FEDERAL COURT OF AUSTRALIA

Ferdinands v The State of South Australia (No 2) [2017] FCA 1436

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application for an order that judgment be entered against the respondent pursuant to r 5.23(2) of the Federal Court Rules 2011 (Cth) is dismissed.

2.    Pursuant to r 26.01(b) and (d) of the Federal Court Rules 2011 (Cth), the proceedings are dismissed as frivolous, vexatious or otherwise constituting an abuse of process.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Mr Ferdinands, is a former employee of South Australia Police. He was subject to disciplinary and criminal proceedings in connection with his conduct as a police officer and his employment was terminated in November 2001.

2    Mr Ferdinands is a litigant in person. He is nonetheless a seasoned litigator in the sense that he has, over a long period of time, been engaged in a number of legal proceedings following and concerning the termination of his employment.

3    On its face, the present claim appears founded on alleged breaches of copyright said to subsist in literary or artistic works created by Mr Ferdinands. As originally framed, the pleadings alleged that the owner of the copyright was the “Kingsley Ferdinands Film Group”. Orders have been made in these proceedings removing that name from the title of the proceedings on the basis that it is not a legal entity capable of suing: Ferdinands v The State of South Australia [2016] FCA 1268.

4    By interlocutory application filed on 10 April 2017, the respondent seeks an order for summary judgment under r 26.01(1) of the Federal Court Rules 2011 (Cth) on the alternate grounds that:

(1)    Mr Ferdinands does not have standing to commence or continue the action;

(2)    the Court does not have jurisdiction to hear and determine the action;

(3)    the claim has no reasonable prospects of success; and

(4)    the claim is frivolous and vexatious and otherwise constitutes an abuse of process.

5    Mr Ferdinands has also made an application for judgment in the action to be given in his favour. That application will be determined first.

MR FERDINANDS’ APPLICATION

6    On 27 February 2017, the Court ordered that the respondent file and serve written submissions in relation to its interlocutory application on or before 22 May 2017. Counsel for the respondent acknowledges that written submissions in support of its interlocutory application were not filed within the time frame ordered. The submissions were filed on 2 June 2017.

7    Rule 5.23(2) provides that if a respondent is in default, an applicant may apply to the Court for an order giving judgment against the respondent in respect of a debt or liquidated damages, or relief specified in the statement of claim, or for damages to be assessed, or for any other order: see subrr 5.23(2)(b)(i), (c) and (d). Mr Ferdinands invokes that rule. He submits that he is entitled to judgment by virtue of the respondent’s non-compliance with the orders of 27 February 2017.

8    I accept Mr Ferdinands’ submission that the belated filing of the respondent’s submissions was unsatisfactory and that the discretion to make an order under r 5.23 is enlivened. The power is discretionary. The discretion is to be exercised in a way that best promotes the overarching purpose of the Court’s civil practice and procedure provisions: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M. The objectives include the just resolution of disputes according to law. Whilst a party’s non-compliance with an order for the filing of submissions is to be regarded seriously, the default in the present case is not so gregarious in all of the circumstances so as to justify the particular relief sought by Mr Ferdinands. The order sought is wholly disproportionate.

9    Mr Ferdinands sought no alternative and proportionate orders to address any prejudicial consequences flowing from the default, and he could point to no prejudice suffered personally by him by the late receipt of the respondent’s submissions. His application should be dismissed.

THE RESPONDENT’S APPLICaTION

Standing

10    Mr Ferdinands became a bankrupt on 2 September 2013. He was discharged from bankruptcy on 24 September 2016. Subject to certain exceptions, upon Mr Ferdinands becoming a bankrupt, his property vested in the Official Trustee and was divisible among his creditors: Bankruptcy Act 1966 (Cth) (BA), s 58.

11    So far as it can be understood, Mr Ferdinands’ claim is founded, at least in part, on a breach of copyright subsisting in literary works allegedly authored by him. The orders sought in the proceedings are those specified in a proposed amended originating application annexed to an affidavit of Mr Ferdinands sworn on 28 March 2017. The document contains pleaded allegations of fact and law and is clearly intended to serve the purpose of a pleading. I will refer to it in these reasons as the Statement of Claim.

