Hoser v Georges
[2023] FedCFamC2G 550
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Georges [2023] FedCFamC2G 550
File number(s): MLG 2313 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 27 June 2023 Catchwords: INTELLECTUAL PROPERTY – Copyright – moral rights – whether amended statement of claim should be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) – whether amended statement of claim is embarrassing – whether amended statement of claim contains immaterial and scandalous matter – whether amended statement of claim discloses a reasonable cause of action for infringement of asserted moral rights – amended statement of claim included immaterial, conclusory, and in some cases scandalous matter but otherwise intelligible to the extent it contains premises that without further submissions cannot be said not to disclose a reasonable cause of action – amended statement of claim struck out – matter listed for further directions. Legislation: Copyright Act 1968 (Cth) ss 13(1), 32, 36, 115, 189, 190, 193, 194, 195, 195AI, 195AJ, 195AO, 195AQ, 195AS
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06(3), 4.04(2)(b)
Federal Court Rules 2011 (Cth) rr 16.02, 16.21
Cases cited: Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591
Bruce v Odhams Press Ltd [1936] 1 KB 697
Crowley v WorleyParsons Ltd [2017] FCA 3
Guglielman v Trescowthick [2004] FCA 326
Gunns Ltd v Marr [2005] VSC 251
Hoser v Department of Sustainability and Environment [2014] VSCA 206
Letang v Cooper [1965] 1 QB 232
Nobarani v Mariconte [2018] HCA 36
Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192
Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986)
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Division: General Number of paragraphs: 54 Date of hearing: 7 March 2023 Place: Sydney The Applicant: Appeared in person, by video Counsel for the First and Seventh Respondents: Ms L Davis, by telephone Solicitor for the First and Seventh Respondents: Meridian Lawyers Solicitor for the Second, Third, Fourth, Fifth, and Eighth Respondents: Ms N Wilson of CIE Legal, by video Solicitor for the Sixth Respondent: Mr M Swinn of King & Wood Mallesons, by video ORDERS
MLG 2313 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAYMOND HOSER
Applicant
AND: ARTHUR GEORGES
First Respondent
PETER PAUL VAN DIJK
Second Respondent
ANDERS G. J. RHODIN (and others named in the Schedule)
Third Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
27 june 2023
THE COURT ORDERS THAT:
1.Pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) the amended statement of claim filed on 13 December 2022 is struck out.
2.The proceeding be listed for a directions hearing at 9:30 am on 18 July 2023, or at such other time and day as may be convenient to the parties and the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By an application in a proceeding filed on 14 February 2023 the respondents seek an order that the amended statement of claim filed on 13 December 2022 be struck out pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules); and an order, also pursuant to r 16.21 of the Federal Court Rules, that the originating application dated 15 October 2022 “be struck out”.
HOW APPLICATION ARISES
On 17 October 2022 the applicant, Mr Hoser, who is not legally represented, commenced a proceeding in this Court against eight respondents by filing an application and a statement of claim. The first, second, third, fourth, fifth, sixth, and eighth respondents are members of the “Turtle Taxonomy Working Group”, and the seventh respondent (University) employs the first respondent.
In the statement of claim, and the amended statement of claim, Mr Hoser alleges the respondents “breached” a number of provisions of the Copyright Act 1968 (Cth) (Copyright Act), and they have defamed him, by publishing online the eighth and ninth editions of a work titled “Turtles of the World: Annotated Checklist and Atlas of Taxonomy, Synonymy, Distribution, and Conservation Status”; and also by submitting to the International Commission of Zoological Nomenclature (ICZN) in 2015 a paper the ICZN identified in an opinion it published on 30 April 2021. The statement of claim, and the amended statement of claim, identify the eighth and ninth editions of the work as “Rhodin et al. (2017)” (Rhodin 2017), and “Rhodin et al. (2021)” (Rhodin 2021) respectively; and they identify the 2015 paper to which the ICZN referred in its opinion as “Rhodin et al. (2015)” (Rhodin 2015). The amended statement of claim incorporates by reference 48 pages of Rhodin 2021.[1] Rhodin 2021 states that the publication is edited by the respondents (excepting the University and the eighth respondent). The amended statement of claim also incorporates by reference the ICZN opinion which refers to Rhodin 2015.[2]
[1] Amended statement of claim, [10], being exhibit “RH1” to the affidavit of R Hoser made on 17.10.2022
[2] Amended statement of claim, [10], being exhibit “RH2” to the affidavit of R Hoser made on 17.10.2022
The proceeding came before me on a first court date at 9:30 am on 8 November 2022. Ms Davis, who appeared for the first respondent and the University, submitted the statement of claim was deficient. Mr Swinn, who appeared for the sixth respondent, and Mr Waters, who appeared for the second, third, fourth, fifth, and eighth respondents, supported Ms Davis’ submission. After hearing from Mr Hoser, I informed him there was merit in the criticisms Ms Davis made of the statement of claim. I suggested to Mr Hoser that he attempt to amend the statement of claim, and I explained to him the matters he would need to include in the amended statement of claim. At the conclusion of the hearing, I made the following orders:
1.By 13 December 2022 the applicant file and serve an amended statement of claim which:
a) in so far as the applicant intends to plead a cause or causes of action for infringement of copyright:
i) describes the literary, dramatic, or musical work (Works) in relation to which the applicant claims to have copyright;
ii) describes when, where, and the circumstances in which the Works came into being;
iii) identifies each of the acts it is alleged each respondent engaged in and which the applicant claims constitutes an infringing act, and in relation to each of the acts specifies:
A) when the act took place;
B) where the act took place; and
C) who on behalf of the respondent engaged in the act; and
iv) in relation to each alleged infringing act, states the order the applicant claims; and
b) in so far as the applicant intends to plead a cause or causes of action based on infringement of the applicant’s moral rights as an author:
i) specifies each moral right the applicant contends has been infringed;
ii) identifies each of the acts it is alleged each respondent engaged in and which the applicant claims constitutes an infringement of the applicant’s moral rights as author, and in relation to each of the acts specifies:
A) when the act took place;
B) where the act took place;
C) who on behalf of the respondent engaged in the act; and
iii) in relation to each alleged infringing act, states the order the applicant claims; and
c) in so far as the applicant intends to plead a cause or causes of action in defamation:
i) identifies the defamatory matter the applicant alleges was published;
ii) specifies when, where, and how the defamatory matter was published, and to whom it was published;
iii) specifies each imputation of and concerning the applicant the applicant alleges was conveyed by the publication of the defamatory matter; and
iv) specifies the harm the applicant alleges the publication has caused or is likely to cause to his reputation, and the facts, matters, and circumstances on which the applicant relies for alleging that the harm the publication has caused or is likely to cause to the applicant’s reputation is or is likely to be serious.
