Magyar v Director General, Department of Education, Government of Western Australia
[2018] FCA 288
•6 March 2018
FEDERAL COURT OF AUSTRALIA
Magyar v Director General, Department of Education, Government of Western Australia [2018] FCA 288
File number: WAD 185 of 2017 Judge: MCKERRACHER J Date of judgment: 6 March 2018 Date of hearing: 6 March 2018 Registry: Western Australia Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: No Catchwords Number of paragraphs: 6 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr D S Anderson Solicitor for the Respondent: State Solicitors Office ORDERS
WAD 185 of 2017 BETWEEN: LESLIE MAGYAR
Applicant
AND: DIRECTOR GENERAL, DEPARTMENT OF EDUCATION, GOVERNMENT OF WESTERN AUSTRALIA
Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
6 MARCH 2018
THE COURT ORDERS THAT:
1.The applicant is given leave to amend his statement of claim in the terms of the revised statement of claim provided to the respondent on 13 February 2018 by email, subject to the following revisions:
(a)Deletion of paragraphs [30]-[33].
(b)Deletion of paragraphs [44]-[82].
(c)Amendment of paragraph [90] to state exhaustively “damages”.
2.The applicant is to file and serve the amended statement of claim by 27 March 2018.
3.The respondent is to file and serve an amended defence by 17 April 2018.
4.The proceedings are referred back to mediation.
5.Costs of today and thrown away reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPTMCKERRACHER J
The applicant is the respondent’s employee. The applicant, appearing in person, seeks relief which will recognize that contrary to the respondent’s contention, copyright is owned by the applicant rather than the respondent in certain works. The applicant says the respondent has treated other employees differently from him.
This is the return of the applicant’s interlocutory application for orders for the following relief:
1.A description of the actions taken by the Respondent to ensure that the publications listed below do not include content that the Respondent owns the copyright:
a)Maths for WA 1, second edition
[names redacted]
PEARSON Heineman, 2007
b)Essential Mathematics Units 3 and 4
[names redacted]
The Mathematical Society of Western Australia, 2015
c)Essential Mathematics Units 3 and 4, Teacher's Guide
[names redacted]
The Mathematical Society of Western Australia, 2015
2.A declaration from the Respondent stating whether they own any of the IP in any of the publications listed in this application, and state upon what basis the Respondent claims to own the IP.
3.The Applicant be granted leave to file and serve an amended Statement of Claim within 28 days of receiving the Respondent's reply to the above orders.
4.If the above order is not granted, the Applicant be granted leave to file an amended Statement of Claim within three weeks of this hearing.
5.The Respondent is to file and serve its Defence or any application to strike out the Applicant's amended statement of claim.
6. The mediation process resumes after the Respondent files their defence.
Some of the orders and paragraphs of the proposed pleading relate to the treatment of other employees. I understand the argument which the applicant seeks to advance and he has done so in a very respectful manner with a deal of consideration to the surrounding circumstances. But there are technical difficulties with the proposed pleading and it seems to me, largely for the reasons advanced by the respondent, the most appropriate way forward is, with the following exceptions, to allow the further re-amended statement of claim provided to the respondent on 13 February 2018 by email, which attempts to make further accommodations with respect to the respondent’s contentions. The exceptions are the matters raised concerning the treatment of other employees. In my opinion such matters, cannot, certainly in their current form, if at all, be part of the pleaded statement of claim which is to be confined to a statement of the material facts which support the cause of action. Equally I do not consider the orders sought concerning other employees, being in the nature of interrogatories (which would be rarely granted) are appropriate.
The real issue is who owns the copyright in these particular works and why; not in others in which circumstances my significantly vary. The applicant claims that the respondent has treated the issue of potential copyright in the work of the other employees quite differently from the way it has treated the work in which he contends he maintains copyright. Such arguments, submissions or contentions may or may not be relevant at a later time in the unhappy event that this matter does go to trial. If it does, those matters could well arise at that occasion, and the respondent would need to be in a position, I think, to deal with them if the contentions as advanced by the applicant are properly capable of being maintained and are correct. But they do not belong in this Court document, and the respondent should not have to deal with those matters in this document because it does not form part of and is irrelevant to the pleading process. What I propose to do, consistently with that reasoning, is to allow the further re-amended statement of claim, deleting paras 30 to 33 and 44 to 82.
I will not entirely delete para 90 which presently pleads a claim for damages equal to two years’ salary essentially due to claimed unfounded threats of copyright breach being asserted. But I will confine it for the present to ‘damages’. I doubt whether the formulation of a claim for damages as asserted by the applicant is an appropriate foundation. But I do not want to shut out some potential prospect of monetary relief. It may be open to argue for damages, but it will have to be properly articulated by reference to a recognizable legal basis. I am not prepared to strike out the possibility of such a claim even if it involves some new approach to the law which should not be prematurely extinguished.
I will reserve any ruling on costs until after the mediation, while informing the applicant that in this situation, he would usually be liable to pay the costs of the respondent.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Associate:
Dated: 9 March 2018
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