FEDERAL COURT OF AUSTRALIA

Wilson v Alexander [2003] FCAFC 272

PRACTICE – appeal – extension of time to file application for leave to appeal and notice of appeal refused – no prospects of success.

FEDERAL JURISDICTION – s 79 of the Judiciary Act 1903 (Cth picks up s 57 of the Legal Aid Commission Act 1979 (NSW) – operation of s 79 of the Judiciary Act.

Federal Court of Australia Act 1976 (Cth)   s 50

Judiciary Act 1903 (Cth)   s 79

Legal Aid Commission Act 1979 (NSW)   s 57

ASIC v Edensor Nominees Pty Ltd (2001) 240 CLR 559   applied

Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 135   applied

Bass v Permanent Trustee Group (1999) 198 CLR 34   applied

Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264   referred to

British American Tobacco v Western Australia (2003) 200 ALR 403   applied

Cameron v Rural Press Ltd (1992) 35 FCR 211   referred to

Commissioner of Stamp Duties v Owens (No 2) (1953) 88 CLR 168   applied

Hughes v National Trustee and Executors [1978] VR 257   referred to

Pederson v Young (1964) 110 CLR 162   applied

Solomons v District Court (2002) 211 CLR 119   applied

Woodlands v Permanent Trustee Company Ltd (1996) 68 FCR 213   disapproved and not followed in part

PAUL WILSON v CHARLES ALEXANDER & ORS (IN PARTNERSHIP AS MINTER ELLISON )

N 654 of 2003

RYAN, HEEREY & ALLSOP J

26 NOVEMBER 2003

SYDNEY

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

THE COURT ORDERS THAT:

1. The applications to extend time for the filing of an application for leave to appeal in respect of orders of the primary judge on 11 March 2003 and of a notice of appeal in respect of orders of the primary judge on 12 March 2003 be dismissed.
2. The applicant pay the costs of the respondents.

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

ONAPPEALFROMASINGLEJUDGEOFTHEFEDERALCOURTOF AUSTRALIA

REASONS FOR JUDGMENT

The court

1                     There is before the Court an application for an extension of time to file and serve a notice of appeal dated and filed 5 June 2003 against orders of the primary judge made on 12 March 2003 dismissing the applicant’s application, ordering him to pay the respondents’ costs and providing for the return of exhibits within 28 days unless an appeal was filed: Wilson v Alexander [2003] FCA 183.

2                     The respondents have treated the application as one which also seeks leave to appeal to this Court from orders made by the primary judge on the previous day, 11 March 2003, by which the primary judge refused an adjournment application made by the applicant:  Wilson v Alexander [2003] FCA 240.

3                     Notwithstanding the limited terms of the application for an extension of time prepared and filed by the applicant it is appropriate that the respondents treated the application in that fashion and that the Court do likewise.  The applicant is unrepresented.

4                     To understand the matters with which the primary judge was dealing a little history of the proceedings is necessary.  In January 2001 the applicant commenced proceedings against the Australian Copyright Council.  These proceedings were heard by Emmett J on 20 and 23 March 2001.  His Honour delivered judgment on 23 March 2001.  His Honour dismissed the application of the applicant with costs.  The primary judge explained succinctly in [4] to [12] of his reasons the nature of the proceedings before Emmett J.  These paragraphs of the primary judge’s reasons were as follows:

[4]      In the Copyright Council proceedings, Mr Wilson alleged that the Australian Copyright Council (“the Council”) infringed his copyright in the Work by photocopying it without Mr Wilson’s authority.  Minters were the solicitors for the Council in the Copyright Council proceedings.  Mr Wilson’s evidence before Emmett J was that on 30 August 2000 he had taken the Work to the Council to seek advice.  He said that the Council made a photocopy of the Work in circumstances set out in paragraphs [5]ff of his Honour’s judgment.

[5]      Evidence was given to his Honour by employees of the Council including Ms Libby Baulch, the Council’s Executive Officer.  The thrust of the Council’s evidence was that Mr Wilson was told that he would need to leave the Work with the Council and that photocopies were made of the Work to enable the Council’s employed lawyers to consider it. 

[6]      Mr Wilson complained to the Council that the copies which were made were “useless”, ie, of poor quality.

[7]      On 5 September 2000, Mr Wilson wrote a letter addressed to “The Chairman” of the Council.  The Chairman was Mr Peter Banki.  The letter complained that the Council did “purloin” Mr Wilson’s copyright in the Work “for free” and “by way of deception”.  The letter also complained about the price charged for the photocopying which was $5.00 and about being overcharged for the supply of certain information material which was given to him.  The cost of that material was $5.50. 

[8]      The letter of 5 September 2000 was Exhibit 7A before his Honour.  It was Exhibit T before me.  It is relevant to the allegation of “tampering” and I will refer to it again below.

