Hoser v Georges (No 2)
[2024] FedCFamC2G 243
•15 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoser v Georges (No 2) [2024] FedCFamC2G 243
File number(s): MLG 2313 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 15 March 2024 Catchwords: INTELLECTUAL PROPERTY – moral rights – right of integrity of authorship provided for by s 195AI of the Copyright Act 1968 (Cth) (Copyright Act) – whether statements made about the contents of an author’s literary works (works) and about the author that prejudices the author’s honour or reputation constitute the doing of an act in relation to the works within the meaning of s 195AJ(b) of the Copyright Act and, for that reason, constitute the subjection of the works to derogatory treatment within the meaning of s 195AI(2) and, for that reason, constitute an infringement of the author’s right of integrity of authorship in respect of the works provided for by s 195AI – such statements do not constitute the doing of anything in relation to the works – s 195AI is concerned with the prevention of acts done to or with a work – the applicant does not have reasonable prospects of successfully prosecuting the proceeding based on the infringement of his right of integrity of authorship in respect of the works – proceeding dismissed. Legislation: Copyright Act 1968 (Cth) ss 10, 22(1), 31(1)(a), 31(1)(b), 32, 189, 193, 195AC, 195AI, 195AJ, 195AQ, 195AS
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 22.09, Sch 2
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Autodesk Inc v Dyason [1992] HCA 2
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408
Hollinrake v Truswell [1894] 3 Ch 420
Hoser v Georges [2023] FedCFamC2G 550
IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14
Korolak v Campbell (No 3) [2024] FedCFamC2G 148
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Division: General Number of paragraphs: 52 Date of last submission/s: 30 January 2024 Date of hearing: 12 October 2023 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the First and Seventh Respondents: Ms L Davis, by video 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 telephone
Table of Corrections 16 April 2024 In the appearances section of the cover page:
1. Add under the words “The Applicant: Appeared in person by video” the words “Counsel for the First and Seventh Respondents: Ms L Davis , by video"
2. Remove from “Ms L Davis of Meridian Lawyers, by video” the words “Ms L Davis of . . . by video", and the comma that appears after the word” Lawyers”.
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:
15 MARCH 2024
THE COURT ORDERS THAT:
1.Pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the proceeding is dismissed.
2.The applicant pay the respondents’ costs.
3.The respondents have liberty to apply within 35 days for an order that their costs be set in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) or, in the alternative, for an order pursuant to r 22.09 of the GFL Rules that their costs be set or assessed otherwise than in accordance with Schedule 2 to the GFL Rules.
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
On 23 June 2023 I published reasons for judgment (earlier reasons) in which I concluded that the amended statement of claim should be struck out, and I so ordered. [1] I also concluded, however, that the amended statement of claim contained a set of intelligible allegations (Premises) that potentially disclose a cause of action for infringement, under s 195AQ(2) of the Copyright Act 1968 (Cth) (Copyright Act), of the “right of integrity of authorship with respect to [a] work” provided for by s 195AI. I did not consider whether the Premises did not in fact disclose a reasonable cause of action because I had not invited submissions about whether the amended statement of claim contained the Premises and, if so, whether they disclose no reasonable cause of action for infringement based on s 195AQ(2) of the Copyright Act.
[1] Hoser v Georges [2023] FedCFamC2G 550
In the earlier reasons I identified a number of courses that were available to progress the proceeding, one of which was for the parties to make submissions on whether the Premises did or did not disclose a reasonable cause of action. The parties agreed that the appropriate course would be for me to hear submissions on whether the Premises do not disclose a reasonable cause of action for infringement based on s 195AQ(2) of the Copyright Act; and on 12 October 2023 I heard submissions on that question.
In these reasons for judgment, therefore, I consider whether, as the respondents contend, the Premises do not disclose a reasonable cause of action for infringement based on s 195AQ(2) of the Copyright Act and, for that reason, the proceeding should be dismissed. The determination of that question turns on the proper construction of s 195AI and s 195AQ(2) of the Copyright Act. Before I identify and determine the parties’ competing contentions, I propose to provide some background to the introduction of Part IX of the Copyright Act, which includes s 195AI and s 195AQ(2); briefly describe the structure of Part IX; and set out the relevant sections that provide for the “right of integrity of authorship in respect of [a] work”, and its protection. I will then set out the Premises, the parties’ competing contentions, identify the question of constructions that arises, and refer to the principles of construction that should guide me when determining the question of construction.
RELEVANT PROVISIONS AND SOME PRINCIPLES
Background – “moral rights”
The right of integrity of authorship in a work provided for by s 195AI is one of six rights provided for by Part IX of the Copyright Act, which is headed “Moral Rights of Performers and of Authors of Literary, Dramatic, Musical or Artistic Works and Cinematograph Films”. The expression “moral right” is a translation of the French “droit moral”,[2] and is defined in s 189 as each of the rights provided for by Part IX of the Copyright Act.
