FEDERAL COURT OF AUSTRALIA

Brown v Edwards [2002] FCA 538

PRACTICE AND PROCEDURE – pleadings – whether cause of action disclosed – whether proceedings an abuse of process of the Court – applications dismissed.

ROBERT GEOFFREY BROWN v EILLEEN MONICA EDWARDS, SONGS OF

POLYGRAM INTERNATIONAL, ZOMBA MUSIC PUBLISHERS LTD,

OUT OF POCKET PRODUCTIONS LTD, CENTENARY AUSTRALIA PTY LTD

W576 of 2001

ROBERT GEOFFREY BROWN v GARTH BROOKS, MRS G BROOKS, CAPITOL MUSIC USA, EMI MUSIC AUSTRALIA PTY LTD, BMG MUSIC PUBLISHERS PTY LTD, BOB DOYLE & ASSOCIATES

W40 OF 2002

CARR J

30 APRIL 2002

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         There be no order as to costs.

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

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         There be no order as to costs.

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

REASONS FOR JUDGMENT

introduction

1                     The Court is considering, of its own motion, whether each of these applications should be stayed or dismissed generally under Order 20 rule 2 of the Federal Court Rules on the ground or grounds that no reasonable cause of action is disclosed or that the application is frivolous or vexatious, or is an abuse of the process of the Court. 

factual and procedural background

The South Australian Proceedings

2                     On 12 March 2001 the applicant lodged at the South Australia District Registry of this Court a document in the style of a Form 56 Application under the Federal Court Rules in which the first respondent in Application No W576 of 2001 was named as first respondent and a company called Universal Music Australia Pty Ltd was named as the second respondent.  It appeared that the applicant was seeking equitable remuneration under the Copyright Act 1958 (Cth) from those respondents.  The application was given the number S29 of 2001

3                     At the first directions hearing in that matter (which was before any of the documents had been served) von Doussa J gave the applicant leave to amend his application.  The applicant did so by filing an amended application and supporting affidavits which von Doussa J held to have failed to give details of how the remedy which the applicant sought could possibly have a basis in law.  At a subsequent directions hearing, by which time the second respondent had been served and appeared, von Doussa J made further endeavours to explain to the applicant how he might remedy the defects in his documentation.  The second respondent then filed a notice of motion and supporting affidavits seeking to have the proceedings dismissed under either Order 20 rule 2 or Order 11 rule 6 of the Federal Court Rules.  By that time it had become clear that the first respondent resided in the United States of America and had not been served.  Von Doussa J gave the applicant leave to amend his statement of claim.  That statement of claim was subsequently struck out, but the applicant was given leave to make one more attempt to formulate his claim.  The document which the applicant filed pursuant to that leave was described by von Doussa J as “nonsensical” and failing to reveal any factual basis that could support a claim of any kind, let alone disclose a cause of action.  His Honour then dismissed the claim against the first respondent on the basis that it would be vexatious and an abuse of the process of the Court to allow the proceedings to continue.  He also dismissed the proceedings against both respondents. 

4                     The applicant had also on 12 March 2001 lodged documents purporting to be applications with the South Australia District Registry in two other matters.  They were given the application numbers of S30 and S31 of 2001 respectively.  In each of those applications the applicant sought equitable remuneration under s 135ZU of the Copyright Act in respect of certain songs of which the applicant claimed to be the author.  In application No S30 of 2001 the respondents named were Garth Brooks and Russell Jones.  It appears from the document filed in that application that the applicant was seeking to advance a claim based on his ownership of the copyright in a song entitled “Friends in Low Places”.

5                     In each of those applications von Doussa J made identical orders, on 19 March 2001 in the following terms:

“Stay further action on this application with liberty to the applicant to apply to lift the stay.

If such an application is not made within 6 months, the application is to be struck out.”

6                     I have examined the relevant Court files (sent to this District Registry by the South Australia District Registry).  It is apparent that no application was made in either application to lift the stay. 

7                     On 24 August 2001 the applicant lodged a notice of appeal against the orders made by von Doussa J in application S29 of 2001. 

8                     On 22 November 2001 a Full Court of this Court unanimously dismissed that appeal and published its reasons for doing so on 5 December 2001. 

