Wills v Morris [No 2]

[2008] FCA 1413

FEDERAL COURT OF AUSTRALIA

Wills v Morris [No 2] [2008] FCA 1413

ANDREW C WILLS v CINDY MORRIS, ROSS STEWART, RUSSELL SMITH, STEVE DESCHAMP, RONAN CHARLES, CRAIG BALLANTYNE, BRAD REID, COMMUNITY TELEVISION PERTH INC, CHANNEL 31, AUSTRALIAN BROADCASTING CORPORATION AUSTRALIA, AUSTAR and FOXTEL

WAD 370 OF 2006

GILMOUR J
16 SEPTEMBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 370 OF 2006

BETWEEN:	ANDREW C WILLS Applicant
AND:	CINDY MORRIS ROSS STEWART RUSSELL SMITH STEVE DESCHAMP RONAN CHARLES CRAIG BALLANTYNE BRAD REID COMMUNITY TELEVISION PERTH INC CHANNEL 31 AUSTRALIAN BROADCASTING CORPORATION AUSTRALIA AUSTAR FOXTEL
JUDGE:	GILMOUR J
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The proceedings against the fourth-named respondent, Mr Steve Deschamp, be dismissed.

2.The applicant pay the fourth-named respondent’s costs of and incidental to the notice of motion dated 22 July 2008 and the costs of the proceedings generally  including any reserved costs.  

3.The Application dated 19 December 2006 against the first, second, third, fifth, sixth, seventh, eighth, ninth, eleventh and twelfth named respondents be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 370 OF 2006

BETWEEN:	ANDREW C WILLS Applicant
AND:	CINDY MORRIS ROSS STEWART RUSSELL SMITH STEVE DESCHAMP RONAN CHARLES CRAIG BALLANTYNE BRAD REID COMMUNITY TELEVISION PERTH INC CHANNEL 31 AUSTRALIAN BROADCASTING CORPORATION AUSTRALIA AUSTAR FOXTEL

JUDGE:	GILMOUR J
DATE:	16 SEPTEMBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The fourth-named respondent, Mr Steve Deschamp, applies under s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Act”) for summary dismissal of the substantive application instituted against him.

2. The applicant, Mr Wills, filed an application with a supporting affidavit on 19 December 2006.  The facts and history of the case have been set out in my previous judgment, Wills v Morris [2008] FCA 784, which concerned an application by the tenth-named respondent, Australian Broadcasting Corporation (“ABC”), to summarily dismiss the proceedings. In that case I was satisfied that Mr Wills had been unable to articulate in any comprehensible manner, as a matter of fact and law, any cause of action on the materials before the Court: Wills at [13]. The ABC was successful in that application and the matter is presently on appeal.

3. At a directions hearing on 30 June 2008, Mr Wills advised the Court that he had served all the respondents and had filed affidavits to that effect.  He then asked the Court for, in effect, default judgment against all parties who had not entered an appearance.  I was not then prepared to accede to that oral application in light of my judgment in Wills.  I adjourned the matter to the 15 July 2008. 

4. On 15 July 2008, counsel for Mr Deschamp foreshadowed that an application for a summary judgment against the applicant would be made.  I then advised Mr Wills that I was not prepared to enter default judgment against the respondents who had not entered an appearance and that it would be necessary for him to demonstrate that he had a case against each of those respondents in order to justify judgment being entered against them.  I indicated in clear terms to him that on the affidavit material then before the Court that his application for judgment would likely be unsuccessful.  I made the following orders concerning the proposed applications for judgment by each of the applicant and the fourth-named respondent:

   1.The Applicant file and serve any motion for default judgment, together with any supporting affidavit material and submissions by 12 August 2008.

   2.The Fourth-Named Respondent Steve Deschamp do file and serve any motion to strike out the application WAD 370/2006 and/or for summary judgment, together with any supporting material, by 22 July 2008.

   3.The Applicant file and serve any further material in support of his application by 4.00 pm on 5 August 2008.