2. The matter is listed for directions at 9:30 am on 20 December 2022, such directions to proceed by telephone.
3. The parties have liberty to apply on such notice as the circumstances warrant.
Mr Hoser filed an amended statement of claim on 13 December 2022 in which he claims the respondents infringed his moral rights as an author, and have defamed him.
At the directions hearing on 20 December 2022, Ms Davis, Mr Swinn, and Ms Wilson (who appeared for the second, third, fourth, fifth, and eighth respondents) informed me the respondents intended to apply to strike out the amended statement of claim. I directed the respondents file and serve by 10 February 2023 their application to strike out the amended statement of claim, together with submissions, and that by 1 March 2023 Mr Hoser file and serve written submissions on which he intends to rely. I then listed the respondents’ strike out application for hearing at 10:15 am on 7 March 2023. Documents were filed as I had directed, and on 7 March 2023 I heard the respondent’s application to strike out the amended statement of claim and the application. In his written submissions Mr Hoser stated there was “no objection to the immediate and permanent striking out of the defamation part of the Amended Statement of Claim”.[3]
[3] Applicant’s submissions in response to the Strike Out Application for the Amended Statement of Claim (ASOC) (Applicant’s Submissions), [3]
To be in a position to consider the grounds on which the respondents apply to strike out the amended statement of claim, it will be convenient:
(a)first, to describe the allegations made in the amended statement of claim;
(b)second, to identify:
(i)the relevant rules of pleading with which the amended statement of claim must comply, and in particular, the rule that requires a statement of claim plead material facts; and
(ii)the material facts that must be pleaded on the cause or causes of action under the Copyright Act on which Mr Hoser appears to rely; and
(c)third, set out the parties’ competing submissions.
THE AMENDED STATEMENT OF CLAIM
The amended statement of claim may conveniently be divided into two sections. The first contains allegations that are relevant to identifying the original works in which Mr Hoser claims copyright subsists, and to showing that Mr Hoser is the author of those works. The second section of the amended statement of claim consists of allegations relevant to identifying the conduct Mr Hoser contends constitutes an infringement of his moral rights, and the context in which that alleged conduct occurred.
Subsistence allegations
The allegations relevant to subsistence of copyright are as follows:
(a)From 2009 to 2022 Mr Hoser published hundreds of major scientific papers in the Australasian Journal of Herpetology (AJH) in hard copy, with duplicates appearing online once a month, on average, after publication of the hard copies. The papers were uploaded to the internet at the domain names and http: AJH is a scientific journal published in accordance with the rules of the International Code of Zoological Nomenclature (Code).[5]
(c)As author and publisher Mr Hoser asserts copyright in all works published in the AJH.[6]
[4] Amended statement of claim: [A(a)]
[5] Amended statement of claim: [A(b)]
[6] Amended statement of claim: [A(d)]
The amended statement of claim states that the most relevant works published in the AJH are identified in Rhodin 2021, which was distributed free of charge online from 15 November 2021 to a global audience. Page 432 of Rhodin 2021 cites in full six papers by Mr Hoser.[7] These papers are (Rhodin 2021 referenced papers):
Hoser, R.T. 2013. An updated taxonomy of the living Alligator Snapping Turtles (Macrochelys Gray, 1856), with descriptions of a new tribe, new species and new subspecies. Australasian Journal of Herpetology 16:53-63
Hoser, R.T. 2014a. A review of the turtle genus Pelochelys Gray, 1864 (Trionychidae) including the division into two subgenera and the formal descriptions of two new species. Australasian Journal of Herpetology 22:60-64.
Hoser, R.T. 2014b. A taxonomic revision of the Giant Long-necked Terrapin, Chelodina expansa Gray, 1857 species complex and related matters of taxonomy and nomenclature. Australasian Journal of Herpetology 24:3-11.
Hoser, R.T. 2018a. A new subgenus, new species and new subspecies of Elseya Gray, 1867 (Testudinata: Pleurodira:Chelidae) from Eastern Australia. Australasian Journal of Herpetology 36:28-30.
Hoser, R.T. 2018b. A sensible four-way breakup of the South-American river turtle genus Podocnemis Wagler, 1830 along obvious phylogenetic and morphological lines. Australasian Journal of Herpetology 36:31-41.
Hoser, R.T. 2021. Audit finds dozens of unnamed turtle taxa. A body of evidence results in newly named genera, subgenera, species and subspecies based on historical and morphological divergence. Australasian Journal of Herpetology 52-53:1-128.
