mr Lang”) seeking that the application brought by the applicant, Brenton Hill, (“Mr Hill”) be summarily dismissed.  Neither party has had legal representation.

2. I have treated the respondent’s application as an application pursuant to s.17A of the Federal Magistrates Act 1999 (Cth) (“FM Act”) and rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”).

The legislative and legal background

1. In Rana v Libraries Board of South Australia & Ors[1], I had this to say on the summary dismissal provisions that apply in this Court:

   [1] [2008] FMCA 911

   23.Significant amendments were made to the summary judgment provision contained in the FM Act and FMC Rules that came into effect on 1 December 2005. Section 17A of the FM Act provides:

   (1)     …

   (2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)     the first party is defending the proceeding or that part of the proceeding; and

   (b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)     hopeless; or

   (b)     bound to fail;

   for it to have no reasonable prospect of success.

   (4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.

   Section 17A of the FM Act is to the same effect as s.31A of the Federal Court of Australia Act 1975 (Cth) (“FCA Act”) which also came into effect on 1 December 2005.

   24.Amendment was also made to the FMC Rules to reflect the change to the FM…