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Hoser v Georges

Hoser v Georges

Case [2023] FedCFamC2G 550 27 June 2023

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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…

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.

Continue reading Hoser v Georges

Details

AGLC: Hoser v Georges [2023] FedCFamC2G 550
Case: [2023] FedCFamC2G 550
Decision Date

CaseChat Overview and Summary

In Hoser v Georges, the Federal Circuit and Family Court of Australia (Division 2) was required to decide whether the amended statement of claim filed by the applicant, Raymond Hoser, should be struck out. The court was required to determine whether the amended statement of claim was embarrassing, contained immaterial and scandalous matter, and whether it disclosed a reasonable cause of action for infringement of asserted moral rights. The court found that the amended statement of claim included immaterial, conclusory, and in some cases scandalous matter, but otherwise was intelligible to the extent it contained premises that, without further submissions, could not be said not to disclose a reasonable cause of action. The court struck out the amended statement of claim and listed the matter for further directions.

The court's decision was based on its analysis of the relevant rules of pleading and the material facts necessary to support the causes of action under the Copyright Act on which Mr Hoser appeared to rely. The court found that the amended statement of claim was intelligible and premised on certain allegations, which if established, raised a reasonable cause of action for infringement based on s 195AQ(2) of the Copyright Act. However, the court was not prepared to find that the premises disclosed a reasonable cause of action under s 195AQ(2) of the Copyright Act, as the respondents had not understood the amended statement of claim to assert the premises and had not had an opportunity to make submissions on whether the premises did or did not disclose a reasonable cause of action.

The court also found that the amended statement of claim did not disclose any reasonable cause of action for infringement based on s 195AO of the Copyright Act and s 36 of the Copyright Act, as the conduct of which Mr Hoser complained necessarily identified Mr Hoser as the author of the papers in which the amended statement of claim alleged copyright subsists. The court further found that the University should be removed as a party to the proceeding, as it could not be held liable for the conduct of the first respondent without facts supporting such a claim.

The court struck out the amended statement of claim and listed the matter for further directions, as it was necessary to determine what further directions should be made. The court proposed to order that the premises stand as Mr Hoser's statement of claim, or to order that Mr Hoser complete and file a form that specifically identified the facts on which he intended to rely. The court would not make any directions about the use of such a form without first hearing submissions from the parties.

Orders