Wills v Australian Broadcasting Corporation

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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 624

ANDREW 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
Appellant
AND:

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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Details
Case
[2009] FCAFC 6
Decision Date

CaseChat Overview and Summary

Wills v Australian Broadcasting Corporation involved a dispute between the plaintiff, Mr Wills, and the Australian Broadcasting Corporation (ABC) regarding alleged copyright infringement. The case was heard in the Federal Court of Australia. Mr Wills alleged that the ABC had broadcast clips from his films without permission, thereby infringing his copyright. The primary judge had previously dismissed the claims, leading to Mr Wills' appeal to the Full Court.

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

Mr Wills had outlined his claims, orally, with sufficient cogency. It was clear that he relied on five different clips broadcast by the ABC on identified occasions and dates that allegedly infringed his copyright. It could not be said that he had no reasonable prospects of succeeding on any of those claims as so articulated. All that Mr Wills had failed to do was to comply with a direction to file an affidavit outlining that material.FURTHER EVIDENCE ON APPEAL The principles upon which the discretion to admit further evidence in an appeal under provisions similar to s 27 of the Act may be exercised were considered by the High Court in CDJ v VAJ (1998) 197 CLR 172; see at 200-202 [107]-[111]. In essence, the Court is at large in considering whether, under the section, fresh evidence ought be received, but a number of discretionary considerations developed by the common law may be relevant to the exercise of that discretion (although not as binding rules in the way that the common law fixed). The discretion is more ample than the common law provided. The issues involved in the appeal will point to the considerations which are, or are not, extraneous to the exercise of the power: CDJ 197 CLR at 201 [108]. The power is remedial in nature and its principal purpose is to give a Full Court, or a judge of the Court exercising the appellate powers of the Court, a discretion to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. In Williams v Grant [2004] FCAFC 178 at [37], Lander J (with whom North and Dowsett JJ agreed at [1] and [10] respectively) said that the power to receive further evidence was discretionary, and that whilst there were no fixed rules which would govern the exercise of the discretion, matters which were usually relevant include whether the applicant exercised due diligence in attempting to procure the evidence before the trial, but the evidence was not available at trial, and if the evidence had been available at trial, the opposite result would have been obtained. In VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 186 at [18], Gray, Moore and Emmett JJ held that a relevant consideration in exercising the discretion to admit further evidence under s 27 was whether the evidence proffered would be likely to have produced a different result, had it been available at the trial. The discretion given by s 27 does not, however, have the practical effect of eliminating the distinction between original and appellate jurisdiction. It is a power which exists to serve the demands of justice: CDJ 197 CLR at 202 [111]. I am of opinion that the evidence tendered on the voir dire by Mr Wills during the hearing of the appeal should be admitted. While it was tendered very late, the ABC did not suggest that it was prejudiced by the tender. The evidence demonstrates that Mr Wills does have a case which he should not be shut out from litigating at this stage. It confirms what he told the primary judge on 2 April 2008 was the substance of his claims. In its present form, the evidence may not be admissible at a final hearing, but it sufficiently shows that Mr Wills does have a claim which cannot presently be characterised as having no reasonable prospect of success. That is not to say that time may not come when he has failed, after having had sufficient opportunity to do so, to articulate with sufficient precision a case that can be tried.

Decision

Reasons for decision

The claim for “criminal negligence” stands on a different footing. It is unintelligible in its pleaded form and should be struck out under O 11 r 16.CONCLUSION In my opinion, although the notice of appeal is incompetent as filed, leave to appeal should be granted and the notice of appeal which has been filed should be treated as having been filed pursuant to leave. The appeal should be allowed, the orders made by the primary judge should be set aside (other than in respect of the claim based on criminal negligence which should be struck out) and the matter should be re-listed for directions for the further conduct of the proceedings. The granting of leave to appeal and the upholding of the appeal should not be taken as an endorsement in any way of the stance taken by Mr Wills to date. In particular, it should not be taken as in any way precluding the primary judge from dealing with Mr Wills’ claims in a summary fashion if they are not properly formulated and pleaded. As is clear from what I have said, no issue of whether Mr Wills has brought his proceedings (or any particular claim) within any applicable limitation period has been raised at this stage. The appeal has not succeeded on any grounds raised by Mr Wills. Nor has the ABC succeeded in preventing the appeal being dealt with on its merits. I consider that there should be no order as to the costs of the appeal or the notice of motion.

Ratio Decidendi

Legal Principle Established

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