Application number w576 of 2001

9                     On 20 December 2001 (i.e. 11 working days later) the applicant lodged at the Western Australia District Registry of this Court another document in the style of a Form 5 Application under the Federal Court Rules to which was attached a photocopy of a letter dated 4 June 2001 from a firm of lawyers in New York to a firm of solicitors in Adelaide which appeared to have no relevance to the application.  The application was given the number W576 of 2001 and is the first of the two applications referred to in paragraph [1] of these reasons.  The details of claims set out in the application were exactly as follows:

“1.       I Robert Geoffrey Brown the copyright owner of the original literary, musical and dramatical works, recorded by Shania Twain written on the 24. 25. 26 October 1983 in Sydney NSW

            Being the recorded albums “The Women in Me” and “Come On Over, Come On In”.

            Section 35 Copyright Act 1968 ownership of copyright in original works.

            2.   Subject to this section, the author of a literary work is the owner of any copyright subsisting in the work by virtue of this part.

 2.        Division 4 proof of facts civil action.  Section 126 Copyright Act 1968 presumtions (sic) as to subsistance (sic) and ownership of copyright in action brought by virtue of this part. 

            A.   Copyright shall be presumed to subsist if the defendant does not put to issue the question whether copyright subsist (sic) in the work or other subject matter, and:

            B.   Where the subsistance (sic) of the copyright is established.

            The first respondent does not put this matter to issue.  Fax provided as evidence.”

10                  By way of a claim for interlocutory relief the applicant sought the following:

“An order against the one hundred and fifty two million seven hundred and thirty three thousand the (sic) hundred and thirty eight dollars held by Centenary Australia Pty Ltd subject to section 55.b Copyright Act 1968 section 57.b.5 Copyright 1968.”

11                  Also on 20 December 2001 the applicant filed an affidavit sworn by him in which he deposed as follows:

“1.  That I Robert Geoffrey Brown and Mary Theofelos alias Eilleen Monica Edwards alias Shania Twain are the joint authors of the albums recorded title The Women and Me and Come On Over Come On In.

2.    Jointly authored in Sydney NSW October 24. 25. 26. 1983.”

12                  The application was listed for a first directions hearing on 13 February 2002.  On 16 January 2002 the applicant filed a series of documents.  The first was a notice of motion seeking an interlocutory order that the fifth respondent pay by telegraphic transfer to the applicant’s bank account the sum of $18 million.  Then there were two affidavits sworn by the applicant on 18 December 2001 and 15 January 2001 and a document headed “Amended Application”.  That document, like the documentation filed in the first South Australian proceeding, failed to give details of how any remedy which the applicant sought could possibly have any basis in law.  On 4 February 2002 the applicant filed an affidavit (again sworn by him) purporting to prove service on the fifth respondent of an application, an affidavit, an amended application, “amended affidavit”, and an affidavit in support of a notice of motion, by facsimile transmission to a firm of solicitors in Sydney. 

13                  When the matter came before me at the first directions hearing on 13 February 2002 I made an order that the applicant file and serve further affidavits of service.  I adjourned the directions hearing to a date to be fixed.

14                  On 14 February 2002 the applicant filed a document headed “Statement of Claim” which was incoherent.  He then filed numerous affidavits, some of which purported to be affidavits of service on the first respondent, the second respondent and the fifth respondent.  In my view, none of those affidavits establishes that any of the respondents referred to in them have been properly served with the application.  In each case service by fax is relied upon.  There are numerous deficiencies in the various affidavits of service.  It is not necessary to give the detail. 

15                  I listed the application for further directions on 8 March 2002. 

16                  At that directions hearing I told the applicant that as far as I could see, on the affidavits as filed, he had not demonstrated proper service on any of the five respondents.  I then referred to the proceedings which he had brought in Adelaide last year including the judgment of the Full Court of the Federal Court.  The applicant told me that he had been going to take that matter to the High Court, but as the Registrar in Perth had accepted the present application (i.e. application number W576 of 2001) he had chosen to proceed in Western Australia. 

17                  I told the applicant that I was concerned about whether the documents which he had filed disclosed a reasonable cause of action and that I was going to give him an opportunity to persuade me that that was the case.  I made orders in the following terms:

“1.       The applicant may on or before 28 March 2002 file any written submissions or affidavit evidence, (or both) relating to the question whether this application should be stayed or dismissed generally or in relation to any claim for relief in the application on the ground or grounds that:

            (a)        no reasonable cause of action is disclosed; or

            (b)        the application is frivolous or vexatious; or

            (c)        the application is an abuse of the process of the Court.