12    The relief sought by Mr Ferdinands in the action is expressed in the following terms (without alteration):

ORDERS

1.    A declaration that the respondent has breached the Copyright Act pursuant to s.115 4 (a) (b) (i) (ia) and (ib), and pursuant to s.195AJ and 195AK 7, and pursuant to s.132AI.

2.    An order requiring the respondent to make Phase 1 [March 2016 to December 2016 = $2,208,000.00] and Phase 2 [January 2017 to July 2017 = $5,325,000.00] payments for damages forthwith.

3.    A declaration the respondent has acted in malice by declining to adhere to the laws of the State of South Australia as per s.17 of the Police (Complaints and Disciplinary Proceedings) Act (SA) 1985.

4.    A declaration the respondent has acted in malice by declining to adhere to the laws of the State of South Australia as per s.5 and s. 7 of the Whistleblowers Protection Act 1993 (SA).

5.    An order as to the conduct of the respondent is transferred malice.

6.    Such further orders as the Court considers appropriate.

13    Section 115(1) of the Copyright Act 1968 (Cth) (CA) provides that the owner of a copyright may bring an action for its infringement. The respondent contends that Mr Ferdinands does not have standing to commence such an action because he was, at the time that the action commenced, an undischarged bankrupt. It was submitted that any chose of action in connection with the works pleaded in the Statement of Claim vested in the trustee of Mr Ferdinands’ estate pursuant to s 58 and s 116 of the BA, and that although Mr Ferdinands was discharged from bankruptcy after the commencement of this proceeding, ownership of the copyright did not re-vest in him upon his discharge. The respondent relied on Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 at 185 (Kirby P) and Silvia v Thomson [1989] FCA 394; (1989) 87 ALR 695.

14    It is to be borne in mind that the question of Mr Ferdinands’ standing arises in the context of a summary dismissal application in which it is alleged that the proceedings have no reasonable prospects of success because there is no right to sue vested in Mr Ferdinands: r 26.01(1)(a) of the Rules. In that context, the respondent should demonstrate “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Agar v Hyde (2000) 201 CLR 552 at [57] (Gaudron, McHugh, Gummow and Hayne JJ). See also Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46] (Gleeson CJ, Gummow, Hayne and Crennan JJ). Whilst the Court is not required to determine that Mr Ferdinands’ claim is “hopeless” or “bound to fail”: Spencer v The Commonwealth (2010) 241 CLR 118 at [56] – [58] (Hayne, Crennan, Kiefel and Bell JJ), it must nonetheless be borne in mind that the discretion to summarily dismiss an action is not to be exercised lightly.

15    An order for summary judgment against Mr Ferdinands on the basis that he does not have standing to sue, should not be granted for three reasons.

16    First, the circumstances in which Mr Ferdinands was discharged from bankruptcy are unknown. It is unclear, for example, whether the discharge occurred in circumstances where there was a surplus in the bankrupt estate. The respondent has not established on the facts or the law that the former trustee of Mr Ferdinands’ bankrupt estate presently remains the owner of any copyright alleged to subsist in the works referred to in the Statement of Claim.

17    Second, the relief sought in the proceedings includes remedies under Pt IX of the CA in respect of (at least) the moral rights of Mr Ferdinands as the alleged author of literary or artistic works. Moral rights are in addition to any other rights in relation to a work that the author or anyone else has under the CA: s 192(1). Section 195AI of the CA provides that the author of a work has a right of integrity of authorship, being a right not to have the work subjected to derogatory treatment. The expression “derogatory treatment” in relation to a literary work is defined to mean the doing of anything that results in the material distortion of, the mutilation of, or a material alteration to the work, or the doing of anything else in relation to the work, that is harmful to the author’s honour or reputation: CA, s 195AJ. A similar definition applies in relation to an artistic work: CA, s 195AK. These provisions protect the uniquely personal and reputational interests of an individual in his or her capacity as the creator of a work, whether or not the author is or has ever been the owner of the copyright subsisting in it. The rights persist until copyright ceases to subsist in the work: CA, s 195AM(2) and (3). An action for infringement of moral rights may be commenced by the author under s 195AZ for relief including an injunction, damages, a declaration of infringement, and a public apology: see s 195AZA.