[9]      By letter dated 3 October 2000, Mr Banki wrote to Mr Wilson.  The letter stated, inter alia, that in an effort to assist Mr Wilson, the Council photocopied the material for him and that the Council was of the view that it could assist him by providing information sheets.  The letter also stated that Mr Banki understood that Mr Wilson had not found the information helpful and Mr Banki apologised for this.  The letter was in evidence before Emmett J.

[10]    His Honour said at [37] that Mr Wilson submitted that an inference should be drawn that Ms Baulch and two other Council employees   agreed among themselves to obtain the Work for their benefit. However, his Honour rejected that submission.  He said at [38] to [40] that in view of the portions of the Work he had read, even if the employees had read the Work, they would not have regarded it as something they would want to keep or take for themselves.

[11]    The nub of his Honour’s judgment is at [48] where his Honour found that, even accepting Mr Wilson’s version of the facts, there was an implied licence granted to the Council to make copies of the Work.

[12]    On 26 March 2001, Emmett J made an order that access to Exhibits 1A, 4A and 5A (in that matter) be limited to the solicitor for the Council and otherwise not be published.  Exhibit 1A was the original Work.  Exhibits 4A and 5A were the copies of the Work which were made by the Council.  Those documents were not in evidence before me but they are described by those exhibit numbers on a list of exhibits made by Emmett J’s then associate in the course of the hearing before his Honour. 

5                     The applicant brought an appeal within time against the judgment of Emmett J.  A Full Court heard this appeal on 13 August 2001 and dismissed it with costs.

6                     On 5 November 2002 the High Court (Gaudron J and Kirby J) refused an application by the applicant for an extension of time in which to file an application for special leave to appeal to the High Court.

7                     On 21 January 2002 the applicant commenced these proceedings against Minter Ellison.  Mr Alexander is a partner of that firm of solicitors.

8                     The application against Minter Ellison sought a variety of orders.  Read with the statement of claim it would appear that the applicant was alleging that Minter Ellison breached the applicant’s copyright, covered that wrong up with misleading statements in which officers of this Court were apparently said to have participated, that Minter Ellison tampered with exhibits filed in this Court and that Minter Ellison contravened an order made under s 50 of the Federal Court of Australia Act 1976 (Cth).

9                     The matter came on for directions on 7 June 2002 before the Duty Judge who happened to be Emmett J.  Emmett J referred the matter to the primary judge to be heard on 14 August 2002.  The matter was adjourned and commenced on 7 November 2002.  On that day, the applicant, arguably, withdrew the allegations of breach by Minter Ellison of the order made under s 50 of the Federal Court of Australia Act 1976.  The matter also proceeded on the following day, but at the end of the day remained part heard.  His Honour stood the matter over to 11 March 2003 for further hearing. 

10                  On this day, 11 March 2003, the applicant made an application for an adjournment which was refused by the primary judge.  The primary judge’s reasons were delivered ex tempore and, in a settled form, were published on 24 March 2003.  His Honour’s reasons for refusing the adjournment were set out in the settled reasons.  In substance, they were as follows:

(a)           The appeal against a Legal Aid Commission decision that it was not satisfied that the requirements laid down by the Commonwealth for legal aid for civil matters were met was not a reason for granting an adjournment of a part heard matter stood over for many months to enable whatever steps needed to be taken by the applicant in order to have the matter ready for hearing.

(b)          It was inappropriate to grant an adjournment on the ground of seeking legal assistance.  The matter of legal assistance was raised by the applicant in September or October 2002 and the question of legal aid was apparently raised then.  It was too late to be requesting the Court to adjourn part heard proceedings which were stood over for a lengthy period to enable the applicant to prepare for the hearing.

(c)           The applicant conducted the hearing for two days in person on 7 and 8 November.

(d)          On 8 November 2002 the primary judge, when listing the matter for hearing, said:

Now, I don’t want this matter to be part heard again after the resumption next year.  I propose to set aside enough time to ensure that the case is completed.

(e)           The primary judge expressed the view that he was not bound by s 57 of the Legal Aid Commission Act 1979 (NSW).  However his Honour said that he took into account the considerations raised in that provision.

(f)            The primary judge concluded that it was evident to him that the circumstances in which the application for legal aid was made gave rise to an inference that the applicant’s purpose in seeking legal aid so late in the course of the proceedings was improperly to hinder or improperly to delay the conduct of the proceedings before him.

11                  His Honour’s settled reasons contained material which he did not utter when orally expressing them, being the matters referred to in (e) and (f) above.  Given what appears to have been the unsettling nature of the hearing on the day, we see no bar to the judge adding material which in fact bore on the primary judge’s decision in question at the time, but through the exigencies of the moment, were left out.