[7] Amended statement of claim: [A(f)]
Infringement allegations
The allegations in this section of the amended statement of claim are as follows:
(a)The “first seven respondents” self-published online through the “Chelonian Research Foundation, 564 Chittenden Drive, Arlington, Vermont 05250 USA” Rhodin 2021.[8] Mr Hoser is named in Rhodin 2021, and features prominently throughout that publication.[9]
[8] Amended statement of claim: [1]
[9] Amended statement of claim: [1(a)]
(b)The “six persons of the seven respondents are part of a cohort”, whose membership includes DW, WW, MO, JB, MG, and MP.[10] Since at least 1998 DW, WW, and others ran a malicious campaign targeting the scientific works of Mr Hoser with a view to undermining his intellectual property and copyright rights for their own use.[11]
[10] Amended statement of claim: [1(a)]
[11] Amended statement of claim: [1(b)]
(c)WW, MO, DW, and MP have all used registered trade marks of Mr Hoser without his permission with the intention of undermining the wildlife conservation work of Mr Hoser and his collaborators.[12]
[12] Amended statement of claim: [1(c)]
(d)From 1998 to 2009 WW and his cohort have dishonestly attacked the scientific merit of Mr Hoser’s publications “naming new species to try to get others not to use the scientific names formally proposed by [Mr] Hoser in accordance with” the Code.[13]
[13] Amended statement of claim: [1(d)]
(i)DW and S, by pseudo-science, and WW, by making entries on “The Reptile Database”, have tried to allege Mr Hoser had named species that were variants of previously named forms.[14]
[14] Amended statement of claim: [1(d)]
(ii)The campaign of DW, S, and WW were undermined by genetic evidence of SD and KA in 1999, as well as by LR in 2008, who sided with Mr Hoser, and advocated the use of Mr Hoser’s names, and who cited Mr Hoser’s works in accordance with copyright law, and the Code.[15]
[15] Amended statement of claim: [1(d)]
(iii)In breach of the Code, in 2009, in an online journal, WW coined a junior synonym Afronaja for the proper ICZN name Spracklandus (for the spitting Cobras).[16]
[16] Amended statement of claim: [1(e)]
(iv)In 2011 WW and his cohort encouraged the Victorian State Wildlife department to shut down Mr Hoser’s wildlife display business known as “Snakebusters”. Mr Hoser won the relevant proceedings.[17]
[17] Amended statement of claim: [1(f)], which provides a link to Hoser v Department of Sustainability and Environment [2014] VSCA 206
(v)In 2012 Mr Hoser published a detailed rebuttal of WW’s 2009 paper. In spite of this, WW breached the Copyright Act and the Code “to continue to peddle his name Afronaja in preference to the legitimate Spracklandus”.[18]
[18] Amended statement of claim: [1(g)]
(vi)In 2012 Mr Hoser petitioned the ICZN to confirm that Spracklandus and other “Hoser scientific names” were published in accordance with the Code, and therefore had priority over the WW coined “junior synonym”.[19]
[19] Amended statement of claim: [1(h)]
(vii)In 2013 WW’s cohort published a document known as “Kaiser et al.” which falsely accused Mr Hoser and his papers as being “unscientific”, “fraudulent”, and “lacking evidence”.[20]
[20] Amended statement of claim: [1(i)(j)]
(viii)WW, HK, and others petitioned the ICZN to formally erase the works of Mr Hoser from the scientific record to enable “their cohort to rename all taxa (species, genera and family) formally [sic] named by” Mr Hoser.[21]
[21] Amended statement of claim: [1(k)] (page 7)
(ix)In 2015 the WW cohort published an article in the Bulletin of Zoological Nomenclature petitioning the ICZN to use their plenary power to rule the scientific names of Mr Hoser “unavailable” according to the Code, and the “Hoser publications to be formally declared as not being part of the scientific record”.[22]
[22] Amended statement of claim: [1(l)]
(e)In 2015 the “seven respondent authors” published Rhodin 2015, and in so doing they made a number of defamatory and disparaging comments about Mr Hoser.[23]
[23] Amended statement of claim: [1(k)] (page 8)
(i)For the species Mr Hoser named “Macrochelys maxhoseri”, the first six respondents named the animal “Macrochelys suwanniensis Thomas, Granatosky, Bourque, Krysko, Moler, Gamble, Saurez, Leone, Enge, and Roman 2014 Suwannee Alligator Snapping Turtle” knowing that the name was a junior synonym of the proper ICZN name “Macrochelys maxhoseri”.[24]
[24] Amended statement of claim: [1(l)]
(ii)Rhodin 2015 identified eight other “Hoser-named turtle taxa” as “unavailable name pending ICZN decision”.[25]
[25] Amended statement of claim: [1(o)]
(iii)Rhodin 2015 stated that “Marochelys temmincki muscati and Macrochelys maxhoseri” were “unavailable for nomenclatural purposes due to technical errors in the descriptions”. That statement was false.[26]
[26] Amended statement of claim: [1(p)]
(f)In Rhodin 2017 the first six respondents “and lead author” made the following statements:[27]
[27] Amended statement of claim: [1(q)(r)]
(i)Names coined by Mr Hoser “circumvented conventional standards of scientific analysis and peer-review in his broadly sweeping and extensive taxonomies and nomenclatures”.
(ii)The first six respondents regarded Mr Hoser’s actions as confusing and unwarranted acts of nomenclature disruption under the Code, and they did not regard the documents circulated under the name of the AJH as scientific publications.
(iii)In collaboration with a wide leadership group representing the global herpetological and scientific communities, the first six respondents petitioned the ICZN to declare and treat Mr Hoser’s works in his self-produced AJH as nomenclaturally unavailable.
(iv)The first six respondents considered the names Mr Hoser created to be unavailable unless the ICZN rules them available.
(g)On 30 April 2021 the ICZN issued a formal ruling finding that all names proposed by Mr Hoser in the AJH were validly published and available in the normal way;[28] and formally rejected the application to suppress Mr Hoser’s works.[29]
[28] Amended statement of claim: [1(s)]
[29] Amended statement of claim: [1(t)]
(h)On 15 November 2021 the first six respondents published Rhodin 2021, and by so doing they “knowingly engaged in breaches of” s 36, s 115, s 189, s 190, s 193, s 194, s 195, s 195AI(2), s 195AJ(a) and (b), and s 195AQ(2) of the Copyright Act, and the Code. The University is also guilty of the breaches because the first respondent was working on behalf of the University. In Rhodin 2021 the respondents did the following:
(i)The respondents proposed to replace “unscientific names” with “aspidonyms”, or “shielding names” (from the Greek “ασπίς”, meaning shield) “in reference to their role in shielding taxonomy and nomenclature from the impact of vandalism”. The clear inference to be drawn from these statements is the “Hoser names” are all unscientific and by definition outside the Code and the ICZN ruling of 30 April 2021 and, for that reason, are clearly false and defamatory of Mr Hoser “and the names proposed by” Mr Hoser.[30]
[30] Amended statement of claim: [1(v)]
(ii)The respondents breached s 195AI(2), s 195AJ(a) and (b), and s 195AQ(2) of the Copyright Act by listing the “subgenus Supremechelys Hoser 2014” as “Chelydera Thomson and Georges in Shea, Thomson and Georges 2020:430” together with the annotation:[31]
[31] Amended statement of claim: [1(u)]
Comment: Valid replacement name (aspidonym) for Supremechelys Hoser 2014b, as per Wuster et al. (2021)
(iii)The respondents took the action in (ii) in relation to “Macrochelys maxhoseri” and “M. temminckii muscati”.[32]
[32] Amended statement of claim: [1(w)]
(iv)The respondents made the following false claims in relation to Mr Hoser that were highly defamatory of Mr Hoser:[33]
[33] Amended statement of claim: [1(x)]
•intellectual plagiarism and unconscionable preemptive scientific appropriation of others’ detailed and careful scientific work;
•unethical practices; and
•unscientific and disruptive behaviours
(v)The respondents listed 86 names created by Mr Hoser that “would appear to need to be synonymized under if they had nomenclatural availability”, but the respondents considered them “all unacceptable nomen rejecta and will not use them”. There is no legal basis to decree that the “Hoser names” are “unavailable”; and by telling others not to use the “Hoser names”, the respondents have breached s 36, s 115, s 189, s 190, s 193, s 194, s 195, s 195AI(2), s 195AJ(a) and (b), and s 195AQ(2) of the Copyright Act, and they have been “getting others to similarly act in breach of the relevant parts” of these provisions.[34]
[34] Amended statement of claim: [1(y)(z)]
(vi)The respondents stated that Mr Hoser has repeatedly and continuously circumvented conventional and acceptable standards of scientific taxonomies and nomenclatures; Mr Hoser has committed nomenclatural pre-emption by naming evolutionary lineages and tentative new taxa identified in various publications and presentations by others, potentially depriving those research scientists of their ability to eventually name their own discovered lineages when accumulated data-based evidence becomes compelling; and Mr Hoser has engaged in “nomenclatural claim-jumping”.[35]
[35] Amended statement of claim: [1(ab)]
(vii)The respondents stated they “now regard all of [Mr] Hoser’s proposed turtle names as unacceptable nomen rejecta and instead accept such replacement names (aspidonyms) as are validly published, available, and scientifically justified based on the best available objective analysis and adequate peer-review”.[36]
[36] Amended statement of claim: [1(ah)]
(i)In accordance with s 195AI(2), s 195AJ(a) and (b), and s 195AQ(2) of the Copyright Act, and the Code, the respondents should have used all the “Hoser names” as the correct taxon names where they had seniority over all others, in instances where they agreed with the science, or listed them as available synonyms where they disagreed with the scientific basis by which the species were named.[37]
[37] Amended statement of claim: [1(ak)]
(j)On 13 October 2022 Google Scholar reported 315 citations of Rhodin 2021, which conveyed the following imputations:[38]
[38] Amended statement of claim: [1(an)]; [2(a)], page 20
(i) The applicant (Raymond Hoser), is dishonest.