[2] Martin A. Roeder, “The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators” (1940) 53:4 Harv L Rev 554, at pages 554-555
The contemporary origins of the expression “droit moral” lie in decisions French courts began to make in the middle of the nineteenth century, where they recognised that creators of artistic and literary works had certain inalienable rights in relation to their creations.[3] The rights the French courts identified and enforced developed case by case;[4] but in time these rights were viewed as particular manifestations of a more general, and therefore abstract, right. The expression “droit moral” denotes this abstract right; and it has been defined in a number of ways. Thus, a French commentator in 1906 defined an author’s moral right as “the negative right to prevent violations of the literary personality of the author”;[5] and, in 1968, another commentator identified “the “moral” right” as including:[6]
non-property attributes of an intellectual and moral character which give legal expression to the intimate bond which exists between a literary or artistic work and its author's personality; it is intended to protect his personality as well as his work.
[3] Martin A. Roeder, “The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators” (1940) 53:4 Harv L Rev 554, at page 555: “Towards the middle of the century the cases begin to show an appreciation of the special need of creators for protection of their works.”
[4] Raymond Sarraute, “Current Theory on the Moral Right of Authors and Artists under French Law" (1968) 16:4 Am J Comp L 465, at page 465: “[T]he moral right had at the outset no basis in any code. It has grown up little by little out of decisions handed down by French courts and tribunals since the middle of the [nineteenth] century.” Martin A. Roeder, “The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators” (1940) 53:4 Harv L Rev 554, at page 556: “The second half of the nineteenth century witnesses a rapid development of the concept. The right to refuse to create, the right of paternity, the right to prevent deformation of the work, all received recognition in the civil courts. In 1901 the Cour de Cassation, the highest French Court, gave official recognition to the doctrine in Cinquin C. Lecocq”.
[5] P. Masse, Le Droit Moral (1906), quoted in Robert C. Hauhart, “Natural Law Basis for the Copyright Doctrine of Droit Moral”(1985) 30:1 Cath Law 53, at page 53, n.1. Hauhart notes that Masse “was one of the earliest commentators to analyse the concept of moral right and to popularise the term “droit moral””.
[6] Raymond Sarraute, “Current Theory on the Moral Right of Authors and Artists under French Law" (1968) 16:4 Am J Comp L 465, at page 465
Other continental European jurisdictions, and in particular Germany and Italy, recognised particular inalienable rights persons have in relation to their artistic and literary creations; and the expression “droit moral” came to be applied, and (together with its English translation “moral right”) continues to be applied, across jurisdictions, to denote as a class the inalienable rights each jurisdiction recognises persons have in relation to their artistic and literary creations.
Roeder described the distinct interest of creators of artistic and literary works that the doctrine of moral right is designed to protect as follows:[7]
The copyright law, of course, protects the economic exploitation of the fruits of artistic creation; but the economic, exploitive aspect of the problem is only one of its many facets . . . . When an artist creates, be he an author, a painter, a sculptor, an architect or a musician, he does more than bring into the world a unique object having only exploitive possibilities; he projects into the world part of his personality and subjects it to the ravages of public use. There are possibilities of injury to the creator other than merely economic ones; these the copyright statute does not protect. Nor is the interest of society in the integrity of its cultural heritage protected by the copyright statute. Copyright law will prevent A from reprinting the work of B without permission and will thus give B a limited monopoly on that work which may be exploited for the economic advantage of B; but copyright law will probably not prevent C, the authorized publisher of B's works, from publishing them in a manner harmful to B’s honor and reputation as a creator.
[7] Martin A. Roeder, “The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators” (1940) 53:4 Harv L Rev 554, at page 557
The nature and extent of the inalienable rights a person has over his or her artistic and literary creations vary between jurisdictions that recognise such rights. A stabilising influence in the recognition and enforcement of such rights, however, has been the inclusion of Art 6bis into the Berne Convention for the Protection of Artistic and Literary Property revised in Rome in 1928. That article provided:[8]
(1) Independently of the author’s copyright, and even after transfer of the said copyright, the author shall have the right to claim authorship of the work, as well as the right to object to any distortion, mutilation or other modification of the said work which would be prejudicial to his honour or reputation.
(2) The determination of the conditions under which these rights shall be exercised is reserved for the national legislation of the countries of the Union. The means of redress for safeguarding these rights shall be regulated by the legislation of the country where protection is claimed.
[8] This is the text as published by BIRPI; downloaded from wipo_pub_berne_birpi
The Berne Convention was revised in Brussels in 1948, which included a revision of Art 6bis as follows (deletions and underlining added):[9]
(1) Independently of the authors’ copyright, and even after the transfer of the said copyright, the author shall have the right, during his lifetime, to claim authorship of the work and to object to any distortion, mutilation or other
modification ofalteration thereof, or any other action in relation to the said work which would be prejudicial to his honour or reputation.(2) In so far as the legislation of the countries of the Union permits, the rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the copyright, and shall be exercisable by the persons or institutions authorised by the said legislation. The determination of the conditions under which the rights mentioned in this paragraph shall be exercised shall be governed by the legislation of the countries of the Union.