12                  Section 57 of the Legal Aid Commission Act was in the following terms:

Where it appears to a court or tribunal, on any information before it:

(a) that a party to any proceedings before the court or tribunal:

(i)    has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii)   intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

13                  On 12 March 2003 his Honour dismissed the application proper.  It should be remembered that there had been 2 days of evidence taken on 7 and 8 November 2002.  On these days, affidavits were read and witnesses were called.  The substance of the applicant’s case is set out by the primary judge at [27] of his reasons which was in the following terms:

[27]     The substance of Mr Wilson’s case was that Mr Darke and Mr Alexander accessed the work in the Registry at some time before 3 April 2001.  He was unable to specify the date with more precision.  In his written submissions entitled “Summation for 21 October 2002”, Mr Wilson said that, on 16 July 2001, a female court employee named “Kate” showed him a request for inspection form on which she stated there were signatures.  She did not, at least according to the Summation document, state whose signatures appeared on the form. 

14                  In November, various Registry officers were made available to be examined  and were examined by the applicant.  The applicant called and examined Mr Darke and Mr Alexander of Minter Ellison.  They had sworn affidavits already.

15                  After the primary judge refused the adjournment on 11 March 2003 the applicant left the Court room.  The primary judge warned the applicant of the possible consequences in relation to his case.  In all the circumstances the primary judge thought it appropriate to deal with the case and finalise it.  His Honour dealt with the substantive issues in [52] to [63] of his reasons which were in the following terms:

[52]     It is plain on the evidence given by Mr Peter Wilson [not the applicant] that Minters did not have access to the documents which were Exhibits 1A, 4A or 5A in the proceedings before Emmett J, that is to say, Minters did not have access in the Registry to the Work or to the photocopies of it.

[53]     It follows that Minters did not infringe Mr Wilson’s [the applicant’s] copyright in the Work.  This view is reinforced by the evidence given in Mr Mathieson’s letter which I have set out at [22] above.

[54]     Mr Wilson’s claim of copyright infringement apparently includes an allegation that Minters photocopied the Work.  No particulars were supplied of this.  Nor was there any evidence to support the allegation.

[55]     In any event, it follows from the finding which I have made that Minters did not have access to the Work in the Registry that they could not have photocopied it.

[56]     At the hearing, Mr Wilson did not pursue the allegation of breach of the order made by Emmett J on 26 March 2001.  It is clear that even if there was access, which there was not, any such inspection would have been authorised by the express terms of the order.

[57]     Mr Wilson’s substantial complaint was that Minters breached the obligation undertaken by them in their letter of 3 April 2001.  It follows from what I have said that Minters did not breach this undertaking. 

[58]     I note that Mr Wilson’s case was that access took place at some time before 3 April 2001.  It follows that even if there was access, which I have said there was not, Minters could not have breached an undertaking which was not given until after the date on which they are alleged to have inspected the Work.

[59]     As to the allegation of “tampering”, I have examined Exhibit U carefully.  It is a photocopy of the letter of 5 September 2000 to which I referred at [7].  The photocopy does not have an acknowledgment of receipt on it whereas the original letter does have an acknowledgment dated 7 September 2000.  The reason for this is explained in [26] of Emmett  J’s judgment. 

[60]     Exhibit U is a very poor photocopy of the letter of 5 September 2000.  The only alteration to it is that two holes have been punched in the letter.  I assume that this was done in order to place the photocopy document into a ringback folder.  The holes did not remove any part of the text of the letter.

[61]     I find that the allegation of “tampering” with the letter is unjustified.

[62]     The allegations made by Mr Wilson in these proceedings are made against officers of the Court.  They are very serious allegations.  No explanation was ever offered as to why the named officers would have any reason for engaging in the alleged conduct.  Serious allegations were also made, again without any explanation, against Registry staff.  In my opinion, all of the allegations are without foundation.  There is not, and never was, any basis for the claim.

[63]     Accordingly, I propose to dismiss the proceedings with costs. 

16                  Notice of a constitutional issue was given to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth).  That issue was as to the proper application of s 79 of the Judiciary Act and whether it picked up s 57 of the Legal Aid Commission Act.  Mr Leeming of counsel has provided helpful submissions on behalf of the Attorney General for New South Wales. 

17                  It is unnecessary to decide the question as to whether there was a constitutional issue.  It is necessary to say something of the operation of s 79.  We think his Honour fell into error in concluding that s 57 of the Legal Aid Commission Act had nothing to say about his task. 

18                  Full Courts of this Court have dealt with the application of s 57 and left open the point as to s 79 of the Judiciary Act:  see Cameron v Rural Press Ltd (1992) 35 FCR 211, 220 and Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264, 283.  We note that part of the Full Court decision in Woodlands v Permanent Trustee Company Ltd (1996) 68 FCR 213 at 245 (in dealing with another provision of the Legal Aid Commission Act), said that s 79 could not render applicable substantive as opposed to procedural provisions. 