 2.        The question referred to in paragraph 1 above will be decided on all of the papers filed between the commencement of this application and 28 March 2002.

 3.        Pending resolution of the question referred to in paragraph 1 above, the directions hearing and any motion filed by the applicant are adjourned indefinitely.”

Application number w40 of 2002

18                  On 6 February 2002 the applicant lodged in the Western Australia District Registry of this Court a document purporting to be an application.  That was the first document in the proceedings described above as application number W40 of 2002.  In those proceedings the first respondent named was Garth Brooks.  That initiating document is largely incoherent, but it refers to the applicant as being the joint owner of the copyright in the song “Friends in Low Places”, being the same song named in application No S30 of 2001, referred to above, which remains stayed, or possibly struck out.  Further documents filed in application number W40 of 2002 include a statement of claim in which the applicant describes how he says a song entitled “Friends in Low Places” was composed, an affidavit which is difficult to understand, and a notice of motion which appears to seek an order for substituted service on the respondents by fax, supported by an affidavit asserting that personal service of the application “is not a possibility”. 

19                  Application W40 of 2002 also came before me for directions on 8 March 2002 and I made orders in identical terms to those set out above as those made on that date in application number W576 of 2001.  On 28 March 2002 the applicant filed (in application No W576 of 2001) ten documents each in the form of affidavits sworn by him on 27 March 2002.  Once again those affidavits were largely incoherent and were not responsive to paragraph 1 of the order referred to above. 

20                  The applicant also filed a document headed “Notice of Motion” which sought orders in the following terms:

“I demand the respondents answer all allegations of fact as alleged by the appelant (sic) and I ask the Right Honourable Justice J Carr to place in the hands of the appelant (sic) the controling (sic) order of all assets, property, divedends (sic) and benificaly (sic) held shares of Centenary Australia Pty Ltd, Universal Music Australia Pty Ltd, Zomba Music Publishers Australia Pty Ltd, Universal Music Australia (No 2) Limited.”

21                  There were various other documents attached to that “Notice of Motion” which it is not necessary for me to describe.

22                  On the same date the applicant filed documents entitled “Written Submissions”.

23                  On 14 February 2002 the applicant filed a document headed “Notice of Motion” seeking the issue of certain subpoenas for production of documents.  It is not necessary to give further detail about those proposed subpoenas. 

my reasoning

Application number w576 of 2001

24                  In my opinion, none of the documents filed by the applicant in application No W576 of 2001 discloses any factual basis for any cause of action.  The matter simply cannot proceed on the basis of the documents filed.  It would seem that the applicant is seeking some relief under the Copyright Act against the first-named respondent in respect of the two songs referred to above.  He sought similar relief in respect of a different song against the same first-named respondent in the South Australia proceedings being application No S29 of 2001 which was struck out with an appeal from that order being dismissed by the Full Court.  So, apart from not disclosing any reasonable cause of action, I consider that the institution of these proceedings is an abuse of the process of the Court.  I also infer, from the comments made by the applicant at the directions hearing on 8 March 2002 (referred to above) that the applicant chose to bring this application in Western Australia rather than apply to the High Court of Australia for special leave to appeal against the Full Court’s decision.  That too, in my view, amounts to an abuse of process.  For those reasons, application No W576 of 2001 will be dismissed.

Application number w40 of 2002

25                  In this application the first respondent is the same person named as first respondent in application No S30 of 2001.  In each application it seems that the applicant sought and is seeking (respectively) to bring a claim as the owner of the copyright in a song entitled “Friends in Low Places”.  Application No S30 of 2001 was first stayed and then possibly struck out (see paragraph numbered 5 above).  I consider that this application (No W40 of 2002) is an abuse of the process of the Court by reason of the history of application No S30 of 2001.  Furthermore, in my view, no reasonable cause of action is disclosed by the documents as filed by the applicant.  I do not think that there is any reasonable prospect of the applicant being able to cure the defects in those documents.  I refer to the efforts made by von Doussa J to explain to the applicant what was required in the principal South Australian proceedings – see also the reasons of the Full Court in that matter, Brown v Edwards (alias Shania Twain) [2001] FCA 1659 at para [13].  There will be an order that application No W40 of 2002 be dismissed.

A/g Associate:

Dated:              30 April 2002