(3) The means of redress for safeguarding
thesethe rights granted by this Article shall be regulated by the legislation of the country where protection is claimed.[9] This is the text as published by BIRPI
The Berne Convention was further revised in 1967 in Stockholm, which included the further modifications of Art 6bis (deletions and underlining added)::[10]
(1) Independently of the author’s
copyrighteconomic rights, and even after the transfer of the saidcopyrightrights, the author shall have the rightduring his lifetime,to claim authorship of the work and to object to any distortion, mutilation or otheralterationthereof,modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.(2)
In so far as the legislation of the countries of the Union permits, the rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the copyright, and shall be exercisable by the persons or institutions authorised by the said legislation. The determination of the conditions under which the rights mentioned in this paragraph shall be exercised shall be governed by the legislation of the countries of the Union.The rights granted to the author in accordance with the preceding paragraph shall, after his death, he maintained,at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However,those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be regulated by the legislation of the country where protection is claimed.
[10] Text downloaded from WIPO website: WIPO Lex, Treaties, Stockholm Act (1967)
The Berne Convention was again revised in 1971 in Paris, which included the following minor amendments to modifications of Art 6bis (deletions and underlining added):[11]
(1)Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right
,to claim authorship of the work and to object to any distortion, mutilation or other modification of, or any other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, he maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3)The means of redress for safeguarding the rights granted by this Article shall be
regulatedgoverned by the legislation of the country where protection is claimed.[11] Text downloaded from WIPO website: WIPO Lex, Treaties, Stockholm Act (1967)
Australia acceded to the 1971 revision of the Berne Convention on 25 May 1972;[12] and Australia has given effect to its obligations under Art 6bis by enacting the Copyright Amendment (Moral Rights) Act 2000 (Cth), which introduced Part IX of the Copyright Act.[13] Before I set out the manner in which Part IX of the Copyright Act gives effect to Art 6bis, it would be useful to provide an illustration of each of the two rights Art 6bis of the Berne Convention protects. The first is “the right to claim authorship of the work”, and is illustrated by the following case:[14]
Guille, a painter, agreed to deliver to Colmant, a dealer, his entire future production for a period of ten years, at a rate of at least twenty paintings a month. The contract provided that the works furnished to the dealer would be signed with a pseudonym and that the painter would not sign the earlier works still in his possession. There was no evidence that the artist entered the agreement under duress or that he lacked capacity to contract. A dispute eventually arose, and the dealer sued the artist for breach of contract. The court of appeals held that the dealer could not prohibit the artist from using his real name in connection with works he created, despite the terms of the contract.
[12] Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as revised (Paris, 24 July 1971) ATS 1978 No.5
[13] The Explanatory Memorandum to the Copyright Amendment (Moral Rights) Bill 1999 states that the “Bill gives full and proper effect to Australia’s obligations under article 6bis of the Berne Convention for the Protection of Literary and Artistic Works”.
[14] John Henry Merryman, "The Refrigerator of Bernard Buffet" (1976) 27:5 Hastings LJ 1023, at page 1024.
The second of the rights identified in Art 6bis of the Berne Convention is the right “to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work”; and the case of Bernard Buffet’s refrigerator provides a useful example:[15]
The French artist Bernard Buffet was invited to decorate a refrigerator to be auctioned in Paris for the benefit of charity. He did so by painting a composition consisting of six panels: three on the front, one on the top, and one on each side of the refrigerator. He considered the six panels parts of one painting and signed only one of them. The refrigerator was duly auctioned along with nine others, decorated by nine other artists, at the Galerie Charpentier. Six months later the catalog for another auction included a “Still Life With Fruits” by Bernard Buffet, illustrated and described as a painting on metal. Inspection showed that the painting was one of the panels decorating the front of the refrigerator. The artist brought an action against the owner-consignor to prevent the separate sale of the panel, and the court so ordered.'
[15] John Henry Merryman, "The Refrigerator of Bernard Buffet" (1976) 27:5 Hastings LJ 1023, at page 1023. This case was decided by reference to an author’s right to object to a distortion, which did not include a requirement that the distortion be prejudicial to the author’s honour or reputation.
Part IX of the Copyright Act
Part IX of the Copyright Act does two broad things. First, it identifies and defines three rights in relation to an author, and three rights in relation to a performer, each of which is defined in s 189 to be a “moral right”. The three rights in relation to an author are “a right of attribution of authorship”, which is defined in s 193 of the Copyright Act; “a right not to have authorship falsely attributed”, which is defined s 195AC; and “a right of integrity of authorship”, which is defined in s 195AI. In defining these rights, Part IX relies on the definitions contained in s 189; but, as I will show when I consider the right provided for by s 195AI, those definitions themselves pick up definitions and notions provided for in other parts of the Copyright Act.
The second thing Part IX does is specify the circumstances in which each moral right is infringed; and the remedies that are available to a person whose moral right has been infringed.
The “right of integrity of authorship” provided for by s 195AI
The “right of integrity of authorship in respect of [a] work” is created by s 195AI of the Copyright Act, which provides:
(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.