(ii) The applicant (Raymond Hoser), is unscientific.
(iii) The applicant's publications are not scientific.
(iv) The applicant (Raymond Hoser), engages in unwarranted acts of disruption.
(v) The applicant (Raymond Hoser), coins unscientific names in breach of the rules of the ICZN.
(vi)The applicant (Raymond Hoser), acts outside of the rules of the ICZN.
(vii)The applicant (Raymond Hoser), is a taxonomic vandal.
(viii) The applicant (Raymond Hoser), engages in taxonomic vandalism.
(ix) The applicant (Raymond Hoser), is a thief.
(x) The applicant (Raymond Hoser), is disruptive.
(xi) The applicant (Raymond Hoser), is unethical.
(xii) The applicant (Raymond Hoser), is a queue jumper.
(xiii) The applicant’s works should never be cited.
(xiv) The applicant’s scientific names should be ignored in breach of the ICZN Code.
(xv) The applicant’s scientific names should be overwritten by names of others.
(xvi) Junior synonyms of the applicant’s scientific names should be used in preference to those of the applicant.
(xvii) The applicant’s works are regarded as unscientific by the scientific community.
(k)On 9 May 2021 the eighth respondent published Rhodin 2021 on Wikipedia, and by doing so conveyed the following defamatory imputations:[39]
(i) The applicant (Raymond Hoser), is dishonest.
(ii) The applicant (Raymond Hoser), is unscientific.
(iii) The applicant's publications are not scientific.
(iv) The applicant (Raymond Hoser), engages in unwarranted acts of disruption.
(v) The applicant (Raymond Hoser), is a taxonomic vandal.
(vi) The applicant (Raymond Hoser), engages in taxonomic vandalism.
(vii) The applicant (Raymond Hoser), is disruptive.
(viii) The applicant (Raymond Hoser), is unethical.
[39] Amended statement of claim: [3(a)], [3] (page 21)
On the basis of the alleged facts I have set out above, the amended statement of claim may be taken to allege that:
(a)Mr Hoser has in the major scientific papers published in the AJH:
(i)an “author’s right of attribution of authorship”, as provided for by s 193 of the Copyright Act,[40] and
(ii)an “author’s right of integrity of authorship”, as provided for by s 195AI of the Copyright Act;[41]
(b)the respondents:
(i)have infringed, within the meaning of s 195AO of the Copyright Act, Mr Hoser’s author’s right of attribution of authorship in the major scientific papers he published in the AJH,[42] and
(ii)have infringed, within the meaning of s 195AQ(2) of the Copyright Act, Mr Hoser’s author’s right of integrity of authorship in the major scientific papers he published in the AJH.
[40] Amended statement of claim, page 15
[41] Amended statement of claim, page 15
[42] The amended statement of claim does not refer to s 195AO of the Copyright Act; but given the amended statement of claim asserts an author’s right of attribution of authorship, as provided for by s 193 of the Copyright Act, it is reasonable to assume the amended statement of claim alleges an infringement of Mr Hoser’s asserted author’s right of attribution of authorship, within the meaning of s 195AO of the Copyright Act.
The amended statement of claim relies on s 36 of the Copyright Act. The amended statement of claim alleges s 36 of the Copyright Act has been infringed by:
(a)“Kaiser et al. (2013)” falsely accusing Mr Hoser and his papers of being unscientific, fraudulent, and lacking in evidence, and in so doing, encourages others to breach the Copyright Act;[43]
(b)“Wüster et al. (2021)” accusing Mr Hoser of creating unscientific names;[44]
(c)the respondents publishing Rhodin 2021;[45] and
(d)the eighth respondent having admitted to engaging in numerous breaches of the Copyright Act, including s 36.[46]
PRINCIPLES
[43] Amended statement of claim: [1(j)]
[44] Amended statement of claim: [1(u)]
[45] Amended statement of claim: [1(v)]
[46] Amended statement of claim: [3]
Rules of pleading
Mr Hoser elected to file a statement of claim with the application by which he commenced this proceeding.[47] Having done so, Mr Hoser is expected to comply with the rules that govern the form and content of statements of claim. That is so even though Mr Hoser is not legally represented or legally qualified. As Samuels JA said in Rajski v Scitec Corporation Pty Ltd:[48]
[T]he absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
[47] See r 4.04(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).
[48] Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986), at page 27, quoted by the High Court in Nobarani v Mariconte [2018] HCA 36, at [48].
The statement of claim is a pleading; and the principal rules that govern the form and content of a pleading are contained in r 16.02 of the Federal Court Rules, which relevantly provides as follows:[49]
[49] The rules that apply to pleadings filed in this Court, including statements of claim, are contained in Part 16 of the Federal Court Rules: see r 1.06(3) of the GFL Rules.
1) A pleading must:
(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b) be as brief as the nature of the case permits; and
(c) identify the issues that the party wants the Court to resolve; and
(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
(e) state the provisions of any statute relied on; and
(f) state the specific relief sought or claimed.
