Peters, Allan v Coulter, Kiersten Lea

[1995] FCA 904

CATCHWORDS

COPYRIGHT - application for summary dismissal of proceedings - whether reasonable cause of action disclosed - inappropriate for Court to determine without hearing evidence at trial.

Copyright Act 1968 (Cth) s 14 and s 31(1)(a)
Federal Court Rules O 20 r 2

General Steel Industries Inc v Commissioner for Railways (NSW)     and Ors (1964) 112 CLR 125

Capro Group Pty Ltd v Janbrett Consultants Pty Ltd (1994)     ATPR 41-298

Rees v Melville (1914) Macg Cop Cas 168

Ibcos Computers Ltd and Another v Barclays Mercantile Highland     Finance Ltd and Others (1994) 29 IPR 25

No SG 7 of 1995
ALLAN PETERS v KIERSTEN LEA COULTER and MURRAY PARK THEATRE COMPANY INC.

Branson J
Adelaide
13 November 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 7 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

ALLAN PETERS

Applicant

- and -

KIERSTEN LEA COULTER and

MURRAY PARK THEATRE COMPANY INC.

Respondents

MINUTES OF ORDERS

CORAM:    Branson J
PLACE:    Adelaide
DATE:     13 November 1995

THE COURT ORDERS THAT:-

1. The notice of motion dated 1 November 1995 be dismissed.

1. The respondents pay the applicant's costs of and incidental to that notice of motion.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 7 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

ALLAN PETERS

Applicant

- and -

KIERSTEN LEA COULTER and

MURRAY PARK THEATRE COMPANY INC.

Respondents

REASONS FOR DECISION

CORAM:    Branson J
PLACE:    Adelaide
DATE:     13 November 1995

By notice of motion dated 1 November 1995 the respondent seeks an order that these proceedings be dismissed on the basis that no reasonable cause of action is disclosed.

Order 20 rule 2(1) of the Federal Court Rules states as follows:-

"(1)Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:-

(a)no reasonable cause of action is disclosed;

(b)the proceeding is frivolous or vexatious; or

(c)the proceeding is an abuse of the process of the Court,

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding."

The authorities make it plain that an order can only be obtained under O20 r2 in very clear cases (General Steel Industries Inc v Commissioner for Railways (NSW) and Ors (1964) 112 CLR 125). Further, as Spender J pointed out in Capro Group Pty Ltd v Janbrett Consultants Pty Ltd (1994) ATPR 41-298:-

"... it is not appropriate [for proceedings to be summarily dismissed] where the matter involves serious and difficult questions of law and which questions moreover may be dependent on what is in truth the facts as established by the evidence." (at 41,978)

The Amended Statement of Claim in this matter relevantly pleads as follows:-

"1.The Applicant is the author and copyright owner of a literary work entitled "No Monument of Stone" (hereinafter referred to as "the book").

2.The Applicant published the book in 1992.

3.The Respondent, Kiersten Lea Coulter, infringed the Applicant's copyright by reproducing substantial parts of the book in a material form namely in a script entitled "Stretchmarks" without the consent of the Applicant.

4.In December, 1994 the Respondents further infringed the Applicant's copyright by performing or causing the performance of the script entitled "Stretchmarks" at the Parks Community Centre at Angle Park in the State of South Australia.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PARTICULARS

7.The book contains both facts, which have been established by the historical research conducted by the Applicant, and the Applicant's fictional dramatisation relating to the life of the historical figure Elizabeth Woolcock.

8.The Respondent, Kiersten Lea Coulter, wrote and/or developed the script entitled "Stretchmarks".

9.The said script contains a character called Elizabeth Woolcock.

10.The depiction of the events of Elizabeth Woolcock's life in the said script substantially reproduces the Applicant's fictional dramatisation referred to in paragraph 7 herein."

In response to a request for further and better particulars of paragraph 3 of the Amended Statement of Claim, the applicant identified 25 instances of alleged reproductions of parts of the work "No Monument of Stone" ("the book") in the script entitled "Stretchmarks" ("the play").  Twenty four of these instances of alleged reproductions are references to events referred to in the book which are said to be reproduced in the play.  The 25th particular under this head reads as follows:-

"The plot development of drug addiction, prostitution, vengeance against men and other plot developments that run throughout the said work are reproduced in the said script."

The reference to "other plot developments" may for present purposes be set aside for lack of particularity.  Each of the events and plot developments included within the 25 instances of alleged reproductions is said by the applicant, in his response to a request for further and better particulars of paragraph 7 of the Amended Statement of Claim, to be fictional:  that is, they are said to be the product of the applicant's imagination rather than of his historical research.  In response to a request for further and better particulars of paragraph 10 of the Amended Statement of Claim, the applicant says that "... the reproduction of the numerous events and plot developments when judged as a whole constitute 'substantial reproduction' ..." of the book.

By their defence the respondents have denied copying the applicant's book. However, for the purposes of this application, the pleaded causal connection between the book and the play must be accepted. The basis of this application is the contention made on behalf of the respondents that mere references to events, and the bare outline of plot developments, do not amount to reproduction of a substantial part of a copyright work within the meaning of ss14 and 31(1)(a) of the Copyright Act 1968 (Cth).

In Rees v Melville (1914) Macg Cop Cas 168 the Court of Appeal was required to consider whether copyright in one melodrama was infringed by the writing and performing of a second melodrama based on the same theme.  Swinfen Eady LJ, in a passage which I adopt, stated at 174 as follows:-

"In order to constitute an infringement it was not necessary that the words of the dialogue should be the same, the situations and incidents, the mode in which the ideas were worked out and presented might constitute a material portion of the whole play, and the Court must have regard to the dramatic value and importance of what if anything was taken, even although the portion might in fact be small and the actual language not copied.  On the other hand, the fundamental idea of two plays might be the same, but if worked out separately and on independent lines they might be so different as to bear no real resemblance to one another."

In Ibcos Computers Ltd and Another v Barclays Mercantile Highland Finance Ltd and Others (1994) 29 IPR 25 Jacobs J approached the question this way at 49:-

"It is a question of degree where a good guide is the notion of overborrowing of the skill, labour and judgement which went into the copyright work.  ...  In the end the matter must be left to the value judgment of the court."

In my view it is not appropriate for the Court to arrive at a final conclusion on these issues without the benefit of a hearing at which the parties, and others, can give evidence and be cross-examined as to the processes by which the book and the play respectively came into existence, and as to the extent, if any, that the book was used as a source of material for the play.  That is, it cannot, in my view, be said at this stage of the proceedings that it is clear that there is no real question to be tried between the parties.

I decline summarily to dismiss or stay these proceedings.

The respondents are to pay the applicant's costs of the notice of motion dated 1 November 1995.

I certify that this and the preceding     pages are a true copy of the Reasons for Decision of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant        :    Mr C Brohier
Solicitors for the Applicant     :    Wayne Eckert

Counsel for the Respondents      :    Debra Strassnick
Solicitors for the Respondents    :    Strassnick
  & Associates

Hearing Date  :    6 November 1995