Section 195AI does three things: it designates a class of persons who fit the description “author of a work”; it confers on such class of persons a right, which s 195AI(1) describes as a “right of integrity of authorship in respect of the work”; and it describes what that right is, namely, “the right not to have the work subjected to derogatory treatment”. The operation of s 195AI, therefore, turns on a correct understanding of the meaning of “author of a work”, and the “right not to have the work subjected to derogatory treatment”.
Author of a work
For the purposes of s 195AI of the Copyright Act, “work” is defined in s 189 to mean a “literary work, a dramatic work, a musical work, an artistic work or a cinematograph film”. Each of these expressions is defined in s 189, but relevant to these reasons is the expression “literary work”, which is defined in s 189 to mean a “literary work in which copyright subsists”. That directs attention to s 32(1) and (2) of the Copyright Act, which specify the circumstances in which “copyright subsists in an original literary, dramatic, musical or artistic work”. Those subsections provide as follows:
(1)Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:
(a) was a qualified person at the time when the work was made; or
(b) if the making of the work extended over a period—was a qualified person for a substantial part of that period.
(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:
(a) copyright subsists in the work; or
(b) if copyright in the work subsisted immediately before its first publication—copyright continues to subsist in the work;
if, but only if:
(c) the first publication of the work took place in Australia;
(d)the author of the work was a qualified person at the time when the work was first published; or
(e)the author died before that time but was a qualified person immediately before his or her death.
Subsection 32(4) of the Copyright Act provides that, for the purposes of s 32, “qualified person” means an Australian citizen, or a person resident in Australia.
Four things may be noted about s 32 of the Copyright Act. First, under s 22(1) a work is “made” when it is “first reduced to writing or takes some material form”; and “material form”, in relation to a work or adaptation of a work, is defined in s 10 of the Copyright Act to include “any form (whether visible or not) of storage of the work or adaptation”. Second, the expression “work was made” implies the work is the product of human activity; and it is the person who has undertaken the activity that produces the work who is the author of the work. In short, the author “is the person or persons who bring the work into existence in its material form”.[16]
[16] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(3)] (Gordon J)
Third, the work the author produces must be an “original work”. That does not imply that the work must in some sense be novel or inventive. “Original”, when used in relation to a work, means that the work must originate from the “independent intellectual effort” of the person who is said to be the author of the work, and that it was not merely copied form another work.[17] For this reason, the “author” (that is, the person who makes a work) and “original work” (the work that originates from the author) are correlative. This point was made by Isaacs J in Sands & McDougall Pty Ltd v Robinson:[18]
. . . the two expressions “author” and “original work” have always been correlative; the one connotes the other, and there is no indication in the Act that the Legislature intended to depart from the accepted signification of the words as applied to the subject matter. Indeed, the circumstance of reciprocal connotation is the key to the meaning of the enactment. We find in the Oxford Dictionary, vol. I p. 571, col. 1, “author” defined as “the person who originates or gives existence to anything.”
[17] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [33]. See also Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, at page 511, where Dixon J said: “[S]ome original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material.”
[18] Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49, at page 55. Isaacs J was considering the Copyright Act 1911 (Cth). See also Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCA 44, at [20(6)] (Gordon J)
Thus, “author of a work”, in s 195AI of the Copyright Work, means a person who undertakes some independent effort that brings into existence the work.
The fourth thing to note about s 32 of the Copyright Act is that it specifies the subject matter in relation to which it creates rights, namely, a “literary work”, “dramatic work”, “musical work”, or “artistic work”; it specifies the rights it creates in relation to the subject matter, namely, “copyright”, as that word is defined in s 31(1)(a) and (b); and it specifies the circumstances in which “copyright” in relation to such works is created. The word “copyright” itself is defined in s 31(1)(a) and (b) as follows:
For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:
(a)in the case of a literary, dramatic or musical work, to do all or any of the following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to communicate the work to the public;
(vi) to make an adaptation of the work;
(vii)to do, in relation to a work that is an adaptation of the first‑mentioned work, any of the acts specified in relation to the first‑mentioned work in subparagraphs (i) to (iv), inclusive; and
(b) in the case of an artistic work, to do all or any of the following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to communicate the work to the public . . .
The fact the Copyright Act creates rights that relate to works that are the product of human effort has led judges to observe that the object of protection of the Copyright Act is not ideas or facts, but “the particular form of expression in which an author conveyed ideas or information to the world”.[19] Thus in IceTV Pty Limited v Nine Network Australia Pty Limited, French CJ, Crennan and Kiefel JJ said: [20]
Copyright does not protect facts or information. Copyright protects the particular form of expression of the information, namely the words, figures and symbols in which the pieces of information are expressed, and the selection and arrangement of that information. That facts are not protected is a crucial part of the balancing of competing policy considerations in copyright legislation. The information/expression dichotomy, in copyright law, is rooted in considerations of social utility. Copyright, being an exception to the law’s general abhorrence of monopolies, does not confer a monopoly on facts or information because to do so would impede the reading public's access to and use of facts and information. Copyright is not given to reward work distinct from the production of a particular form of expression.