(2) A pleading must not:
(a) contain any scandalous material; or
(b) contain any frivolous or vexatious material; or
(c) be evasive or ambiguous; or
(d) be likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) otherwise be an abuse of the process of the Court.
The principal rule of pleading is contained in r 16.02(1)(d) of the Federal Court Rules: a pleading must state “the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial”. The expression “material facts”, when used in the context of a statement of claim, are alleged facts whose existence is “necessary for the purpose of formulating a complete cause of action”.[50] A “cause of action”, in turn, has been defined as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”.[51] The principal rule of pleading is reinforced by r 16.02(2)(e) of the Federal Court Rules, which provides that a pleading must not fail to disclose a reasonable cause of action or defence.
[50] Bruce v Odhams Press Ltd [1936] 1 KB 697, at page 712, quoted with approval by Goldberg J in Angelo Mitanis & Anor v Pioneer Concrete (Vic) Pty Ltd & Ors [1997] FCA 1040; (1997) ATPR 41-591, at page 44, 152
[51] Letang v Cooper [1965] 1 QB 232, at pages 242-243
The remaining rules in r 16.02 of the Federal Court Rules support the principal rule of pleading. They do this by prohibiting the inclusion in a pleading of various matter that renders a pleading unintelligible or insufficiently clear, or which is not relevant to the statement of material facts. The various types of prohibited matter are denoted by different words. “Embarrassing” is one such word. That word denotes matter that is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”.[52]
[52] Gunns Ltd v Marr [2005] VSC 251, at [14]-[15]
Striking out pleadings
A pleading that does not conform to the rules of pleading is liable to be struck out pursuant to r 16.21(1) of the Federal Court Rules, which provides:
A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e)fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f)is otherwise an abuse of the process of the Court.
The respondents rely on the following statement of principles given by Markovic J in Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd:[53]
The Court’s power to strike out proceedings or portions of pleadings is discretionary, should be used sparingly and should only be exercised in a clear case. . . .
The principles relating to the circumstances in which the power to strike out proceedings pursuant to rr 16.21 (1)(c), (d) and (e) may be exercised were relevantly summarised by me in Tameeka Group Pty Ltd v Landan Pty Ltd [2015] FCA 1218 at [33] to [35]. In particular:
(1)a pleading may be struck out as evasive or ambiguous pursuant to r 16.21(1)(c) if it is unintelligible, ambiguous or so vague that it fails to identify the material factual allegations so that the other party does not have notice of the substance of the claim: Elston v Commonwealth of Australia [2013] FCA 108 at [30];
(2)in relation to r 16.21(1)(d), a pleading may be embarrassing if it is susceptible to various meanings, contains inconsistent allegations, contains alternatives which are confusingly intermixed, contains irrelevant allegations which will tend to increase expense, is unintelligible or vague: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22];
(3)the power to strike out a pleading pursuant to r 16.21(1)(e), because it discloses no reasonable cause of action, is only to be exercised in a plain and obvious case, where it is clear no reasonable amendment can cure the alleged defect and there is no reasonable question to be tried: Polar Aviation Pty Ltd v Civil Aviation Authority [2012] FCAFC 97; (2012) 203 FCR 325 at 337. An application to strike out a pleading because it discloses no reasonable cause of action involves establishing that the applicant's case is so untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.
[53] Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd [2016] FCA 192, at [20], [21]
The following passage from the judgment of Mansfield J in Guglielman v Trescowthick reflects the modern approach to applications to strike out pleadings:[54]
[I]n considering the adequacy of the pleaded facts, the Court adopts a sensible and robust approach. It will not be concerned with technical or minor criticisms, but whether the pleading does adequately identify for the other party the material facts which, if proved, will establish the cause of action relied upon. Whether the generality of a pleading results in the fundamental function of pleadings not being served is a matter to be addressed in each case. Whether a pleading should be struck out depends upon whether, in the particular circumstances, it is necessary to do so in the interests of justice. If the object of pleadings is sufficiently met, the striking out of the pleading will be unnecessary.
[54] Guglielman v Trescowthick [2004] FCA 326, at [8]
The approach may need to be modified in the case of applications to strike out a pleading that has been prepared by a party without legal assistance. In Wentworth v Rogers (No 5), Kirby JA (as his Honour then was) said:[55]
[T]he appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out.
[55] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at pages 536-537
An applicant, whose statement of claim has been struck out, will usually be given an opportunity to prepare a further draft to cure the deficiencies in the statement of claim that has been struck out. Leave will not be granted, however, “if no reasonable amendment can cure the alleged defect and if there is no reasonable question to be tried”.[56]
[56] Crowley v WorleyParsons Ltd [2017] FCA 3, at [61] (Foster J)
Thus, on an application to strike out a statement of claim, the principal question is whether the statement of claim fails to sufficiently identify facts that state a reasonable cause of action. That being so, it will be convenient at this point to identify the material facts that are necessary to be stated in a statement of claim to support the causes of action under the Copyright Act on which Mr Hoser appears to rely.
Elements of causes of action under the Copyright Act on which Mr Hoser relies
As I have already noted, Mr Hoser asserts three classes of infringement of his copyright. It would be convenient if I first consider the elements of a cause of action based on an infringement of an author’s right of integrity of authorship.
Elements of cause of action based on infringement of author’s right of integrity of authorship
It is tolerably clear that Mr Hoser principally relies on an asserted infringement within the meaning of s 195AQ(2) of the Copyright Act, which provides as follows (defined terms emphasised):
A person infringes an author’s right of integrity of authorship in respect of a work if the person subjects the work, or authorises the work to be subjected, to derogatory treatment.
The word “work” means a “literary work, a dramatic work, a musical work, an artistic work or a cinematograph film”; and “literary work” means “literary work in which copyright subsists”.[57] “Literary work”, therefore, refers to an original literary work in which copyright subsists by virtue of the operation of s 32 of the Copyright Act. The word “author”, in turn, means the person who originated the original literary work.
[57] Copyright Act, s 189
Next, there is the right which, under s 195AQ(2) of the Copyright Act, is infringed, namely, the “right of integrity of authorship”. That right is created by s 195AI of the Copyright Act, which provides (defined terms emphasised):
(1) The author of a work has a right of integrity of authorship in respect of the work.
(2) The author’s right is the right not to have the work subjected to derogatory treatment.
The expression “derogatory treatment” is defined in s 195AJ of the Copyright Act in relation to a literary, dramatic, or musical work as follows:
In this Part:
“derogatory treatment”, in relation to a literary, dramatic or musical work, means:
(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or
(b) the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.
