FEDERAL COURT OF AUSTRALIA
Ferdinands v State of South Australia [2018] FCA 589
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for leave to appeal and the interlocutory application accepted for filing on 5 April 2018 be dismissed.
2. The Applicant pay the Respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
KERR J:
1 This is an application for leave to appeal a decision of a judge of this Court in Ferdinands v The State of South Australia (No 2) [2017] FCA 1436. In that decision, the primary judge dismissed proceedings commenced by Mr Ferdinands pursuant to r 26.01(b) and (d) of the Federal Court Rules 2011 (Cth) (the Rules) on the basis that they were frivolous, vexatious or otherwise constituted an abuse of process.
before the primary judge
2 The primary judge set out the background to the proceedings at first instance as follows:
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.
3 In the first instance proceedings, the Respondent applied for summary judgment pursuant to r 26.01(1) of the Rules, contending that Mr Ferdinands lacked standing to bring the proceedings; that the Court lacked jurisdiction to hear and determine the application; that the claim had no reasonable prospects of success; and that the proceedings were frivolous and vexatious or otherwise an abuse of process. Mr Ferdinands also applied for summary judgment in his favour on the basis of r 5.23(2) of the Rules as the Respondent had been non-compliant with orders for the filing of written submissions.
4 In respect of that application, her Honour found that the Court’s discretion to give summary judgment in favour of Mr Ferdinands had been enlivened, but declined to exercise that discretion on the basis that “the default … is not so egregious in all of the circumstances so as to justify the particular relief sought”.
5 The primary judge did not grant the relief sought by the Respondent on the basis that the Applicant had lacked standing or that the Court lacked jurisdiction (her Honour’s reasoning in that regard is set out at [15] to [19], and [20] to [22] respectively).
6 However, her Honour made orders granting summary judgment in the Respondent’s favour on the basis that Mr Ferdinands’ claims were frivolous and vexatious or otherwise constituted an abuse of process. Her Honour referred to those matters as follows (at [24]):
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.
7 Her Honour then set out the relevant principles that her Honour said were appropriate regarding the exercise of the Court’s discretion where an application is made to grant summary judgment on the basis that a proceeding constitutes an abuse of process:
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.
8 The primary judge then referred to various excerpts from Mr Ferdinands’ draft amended originating application, as annexed to an affidavit he had filed. Her Honour treated that as Mr Ferdinands’ statement of claim, and reasoned as follows:
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.
9 Her Honour also referred to extracts from Mr Ferdinands’ affidavits and submissions:
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.
10 Her Honour noted (at [48]) that Mr Ferdinands’ oral submissions had focused on the grievances that had formed the basis of earlier litigation against various officers, agencies and instrumentalities of the Respondent, and reasoned:
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.
11 The primary judge also noted that, prior to the commencement of the proceedings then before her, Mr Ferdinands had issued demands to the Respondent for the payment of various large settlement sums in relation to his allegations.
12 Her Honour’s conclusions were as follows:
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.
grounds of application
13 The grounds on which Mr Ferdinands applies for leave to appeal the primary judge’s decision are lengthy; the application is 13 pages. With respect to the alleged breaches of copyright, Mr Ferdinands sets out the following grounds:
1. The matter was an overt breach of copyright under the Copyright Act 1969 (Cth) yet no declarations were made and furthermore no damages were awarded against the Respondent.
2. Subsistence and ownership of copyright in literary, dramatic and musical work.
The Happy Whistleblower play
The play titled “The Happy Whistleblower” is a literary and dramatic work within the meaning of section 31 of the Copyright Act 1968.
3. The words complained off re 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.
4. Copyright subsists in the literary and dramatic work titled “The Happy Whistleblower”.
Particulars
(a) Copyright subsists in the literary and dramatic work titled “The Happy Whistleblower” pursuant to:
(i) Section 31(1)(a) of the Copyright Act 1968;
(ii) Section 31(1)(b) of the Copyright Act 1968;
(iii) Section 32(1)(a) of the Copyright Act 1968;
(iv) Section 33(2) of the Copyright Act 1968;
(v) Section 35(2) of the Copyright Act 1968.
5. KINGSLEY FERDINANDS FILM GROUP is the exclusive licensee of the copyright in the literary and dramatic work titled “The Happy Whistleblower”.
14 Paragraphs [6] to [8] of the application then set out allegations against a previous South Australian Commissioner of Police, Premier, and Attorney General of transferred malice and vexatious prosecution, as well as allegations of racism, fraud, dishonesty and corruption within the South Australian police force. Mr Ferdinands alleges that a “Gang of 32” manipulated the legal processes and that independent investigations must be launched by the Victorian Solicitor General and prosecutions commenced by the New South Wales Director of Public Prosecutions.