[19] Hollinrake v Truswell [1894] 3 Ch 420, at page 424 quoted with approval in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [26]
[20] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [28] (footnotes omitted)
In IceTV, Gummow, Hayne and Heydon J said:[21]
It is well established that copyright does not subsist in a work unless and until the work takes some material form, so that protection:
“does not extend to the ideas or information contained in the work and a balance is struck between the interests of authors and those of society in free and open communication”.
[21] IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, at [102] (footnotes omitted)
In Autodesk Inc v Dyason Dawson J (with whose reasons Mason CJ, Brennan and Deane JJ agreed) said “it is often difficult to separate an idea from its expression, but it is nevertheless fundamental that copyright protection is given only to the form in which ideas are expressed, not to the ideas themselves”.[22] As will appear later, the Copyright Act’s being concerned with the protection of rights an author has in relation to the material form in which an author expresses his or her ideas, is relevant to construing s 195AI.
[22] Autodesk Inc v Dyason [1992] HCA 2, at [22]
Not to have the work subjected to derogatory treatment
The right s 195AI of the Copyright Act confers on an author of a work is directed to the author’s preventing certain activities in relation to the work, that activity being the subjection of the author’s work to “derogatory treatment”. Section 195AJ defines “derogatory treatment”, “in relation to a literary, dramatic or musical work”, to mean the doing of one of two classes of act (proscribed acts), namely:
(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.
Both classes of proscribed acts must consist of the doing of an act “in relation to the work”; and the doing of the act must be “prejudicial to the author’s honour or reputation”. But the two classes of proscribed acts differ in the means by which the act is prejudicial to the author’s honour or reputation. The class of act proscribed by s 195AJ(a) of the Copyright Act must be prejudicial through the act’s having resulted in “a material distortion of, the mutilation of, or a material alteration to, the work”. That is, s 195AJ(a) requires that the act in relation to the author’s work results in “a material distortion of, the mutilation of, or a material alteration to, the work”; and it is the material distortion of, the mutilation of, or a material alteration to, the work that must be prejudicial to the author’s honour or reputation. The class of act proscribed by s 195AJ(b), on the other hand, only requires the doing of an act in relation to the work that is prejudicial to the author’s honour or reputation.
Infringement of “right of integrity of authorship”
Having provided in s 195AI of the right of integrity of authorship, the Copyright Act, in s 195AQ, provides for the circumstances in which that right is infringed. Relevant to the issues with which I am concerned is the following:
(2)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.
(3) 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.
These provisions are subject to s 195AS of the Copyright Act which excludes from the operation of s 195AC the subjection of a work to treatment that is reasonable:
(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.
(3)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 cinematograph film to derogatory treatment include the following:
(a) the nature of the film;
(b) whether the primary purpose for which the film was made was for exhibition at cinemas, for broadcasting by television or for some other use;
(c) the purpose for which the film is used;
(d) the manner in which the film is used;
(e)the context in which the film is used;
(f) any practice, in the industry in which the film is used, that is relevant to the film or the use of the film;
(g) any practice contained in a voluntary code of practice, in the industry in which the film is used, that is relevant to the film or the use of the film;
(h) whether the film was made in the course of the employment of the director, producer or screenwriter who alleges that the treatment was derogatory;
(i) whether the treatment was required by law or was otherwise necessary to avoid a breach of any law.
(4)A person who does any act referred to in subsection 195AQ(3), (4) or (5) in respect of a work that has been subjected to derogatory treatment of a kind mentioned in that subsection does not, by doing that act, 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 do that act.
Finally, there is Division 7 of Part IX, which provides for remedies for infringement of moral rights.
THE PREMISES
The Premises are as follows:[23]
[23] Hoser v Georges [2023] FedCFamC2G 550, at [10], [42], [46]
(a)The applicant, Mr Hoser, is the author of the following papers (Rhodin 2021 referenced works):
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.
(b)Mr Hoser is also the author of the “multiple other works” (Wüster referenced works) identified in “Wüster et al. (2021)” (Wüster 2021).
(c)The Rhodin 2021 and Wüster referenced works are original literary works.
(d)Given (b) and (c):
(i)copyright subsists in the Rhodin 2021 and the Wüster 2021 referenced works; and
(ii)s 195AI(1) of the Copyright Act confers on Mr Hoser, the author of the Rhodin 2021 and the Wüster 2021 referenced works, “a right of integrity of authorship in respect of the works”, such right being the right specified in s 195AI(2), namely, not to have the works subject to derogatory treatment.
(e)The respondents, in publishing what I have identified in the earlier reasons as Rhodin 2015, Rhodin 2017, and Rhodin 2021, made statements in relation to the Rhodin 2021 referenced and Wüster referenced works which include the following:
(i)the respondents proposed to replace the “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;
(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 following imputations:
(A)Mr Hoser is dishonest.
(B)Mr Hoser is unscientific.
(C)Mr Hoser’s publications are not scientific.
(D)Mr Hoser engages in unwarranted acts of disruption.
(E)Mr Hoser coins unscientific names in breach of the rules of the International Commission of Zoological Nomenclature (ICZN).
(F)Mr Hoser acts outside of the rules of the ICZN.
(G)Mr Hoser is a taxonomic vandal.
(H)Mr Hoser engages in taxonomic vandalism.
