O'Hara v McDermott

[2005] VSC 475

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
INTELLECTUAL PROPERTY LIST

No. 8505 of 2005

MICHAEL O'HARA	Plaintiff
v
PETER McDERMOTT	First Defendant
- and -
DAVID WALKER	Second Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2005
DATE OF JUDGMENT:	30 NOVEMBER 2005
CASE MAY BE CITED AS:	O'HARA v McDERMOTT & ANOR
MEDIUM NEUTRAL CITATION:	[2005] VSC 475

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COPYRIGHT – Application by defendants to stay the proceedings – Whether claim disclosed a cause of action, was scandalous, frivolous or vexatious, or an abuse of the process of the court – Proceedings brought in respect of the same claim in the County Court – Proceedings stayed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr A. Schlicht	Valos Black & Associates
For the Second Defendant	Mr P. Golombeck	James Syme Victorian Government Solicitor

HIS HONOUR:

1. I have before me three summonses; one, a summons for final judgment issued on behalf of the plaintiff.  The second is a summons issued on behalf of the first defendant, in which the first defendant seeks an order pursuant to Rule 23.01 of the Rules of the Supreme Court that there be judgment for him, or alternatively that the proceeding be stayed on the grounds that the claim does not disclose a cause of action, is scandalous, frivolous or vexatious, is an abuse of the process of the court.  The first defendant also claims that the proceeding is the subject of res judicata.

1. In the alternative, the first defendant seeks orders pursuant to Rule 23.02 of the Rules of the Supreme Court for like relief.  For his part the second defendant has issued a summons also pursuant to Rule 23.01, or in the alternative Rule 23.02, or again in the further alternative pursuant to Rule 23.03 seeking relief of a like kind to that sought by the first defendant, including relief based upon the fact that a current proceeding in the County Court between the same parties raises the same issues. 

1. I will deal first with the summonses issued respectively by the defendants.  The principal submission put on behalf of both defendants is that by proceedings issued in the County Court the present plaintiff has sought, and in respect of the second defendant continues to seek, relief of the same kind or character as the plaintiff seeks in this court.

1. I have been taken through the history of the proceeding in the County Court in explication of that principal submission.  The history in brief is that the matter came before her Honour Judge Lewitan in April this year, at which time her Honour gave leave to the plaintiff to apply to file a further amended statement of claim.  The plaintiff took advantage of that leave and prepared a further amended statement of claim which came before his Honour Judge Dove and then before his Honour Judge Davey on an application for leave to file and serve that further amended statement of claim.  Judge Davey refused leave; and when an application for summary judgment was thereupon made by the first defendant, his Honour referred that matter for hearing before another judge.

1. It eventually came on before his Honour Judge Robertson, who allowed the application for judgment and accordingly entered judgment in favour of the first defendant.  The second defendant, for reasons which were explained to me by counsel for him, was not a party to the proceedings before Judge Robertson; and accordingly the County Court action continues on foot against the second defendant.

1. The proceedings in the County Court were said by the plaintiff, in the various forms in which the action or actions was or were pleaded, to be based principally upon breaches or alleged breaches of the Copyright Act.  Those breaches were constituted by a number of alleged actions taken by or on behalf of the defendants or one or other of them, including an opening statement made to the jury by the first defendant who was then the prosecutor in a criminal proceeding brought against the plaintiff.

1. In association with the statements made in his opening the plaintiff alleges that the first defendant in one way or another breached copyright by making available to various media outlets the work or portions of the work in which, as the plaintiff alleges, copyright resides. That work, the authorship of which is claimed by the plaintiff, is called "The German Connection".

1. It is apparent that the plaintiff's complaint about the use of that work is in part only in relation to breach of copyright and in part also in relation to the, as I understand it, defamatory nature of certain criticisms of the work.  In proceedings issued by writ in this court on 27 September of this year the plaintiff makes claims as set out in the statement of claim, which as I read it reflect, if they do not mirror, the claims made in the County Court.

1. The plaintiff comes before me seeking the application of the law to his case.  He also suggests that the Australian notion of a “fair go” should apply and that he should be permitted to pursue his Supreme Court proceeding for that reason and so as to enable him to produce fresh evidence to the court. 

1. The law is more definite than that which can be gained by reference to such a vague concept as a “fair go”, although it is an inherent part of the administration of justice in this system that all parties be given both an opportunity to be heard and the right to prosecute and defend proceedings in the court.

1. The "fair go" applies both to plaintiffs and to defendants. Part of that is the basis for the rule that defendants should not be subjected, because it is not fair, to proceedings simultaneously in two jurisdictions or to proceedings which, having been determined in one jurisdiction, are then sought to be re-agitated in another.

1. A plaintiff as part of the notion of fairness is entitled to prosecute his or her proceeding once, but generally speaking only once.

1. The cause of action having been agitated in one court, and having been finalised there, the law generally is that subject to appeal that cause of action cannot be agitated in another court.  Were it otherwise, defendants could properly say that they were not allowed a fair go; that they were not allowed to free themselves of the constant apprehension, if not actuality, of proceedings being brought against them time and again in relation to the same claim.

1. It is that principle which is, it seems to me, operative in this case.  I have compared the claim made by the plaintiff in his statement of claim as issued with the writ on 27 September 2005 with the cause or causes of action which the plaintiff has brought against the defendants in the County Court.  My comparison satisfies me that the plaintiff seeks in this court to agitate or re-agitate the same cause or causes of action as those brought by him in the County Court.

1. It remains for him to prosecute to the extent properly allowed by the County Court the proceeding against the second defendant.  The proceeding against the first defendant has been determined in that court and it is not now open for the plaintiff, save for any rights of appeal which he may have (and I don't suggest by that that I have any view one way or the other about such rights) to re-agitate the same cause of action or a very similar cause of action in this Court.

1. For these reasons it seems to me that the proceedings in this court in respect of both defendants are, in the words of Rule 23.01, proceedings which are not only an abuse of the process of the court, but also scandalous, frivolous and vexatious.  In those circumstances it seems to me that I am bound to hold that the relief sought by the summonses issued respectively by the first and second defendants should be granted. It follows that the plaintiff’s summons for final judgment must be dismissed.  

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