18    The property of Mr Ferdinands that was divisible among his creditors did not include any right of Mr Ferdinands to recover damages or compensation for personal injury or wrong done to him: BA, s 116(2)(g)(i). The respondent has not established for the purposes of a summary dismissal application that the effect of Mr Ferdinands’ bankruptcy was to deprive him for all time of the rights conferred under Pt IX of the CA or, for that matter, the right to sue for infringement of copyright in an action commenced under s 115 of the CA. As I have said, the provisions in Pt IX of the CA have as their purpose the protection of the honour and reputation of the author of a literary or artistic work. The respondent could point to no authority to support the proposition that a claim founded on an act that is harmful to the honour or reputation of the author of a literary or artistic work is not a “personal injury or wrong”. Mr Ferdinands’ asserted entitlement to sue for alleged infringement of alleged moral rights is clearly arguable.

19    Third, Mr Ferdinands’ claim is not wholly founded in contraventions of the CA in any event. As will be seen, the Statement of Claim alleges a confusing conglomeration of claims, characterised by vague, embarrassing and scandalous allegations. Although difficult to interpret, it is nonetheless clear that the claim is not one solely seeking remedies available under the CA. Any conclusion that Mr Ferdinands lacked standing to commence an action for remedies under the CA would not affect his standing to sue for other remedies.

Jurisdiction

20    The respondent’s contentions concerning the Court’s jurisdiction were largely premised on an assumption that Mr Ferdinands had no standing to commence an action founded upon infringement of copyright or associated rights. It is submitted that the remaining parts of the action could not properly fall within the Court’s associated jurisdiction under s 32 of the FCA Act. The respondent’s contention that the whole of the action should be summarily dismissed for want of jurisdiction should be rejected, whether or not my conclusion as to Mr Ferdinands’ standing is correct.

21    Despite its poor expression, the Statement of Claim alleges the existence of a controversy which appears to concern the infringement of Mr Ferdinands’ copyright or moral rights in various works in factual circumstances that coincide to some degree with the facts surrounding the termination of his employment. The additional claims, so far as they can be understood, also arise from the circumstances of the termination of Mr Ferdinands’ employment, particularly the disciplinary and criminal proceedings concerning his previously proven misconduct as a police officer.

22    As discussed above, the applications under the CA are met by a submission, founded on the operation of the BA, to the effect that Mr Ferdinands is not presently the owner of the alleged literary or artistic works in question. For that reason alone, the matter is one arising under a law of the Parliament within the meaning of s 39B(1A)(1)(c) of the Judiciary Act 1903 (Cth). It may be that upon closer analysis certain factual allegations cannot properly be said to form a part of the federal matter, such that some of the causes of action relied upon by Mr Ferdinands cannot be tried in this Court. The proper relief in that instance would not be the summary dismissal of the whole of the action, but the striking out of those parts of the Statement of Claim or originating process that do not plead facts properly falling within the federal matter. The respondent has not sought orders for the excision of any particular portion of Mr Ferdinands’ pleadings. The order that is sought is for summary dismissal of the whole of Mr Ferdinands’ claim on the basis that the whole of it fails for want of jurisdiction. Relief should not be granted on that ground.

Frivolous and vexatious

23    Subrule 26.01(1)(b) and (d) of the Rules respectively provide that a party may apply for an order that judgment be given against another party because the proceeding is frivolous or vexatious or the proceeding is an abuse of the process of the Court.

24    The respondent’s primary submission is that the pleaded allegations are a contrivance affected by Mr Ferdinands as a means of re-agitating a long history of grievances that have been determined against him in previous proceedings so as to vex and annoy the respondent. For the reasons that follow, I am satisfied that this proceeding is frivolous or vexatious or otherwise constitutes an abuse of process in that, and other, respects.