15 The remainder of Mr Ferdinands’ lengthy application for leave to appeal is focused on his wide ranging allegations of fraud, malice, corruption and abuse of process. Mr Ferdinands articulates these allegations as the subject of his application for leave to appeal the primary decision, but it is unclear how they are relevant to the claims of breach of copyright that were the subject of that decision. For example, the application includes the following:
11. The full Court is asked to answer three questions of law asked of it pertinent to the case.
12. The full Court is ask to make declarations of fraud something the primary Judge could not do because the case was bound within the Copyright Act and the primary Judge had limited powers to make findings of malice only in the abuse of processes of law, abuses by the courts and court officials and abuses of 2 Acts of Parliament [Whistleblower's Protection Act and Police (Complaints and Disciplinary Proceedings) Act)] that secured a termination from South Australia Police as a police officer in 2001.
13. The full Court is now being asked to make a declaration of fraud, something the primary Judge was never asked to do, and in any event did not make any findings of fact of malice or transferred malice in the 2000 Adelaide Magistrate's Court prosecution and Supreme Court of South Australia appeal in 2001.
14. If this full Court makes declaration of fraud, and corruption, and abuse of public office then there is no need for the Applicant to file statement of claim and originating application in the South Australia Supreme Court for fraud and seek damages as all damages have been outlined and met by this full Court.
15. If this full Court states, there shall be no Notice of Appeal then plainly there shall be an Application for Special Leave to the High Court and issue of the Constitution shall be raised but also issues and problems under the Judiciary Act for the High Court Judges to hear and determine independently and impartially.
16. The full Court is to examine the Notice of Appeal and note significantly that the primary Judge failed to make any orders or decrees or even raise in judgment issues of institutional racism, or institutional fraud when presented with overwhelming evidence of corruption, improper conduct, institutional racism and fraud…
17. This full Court is now asked to deal with the whole of the case something the primary Judge was never asked to do; and in law could not possibly do. The full Court is now moving towards declarations of fraud in the 2000 Adelaide Magistrate's Court prosecution and fraud in the Supreme Court of South Australia appeal and fraud in the shutdown of the legal processes by the masters and the Registrars of the Supreme Court of South Australia when alerted that the summons was a false summons and alerted the main Crown witnesses was in fact a former rogue member of South Australia Police who was actually dismissed from the police service for misconduct and/or corruption. These declarations of fraud are totally necessary to end the litigation and essential to repair the face of the public record. There must be orders to set aside judgment of 2001 by Martin J on 23 August 2001and quash conviction, reinstatement orders by revoking Notice of Termination … and orders for loss of wages and orders for 2 sets of damages: one for the police officer, Trevor Kingsley Ferdinands, and one for the film group, KINGSLEY FERDINANDS FILM GROUP.
16 Mr Ferdinands also alleges (at [20]) that the solicitors for the Respondent filed false affidavits in support of its submissions that Mr Ferdinands lacked standing to commence proceedings for breach of copyright. That affidavit is not otherwise identified or before this Court and Mr Ferdinands does not set out how he alleges it to be false. Mr Ferdinands addresses (at [21]) the issue of the Court’s jurisdiction to hear proceedings alleging breaches of the Copyright Act 1968 (Cth) (the Copyright Act). However those questions are not directly material to his present application. The primary judge did not give summary judgment on the basis of either the issue of standing or jurisdiction and, in the absence of a notice of contention on behalf of the Respondent seeking to uphold her Honour’s decision on other grounds; it is unclear why those issues are being sought to be re-agitated by Mr Ferdinands on appeal.
17 The remainder of Mr Ferdinands’ application focuses on the preparation of an appeal book, and continues to refer back to his allegations of malice, fraud and abuse of process.
18 Under the heading “Other applications”, Mr Ferdinands takes issue with an order made by the primary judge removing the name “Kingsley Ferdinands Film Group” from the title of the proceedings. I note her Honour’s reasons with respect to the making of that order are set out at [56] to [61] of the decision in Ferdinands v The State of South Australia [2016] FCA 1268 (Ferdinands No 1). In that regard, her Honour found as follows:
59 I am satisfied that [Kingsley Ferdinands Film Group] is neither a company, nor a corporation sole, nor a body corporate of any other kind, nor a partnership, nor a convenient name for a group of natural persons. In short, the first-named applicant does not exist as a juristic person capable of exercising a right to sue. It does not enjoy a legal personality separate and distinct from that of Mr Ferdinands himself.
19 Mr Ferdinands’ present application does not seek leave to appeal against her Honour’s decision in Ferdinands No 1. If it had, Mr Ferdinands would be well out of time and would require an application for an extension of time and leave to appeal pursuant to r 35.14 of the Rules. No such application has been made. Even accepting some leniency should be permitted in respect of compliance with procedural requirements in the case of an unrepresented party, I discern no basis to allow this proceeding to serve as a vehicle to commence an appeal in respect of that question. Any appeal which Mr Ferdinands might seek leave to commence on that basis would be entirely without prospect of success. I am satisfied that her Honour’s reasoning as expressed at [59] in Ferdinands No 1 was undoubtedly correct. To the extent his present application seeks to have that question revisited by a Full Court, it is not within the scope of the application before me and need not be considered further.