(I)Mr Hoser is a thief.
(J)Mr Hoser is disruptive.
(K)Mr Hoser is unethical.
(L)Mr Hoser is a queue jumper.
(M)Mr Hoser’s works should never be cited.
(N)Mr Hoser’s scientific names should be ignored.
(O)Mr Hoser’s names should be overwritten by names of others.
(P)Junior synonyms of Mr Hoser’s scientific names should be used in preference to those of Mr Hoser.
(Q)Mr Hoser’s works are regarded as unscientific by the scientific community.
(f)On 9 May 2021 the eighth respondent, Mr Scott Thomson, published Rhodin 2021 on Wikipedia and, in so doing, conveyed the imputations in (e)(vi).
(g)The respondents’ conduct in (e) and Mr Thomson’s conduct in (d) related to the Rhodin 2021 and Wüster referenced works, 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 and Wüster referenced works to derogatory treatment within the meaning of s 195AJ of the Copyright Act.
PARTIES’ SUBMISSIONS AND QUESTION OF CONSTRUCTION THAT ARISES
Mr Hoser’s submissions
In his written submissions,[24] Mr Hoser submits the Premises disclose “derogatory treatment” of Mr Hoser; and that consists of the various disparaging statements and comments the respondents have made in their publications about Mr Hoser’s work, which has been prejudicial to his honour and reputation as the author of the works to which the respondents’ statements and comments were directed. More particularly, Mr Hoser identifies as the “derogatory treatment” the “comments and imputations” the respondents published in relation to Mr Hoser and his work.[25] Mr Hoser says that his case is “about reference to the works AND the “derogatory treatment” that is extremely “prejudicial to the author’s honour or reputation””.[26]
[24] Applicant’s submissions in response to the Strike Out Application Submissions (“Respondent’s Submissions” of 15 August 2023) for the Amended Statement of Claim (ASOC) (Applicant’s Written Submissions)
[25] Applicant’s Written Submissions, [12]
[26] Applicant’s Written Submissions, [24]
Mr Hoser relies on s 195AJ(b) of the Copyright Act and, in particular, the expression “the doing of anything else in relation to the work”. Mr Hoser submits that this expression is broad enough to capture words spoken about an author’s work which is prejudicial to the author’s honour or reputation. Mr Hoser also submitted that the word “treatment”, as it appears in s 195AI, is not defined in the Copyright Act; and its ordinary meaning – “the manner in which someone behaves towards or deals with someone or something” – clearly includes “the commentary by the respondents”.[27] Mr Hoser relies on a portion of the Explanatory Memorandum (emphasis added by Mr Hoser):[28]
The Bill provides for three moral rights: an author’s right to be identified as the author of a work (the right of attribution of authorship); the right of an author to take action against false attribution (the right not to have authorship of a work falsely attributed); and an author’s right to object to derogatory treatment of his or her work which prejudicially affects his or her honour or reputation (the right of integrity of authorship of a work).
[27] Applicant’s Written Submissions, [96]
[28] Explanatory Memorandum, [36]
Mr Hoser also relies on statements made by various members of Parliament during the second reading speech. For example:
Derogatory treatment of literary, dramatic or musical work is also considered to be derogatory towards the author or the creator.[29]
The right of individuals to protect the integrity of their work and the right to have their work attributed to them are at the core of moral rights. The right to be able to protect a work from derogatory treatment has also been addressed.[30]
[29] Applicant’s Written Submissions, [5], [6] (Mr. Alan Cadman MP)
[30] Applicant’s Written Submissions, [77] (Senator Bolkus)
In his oral submissions Mr Hoser submitted as follows:[31]
They’ve named my publication. The action in relation to the works are done anything in – anything done in relation to the work, once it – and [counsel for the respondent] repeatedly said, your Honour, mere citation is not doing anything in relation to work and, of course, your Honour, had the work been merely cited, my works would not be here today. They cited the works, then they engaged in the derogatory conduct and the derogatory conduct is the anything done in relation to the work, so they keep saying you’ve got to, like, get a book and stick a match to it and burn it as if it was burning a flag. That’s not the intent of the Act.