The right of integrity of authorship is infringed, not only if the original work is subjected to derogatory treatment, as defied in s 195AJ of the Copyright Act; it will also be infringed in the circumstances provided for in s 195AQ(3), which is as follows:
If a literary, dramatic or musical work has been subjected to derogatory treatment of a kind mentioned in paragraph (a) of the definition of derogatory treatment in section 195AJ that infringes the author’s right of integrity of authorship in respect of the work, a person infringes the author’s right of integrity of authorship in respect of the work if the person does any of the following in respect of the work as so derogatorily treated:
(a) reproduces it in a material form;
(b) publishes it;
(c) performs it in public;
(d) communicates it to the public;
(e) makes an adaptation of it.
Thus, an author of a literary work who alleges that his or her right of integrity of authorship in respect of the work has been infringed within the meaning of s 195AQ(2) of the Copyright Act, must allege the following facts in a statement of claim:
(a)Facts that identify the work, the author of the work, and facts on which the applicant relies for alleging that the work is an original work. These requirements will ordinarily be satisfied by the author stating facts that specify when, where, and the circumstances in which what is alleged to be a work came into being.
(b)Facts on which the author relies for alleging that the literary work has been subjected to derogatory treatment. More particularly, the author must state the facts:
(i)on which the author relies for alleging the work has been distorted, or mutilated, or materially altered; or
(ii)the author alleges constitutes the doing of anything else in relation to the work – that is, conduct in relation to a work other than distortion, mutilation, or material alteration of the work – that is prejudicial to the author’s honour or reputation.
(c)Facts on which the author relies for alleging that:
(i)the distortion, mutilation, or material alteration of the work; or
(ii)the doing of anything else in relation to the work,
is prejudicial to the author’s honour or reputation.
It would be appropriate at this stage to refer to s 195AS of the Copyright Act, because this provision may be relevant to construing the scope of the right of integrity of authorship in a work provided for by s 195AI. Section 195AS relevantly provides:
(1)A person does not, by subjecting a work, or authorising a work to be subjected, to derogatory treatment, infringe the author’s right of integrity of authorship in respect of the work if the person establishes that it was reasonable in all the circumstances to subject the work to the treatment.
(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances to subject a literary, dramatic, musical or artistic work to derogatory treatment include the following:
(a) the nature of the work;
(b) the purpose for which the work is used;
(c) the manner in which the work is used;
(d) the context in which the work is used;
(e) any practice, in the industry in which the work is used, that is relevant to the work or the use of the work;
(f) any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work;
(g) whether the work was made:
(i) in the course of the author’s employment; or
(ii) under a contract for the performance by the author of services for another person;
(h)whether the treatment was required by law or was otherwise necessary to avoid a breach of any law;
(i)if the work has 2 or more authors--their views about the treatment.
Elements of cause of action based on infringement of author’s right of attribution of authorship
Section 195AO of the Copyright Act provides (defined terms emphasised):
Subject to this Subdivision, a person infringes an author’s right of attribution of authorship in respect of a work if the person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author in accordance with Division 2 as the author of the work.
The word “work” has the same meaning as it has in s 195AC(2) of the Copyright Act.
The expression “right of attribution of authorship” is the right created by s 193 of the Copyright Act, which is as follows:
(1)The author of a work has a right of attribution of authorship in respect of the work.
(2) The author’s right is the right to be identified in accordance with this Division as the author of the work if any of the acts (the attributable acts) mentioned in section 194 are done in respect of the work.
The “attributable acts” identified in relation to a work are identified in s 194(1) of the Copyright Act, and these constitute the reproduction of the work in a material form, the publication of the work, the performance of the work in public, the communication of the work to the public, or the making of an adaptation of the work.
The means by which any author has the right to be identified as the author of a work is specified in s 195 of the Copyright Act as follows:
(1) Subject to subsection (2), the author of a work may be identified by any reasonable form of identification.
(2) If:
(a) the author of a work has made known, either generally or to a person who is required under this Part to identify the author, that the author wishes to be identified in a particular way; and
(b) the identification of the author in that way is reasonable in the circumstances;
the identification is to be made in that way.
Thus, an author of a literary work who alleges that his or her right of attribution of authorship in respect of the work has been infringed within the meaning of s 195AO of the Copyright Act must allege the following facts in a statement of claim:
(a)Facts that identify the work, the author of the work, and facts on which the author relies for alleging that the work is an original work. These requirements will ordinarily be satisfied by the author stating facts that specify when, where, and the circumstances in which what is alleged to be a work came into being.
(b)The facts the author alleges constituted any one or more of the attributable acts in relation to the work.
(c)Facts on which the author relies for alleging the person who engaged in the attributable acts in relation to the work did not identify the author as the author of the work, or did not identify the author as the author of the work in the manner the author made known he or she was to be attributed as the author of the work.
Elements of cause of action based on s 36 of the Copyright Act
Section 36 of the Copyright Act relevantly provides:
(1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
(1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:
(a) the extent (if any) of the person’s power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
Under s 13(1) of the Copyright Act the expression “act comprised in the copyright in a work” “shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do”. The exclusive rights the Copyright Act has conferred on the owner of copyright in a literary work are the rights specified in s 31(1)(a). These consist in the exclusive right to reproduce the work in a material form; to publish the work; to perform the work in public; to communicate the work to the public; to make an adaptation of the work; and to do acts in relation to the adaption of the work the owner has the exclusive right to do with the work.
PARTIES’ SUBMISSIONS
Written submissions
In their written submissions, the respondents make two sets of criticisms of the amended statement of claim. The first is directed to the form in which the amended statement of claim is expressed. The respondents submit:
(a)The form and content of the amended statement of claim is “convoluted, complex, and it is impossible to comprehend with any certainty the allegations made against the” respondents.[58]
(b)The amended statement of claim does not clearly articulate the allegations made against the respondents, and in fact raises a “quagmire of facts”, many of which seem unrelated to any relief sought against the respondents.[59] In support of this submission the respondents refer to the application and the amended statement of claim:
(i)alleging wrongs committed by, and seeking orders against persons who are not parties;
(ii)alleging conduct going back nearly 25 years, and the publication of numerous papers written by the respondents and by third parties which appear to have no relevance;
(iii)alleging inconsistent imputations; and
(iv)claiming inconsistent relief.
