FEDERAL COURT OF AUSTRALIA
Wills v Australian Broadcasting Corporation [2009] FCAFC 6
PRACTICE AND PROCEDURE – whether primary judge correct to dismiss application on grounds that proceedings had no reasonable prospects of success and disclosed no cause of action – circumstances where self-represented litigant failed to comply with Court directions in relation to filing of affidavit outlining essential factual elements of claim, but had outlined his claim orally to Court – whether applicant had articulated any arguable claim for relief or cause of action
PRACTICE AND PROCEDURE – appeals – nature of orders – interlocutory or final – whether order made by primary judge, under s 31A(2) Federal Court of Australia Act 1976 (Cth), that whole claim against one of a number of parties had no reasonable prospects of success, interlocutory or final – circumstances where order made by primary judge did not dispose of whole of proceedings
PRACTICE AND PROCEDURE – discretionary power of Court to receive further evidence on appeal – whether different result would have occurred if evidence was available at trial – whether in interests of justice to accept further evidence – whether further evidence establishes reasonable prospect of succeeding
Held: Notice of appeal incompetent as filed, but leave granted and appeal allowed
Federal Court of Australia Act 1976 (Cth), ss 27, 31A
Bienstein v Bienstein (2003) 195 ALR 225
CDJ v VAJ (1998) 197 CLR 172
Cropper v Smith (1884) 26 Ch D 700
Dent v Australian Electoral Commissioner (2008) 249 ALR 523
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Noble Investments Pty Ltd v Southern Cross Exploration NL [2008] FCA 1963
Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179
Simundic v University of Newcastle [2007] FCAFC 144
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186
Wills v Morris [2008] FCA 784
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298
Williams v Grant [2004] FCAFC 178
Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624ANDREW C WILLS v AUSTRALIAN BROADCASTING CORPORATION
WAD 116 of 2008
NORTH, EMMETT & RARES JJ
6 FEBRUARY 2009
SYDNEY (VIA VIDEO LINK TO PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 116 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ANDREW C WILLS
AppellantAND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
JUDGES:
NORTH, EMMETT & RARES JJ
DATE OF ORDER:
6 FEBRUARY 2009
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO PERTH)
THE COURT ORDERS THAT:
1.It be declared that the notice of appeal dated 4 June 2008 is incompetent.
2.Leave be granted to the appellant to appeal from the orders made on 14 May 2008.
3.The notice of appeal dated 4 June 2008 be treated as having been filed pursuant to the leave…
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- Case
- [2009] FCAFC 6
- Decision Date
CaseChat Overview and Summary
The legal issues in the appeal centered on whether Mr Wills had reasonable prospects of success on his claims and whether the Full Court should admit additional evidence that had not been provided at the trial. The court had to determine if the additional evidence could be admitted under the provisions similar to s 27 of the Act, and if so, whether this would affect the outcome of the appeal. Another issue was the propriety of the notice of appeal, which was deemed incompetent as filed.
The court found that the evidence tendered by Mr Wills, although late, should be admitted as it demonstrated that he had a case that should not be dismissed at that stage. The court also noted that while the notice of appeal was incompetent as filed, leave to appeal should be granted, and the notice should be treated as having been filed pursuant to leave. The Full Court allowed the appeal, setting aside the orders made by the primary judge except for the claim based on "criminal negligence," which was struck out. The court emphasized that its decision should not be interpreted as an endorsement of Mr Wills' conduct or pleadings thus far.
The final orders of the court declared that the notice of appeal was incompetent but granted leave for the appeal to proceed. It treated the notice of appeal as having been filed pursuant to the leave granted. The appeal was allowed, and the orders made by the primary judge were set aside, with the exception of the claim involving criminal negligence, which was dismissed. The case was re-listed for directions for further proceedings.
Orders
Orders of the court
1. It be declared that the notice of appeal dated 4 June 2008 is incompetent.
2. Leave be granted to the appellant to appeal from the orders made on 14 May 2008.
3. The notice of appeal dated 4 June 2008 be treated as having been filed pursuant to the leave granted in Order 2.
4. The appeal be allowed.
5. The orders made on 14 May 2008 be set aside and, in lieu thereof, it be ordered that:
(a) Judgment be given for Australian Broadcasting Corporation against the applicant in relation to all parts of the proceeding against it, except that part in which the applicant claims damages, or an account of profits, for infringement of any copyright of the applicant in respect of cinematographic material filmed by the applicant between 1997 and 2001, by reason of the broadcast by Australian Broadcasting Corporation of film clips incorporating part of any such cinematographic material.
(b) The proceeding be listed for directions on a date to be notified to the parties by the Registrar.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.