Anything – the word anything is broad and it’s deliberately broad. Anything done in relation to the work that damages the author’s integrity, honour, reputation, standing etcetera, they are the – there’s alleged with intent, there’s words of the Act and, your Honour, the central submission obviously will be that – and is that it has to be taken on face value at obvious plain English interpretation in the absence of a case law relevant to this very section of this very Act,
[31] T18.25-T18.35
The respondents’ submissions
The respondents submit that while the word “anything” is broad, it must be construed in the phrase in which it appears, namely “anything” “in relation to a work”.[32] The respondents submit that the expression “doing anything in relation to a work” necessarily requires some treatment of the work itself, whether that be interference, use, or potentially destruction of the work, and not merely a reference to the work.[33] The respondents rely on the following matters:
(a)The text of s 195AJ, and in particular the use of the word “treatment” “of the work” (being the authorial expression).[34]
(b)Paragraph 195AJ(b) lists examples of “the doing, in relation to the work, anything”, namely, distortion, mutilation, and alteration, being impacts that could not occur if the thing done in relation to the work was not a use of, or interference, with the work itself.[35]
(c)Paragraph (b) of s 195AJ cannot be construed in a way that is broader than s 14(1) of the Copyright Act, which provides that “a reference to the doing of an act in relation to a work . . . shall be read as including a reference to the doing of that act in relation to a substantial part of the work”.[36]
(d)The matters s 195AS(2) identifies as being relevant to determining whether the treatment of the author’s work is reasonable refers to the purpose, manner, or context in which the work “is used”.[37]
[32] Respondents’ Further Submission in Support of Interlocutory Application to Strike out Amended Statement of Claim (Respondents’ Written Submissions), [17]
[33] Respondents’ Written Submissions, [18]
[34] Respondents’ Written Submissions, [18(a)]
[35] Respondents’ Written Submissions, [18(b)]
[36] Respondents’ Written Submissions, [18(c)]
[37] Respondents’ Written Submissions, [18(d)]
In addition to these textual matters, the respondents submit that the extrinsic material points to s 195AJ(b)’s being intended to capture contextual use of the work in question.[38] The extrinsic material is as follows:[39]
(a)The Explanatory Memorandum for the Copyright Amendment (Moral Rights) Bill 1999 stated that the “latter part” of the definition in s 195AJ “is intended to address those instances where a work is used in an inappropriate context and prejudices the author’s honour or reputation”.
(b)The Attorney-General’s 1994 discussion paper Proposed Moral Rights Legislation for Copyright Creators referred to the right of “integrity” as “the right to object to distortion, mutilation or other modification of, or derogatory action in relation to, the work which is prejudicial to the author’s honour or reputation”, and that “other derogatory action” would be the “way the work is presented to the world”, for example, “the reproduction of an artistic work in association with pornographic material”.
[38] Respondents’ Written Submissions, [20]
[39] Respondents’ Written Submissions, [11], [12]
CONSTRUCTION OF S 195AJ(B)
On these competing submissions, the question of construction that arises is whether “the doing of anything else in relation to [a] work”, as that expression appears in s 195AJ(b) of the Copyright Act, includes making or publishing statements that are about, or are otherwise directed to, the information or ideas that are conveyed by the work; or are about or otherwise directed to the author of the work.
The general approach to the construction of statutory provisions has been stated by Justices of the High Court on a number of occasions. For the purposes of these reasons it is sufficient to refer to the following passage from the judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:[40]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose[41]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense[42]. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[40] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, at [14]
[41] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41.
[42] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.
The starting point, therefore, is the immediate statutory context in which the expression “the doing of anything else in relation to [a] work” in s 195AJ(b) of the Copyright Act appears. That context includes the following:
(a)The expression “the doing of anything else in relation to the work” in s 195AJ(b) of the Copyright Act constitutes part of the definition of one of three sets of rights for which the Part IX provides in relation to authors of original literary, dramatic and musical works (works). That is the right provided for by s 195AI of the Copyright Act, namely, “not to have the [author’s] work subjected to derogatory treatment”.
(b)The right provided for by s 195AI is an additional right to the rights the Copyright Act had already provided, and continues to provide, to authors of works, these being the exclusive rights (that is, the “copyright”) in relation to a work identified in s 31(1)(a) of the Copyright Act as provided for by s 32(1) and (2).
(c)The rights identified in s 31(1)(a) of the Copyright Act are expressed in relation to a class of works; and each of the rights consists of an exclusive right to do something with or to the work: 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; and to make an adaptation of the work. The rights identified in s 31(1)(a) do not extend to the doing of anything with or in relation to the ideas or information the work conveys.
(d)The right provided for by s 195AI of the Copyright Act is not an exclusive right in the author of a work to do something with the work; but it is nevertheless a right in relation to the author’s work. It is a right to prevent other persons from doing anything in relation to the work that is prejudicial to the author’s honour or reputation.
The rights with which both s 31(1)(a) (as provided for by s 32) and s 195AI of the Copyright Act are concerned, therefore, are rights an author has in relation to the work of which he or she is the author. The two provisions differ only in the nature of the rights they confer on the author in relation to his or her work. Paragraphs (a) and (b) of s 32(1) of the Copyright Act confer on the author of a work the exclusive right to do the things in relation to his or her work specified by s 31(1)(a). Section 195AI, on the other hand, confers on the author the right not to have others do anything in relation to his or her work that is prejudicial to the author’s honour or reputation. Just like the rights (that is, the “copyright”) referred to in s 31(1)(a) of the Copyright Act relate only to an author’s exclusive right to do things in relation to his or her work, but not to the information or ideas conveyed by the work; so too does s 195AJ(b) of the Copyright Act relate only to the doing of things in relation to the author’s work, and not to the doing of things in relation to the information or ideas conveyed by the work, or in relation to anything else.