20 Also under the heading, “Other applications”, Mr Ferdinands contends as follows:
5 The full Court is entitled by law to reverse the decision of summary judgment based solely upon the facts the solicitor for the Respondent and the respondent himself has failed to refute or rebut any allegation of malice, transferred, fraud or corruption in the 2000 Adelaide Magistrate’s Court proceedings or these proceedings thus dispensing with any need for any external report by independent law officers of the Court. When reversing that decision for summary judgment the full Court will note the Applicant sought summary judgment the issue of summary judgment is not new but actually well established. When reversing that decision for summary judgment the full Court will end all litigation and any potential High Court challenge. When reversing that decision for summary judgment the full Court the Applicant shall return to the work place and be unmolested and un-harassed by his employer.
6. The failure of the Respondent to comply with pre-trial negotiations and discovery pursuant to rule 20.11 of Part 20 Discovery and Inspection of Documents where discovery must be for the just resolution of the proceedings, gives an invitation to this full Court that the Respondent has something to conceal, suppress and hide, and that the Court can now take a firm stand and state that the Court is not a play yard or a card game of high stakes where people's lives and reputations are put in risk or danger by irresponsible solicitor and barristers, and make orders for the Applicant for summary judgment pursuant to rule 26.01 FCR 2011.
7. The Applicant's respectful submission is that the Respondent is not entitled to summary judgment. Federal Court Rules 2011 rule 26.01 summary judgment to end proceedings early has been wrongly applied. The primary Judge could have made an order pursuant to rule 2.32 inspection of documents within Division 2.4 Custody and Inspection of Documents but never once did the primary Judge satisfy her own curiosity to breaches of the whistleblower laws or the rights of prisoners under the police complaints and disciplinary proceeding laws.
The full Court must decide where moral right infringement lies: does it lie with KINGSLEY FERDINANDS FILM GROUP or does it lie with Trevor Kingsley Ferdinands. The primary judge stated neither KINGSLEY FERDINANDS FILM GROUP nor Trevor Kingsley Ferdinands was entitled to protections of the Copyright Act or had any moral rights and dismissed the case: this is utterly wrong in law.
…
An order is required from the full Court that the Respondent pays for all work in the preparation of the final report. It should take 1,600 hours to produce the final report. The full Court can adjourn for 1,600 hours after it has made its decision to give the Victorian Solicitor General his terms of reference and all enabling powers to seize documents and speak to witnesses and formulate charge sheets and bring the case back on later or until it is satisfied justice has been seen to be done as justice of the case so requires.
21 Mr Ferdinands attached a draft notice of appeal to his application. That draft itself is 12 pages in length. It largely replicates the content of his application for leave to appeal. Much of it is incomprehensible. However, doing my best to identify Mr Ferdinands’ grounds, as I understand them, he claims the following errors in the primary judge’s decision:
(1) The primary judge erred in making orders that the name “Kingsley Ferdinands Film Group” be removed from the title of the proceedings. Mr Ferdinands contends that the “entity … rightfully holds all power to bring legal proceedings in court for any breaches of copyright or moral rights infringements and other abuses.” Mr Ferdinands asks the Court to determine whether “Kingsley Ferdinands Film Group” is an entity.
(2) The Respondent was not entitled to summary judgment as it produced no evidence challenging the Applicant’s claims.
(3) The primary judge failed to make declarations of racism, fraud, dishonesty, corruption and abuse of process and power in the South Australian government, the South Australian police force, and proceedings commenced against Mr Ferdinands in the Adelaide Magistrates Court.
(4) The primary judge ought to have identified and quantified breaches of moral rights.
(5) The primary judge ought to have enforced the letters of demand sent to the Respondent with respect to the alleged breaches of copyright.
22 Mr Ferdinands then posits the following questions to be answered by the Court on appeal:
QUESTIONS OF LAW
1. What is an entity in law?
2. Is KINGSLEY FERDIANDS FILM GROUP an entity?
3. Is God an entity?
23 Mr Ferdinands filed an affidavit to accompany the above application and draft notice of appeal. The Affidavit is ten pages, and largely reproduces the allegations and assertions contained in the application for leave to appeal and draft notice of appeal and I see no utility in separately summarising its content. The affidavit annexes the first instance decision and the logo of the “Kingsley Ferdinands Film Group”.
24 On 29 March 2018, after filing his application for leave to appeal, Mr Ferdinands lodged for filing an interlocutory application in which he sought the following orders:
1. Pursuant to rule 1.31 of the Rules, an order may be granted to have regard to the nature and the complexity of the proceedings.
2. An order is required pursuant to rule 1.31 to separate the case into two parts, namely the malice and then the transferred malice causing breach of copyright.
3. There is no need in law for the full court to deal with the malice issues if Justice Kerr can deal with them by interlocutory orders.
4. Pursuant to rule 1.32 of the Rules, an order may be granted if the court considers in the interest of justice that an order should be made.
5. An order is required pursuant to rule 1.32 that in the interests of justice no element of racism, fraud, dishonesty or corruption can be used in any legal proceedings against any citizen of the Commonwealth of Australia and where racism, fraud, dishonesty and corruption are alleged or proven then the court's processes have been initiated for an illegal and unlawful purpose and that constitutes and abuse of process.