19                  It is unnecessary and inappropriate to undertake a general discourse on s 79 and its operation; but, in the light of the comments of the Full Court in Woodlands v Permanent Trustee Company Ltd (1996) 68 FCR 213, 245 it is necessary to say a number of things.  Section 57 applies in the Federal Court by force of s 79 of the Judiciary Act as long as it is “applicable” and as long as the Constitution or the laws of the Commonwealth do not otherwise provide.  There is no reason to conclude that s 57 is not applicable.  It deals with an aspect of procedure and the rights of a party to an adjournment.  There is no law of the Commonwealth or provision of the Constitution which otherwise provides.  So picked up, it applies as a federal law or a “surrogate” federal law:  Pederson v Young (1964) 110 CLR 162, 165, ASIC v Edensor Nominees Pty Ltd (2001) 240 CLR 559, and Solomons v District Court (2002) 211 CLR 119, 134, [21].  The Court in Woodlands appeared to favour the view that s 79 picks up only “procedural laws”.  That is not correct:  Commissioner of Stamp Duties v Owens (No 2) (1953) 88 CLR 168, 170, Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 135, Edensor, Bass v Permanent Trustee Group (1999) 198 CLR 34 and British American Tobacco v Western Australia (2003) 200 ALR 403, 420 [65].  This makes it unnecessary to decide whether s 57 is procedural or substantive for this purpose, a distinction which the High Court has said in this context is “not one that sheds any great light on this, or any other area of the law”:  Bass at 350.

20                  It is fundamental to the understanding of the operation of s 79 that it applies not just to the Federal Court and to other federal courts, but also to State and Territory Courts when exercising federal jurisdiction.  It is in that context, as part of the regulation of the exercise of the judicial power of the Commonwealth, that s 79 picks up applicable State law so as to apply it as federal law to the resolution of a controversy within the authority of the Commonwealth to quell:  it is not a question of State Parliaments, by legislation, controlling federal courts.

21                  Precisely how the interrelationship of ss 79 and 80 now works, in particular in the light of the development of the common law of Australia as (amended by any State or Territory statute for the purposes of s 80), need not be investigated here.  The relationship of the operations of s 79 and s 80 may affect the nature of the statutes picked up by s 79.  However, the arbitrary division into provisions of substance and provisions of procedure is not seen by the High Court as helpful:  Bass at 350.

22                  As we have said, the primary judge indicated in his judgment dealing with the adjournment application that he “took into account” all the factors in s 57 and that he was of the view that the application for legal aid had been made late improperly to impede the hearing.

23                  There are difficulties with this. First there may not have been sufficient material for his Honour to draw this inference, in particular without the matter being put to and explored in evidence with the applicant.  More importantly, the facts may not bear this out.  The applicant says that he applied for legal aid in 2002, not February 2003, although the primary judge seems to have thought that he applied in February 2003.

24                  We would conclude that his Honour erred in failing to assess the application for an adjournment on the basis that s 57 applied.  If what the applicant says about the date of his application to the Legal Aid Commission be correct, it is difficult to see how the primary judge’s conclusions concerning s 57(b) could be sustained.  Nevertheless, for the decision of his Honour to refuse the application for the adjournment to be set aside the applicant needs to explain in a satisfactory way the delay in bringing the application for an extension of time which is now before us.  An application of this kind must be brought promptly.  The applicant said that he was waiting for the legal aid appeal and that this was a criminal matter.  This is not a satisfactory explanation.  Also, even if an adjournment should have been given the existence or lack of prejudice or injustice in the end result is relevant.  This is not to require prejudice to be demonstrated to reveal the original error; but to require it in order that an extension of time should be seen to have utility.  This takes one to the apparent merits of the appeal sought to be instituted:  cf Hughes v National Trustee and Executors [1978] VR 257, 264.

25                  We are unable to discern from the draft notice of appeal, the submissions of the applicant and the material handed up by him any coherent basis for an attack on his Honour’s substantive judgment.  We see no prospect of success on the substantive appeal.

26                  Further, in relation to the application to extend time to file notice of appeal, there is no satisfactory explanation as to the delay in that matter either.

27                  In these circumstances, there has not been shown any basis for an extension of time for the filing of a notice of appeal to contest the substantive judgment of his Honour dismissing the application.  His Honour was bound by s 57 of the Legal Aid Commission Act.  Any such error, however, does not warrant, of itself, the making of the orders sought.  There would appear to be otherwise no merit in the appeal proper.

28                  For these reasons, the applications should be dismissed and the applicant should pay the costs of the respondents, Minter Ellison.

29                  The respondents, through their counsel Mr Green and Ms Viglianti  and Mr Leeming on behalf of the Attorney-General of New South Wales filed careful and helpful submissions for which the Court expresses its thanks.

Associate:

Dated:              27 November 2003