25    At the outset of the hearing of the application, Mr Ferdinands was notified that the Court may have regard to all of the materials he had filed in the proceedings in order to determine the merits of the respondent's argument. Mr Ferdinands expressed his agreement to that course.

26    The principles guiding the exercise of the Court’s discretion to give judgment against a party under subr 26.01(1)(b) and (d) are well settled. They overlap in the sense that if a proceeding is properly characterised as frivolous or vexatious then it would ordinarily follow that the proceeding constitutes an abuse of the Court’s processes. This Court’s power to prevent an abuse of process is equivalent to the power of courts of unlimited jurisdiction, described by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529 (at 536) as:

… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

27    See also Walton v Gardiner (1993) 177 CLR 378 at 393. In Ridgeway v The Queen (1995) 184 CLR 19, Gaudron J said (at 74 — 75):

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’.  This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process.  Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard.  That is necessarily so.  Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.  That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning.  As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.

(Footnotes omitted)

28    As to whether proceedings meet the description “vexatious”, in Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, Toohey J (at 310) confirmed that the test was “not simply a subjective one”. His Honour continued:

In expressing that view Walsh J endorsed (at p 11) what Ormerod LJ had said in In re Vernazza [1960] 1 QB 197 at 208:

‘[T]he question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious.’

That question is one for the Court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith. So, in deciding the present application, it is not to the point that Mr Skyring may believe and believe strongly in his view of s 115 of the Constitution and the associated points he wishes to agitate.

29    It is apparent from the pleadings and from the parties’ submissions that there has indeed been a history of dispute and litigation between the parties, including a criminal conviction recorded against Mr Ferdinands in the Adelaide Magistrates Court, an appeal to the Full Court of the Supreme Court of South Australia, and an unsuccessful application for special leave to appeal made by Mr Ferdinands to the High Court of Australia.

30    It is convenient to turn first to the content of the Statement of Claim.

Statement of Claim

31    The Statement of Claim contains allegations to the effect that Mr Ferdinands is the author of an “old play” titled “The Happy Whistleblower” and that copyright subsists in the work. The Statement of Claim is otherwise defective in a number of critical respects. Whilst the document contains express references to recognisable statutory or common law causes action, the facts alleged in support of each cause are not clear. The disjointed and confusing language of the document is best illustrated by extracting, without alteration, some of the pleaded allegations which typify the whole of the document.

32    The play The Happy Whistleblower is described in the following terms:

The words complained off are a substantial part of the play ‘The Happy Whistleblower’ in which twelve letters sent to former Commissioner of Police Gary Burns from 2012 to 2015 is read out loud to the audience, and the words complained off are then part of a response by the audience. The letters are long but the response is short. The response is repeated by the audience twelve times. Then after the twelve letters are read four further letters sent to current Commissioner of Police Grant Stevens from 2015 to 2016 are read, and the words complained off are then part of a response by the audience. The letters are long but the response is short. The response is repeated by the audience four times.

33    Mr Ferdinands then alleges that this artistic work has been “criminalised” by the respondent. The word “criminalised” is found throughout the document. It is not defined.

34    There are pleaded facts to the effect that the respondent has accessed websites managed by Mr Ferdinands and downloaded materials and, in so doing, has:

… copied the original works of fantasy and illusion and then converted those original works into something of reality and can be said to be criminal reality: a police complaint.

35    It may be inferred that the “original works” referred to in that paragraph include the play titled The Happy Whistleblower.

36    Under the heading “Grounds of the application” there appear these passages:

1.    At all relevant times the applicant was a police officer from 1986 to 2001 with South Australia Police. His life, career and reputation were ended abruptly by a malicious prosecution and wrongful conviction.

2.    At all relevant times from 2001 to 2017 the applicant was a creator of original artistic works pursuant to s.31(1) of the Copyright Act 1968.