6. Pursuant to rule 22.01 of the Rules and 22.02 of the Rules, an order may be granted in proceedings whereby the respondent has failed to comply with rule 22.01 notice to admit facts or documents or rule 22.02 notice disputing facts or documents.
7. An order is required pursuant to rule 22.01 that part judgment be given as the respondent in previous proceedings having been given ample time to file affidavit evidence with all documents failed to file any affidavit documents or fail to file any documents of evidence refuting allegations of malice.
8. An order is required pursuant to rule 22.02 notice disputing facts or documents that part judgment be given as the respondent in previous proceedings having been given ample time to file affidavit evidence disputing allegations made by the Applicant in previous proceedings failed to do so and refused to do so in the allegations of malice.
9. An order is required pursuant to rule 25.01 of the Rules offer to compromise is made by Justice Kerr to the respondent due to the belligerent and hostile if not confrontational nature of the respondent and his refusal to accept the facts of malice in the proceedings of 1999 AMC prosecution of the Applicant that has directly caused the transferred malice of 2016 breach of copyright case now before this court house.
10. When a party to proceedings cannot comply with Part 25 Offers to settle then it is imperative that a judicial officer acting independently and impartially of the superior appellate court stand up and steps in and acts in good faith and fairness and settles a case in part or in full using rule 26.01 summary judgment. In this instance, Justice Kerr is well within the powers of the court to end the vexatious nature of the respondent in the malice and to settle all non-breach of copyright issues and monies especially the following issues that are derived from the malice; prior to Justice Kerr setting any date for full court hearing, namely:
i. An order to revoke the notice of termination issued on 22 November 2001 under s.42 Police Act 1998 (SA);
ii. An order to set aside the judgment of Martin J on 23 August 2002 in Ferdinands v SA Police (2001) SASC 879 of 2001;
iii. An order to reinstate the Applicant into South Australia Police;
iv. A declaration that all service days lost to fraud are returned to the Applicant from 22 November 2001 to 27 April 2018, a total of 6001 days;
v. A declaration that the Respondent is to pay $1,158,629.00 for loss of all for wages, salaries, entitlements and benefits lost at $1550.00 per fortnight at 6% per cent compound interest in the sum of $1,141,153.00 (17 years)+ $17,476.00 (5 months)= $1,158,629.00 are paid forthwith;
vi. A declaration by this court that the 2000 AMC prosecution of the Applicant was illegal, unlawful and wrong in law.
vii. A declaration by this court that the 2000 AMC prosecution of the Applicant was an abuse of the court's processes.
viii. A declaration by this court that the issuing of a false and misleading summons in 2000 AMC prosecution of the Applicant was an act of malice.
ix. A declaration by this court that the face of the public record is not to be perverted, tampered with, altered, deleted, enhanced, manipulated, altered, destroyed or otherwise changed or removed in any manner, way, shape or form as to do so by any party is a contempt of court and improper conduct and inter alia causes a serious miscarriage of justice.
11. Any other orders deemed fit and necessary in the administration of justice.
25 An affidavit was filed with Mr Ferdinands’ interlocutory application. His affidavit contains allegations of fact and law but, in summary, it contends that the interlocutory orders sought should be made prior to a Full Court hearing of his appeal. The affidavit does not articulate why the orders sought should be made on an interlocutory basis.
26 That interlocutory application was accepted for filing on 5 April 2018 and listed for hearing, together with the application for leave to appeal, on 27 April 2018. The parties were asked to file and serve written submissions, limited to four pages, on both the interlocutory application and the application for leave to appeal.
the parties’ submissions
27 Both parties filed written submissions.
Mr Ferdinands’ submissions
28 Mr Ferdinands’ written submissions are in the same vein as his application for leave to appeal, draft notice of appeal, affidavits and interlocutory application, and make wide ranging allegations of abuse of process, fraud and malice, which focus on the subject of previous litigation, being proceedings in the Adelaide Magistrates Court and the termination of his employment. He submits as follows:
The following matters arise for consideration by Justice Kerr on Friday 27 April 2018 hearing:
1. No prospect of success and prevent abuse of the court’s process are the only viable and workable grounds to grant summary judgment.
2. In my mind, to grant summary judgment merely because there has been a non appearance is fraud. In my mind, all rules pertaining to non-appearance should be removed and the registrar and registry should be directed to stay the proceedings pending some contact with the registry and the file by the party that has failed to appear.
3. In my mind, to grant summary judgment because one party has not pleaded a case broadly but not entirely or well-particularized is a serious miscarriage of justice and amounts to improper conduct of a judicial officer: near enough is good enough; after all we are talking about law; not rocket science.
4. Summary judgment means that a party will have its case dismissed to save the court time and money because the case is hopelessly lost but is does not mean that a judicial officer can conceal the evils and crimes of the other party merely because of small hurdles or trifling mates have intervened or interrupted a jury trial or trial by single judge.
5. If a case is too protected or provocative then a court may ask for certain pleadings to be struck out or as for greater particulars but the statement of claim and originating application cannot be dismissed for being too protracted or too complicated or too provocative because of two criteria, namely, one; things that are ugly in life and law such as racism, fraud, dishonesty and corruption must be stated ad pleaded, and two; if dismissed then this reflects poorly upon the standards of the judiciary and individual judicial member's conduct in the proceedings.