Thus, the expression “the doing of anything else in relation to the work” in s 195AJ(b) of the Copyright Act means the doing of anything in relation to an author’s work, namely, the “particular form of expression in which an author convey[s] ideas or information to the world”.[43] More particularly, given that a literary work consists of the writing, or some other material form, into which the author has reduced information or his or her ideas,[44] “the doing of anything else in relation to the work” in s 195AJ(b) means doing anything (other than any of the acts specified in s 195AJ(a)):
(a)in relation to the writing itself (for example, displaying the writing); or
(b)in relation to the medium on which the writing is recorded (for example, adding information to or displaying the medium); or
(c)in relation to the (non-written) material form (for example adding information to or displaying the material form).
[43] Hollinrake v Truswell [1894] 3 Ch 420, at page 424
[44] Copyright Act, s 22(1)
The “doing of anything else in relation to the work” in s 195AI does not include statements about the information or ideas that is or are conveyed by the writing, or statements about the (non-written) material form into which the author has reduced information or his or her ideas.
One way of capturing the meaning of “the doing of anything else in relation to the work” in s 195AJ(b) of the Copyright Act is to imagine the “works” to which it applies to be tangible goods; and therefore regard s 195AJ as applying to any act that has the tangible good (that is, the “work”) as its direct object. That breaks down into two possible classes of act: doing something to the tangible good; or doing something with the tangible good (for example, moving or displaying the good).
There should be nothing surprising about this construction of s 195AJ(b). The Copyright Act is concerned with, among other things, the protection of rights of authors of literary works; but it provides protection in a particular way. It does so by reference to the notion of “works”, being the material form in which the author, through his or her own effort, expresses or records ideas or information. The Copyright Act creates rights, not in the ideas or information conveyed by the works the author creates, but in the material form in which the author expresses information or his or her ideas. Thus, although s 195AI provides additional rights to authors of works, it does so in relation to the same subject matter of the rights for which s 32 of the Copyright Act provides, namely, the material form in which the author’s ideas or information are expressed. That is not to say that an author of a work does not have a right to protect his or her reputation against statements about the ideas or information an author coveys by his or her work which are prejudicial to his or her reputation or honour; but the protection an author has to his or her reputation is the protection that is afforded to authors and nonauthors alike under other branches of the law, and in particular the law of defamation.
DETERMINATION
The Premises do not contain any allegation that the respondents did anything in relation to or with any of the writing that comprises or constitutes the Rhodin 2021 and Wüster referenced works; or that the respondents did anything to or with any medium that recorded any of the writing that comprises or constitutes the Rhodin 2021 and Wüster referenced works. The Premises do not, for example, allege that the respondents altered or distorted any of the writing that comprises or constitutes the Rhodin 2021 and Wüster referenced works, or that the respondents did anything in relation to any medium that records any of the writing the comprises or constitutes any part of the Rhodin 2021 and Wüster referenced works, such as mutilating or displaying such medium. The Premises instead rely, and rely only, on allegations that the respondents made statements about Mr Hoser which have impugned his character and his qualities as a researcher, particularly in the field of herpetology. For these reasons, the Premises do not disclose a reasonable cause of action for infringement under s 195AQ(2) of the Copyright Act in relation to the right he has under s 195AI of integrity of authorship in respect of the Rhodin 2021 and Wüster referenced works.
DISPOSITION AND COSTS
Given: (a) I have concluded that the Premises do not disclose a reasonable cause of action for infringement under s 195AQ(2) of the Copyright Act; (b) in the earlier reasons I was unable to identify in the amended statement of claim any other potential cause of action; and (c) Mr Hoser abandoned causes of action based on defamation, I am satisfied that Mr Hoser does not have reasonable prospects of successfully prosecuting the proceeding against any of the respondents. For these reasons, I propose to make an order under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) that the proceeding be dismissed.
The respondents submit that Mr Hoser should be ordered to pay the respondents’ costs. Mr Hoser made submissions against his being ordered to pay the respondents’ costs, but these submissions were premised on the respondents not succeeding on their claim that the Premises do not disclose a reasonable cause of action. The respondents have succeeded in their application that the proceeding be dismissed; and there is no reason why the respondents should not be entitled to their costs. I therefore propose to order that Mr Hoser pay the respondents’ costs.
The respondents also apply that I assess their costs. The first and seventh respondents, and the second, third, fourth fifth, sixth, and eighth respondents have provided separate schedules of costs. The costs appear to have been purportedly assessed in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). I say “purportedly” because the schedule in relation to the first and seventh respondents’ claims as a disbursement fees paid to counsel ($23,292.50 and $24,736.25) which exceed the amounts allowed by Schedule 2, being the amount specified in r 22.15 of the GFL Rules, which provides:
If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Part 1 of Schedule 2.
Further, there appears to be double counting to the extent that all respondents claim hearing fees in circumstances where one counsel represented all respondents.
I therefore do not propose to set costs in the amount stated in the schedules the respondents have provided. I will, however, grant the respondents liberty to apply within 35 days after I publish these reasons for an order that I set the amount of the respondents’ costs in accordance with Schedule 2 to the GFL Rules or, in the alternative, for an order that the respondents’ costs be assessed or set in a manner otherwise than in accordance with Schedule 2.[45]
[45] See, for example, Korolak v Campbell (No 3) [2024] FedCFamC2G 148
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 April 2024
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
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