3.    The Act protects all original works from infringement and protects the moral rights of the creator from having that original artistic work denigrated, shamed and humiliated.

4.    The respondent sought to charge the applicant with an offence. Precisely what he had in mind is only known to him but one can imagine bringing great upheaval and chaos into the life of the applicant.

5.    The failure of the respondent to respond to letters has caused this legal proceeding and failure do a professional and lawful and complete investigation has caused damage: damage to reputation as an artist and damage to potential financial prosperity of a play called The Happy Whistleblower.

6.    The words complained of are a substantial part of the play and are read after each letter has been read out loud to the theatre audience followed by a large gong – it is a solemn moment. The words given by Divine Providence appear in a sketch called Two Fat Dogs and are part of a songs, Kill in the Morning Sun and You Made a Mess.

7.    In the pursuit of malice the respondent engaged in transferred malice and breached the Copyright Act and infringed greatly upon the applicant and the play (The Happy Whistleblower).

8.    The applicant is an artist yet the respondent refuses to appreciate that, interpret that correctly or understand that as an artist such as William Shakespeare or Charlotte Bronte or Agatha Christie or Sir Andrew Lloyd Webber or Trevor Kingsley Ferdinands.

37    Various threads of narrative or argument running through the Statement of Claim share a common underlying theme or otherwise culminate at the same destination: an allegation that prior criminal proceedings conducted against Mr Ferdinands amounted to a malicious prosecution. Whilst there are attempts to connect the alleged infringement of copyright or moral rights with the former criminal proceedings, the nature of the connection and the factual basis for it cannot be understood.

38    The respondent invites the Court to draw the inference that Mr Ferdinands’ true motivations for commencing this action is to agitate the same controversies that have been previously tried and determined, albeit under the thin disguise of a copyright infringement action. The content and tenor of the Statement of Claim is capable of supporting that inference, especially having regard to the allegations levelled at the respondent’s officers to the effect that they have acted with “malice” and “transferred malice” (another undefined term used more than once in the Statement of Claim) together with the absence of any clear factual foundation for the copyright infringement action. Mr Ferdinands’ allegation that an artistic work has been “criminalised” reinforces the view that these two components of the claim cannot be extricated from each other, whether objectively or subjectively in the mind of Mr Ferdinands.

Other materials filed by Mr Ferdinands

39    Again, it is convenient to extract portions of the affidavit material and submissions filed by Mr Ferdinands which fairly represent the content and manner of expression of the documents he has filed in the proceedings to date.

40    In an affidavit sworn on 1 June 2017 Mr Ferdinands said:

1.    The malice in 2000-2001 is a case of Australia’s largest judicial corruption action and it has extended from 2016 to 2017 in transferred malice. Charlesworth J must look at the circumstances and then logically put a stop to this prejudice and rot.

2.    To solicit a statement from a drug dealer (prisoner [name redacted]) who is a former member of South Australia Police in defiance of a reporting regime for prisoners within the Police (Complaints and Disciplinary Proceedings) Act 1985 and further breach the Whistleblowers Protection Act 1993 by wild accusations and vexatious prosecutions is malice.

3.    The following persons have committed the offence of … Conspiracy to Pervert the Course of Justice, namely:

…

41    Mr Ferdinands goes on to list 32 legal practitioners, politicians and members of the judiciary who, he claims, are “plainly of bad character”, “manipulate the law to suit themselves” and are “evasive in matters of the law and truth”. Under the heading “SHIFTING EXPLANATIONS” Mr Ferdinands makes specific allegations against some of the persons listed. The allegations largely concern Mr Ferdinands’ unsuccessful outcomes in litigation concerning his criminal conviction and the termination of his employment.

42    Mr Ferdinands then sets out what may be described as a glossary of terms, in which he proposes definitions for phrases such as “Railroaded”, “One Little Whore” and “Whore Justice”. When asked in the course of oral submissions to explain the meaning of this portion of the affidavit and his purposes for including them in the document, Mr Ferdinands could give no adequate response.