6. In my case, the defendant's case was hopelessly lost yet the defendant having breached copyright was granted summary judgment.
7. The defendant refused full discovery and disclosure and Justice Charlesworth made no orders for full discovery and disclosure.
8. In my mind, the rule of law applies for every one and to every one thus the failure of Justice Charlesworth to meet minimum standards of a code of conduct when fraud and malice were brought to her attention is of great concern to all persons who value honesty and integrity in the justice system. The defendant's breach of the rule of law in the pursuit of malice does not constitute law and a conviction based on fraud and a termination from employment or even appointment based on fraud is worthless and has no credit and no value.
9. A soldier has a code of honour, a police officer has a code of bravery and all families and organisations have a code of conduct yet Justice Charlesworth failed to show any value of a code of conduct and in fact breached every code of honour, bravery and conduct by remaining silent; her conduct constitutes obstruction of justice.
10. I was reduced to using freedom of information applications in my case which is absolute proof of a corrupt system of government and courts and furthermore that no one in the history of law certainly not in any murder trial or breach of copyright has ever used freedom of information to gain access to materials and information held by one party which clearly proves a state of affairs in malice or a point of law in transferred malice or a set of events or criminal conduct.
11. Freedom of Information is not a process for discovery and disclosure.
12. Certain allegations of illegality and wrongdoing were made in the proceedings against the defendant. The defendant has in fact obstructed justice for 18 years by the outrageous behaviour of Premiers, Attorney Generals and Commissioners of Police. My termination as a police officer was more of a planned execution not an act of the natural law but illegal use of the law. The fraud was a success because the face of the public record was altered, manipulated and tampered with.
13. Those allegations were not refuted or rejected by the State of South Australia and it must be accepted now by all wise men that those allegations are true and the 2001 dismissal was in bad faith and malice. In fact, those allegations of fraud and malice in prosecution and appeal of 2000 and 2001 still stand today as bad faith and unfairness and that is why Justice Kerr is here today. Hence, the defendant is unreliable, unpredictable, and unsound and cannot be trusted. He has misled and lied in the Adelaide Magistrate's Court and the Supreme Court of South Australia and is now causing harm and lying in the Federal Court of Australia.
14. Justice Kerr must either to side with truth and the face of the public record, by acknowledging illegal legal practice in the State of South Australia and unlawful use of the courts and court forms for some act of revenge, retaliation, retribution or malice, or side with Justice Charlesworth and the cover up of racism, fraud, dishonesty and corruption of the outrageous Mike Rann, Jay Weatherill and Mal Hyde and decline to assist justice and decline to assist me in obtaining the truth.
15. For 18 years Mike Rann, Michael Atkinson Jay Weatherill, John Rau, Mal Hyde, Gary Burns and Grant Stevens have laughed at and mocked the courts: they have acted with impunity and as untouchables from prosecution and investigation because they were the controlling agents who controlled discovery and disclosure of evidence; and the flow of materials and evidence to the courts.
16. In my mind, to issue a false summons is an abuse of process. The summons issued in 2000 by the defendant was false. He knew it to be false. He withheld key witnesses and crucial documents from the court. He desired my termination from police service by absolute corrupt means using fraud and all other means. It is unlawful to use the courts as a private club or plaything to remove employees from government or the workforce.
17. In my mind, that abuse of the court's processes is every man's business and responsibility even if it at the State level because Federal Court Judges can deal with discrimination, equal opportunity, racial discrimination, negligence, incompetence and fraud [vicious intent to cause harm to the innocent] at their level using federal laws and in extenuating circumstances such as these of deep fraud and racism at the State level and shutting down of an appeal process for 18 years by the State: this Federal Court house can intervene using all enabling powers to open the case de novo, and hear malice issues.
18. It does not matter if you are a magistrate, district court judge, supreme court justice, federal court justice or high court justice, as a judicial officer you have inherent power to declare fraud at any time of the day or night, and at any time to fix, amend and repair the face of the public record and stop a fraud dead in its tracks when you hear of it: it is called command and control and shows leadership. Sadly, Justice Charlesworth is lacking in command skills, control skills and leadership.
19. Instead of preventing an abuse of process Justice Charlesworth accepted it, tolerated it and enhanced it. In my mind, this is unlawful conduct by a judicial officer is very dangerous and disturbing, as it is to be quite frank and honest, an abuse of power.
20. Summary judgment for the defendant can only be granted if the defendant has produced evidence and that evidence has been inspected fully by an officer of the court. To not inspect but dismiss any allegation of fraud or abuse of process is judicial misconduct. Something must be produced to negate the allegation of wrongdoing and fraud and no defence or reply can allege collateral attack when the original attack and false summons was a fraud: an act of malice; an abuse of power and maladministration.
21. The modern judicial officer must take responsibility and say ‘yes, I have seen the evidence and there is nothing in the evidence that sways my mind’ but a judicial officer cannot say ‘I dismiss the proceedings because there is no evidence and I have seen no evidence’. A good judicial officer opens his eyes and sees the evidence and the impending allegations; and possible judgment that may flow from the evidence; and in the statement of claim and the originating application; well before one word is heard from either party in open court.