   4.The Fourth-Named Respondent Steve Deschamp do file and serve any written submissions by 12 August 2008.

   5.The Applicant file and serve any responsive written submissions by 19 August 2008.

   6.Costs reserved.

   7.The application be adjourned to 3 September 2008 at 10:15 am.

   8.A copy of these orders be provided to the respondents.

5. Mr Wills did not file any motion for judgment or any affidavit materials or submissions, nor did he file any further affidavit(s) to support his Application.  He indicated, at the directions hearing on 3 September 2008, that he was in the process of finalising his affidavit to support his application for judgment.  I made orders extending the time for compliance with orders 1 and 3 made on 15 July 2008 to 5 September 2008 and extended order 5 until the 10 September.  I also informed Mr Wills that unless additional material was placed before the Court that not only was it likely that any motion by him for summary judgment would be unsuccessful but that his Application, in its entirety, would be dismissed.  The hearing of the fourth-named respondent’s motion for judgment and any motion for judgment filed by Mr Wills was set down for hearing for 12 September 2008.  No motion for judgment or any further affidavit(s) or submissions were filed by Mr Wills.

   The fourth-named respondent’s application for summary judgment

6. The fourth-named respondent filed a motion for summary judgment on 25 July 2008.  Mr Wills did not appear at the hearing of 12 September 2008. 

7. The test to be applied pursuant to s 31A of the Act requires the Court to consider whether the applicant has “no reasonable prospect” of successfully prosecuting the proceeding. This does not require the proceedings to be hopeless or bound to fail for it to have no reasonable prospects of success. The applicable principles are found in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6].

8. The material before the Court is the same as that considered by me in Wills.  It is convenient to adopt by reference, mutatis mutandis, that same reasoning here.  There should be judgment for the fourth-named respondent.  The applicant should pay the fourth-named respondent’s costs. 

   Dismissal of Application

9. I have found that, despite considerable leeway granted to him, the appellant has not articulated claims which are comprehensible.  Furthermore, as may be seen from what follows, the applicant has failed to prosecute the proceeding with due diligence.  

10. Nearly 17 months elapsed from when the proceedings were instituted before all of the respondents were served with the application.  Mr Will’s application was adjourned on 7 February 2007, 20 March 2007, 12 April 2007, 12 September 2007, 23 October 2007 and 14 February 2008, in order for him to effect such service.  There is no satisfactory explanation for these considerable delays. 

11. On 26 February 2008, the ABC foreshadowed making an application to strike out the application.  I made programming orders including an order that the applicant file and serve any material in response to the motion by 18 March 2008.  Mr Wills did not file any material in response.  On 2 April 2008 Mr Wills was again given the opportunity to file further affidavit material to support his application as well as written submissions in reply.  Mr Wills did not provide further affidavit(s) or any responsive submissions.  The ABC’s motion was granted and the proceedings against the ABC were dismissed on 14 May 2008.  

12. I have set out above the history of the failure by Mr Wills to file a motion for judgment or any affidavit material to support such a motion as well as to defend the motion for judgment by the fourth-named respondent.  He did not even attend the hearing of the motion for judgment. 

13. The combination of his default in prosecuting the proceeding diligently and his apparently insurmountable difficulty in stating, whether in written form or orally, causes of action against these respondents, operate on this Court’s discretion under O35A r 3(1)(a) to dismiss his application: Welsh v Digilin Pty Ltd [2008] FCAFC 149 [11]-[14] and [23].

14. There is a compelling public interest in the dismissal of this proceeding by the Court.  The proceeding was instituted in December 2006 and has engaged a judge of this Court in 14 hearings in circumstances where the applicant’s claims have yet to be stated in terms which can be understood, if that were possible.  

15. For these reasons the application dated 19 December 2006 against the remaining respondents ought be dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        16 September 2008

No appearance by the Applicant:
Counsel for the Respondents:	Mr K Malhotra
Solicitor for the Respondents:	Taylor Smart

Date of Hearing:	12 September 2008
Date of Judgment:	16 September 2008