43    Under the heading “ORDERS SOUGHT” Mr Ferdinands purports to seek, among other things, an order that a judgment of the Supreme Court of South Australia be set aside, an order that a notice of termination issued to him under the Police Act 1998 (SA) be revoked, and a declaration to the effect that “malice in the ordinary sense is hate filled racism, fraud, dishonesty and corruption acted out in resentment; revenge; retaliation and retribution but malice in copyright law is quite different”. The difference is not explained.

44    Annexed to the affidavit (among other things) is a script for the play The Happy Whistleblower, together with copies of copious correspondence from Mr Ferdinands to persons holding the office of the Commissioner of Police, public officials and members of the judiciary, most of which concern Mr Ferdinands’ complaints about the same issues forming the subject matter of previous litigation.

45    An affidavit sworn by Mr Ferdinands on 18 April 2017 is expressed in a similar tone. It, too, contains a list of orders sought in these proceedings. Among them, is the following (the emphasis is in the original) (at [4]):

This Honourable Court declares that if the respondent refuses to produce evidence of malice or refuses to produce evidence of transferred malice then this Honourable Court shall infer both fraud and malice and it shall declare malice as ‘one simply does not in a civilised and sane society go to the home of a drug-dealer and drug-user who is a former member of South Australia Police who is facing serious drug charges and solicit a statement to be used in court and, then make an offer to drop the drug charges in exchange for a bribe to come into court and give misleading evidence and false information about an alleged bad treatment or attack that took place sometime previous in order to remove a police officer of different race and different colour from police service [The Malice]’.

46    In his affidavit sworn on 21 June 2017, in support of his application for judgment in default against the respondent, Mr Ferdinands said (at [15]):

I am seeking an order based on FCR 2011 pursuant to section 5.23 that the respondent was given ample time to clear the air and end all issues in malice and transferred malice by submitting affidavit evidence as to the fact that there was no malice in the 2000 AMC prosecution and conviction and no malice in the 2000 SCSA appeal; but the respondent cannot clear the air and still seeks to suppress documents and materials from the Court with intent to mislead and misinform this Court as to the true nature of the malice and the transferred malice.

47    These materials are expressed in a similar fashion to a series of earlier affidavits, submissions and correspondence relied upon by Mr Ferdinands in the proceeding. Of particular significance are two letters addressed to the Court dated 1 September 2016 and 3 September 2016. The letters were to the effect that this Court should, in the within proceeding, embark upon a wide ranging enquiry into, among other things, alleged judicial corruption in South Australia. At a hearing on 27 October 2016, Mr Ferdinands’ attention was drawn to the two letters. He was provided with a copy of the decision of the Full Court in Manolakis v Carter [2008] FCAFC 183, to which I will shortly refer. Mr Ferdinands was urged to read the Full Court’s decision. He was notified that should his future correspondence, affidavits or submissions continue in the same tenor, then an inference that this proceeding constitutes an abuse of process might later be drawn. The written materials filed by Mr Ferdinands after the directions hearing of 27 October 2016 are to be read in the context of the guidance previously given to him. The later materials are as prolix, embarrassing and heightened in tone as the earlier materials. Together with the Statement of Claim, the materials support an inference that the action is vexatious, whether because it is subjectively intended to harass the respondent or because it objectively has that effect, or both.

Oral submissions

48    Mr Ferdinands’ oral submissions provide further support for the conclusion that the proceedings constitute an abuse of process. His submissions returned again and again to the same grievances that have formed the subject matter of earlier litigation between him and various officers, agencies and instrumentalities of the respondent. Mr Ferdinands repeated the word “criminalise” in connection with The Happy Whistleblower play, without adequately explaining the intended legal or factual meaning of the word.

49    The oral submissions confirmed that Mr Ferdinands intends in this proceeding to invoke the procedures of the Court so as to urge a wide ranging investigation into his past dealings with his former employer, which he expects will culminate in the payment of, at least, a large settlement sum.