22. The proceedings were instituted for breach of copyright of material created by TK FERDINANDS for KINGSLEY FERDINANDS FILM GROUP. KINGSLEY FERDINANDS FILM GROUP is like a large silo that holds poems, plays, songs and screenplays. Yet much time has been spent on racism, fraud, dishonesty and corruption. This is because to get from A to C one must pass B, and it is B where the truth of every case lies. Thus, B is not immaterial, unrelated, irrelevant, vexatious, malicious or scandalous but B is the qualified truth or absolute truth of bad faith, ill-will, fraud, cover up and corruption. One cannot move-on and ignore the pathway of law or justice. Thus, B discloses the modus operandi.
23. For the proceedings to get to breach of copyright Justice Kerr must repair the face of the public record first and foremost otherwise there is no connection between the parties and the whole case does not make any sense.
24. KINGSLEY FERDINANDS FILM GROUP is physical: it breathes, it creates, it evolves, it revolves and it is real. It has been alive for 18 years and no order from any judicial officer of the court, acting sanely or insanely, can wipe out 18 years of the face of the public record and art and entertainment by a mere declaration or court order that KINGSLEY FERDINANDS FILM GROUP does not exist as to do so would be utter lunacy.
25. KINGSLEY FERDINANDS FILM GROUP is my work, my life, my happiness, my future and my legacy: it cannot be air brushed from history or modern art's society.
26. A declaration of fraud by Justice Charlesworth would have been raw positive justice. To skate around the issues and subjects of malice, ill-will, bad faith and transferred malice is completely and utterly preposterous.
27. The full court does not have a second chance to get this all right. Its judgment either supports the rule of law, supports discovery and disclosure, supports victims of crime who are whistleblowers and supports young emerging artists or it does not.
28. The Interlocutory Orders sought on 29 March 2018 should by right be made by Justice Kerr in the public interest and based on fairness (fair-minded men acting fairly and reasonably in the courts as and by officers of the court): without fairness in law we are all savages and there is no law per se and law materializes to become dog eat dog!
29 Before the Court today, Mr Ferdinands made oral submissions having the same tenor as his written submissions. He submitted that he had suffered in consequence of the malice of the conduct of the state of South Australia, transferred malice, and breach of copyright. He submitted that it was a fundamental breach of fairness to remove an employee because he or she was disliked by management or colleagues. He submitted that the state of South Australia had turned against him out of malice. Plainly those submissions go back to what Mr Ferdinands wishes to have dealt with by the Court in relation to his allegations of abuse of process, fraud and malice, focusing on the subject of previous litigation, including the termination of his employment.
The Respondent’s submissions
30 With respect to the relevant principles regarding an application for leave to appeal, the Respondent submitted as follows:
4. In considering whether to grant permission to appeal, consideration ought first be given to whether, in all of the circumstances of the case, the decision is attended by sufficient doubt to warrant an appeal, and second, whether a substantial injustice would result if leave were refused supposing the decision to be wrong (Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399.
31 The Respondent submits that the allegations Mr Ferdinands advanced pursuant to the Copyright Act as pleaded before the primary judge “were vague, unsubstantiated and unsustainable” (at [5]) and refers to the primary judge’s findings at [37] that Mr Ferdinands’ pleadings had focused on allegations of his being the victim of previous malicious prosecution.
32 With respect to the grounds of Mr Ferdinands’ application for leave to appeal, the Respondent submits as follows:
13 The Applicant’s grounds do not disclose any error of the primary Judge. Nor do the assertions contained within the grounds constitute identifiable grounds of appeal.
14 The Applicant asserts that the primary Judge ignored an assertion that members of the “Gang of 32” must be removed from public office and did not do what was required “in terms of good legal procedure, good legal practice and the fight against institutional racism and fraud.”
15 The Applicant asserts that there are questions of law to be answered. These are set out on page 7 of the Notice of Appeal. The questions do not disclose any question of law that warrants consideration by this Court.
16 In relation to grounds 12 and onward the Applicant asks the Full Court to make declarations of fraud, corruption, and abuse of public office. The grounds descend into wide ranging assertions of what the primary Judge did or didn't do, should have done, or what the Full Court needs to do.
17 Similarly to the proceedings at first instance, the grounds relied on for the application for leave to appeal are unclear and unsubstantiated. Further, the grounds seek to raise issues that, by their own admission, were not matters put to the primary Judge.
Grounds in the draft Notice of Appeal
18 The Applicant asserts that the primary Judge erred in making a series of orders and findings. The bases for those assertions are generally not clear and in some cases appear to be incorrect.
19 Grounds 1.1 and 1.2 appear to be an attempt to re-litigate the matters raised in Ferdinands v The State of South Australia [2016] FCA 1268.
20 Ground 1.3 appears to assert that the primary Judge erred by giving summary judgment to the Respondent in circumstances where the Respondent had not “produce any evidence whatsoever of innocent breach of copyright”. This ground is misconceived. This is evident from the circumstances in which summary judgment was given. Similarly, grounds 3 and 4 allege failings of the Respondent to provide evidence or witnesses.