(c)For these reasons, the amended statement of claim is likely to cause prejudice, embarrassment, or delay in the proceeding; it is evasive or ambiguous; and it contains frivolous or vexatious material.[60]
[58] Respondents’ Submissions in Support of Interlocutory Application to Strike Out Amended Statement of Claim (Respondents’ Submissions), [6]
[59] Respondents’ Submissions, [7]
[60] Respondents’ Submissions, [9]
The respondents’ second set of criticisms are directed to whether the amended statement of claim discloses any reasonable cause of action. For the following reasons, the respondents submit that it does not.[61]
(a)The amended statement of claim is premised on a fundamental misconception of copyright. At its core, copyright protects against reproduction and dealing with works and their reproduction and, in respect of moral rights, doing specified acts in respect of copyright works. Mr Hoser’s complaint seems to be that his “nomenclature is not used”; but there are no provisions in the Copyright Act that oblige a person to use a copyright work.[62]
(b)To the extent the amended statement of claim alleges the respondents have done one or more of the acts comprised in the copyright of a work (that is, have infringed, within the meaning of s 36 of the Copyright Act, Mr Hoser’s asserted copyright), the amended statement of claim does not identify with specificity the works in which copyright subsists; it does not identify the exclusive right or rights it is alleged the respondents have infringed; and it does not identify the alleged infringing work or the derivation of any such infringing work from the original works in which Mr Hoser’s copyright subsists.[63]
(c)To the extent the amended statement of claim relies on infringement of Mr Hoser’s asserted right of attribution of authorship, it does not identify with specificity the work in which he asserts a right of attribution of authorship; and it does not identify any attributable act in which the respondents engaged in.[64]
(d)To the extent the amended statement of claim relies on infringement of Mr Hoser’s asserted right of integrity, it does not identify with specificity the work in which he asserts a right of attribution of authorship; and it does plead facts that go to derogatory treatment.[65]
(e)The allegation made in the amended statement of claim that the eighth respondent has admitted to engaging in breaches of the Copyright Act should be struck out as it is embarrassing.[66]
[61] Respondents’ Submissions, [10]
[62] Respondents’ Submissions, [12]
[63] Respondents’ Submissions, [13]
[64] Respondents’ Submissions, [14(a)]
[65] Respondents’ Submissions, [14(b)]
[66] Respondents’ Submissions, [15]
In his written submissions, Mr Hoser makes a number of submissions, including the following:
(a)The amended statement of claim identifies with specificity the work of which Mr Hoser alleges he is the author, and in which copyright subsists. Mr Hoser quotes the following passage from Rhodin 2021:[67]
Names proposed by Hoser. The nomenclatural chaos and taxonomic destabilization perpetrated by Hoser (2013; 2014a, b, 2018a, b, 2021 and multiple other works) over the last couple of decades has recently been addressed by Wüster et al. (2021).”
(b)“Wüster et al. (2021)” (Wüster 2021) to which the passage in (a) refers, identifies the “multiple other works” (Wüster referenced papers) the passage in (a) states Wüster 2021 had addressed.[68]
(c)The Code, being the industry code for zoologists, prescribes the correct way to cite earlier works and, for that reason, gives a right of attribution of authorship.[69]
(d)The facts on which Mr Hoser relies for claims against the eighth respondent:[70]
are quite properly spelt out by the eighth respondent in his comments. He states he is removing all Hoser names (and by the same act the references) from online databases and pages, where as a matter of course they should have remained, to encourage further breaches of the applicant’s moral rights. His comments were also disparaging of the applicant and in a way that could not be treated as legitimate scientific discourse.
[67] Applicant’s Submissions, [26]
[68] Applicant’s Submissions, [27]
[69] Applicant’s Submissions, [29]
[70] Applicant’s Submissions, [34]
Oral submissions
In oral address, Ms Davis, counsel for the first respondent and the University, made the following submissions in relation to Mr Hoser’s written submissions.
(a)The thrust of Mr Hoser’s complaints are stated in paragraphs 23 and 30 of his written submissions; and that is the contention that the respondents were obliged to cite Mr Hoser’s publication, have them named the correct way, and “get others” to do so.
(b)This alleged obligation is a misconception of rights under the Copyright Act. Even if copyright subsists, that does not mandate the use of copyright material.
(c)Given Mr Hoser’s abandonment of his claims based on defamation (which remain in the amended statement of claim), Mr Hoser has been given three opportunities to articulate an arguable cause of action, but he has failed to do so.
In his oral submissions, Mr Hoser emphasised the author’s right of integrity of authorship provided for by s 195AI of the Copyright Act. Mr Hoser submitted that:[71]
if you look at the publication the subject of this claim, Turtles of the World by Rhodin et al, you will see that my works are subject to a barrage of derogatory treatment throughout their publication and without basis. That is not fair scientific comment, so it’s not – doesn’t have that defence available. And is straight out – I’ve been accused of theft, stealing, all sorts of horrific sorts of crimes. And they’re outlined in the statement of claim in some detail. And where Ms Davis has said she has asked to strike out some paragraphs which she alleges relate to the defamatory claims, she is incorrect. Those particular paragraphs also relate to section 195AI of the Copyright Act, which is still being pursued.
[71] T16.15
DETERMINATION
There is no question that the amended statement of claim is a difficult document to comprehend; and there can be no question that it includes immaterial and conclusory allegations, some of which are scandalous. That, however, does not necessarily mean the amended statement of claim is unintelligible, or that it discloses no reasonable cause or causes of action.
The amended statement of claim is intelligible; it is premised on the following allegations (Premises):
(a)The Rhodin 2021 referenced papers and the Wüster referenced papers are original literary works of which Mr Hoser is the author and in which, therefore, copyright subsists.
(b)By reason of (a), Mr Hoser has a right of integrity of authorship in the Rhodin 2021 referenced papers and in the Wüster referenced papers and, therefore, has the right not to have the Rhodin 2021 referenced papers and the Wüster referenced papers subjected to derogatory treatment.
(c)The respondents, in publishing Rhodin 2015, Rhodin 2017, and Rhodin 2021, have made statements in relation to the Rhodin 2021 referenced papers and the Wüster referenced papers. These include the following:
(i)the respondents proposed to replace “unscientific names” Mr Hoser had created with “aspidonyms”, or “shielding names” “in reference to their role in shielding taxonomy and nomenclature from the impact of vandalism”, thus implying that the “Hoser names” are all unscientific and outside the Code;[72]
(ii)the respondents accused Mr Hoser of intellectual plagiarism; unconscionable pre-emptive scientific appropriation of others’ detailed and careful scientific work; and of unscientific and disruptive behaviours;
(iii)the respondents identified 86 names Mr Hoser created as unacceptable “nomen rejecta”;
(iv)Mr Hoser has repeatedly and continuously circumvented conventional and acceptable standards of scientific taxonomies and nomenclatures;
(v)Mr Hoser has committed nomenclatural pre-emption by naming evolutionary lineages and tentative new taxa identified in various publications and presentations by others, potentially depriving those research scientists of their ability to eventually name their own discovered lineages when accumulated data-based evidence becomes compelling; and
(vi)by making the statements in (i)-(v) the respondents conveyed the imputations I have set out in paragraph 11(j) above.
(d)On 9 May 2021 the eighth respondent published Rhodin 2021 on Wikipedia and, in so doing, conveyed the imputations I have set out paragraph 11(k) above.
(e)The respondents’ conduct in (c) and the eighth respondent’s conduct in (d) related to the Rhodin 2021 referenced papers and the Wüster referenced papers, and is prejudicial to Mr Hoser’s honour and reputation as an author of those works and, therefore, constitutes the subjection of the Rhodin 2021 referenced papers and the Wüster referenced papers to derogatory treatment within the meaning of s 195AJ of the Copyright Act.
[72] Amended statement of claim: [1(t)]
A number of questions arise. The first is whether the Premises, if established, raise a reasonable cause of action for infringement based on s 195AQ(2) of the Copyright Act. I am not prepared at this stage to find that the Premises do not state such a reasonable cause of action; but equally, I am not prepared to find that the Premises do disclose a reasonable cause of action under s 195AQ(2) of the Copyright Act. The respondents have not understood the amended statement of claim to assert the Premises and, therefore, they have not had an opportunity to make submissions on whether the Premises do or do not disclose a reasonable cause of action based on s 195AQ(2) of the Copyright Act; and I have not had the benefit of submissions for determining whether the Premises state a reasonable cause of action under s 195AQ(2) of the Copyright Act.
The second question is whether the Premises, if established, raise a reasonable cause of action for infringement based on s 195AO of the Copyright Act and s 36 of the Copyright Act. That question is to be answered in the negative. The conduct of which Mr Hoser complains necessarily identifies Mr Hoser as the author of the Rhodin 2021 referenced papers and the Wüster referenced papers; and Mr Hoser’s claims based on s 195AQ(2) necessarily rely on the respondents identifying Mr Hoser as the author of those papers. Further, none of the conduct of which the amended statement of claim complains consists in the respondents, without Mr Hoser’s licence, reproducing, publishing, performing, communicating, or adapting any of the papers in which the amended statement of claim alleges copyright subsists.
The third question relates to whether the Premises, if established, disclose any reasonable cause of action against the University. The only basis on which the University appears to have been joined as a party is that it employs the first respondent. That by itself is incapable of attributing to the University any of the conduct the amended statement of claim alleges the first respondent engaged in. In the absence of facts which are reasonably capable of supporting a claim that the University is liable for the conduct of the first respondent, the University should be removed as a party to the proceeding.
The fourth question relates to the fate of the amended statement of claim and the proceeding. As I have already found, the amended statement of claim includes immaterial and conclusory allegations, some of which are scandalous. For those reasons, the amended statement of claim must be struck out; but, given I have found that the amended statement of claim includes the Premises, and I am not prepared to find that the Premises do not disclose a reasonable cause of action, I do not propose to dismiss the proceeding.
That leads me to the final question: what further directions should be made? Two broad options occur to me at this stage; and which option may be appropriate may depend on whether the respondents do not accept that the amended statement of claim contains the Premises and, if so, whether the respondents wish to contend that the Premises disclose no reasonable cause of action under the Copyright Act. If the respondents intend to so contend, it might be appropriate to make no further directions, other than directing that a hearing be fixed to hear submissions on whether the amended statement of claim includes the Premises and, if so, whether the Premises disclose no reasonable cause of action under the Copyright Act.
If, on the other hand, the respondents do not wish to contend the amended statement of claim does not include the Premises, or the Premises do not disclose a reasonable cause of action, it will be necessary to make directions requiring Mr Hoser again to state his case with clarity. There would appear to be little utility in simply ordering Mr Hoser to file a further amended statement of claim. Mr Hoser prepared the amended statement of claim on the basis of his understanding of the orders I made on 8 November 2022. Mr Hoser appears to have interpreted my orders as requiring to include in the statement of claim the matters I identified in my orders, whereas my intention was for Mr Hoser to formulate a fresh statement of claim that included the matters I identified in my orders.
An alternative to simply making an order that Mr Hoser file a further amended statement of claim, might be my ordering that the Premises stand as Mr Hoser’s statement of claim. A further alternative might be to order that Mr Hoser complete and file a form that specifically identifies the facts on which he intends to rely. I have devised a possible form which is a schedule to these reasons. I will not, of course, make any directions about the use of such form without first hearing submissions from the parties.
DISPOSITION
I propose to order that the amended statement of claim be struck out, and list the matter for directions at 9:30 am on 18 July 2023, or on such other day as is convenient to the parties and to the Court, for the purpose of determining what further directions should be made, having regard to these reasons for judgment.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 27 June 2023
SCHEDULE
STATEMENT OF APPLICANT’S CLAIMS
1 Identify the works or classes of works of which the applicant claims he is the author and in which copyright subsists (1) Works or classes of works
(2) . . .
2 In relation to each works or class of works, state the facts on which the applicant relies for claiming he is the author and in which copyright subsists (1) Works or class of works
Facts:
(a)
. . .(2) Works or class of works
Facts:
(a)
. . .3 In relation to each works or class of works, and by reference to each respondent, specify the acts or omissions the applicant asserts constitutes an infringement within the meaning of s 195AQ(2) of the Copyright Act.
· To the extent it is alleged the infringing act is an express statement, set out the express statement and its source.
· To the extent it is alleged the infringing act is an implied statement, set out the matters on which it is alleged the implied statement has been made
(1) Works or class of works
(a) Name of respondent
Acts and omissions
(i)
(ii)
. . .
(b) Name of respondent
Acts and omissions
(i)
(ii)
. . .
(c) . . .(2) Works or class of works
(a) Name of respondent
Acts and omissions
(i)
(ii)
. . .
(b) Name of respondent
Acts and omissions
(i)
(ii)SCHEDULE OF PARTIES
MLG 2313 of 2022 Respondents
Fourth Respondent:
JOHN B IVERSON
Fifth Respondent:
UWE FRITZ
Sixth Respondent:
HOWARD BRADLEY SHAFFER
Seventh Respondent:
UNIVERSITY OF CANBERRA
Eighth Respondent:
SCOTT THOMSON
3
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