50    It is significant that prior to commencing the proceeding, Mr Ferdinands made demands of the respondent for the payment of ever increasing settlement sums in relation to wide ranging allegations, and that he has seen fit to annex that correspondence to his affidavits in this proceeding. It will be summarised non-exhaustively. In a letter dated 8 July 2013 Mr Ferdinands offered to accept $708,000.00 in relation to the termination of his employment. In another letter dated 15 July 2014, he offered to accept $803,928.50 plus interest. In correspondence sent after commencing this action, Mr Ferdinands offered to accept a “reduction” of his damages claim, being $3,333,333.33. In a subsequent letter, dated 29 December 2016, Mr Ferdinands offered to accept $2,208,000.00 by 31 December 2016, which figure was based on a rate of $8,000 per day for the preceding 276 days. That figure was said to account for a portion of the value of the art and entertainment Mr Ferdinands would have created each day (said to be $156,000.00 each day), but for having to spend his time dealing with the proceedings. The letter states that the daily rate would increase to $25,000 from 1 January 2017 if the offer was not accepted.

51    These demands bear no sensible connection to any true underlying controversy. Whatever be Mr Ferdinands’ subjective purpose in commencing and continuing the proceeding, it is a purpose foreign to the proper purposes for which the Court’s processes should be invoked.

52    The power to stay or dismiss proceedings on the ground that they are an abuse of process is to be exercised with caution, and only in the most exceptional case: Moore v Inglis (1976) 9 ALR 509 at 516; Walton at 392 (Mason CJ, Deane and Dawson JJ). In all of the circumstances, I am satisfied that to permit this action to continue would be to allow the Court’s processes to be used as an instrument of unjustified harassment of the respondent. In particular, I am satisfied that the claims as founded in copyright, and all other claims pleaded (or at least intimated) in the Statement of Claim, are intended by Mr Ferdinands to be used as a vehicle to resuscitate his long running dispute with the various agencies of the respondent, notwithstanding that the underlying dispute has been determined against him in other proceedings. Quite independently of Mr Ferdinands’ subjective intentions, the materials filed by him are in large part incomprehensible or nonsensical. They are replete with angry and sometimes threatening rhetoric. Mr Ferdinands has been granted the opportunity to confine and clarify his allegations, and yet he appears either unable or unwilling to do so.

53    I have not overlooked the circumstance that Mr Ferdinands is a self-represented litigant. However, as the Full Court said in Manolakis (at [9] — [10]), whatever the difficulties facing a litigant in person:

9.    … those difficulties cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go. Justice requires fairness to all parties. A respondent is entitled, at the least, to know the case that is brought against him or her and the rudimentary facts upon which that case is based.

10.    Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private ‘Royal Commissions’.

54    Consideration has been given to the question of whether Mr Ferdinands should be given any further opportunity to clarify his claims and to otherwise confine his use of the Court’s processes to the proper resolution of a bona fide unresolved controversy. As has been observed earlier in these reasons, the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes. The overarching purpose includes a number of objectives, which include the efficient use of the judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court’s overall caseload: FCA Act, s 37M(2)(b) and (c). In the present case, those objectives are to be given considerable weight. The “dispute” forming the subject of this proceeding has either been determined in the past or is otherwise so poorly articulated that it cannot be understood, or both. In light of the history of the action and the principles to which I have referred, Mr Ferdinands should not be granted any further opportunity to demonstrate that the proceeding is bona fide and that he is willing and able to plead a case in a manner that enables the respondent to fairly understand the case against it.

55    Before concluding, it should be noted that in the course of submissions the Court drew Mr Ferdinands’ attention to a passage in his written materials that appeared to contain a threat directed to the Court itself. In determining that these proceedings are vexatious and an abuse of process, it has not been necessary to take into account the passage in question and I have not done so. The remaining written materials and oral submissions relied upon by Mr Ferdinands are a sufficient basis to justify the relief sought by the respondent.

56    The respondent’s interlocutory application should be allowed insofar as it seeks an order that the proceedings be dismissed pursuant to r 26.01(b) and (d) of the Rules.

Associate:

Dated:    4 December 2017