21 Ground 2 alleges failing of the primary Judge in making certain declarations. There was not and is no jurisdiction of the Court to make such declarations.
22 In ground 5 and onwards the Applicant canvasses broad issues again relating to matters that have been the subject of previous litigation or raised in previous litigation. The remedies sought are, generally speaking matters that the Court does not have jurisdiction to determine. The asserted errors and failings of the primary Judge are not substantiated by coherent grounds.
Orders sought
23 The Applicant seeks 30 orders, including answers to questions of law. Most of the orders sought are in the form of declaratory relief. The overwhelming majority of the orders sought are simply not within the jurisdiction of the Court to make, or are expressed so poorly that it is not possible to ascertain the nature of the relief sought.
(Footnotes omitted.)
33 With respect to the consideration of whether refusal to grant Mr Ferdinands leave to appeal would result in substantial injustice, the Respondent submits as follows:
24 The very nature of the reasons for summary judgment answers the question as to whether a substantial injustice would result if leave were refused, supposing the decision of the primary Judge to be wrong.
25 The primary Judge found the Statement of Claim contained allegations relating to copyright, but was otherwise defective. Further, the primary Judge concluded that she was “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.”
26 The Applicant was given the opportunity to confine and clarify his allegations, however was unwilling or unable to do so.
27 In such circumstances there is no substantial injustice to the Applicant. If, amongst the voluminous materials filed in the proceedings at first instance there was or is a claim at law, which could be articulated and substantiated, the Applicant would be at liberty to bring such a claim in the appropriate jurisdiction.
34 The Respondent submits that the orders sought by Mr Ferdinands in his interlocutory application are for general procedural orders, but many relate to the Applicant’s substantive grievances which are outside the jurisdiction of this Court.
consideration
35 The primary judge summarily dismissed Mr Ferdinands’ first instance proceedings pursuant to r 26.01(1)(b) and (d) of the Rules on the basis that they were frivolous or vexatious and otherwise constituted an abuse of process. In his written submissions at [2], Mr Ferdinands refers to a dismissal for non-appearance but there appears to be no basis for that submission and I need not consider it no further.
36 I have also earlier concluded that Mr Ferdinands’ present application cannot serve as a vehicle to allow the question of whether the primary judge erred in making orders that the name “Kingsley Ferdinands Film Group” be removed from the title of these proceedings. That question was decided in Ferdinands No 1. Leave has not been sought to appeal that decision and it is not properly the subject of these proceedings. I therefore give no further attention to that purported ground.
37 As to Mr Ferdinands’ other grounds, in so far as I have been able to identify them as set out at [21] above, the relevant principles that the Court should have regard to when considering an application for leave to appeal are, as the Respondent submits, well established. I refer to the case of Décor Corporation Pty Ltd v Dart Industries Inc [1992] FCA 665; (1991) 33 FCR 397 at 398-400 which establishes the principles as follows:
(1) Whether, in all the circumstances, the first instance decision is attended by sufficient doubt to warrant reconsideration by the Full Court; and
(2) Whether refusal to grant leave to appeal, supposing the decision to be wrong, would result in substantial injustice.
38 It is also always relevant to consider the prima facie merits of the substantive appeal and I refer to: Deputy Commissioner of Taxation v Soiland Pty Ltd (In Liq) [2010] FCA 168 at [20].
Decision not attended by sufficient doubt
39 I have set out a summary of the primary judge’s decision above (at [2] to [12]) of my reasons. The reason the primary judge gave (at [52]) for dismissing Mr Ferdinands’ action as vexatious was her Honour was satisfied that the claims founded in copyright, and all other claims pleaded (or at least intimated) in Mr Ferdinands’ statement of claim, were 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 had been determined against him in other proceedings. Her Honour reasoned that in all of the circumstances, she was satisfied that to permit Mr Ferdinands’ action to continue would be to allow the Court’s processes to be used as an instrument of unjustified harassment of the Respondent.
40 None of the materials filed by Mr Ferdinands in support of his present application for leave to appeal identify an error in her Honour’s reasoning in having reached that conclusion. In so far as Mr Ferdinands’ application and submissions are comprehensible, what he advances therein does not even purport to put into contest the primary judge’s conclusion regarding his underlying purpose in bringing the action which her Honour held to be an abuse of process.
41 Moreover the materials Mr Ferdinands has filed in support of his present application for leave to appeal, including, but not limited to, those I have referred to at [15] above reinforce rather than undermine the correctness of the primary judge’s conclusion that to permit the action to continue as pleaded would be to allow the Court’s processes to be used as an instrument of unjustified harassment of the Respondent. I also accept the Respondent’s submissions that none of the assertions expressed by Mr Ferdinands constitute identifiable grounds of appeal. For those reasons I am satisfied that the decision at first instance is not attended by sufficient doubt to warrant reconsideration by a Full Court.
42 In my view, her Honour was correct to conclude that the proceedings before her were, for the reasons her Honour gave, relevantly an abuse of process.
