Li v Leng
[2014] FCA 450
•30 April 2014
FEDERAL COURT OF AUSTRALIA
Li v Leng [2014] FCA 450
Citation: Li v Leng [2014] FCA 450 Appeal from: Application for extension of time: Li v Leng [2013] FCCA 1252 Parties: DONGGUANG LI v JINSONG LENG File number(s): WAD 50 of 2014 Judge(s): SIOPIS J Date of judgment: 30 April 2014 Date of hearing: 30 April 2014 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 39 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: Mr G Provan Solicitor for the Respondent: Watermark Intellectual Property Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 50 of 2014
BETWEEN: DONGGUANG LI
ApplicantAND: JINSONG LENG
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
30 APRIL 2014
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application on a party-and-party basis.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 50 of 2014
BETWEEN: DONGGUANG LI
ApplicantAND: JINSONG LENG
Respondent
JUDGE:
SIOPIS J
DATE:
30 APRIL 2014
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for leave to extend time to appeal from a judgment of the primary judge, Whelan J of the Federal Circuit Court of Australia, who on 19 September 2013 dismissed the application made by Mr Li, the applicant.
The applicant’s claim related to an academic article entitled “A Role-Based Cognitive Architecture for Multi-Agent Teaming” that was published as a chapter of a book entitled Agent and Multi-agent Technology for Internet and Enterprise Systems. The respondent, the applicant and three other academics were named in the book as co-authors of the chapter. At the relevant time each of the applicant and the respondent was a member of the academic of Edith Cowan University (ECU) – the respondent having joined the staff of ECU after the applicant.
The applicant claimed that in publishing the chapter of the book referring to the applicant as a co-author, the respondent had breached ss 193, 195AC and 195AI of the Copyright Act 1968 (Cth). These sections relate to an author’s right of attribution of authorship, an author’s right not to have authorship falsely attributed, and an author’s right of integrity of authorship, respectively. Together, these rights are defined under s 189 of the Copyright Act as the “moral right” of the author.
In addition, the applicant also claimed that the respondent had infringed the applicant’s right not to use and to disclose personal information, namely, his name and email address, without his consent under the Privacy Act 1988 (Cth).
As mentioned, the primary judge dismissed the applicant’s application. At [37] of the reasons for judgment, the primary judge observed:
As I am satisfied that the applicant is not an author of the work in question, any claims based on the moral rights with respect to authorship must be dismissed.
In relation to the application under the Privacy Act, the primary judge said at [40]:
I accept that section 7B of the Privacy Act exempts an act done by an individual if the act is done other than in the course of a business carried out by the individual.
The primary judge went on to say that the respondent was an employee of ECU, as was the applicant, and that the respondent was not conducting a business when he named the applicant as a co-author of the chapter in the book published by Springer-Verlag.
THE APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL
Pursuant to the 21 day appeal period specified in r 36.03 of the Federal Court Rules 2011, the applicant was required to file and serve any notice of appeal from the Federal Circuit Court judgment by 10 October 2013. The applicant filed an application for an extension of time in which to file a notice of appeal on 4 March 2014, and so was approximately four months and three weeks out of time for the filing of the notice of appeal.
In considering an application for leave to extend the time within which to appeal, there are a number of matters that the Court will take into account.
Explanation for the delay
The first matter is the length of, and explanation for, the delay.
In support of his application for an extension of time, the applicant filed an affidavit dated 28 February 2014 to which he annexed a number of medical certificates from the period 10 September 2013 to 8 March 2014. In his affidavit, the applicant deposed:
The four certificates, which certified that I have been totally unfit for work from 10 September 2013 to 8 March 2014.
Those medical certificates are given by Dr Todd Silbert of North Perth. The certificates state that the applicant’s medical condition giving rise to his unfitness for work commenced on 14 September 2010. The debilitating condition has, therefore, been a condition of some longstanding. Mr Provan, on behalf of the respondent, drew attention to the evidence which showed that, despite the medical condition referred to in the certificates, the applicant has since January 2011 commenced and conducted eight pieces of litigation. Mr Provan also drew specific attention to the evidence that since the primary judge’s judgment was delivered in September 2013, the applicant has, in fact, commenced other proceedings, namely, two applications to the High Court for special leave to appeal.
Mr Provan’s contention is that there is nothing in the certificates which suggests that the applicant is not able to read or write or take any other steps which are necessary to commence a legal proceeding, as was demonstrated by his ability to commence the two applications for special leave to appeal to the High Court.
In my view, there is substance in that contention. The medical certificates do not demonstrate any incapacity on the part of the applicant to take the steps which are necessary to commence a legal proceeding. The absence of any such incapacity is supported by his having commenced applications for special leave to appeal to the High Court.
Accordingly, in my view, the explanation for the delay based on the evidence in the applicant’s affidavit is insufficient to explain or excuse the delay in bringing the appeal within the prescribed time.
Merits of the proposed appeal
The next matter which is relevant in considering whether to extend the time within which to appeal, is the merits of the proposed appeal. In that regard, the applicant has filed a draft notice of appeal.
In my view, the draft grounds of appeal do not demonstrate a sufficient prospect of success to justify the granting of leave to appeal.
The first proposed ground of appeal is that the primary judge applied an “incorrect principle of law” in concluding that the respondent was at liberty to use the applicant’s name and contact details for publication of the chapter without the applicant’s permission. No specific principle, nor finding, was identified by the applicant in that ground of appeal. However, in [40] of the reasons for judgment, the primary judge dealt with the question of the application of the Privacy Act. The primary judge found that the Privacy Act did not apply because the respondent was an employee of ECU and was not conducting a business when he named the applicant as a co-author of the chapter. In my view, this ground of appeal, in the absence of further elucidation, does not have sufficient merit to warrant the grant of an extension of time.
The second proposed ground of appeal is that the primary judge erred in law by “knowingly accepting the false evidence provided by the respondent’s lawyer Guy Provan”. An examination of the reasons for judgment of the primary judge identifies the evidence the primary judge relied upon. There is no indication in those reasons that Mr Provan gave any evidence in the proceeding, let alone that it was accepted by the primary judge in the manner alleged by the applicant.
During the course of the argument, it emerged that the applicant’s real complaint was that, in his view, the evidence given by the respondent was false. However, that does not provide a basis upon which to accuse Mr Provan of providing false evidence, nor does it provide a basis upon which to make an allegation that the primary judge acted in bad faith by “knowingly” accepting false evidence.
Mr Provan advised the Court from the bar table that the applicant cross-examined the respondent and his witnesses on their affidavits at some length. The applicant, therefore, had an opportunity at the trial to demonstrate the falsity of the evidence which was given by the respondent on affidavit. This ground of appeal does not have sufficient merit to warrant the granting of an extension of time within which to appeal.
The third proposed ground of appeal is that the primary judge erred at law by ignoring the fact that the respondent’s lawyer, Mr Provan, “unlawfully manipulated legal documents at the Perth Registry”. The applicant provided no evidence in support of his claim that Mr Provan had engaged in the scandalous activity of which the applicant accuses him.
Also, importantly, there was nothing in the applicant’s allegation which demonstrated that the alleged conduct of Mr Provan in relation to the Perth Registry had any consequence for the trial. In his submissions, the applicant referred to an allegation about Mr Provan taking evidence from Professor Zhihu Huang in China without going through the proper processes. It appeared that this was the source of the applicant’s complaint. However, there is no reference to the evidence of Professor Zhihu Huang in the reasons for judgment of the primary judge and it is apparent from a perusal of the reasons that the primary judge did not rely on any such evidence in coming to her conclusions. This ground of appeal does not have sufficient merit to warrant the grant of an extension of time within which to appeal.
The fourth proposed ground of appeal is that the primary judge erred in law by not allowing the applicant to present his “key evidence” at the trial.
The applicant did not put the transcript of the proceeding before the primary judge into evidence at this hearing, so I am not able to discern the basis upon which this ground of appeal is made.
However, I am able to discern from the primary judge’s reasons for judgment that the applicant was given an opportunity to present his evidence at trial and that he took that opportunity by giving oral evidence. There is nothing before me to show that during the course of giving that evidence the applicant was inhibited from giving what he referred to as his “key evidence”. Having been given the opportunity to give evidence, one would have assumed that he would have given his “key evidence”. This ground of appeal does not have sufficient merit to warrant the grant of an extension of time within which to appeal.
The fifth proposed ground of appeal was that the applicant’s request to have regular breaks due to severe mental illness during the trial was rejected by the primary judge. There is no evidence as to what breaks were requested and, if they were requested, why they were refused. Nor is there any basis upon which to assess how any such refusal impacted upon the trial. Therefore, there is no basis upon which to conclude that this ground of appeal has sufficient merit to warrant the grant of an extension of time within which to appeal.
The sixth proposed ground of appeal is that the primary judge made a “key finding of fact on an important issue about who owns the IP of the publication in the case, which could not be supported by the evidence”.
This is the one proposed ground of appeal upon which much depends because this was, effectively, the key finding in the case. As I have mentioned, at [37] of the reasons for judgment, the primary judge said that she was satisfied that the applicant was not an author of the chapter and any claims based on the moral rights with respect to the authorship of the chapter must be dismissed.
The basis upon which the primary judge came to that finding is set out at [26] and [27] of the primary judge’s judgment. At [26], the primary judge observed:
There is in fact no evidence to support the Applicant’s claim that he collaborated with the other named authors (indeed he denied that he did with three of them) or contributed to the content of the document or made any contribution to the concept and design of the project, analysis and interpretation of the research data or the drafting or revising of any part of the work. (Footnote omitted.)
At [27], the primary judge referred to the following extract from the transcript of the applicant’s evidence at the trial:
Jinsong Leng submitted – got accepted, keep communicated with publisher all behind me, while he was working under my supervision, using Edith Cowan University research fund, which I gained, I applied for, I was awarded, so that is why I am suing him, breaching the Copyright Act based on this. I am not saying I contributed it in writing this current edition. (Emphasis added. Footnote omitted.)
This proposed ground of appeal, which contends that the finding that the applicant was not an author of the chapter, simply has no prospect of success. This is because, the primary judge has identified the evidence upon which she relied in coming to her conclusion; and that evidence includes the applicant’s own evidence that he did not contribute to the writing of the chapter of the book.
The seventh proposed ground of appeal states:
The Applicant submitted a group of medical certificates and reports, which indicate I was mentally disabled and was not capable in performing legal case myself at hearing, for Judge the Whelan to consider at the beginning of the hearing. The Judge Whelan removed those evidence from the case files at the end of the hearing. The applicant has been discriminated against and has been disadvantaged throughout the process of his legal case.
As mentioned, there was no transcript of the proceedings before the primary judge, in evidence. Therefore, the circumstances in which the medical certificates were presented to the primary judge, how they were dealt with by the primary judge and why it is alleged that there was a denial of procedural fairness, are not before this Court. However, from the bar table Mr Provan said without objection that the applicant did not make any application for an adjournment of the trial based on his medical condition. There is no evidence before me to demonstrate any denial of procedural fairness arising from the circumstances referred to in this ground of appeal. Accordingly, in my view, this ground of appeal does not have sufficient merit to warrant the grant of an extension of time within which to appeal.
It follows, that on the basis that the explanation for the delay is unsatisfactory, and the proposed grounds of appeal are devoid of sufficient merit, I will not grant an extension of time within which to appeal.
I should mention that during the course of the hearing before this Court, the applicant made an oral application for an adjournment of this application in order to obtain a transcript of the trial and to put the transcript into evidence.
However, I have declined to permit the applicant to do so. This is because I am satisfied that the applicant had a sufficient opportunity to gather and to present all of his evidence at this hearing. The applicant delayed for more than four months before commencing this proceeding without, as I have indicated, any sufficient explanation for the delay. Further, at the directions hearing on 25 March 2014, in relation to this matter, I advised the applicant that he was to be in a position so that the application could be heard today. The applicant did not take advantage of the opportunity he had to put the transcript into evidence.
Further, the appeal, which in essence turns on the factual finding as to whether the applicant was or was not a co-author of the chapter of the book in question, does not have sufficient prospects of success to warrant any indulgence being granted to the applicant by way of an adjournment to file further evidence.
Accordingly, I dismiss the applicant’s application for leave to extend the time within which to file a notice of appeal.
I certify that the preceding thirty‑nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 7 May 2014
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