Supposing decision wrong – no substantial injustice
43 However, supposing her Honour’s decision was wrong, I also conclude that there would not be any substantial injustice. But, on that premise, I turn to the pleaded breach of copyright.
44 The primary judge did not permit Mr Ferdinands to replead his cause of action shorn of those aspects which her Honour held demonstrated it to have been relevantly an abuse of process. Her Honour held that the “dispute” forming the subject of Mr Ferdinands’ action had either been determined in the past or was otherwise so poorly articulated that it could not be understood, or both. The primary judge held that in light of the history of the action and the principles to which her Honour referred, Mr Ferdinands should not be permitted any further opportunity to demonstrate that his proceeding was bona fide or that he was willing and able to plead a case in a manner that would enable the Respondent to fairly understand and respond to the case against it.
45 Mr Ferdinands has not explicitly submitted that a substantial injustice would result if leave to appeal the matter limited to the copyright issue were not granted. However it is evident from his application, draft notice of appeal, interlocutory application and affidavits that Mr Ferdinands is seeking to correct what he perceives to be great injustices earlier occasioned against him which appear also to be the subject of the matter over which he claims copyright. There is no reason to doubt Mr Ferdinands’ subjective sincerity in that regard. However, that is not determinative of the outcome of these proceedings.
46 I am satisfied that on the materials before me I am entitled to infer that to the extent that Mr Ferdinands’ statement of claim, but for the primary judge’s decision to dismiss the action, might have been capable of being rearticulated so as to confine it to allegations relating to copyright, shorn of the other issues that would not address the great injustices Mr Ferdinands perceived have been done to him by reason of the State’s conduct in what he asserts to be his malicious prosecution and his dismissal as an employee of the police force. His persistence in rearticulating those grievances demonstrates, I infer, that those are the injustices he wishes to bring before the Court. In that regard, his copyright claim is simply a means to achieve that collateral purpose. In that sense the primary judge’s decision not to permit him to replead his case on a confined basis, even if wrong, would not amount to a substantial injustice because the vindication of Mr Ferdinands’ rights in respect of the copyright issue was never his fundamental objective.
47 In respect of the principle as to whether or not a refusal to grant leave to appeal would potentially give rise to a substantial injustice, the Respondent submits:
25 The primary Judge found the Statement of Claim contained allegations relating to copyright, but was otherwise defective. Further, the primary Judge concluded that she was “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.”
26 The Applicant was given the opportunity to confine and clarify his allegations, however was unwilling or unable to do so.
27 In such circumstances there is no substantial injustice to the Applicant. If, amongst the voluminous materials filed in the proceedings at first instance there was or is a claim at law, which could be articulated and substantiated, the Applicant would be at liberty to bring such a claim in the appropriate jurisdiction.
48 I accept the Respondent’s submissions.
49 Additionally, there are reasons to doubt that even if Mr Ferdinands had been permitted by the primary judge to replead his action confined to a claim in copyright that such a proceeding would have had any realistic prospects of success.
50 As was the case before the primary judge in these proceedings, the bulk of the material filed by Mr Ferdinands relates to allegations of fraud, malice and abuse of power that he levels against persons involved in the termination of his employment with the South Australian police force and in proceedings against him in the Adelaide Magistrates Court. Very little of what is pleaded before me relates to allegations of breach of copyright. Mr Ferdinands however pleads that copyright exists in the play “The Happy Whistleblower”, citing ss 31(1)(a), 31(1)(b), 32(1)(a), 33(2) and 35(2) of the Copyright Act, and that “Kingsley Ferdinands Film Group” is the exclusive licensee of the copyright in that play. Mr Ferdinands does not particularise what part of the play was used or how, such that it constitutes a breach of the specific provisions of the Copyright Act that he relies on.
51 To the extent the materials filed before the primary judge discloses the basis of his claim, what is contained in the document that her Honour accepted as Mr Ferdinands’ statement of claim alleges that that literary and dramatic work was accessed and used in the preparation of a police complaint against him. Section 43 of the Copyright Act provides as follows:
Reproduction for purpose of judicial proceedings or professional advice
(1) The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.
(2) A fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by:
(a) a legal practitioner; or
(b) a person registered as a trade marks attorney under the Trade Marks Act 1995.
Section 10 of the Copyright Act defines a “judicial proceeding” as “a proceeding before a court, tribunal or person having by law power to hear, receive and examine evidence on oath”. A police complaint by its nature is a document the purpose of which is to initiate a judicial proceeding.
52 In the document her Honour accepted to be his statement of claim, Mr Ferdinands alleged that that material was used in the preparation of a police complaint against him. On that premise, I am not persuaded that refusal to grant leave to appeal would result in substantial injustice, even if her Honour may have erred in refusing to permit Mr Ferdinands to replead his action.
Interlocutory application
53 The interlocutory application accepted for filing on 5 April referred to at [24] above seeks declarations relating to issues that are not properly before this Court. Even had I granted leave to appeal I would not have made such declarations.
disposition
54 Mr Ferdinands’ application for leave to appeal and his interlocutory application accepted for filing on 5 April 2018 must be dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. |
Associate:
