Bouvet v Minister for the Arts [2001] FCA 195

FEDERAL COURT OF AUSTRALIA

Bouvet v Minister for the Arts [2001] FCA 195 ROBERT J BOUVET v THE MINISTER FOR THE ARTS V 104 of 2001 GOLDBERG J 5 MARCH 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 104 of 2001

BETWEEN: ROBERT J BOUVET

Applicant

AND: THE MINISTER FOR THE ARTS

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 5 MARCH 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The applicant's application for interlocutory relief filed 8 February 2001 and notice of motion filed 8 February 2001 are dismissed. 2. The applicant pay the respondent's costs of the application for interlocutory relief and the notice of motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 104 of 2001

BETWEEN: ROBERT J BOUVET

Applicant

AND: THE MINISTER FOR THE ARTS

Respondent

JUDGE: GOLDBERG J

DATE: 5 MARCH 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant has applied by way of notice of motion, filed 8 February 2001, for relief against the respondent, the Minister for the Arts for the State of Queensland. In the notice of motion, the applicant seeks orders that: "1. Place the Respondent under obligation to substantiate the reason given to the Applicant by the managers of the original film's Public Common Trust Fund (in August 1989) to deny the Applicant access to his royalties from the Public Common Trust Fund. The reason given to the Applicant was in the form of a false allegation that the fictional name Ken Shadie, that the Applicant had used as a pseudonym, when he created the original story and devised the original screenplay for the original film in May 1984, existed as a real person in material form. It is essential that this motion is carried out, so that proceedings in this matter can be allowed to commence Ő based on a SOUND FOUNDATION, instead of the original false foundation which was just an illusion created by the Media since 1985. If the Respondent is unable to substantiate the reason as stated above, then … (Please refer to the second (2nd) motion on page 2 of 2 of this Notice of Motion.) 2. Prohibit the Respondent and Pacific Film and Television Commission from exploiting the Applicant's copyright for a third (3rd) time, by exhibiting the sequel to the original film – planned for release in April 2001 – unless or until the Applicant's royalties (which were materially remitted to the Applicant [in fiduciary form] by the initially appointed Trustee Company, in August 1989) are released for the benefit of the Applicant … in cash Ő by the newly appointed Trustee Company … out of the sum total of the original film's Public Common Trust … Or in default, that the Applicant's royalties be released from the budget of the film's sequel, which is planned for release in April 2001." (Emphasis in original) 2 The applicant alleges in an application, supported by a statement of claim and an affidavit, filed on 8 February and 13 February 2001 respectively, that he created the original story, and is the owner of the copyright in relation to that story, from which the screenplay for the production of the film Crocodile Dundee was developed and which, he says, was originally produced at Shute Harbour in North Queensland in May 1984. The applicant claims an entitlement to royalties derived from the production, exhibition and exploitation of that film and the second film, which was a sequel to it, and says that there is a third film based upon the story of Crocodile Dundee, in respect of which he claims the copyright, which has been produced and which apparently will be released for public exhibition on or about 2 April 2001. 3 The applicant, who appears in person, has prepared his own court documentation and the manner in which he presents his claim is not easy to understand. It appears that the claim he is making is that he is the owner of the copyright in the character and story of Crocodile Dundee and that he has not received the royalties which he claims are due to him. He alleges that the royalties are held, certainly so far as the first two films are concerned, by a trustee company apparently based in New South Wales, and he is concerned about what will happen to such royalties as may be obtained, or to which he might be entitled, if his claim can be established in relation to the third film. 4 In the application, the claim for interlocutory relief is in the following terms: "That a Court Order, prohibiting the Respondent and Pacific Film and Television Commission to exhibit the sequel to the original film – planned for release in April 2001 – be issued and served on the Respondent (as an injunction) – unless or until the funds, which represents the Applicant's royalties (which were materially remitted [in fiduciary form] to the Applicant by the initially appointed Trustee Company, in August 1989) are released for the benefit of the Applicant … in cash Ő by the newly appointed Trustee Company … out of the sum total of the original film's Public Common Trust Fund … Or in default, that the Applicant's royalties be released from the budget of the film's sequel, which is planned for release in April 2001." (Emphasis in original) 5 The applicant says that he was motivated to take this proceeding against the respondent because two news media reports identified an association between the respondent and the film. One of those reports was an Australian Associated Press news release on 18 June 2000, which reported that the Minister for the Arts, Mr Foley, had said that: "The Queensland Government's Pacific Film and Television Commission has provided an incentives package to entice what is to be Crocodile Dundee III to the State of Queensland." The other news report was from the Herald-Sun in Melbourne on 19 June 2000, which reported that Mr Paul Hogan would star in a third Crocodile Dundee film soon to be filmed in Queensland. According to the news report, the film was "masterminded" by the Queensland Government's Pacific Film and Television Corporation. 6 The respondent, for whom Mr Flanagan appears, has filed material which discloses that: "The State of Queensland provides funding to the Pacific Film and Television Commission Ltd which is not a corporation established pursuant to any Queensland statute … The Minister for the Arts has no control or direction over the distribution of films." Ms Lindy Johnson, a senior policy adviser of arts to the respondent, has deposed to the fact that the Pacific Film and Television Commission Limited ("the Commission") operates independently of the Department of the Arts. The respondent also relies on an affidavit of Robin Lawrence James, the Chief Executive Officer of the Commission, which deposes to the following facts: "4. The Pacific Film and Television Commission Limited receives funding from the State of Queensland. The State of Queensland does not control the activities or expenditure of the Pacific Film and Television Commission Limited. 5. The Pacific Film and Television Commission Limited has no right or other legal entitlement to exhibit, distribute or otherwise exploit the film, or any copyright in the film, Crocodile Dundee in LA." It is also said that the Commission does not intend to exhibit, distribute or otherwise exploit the film, or any copyright in the film, and the Commission holds no royalties or other revenue from the exploitation of the previously related Crocodile Dundee films. The Commission has no right to collect any royalties or other revenue derived from the exploitation of the Crocodile Dundee films. The role that the Commission does undertake in relation to films, such as the film under consideration, is to make available financial incentives for organisations or corporations considering shooting films in Queensland and those incentives cover a rebate of Queensland payroll tax and other similar rebates. 7 The relief sought in the notice of motion to which I have already referred is misplaced, and the material placed before me by the applicant does not demonstrate that relief of the nature sought in the motion is available to the applicant on this application. The first paragraph in the notice of motion appears to be based upon some obligation cast upon the respondent to perform some statutory function. As Mr Flanagan put it in his submission, it seems to be based on some sort of claim for a writ or order in the nature of mandamus. The material before me does not disclose that the respondent has made a decision under an enactment which might be the subject of judicial review before me. Indeed, it is not immediately clear how an application could be made in this Court against the Minister of a State Government under such judicial review legislation as may be administered in this Court. But there is no basis on the material before me upon which any relief of the nature sought in the notice of motion could be granted. 8 The claim for interlocutory relief in par 2 of the notice of motion and the application to which I have already referred also raises difficulties. The relief sought is an order prohibiting the respondent and the Commission from exhibiting the film proposed for public release on or about 2 April 2001 until funds which represent the applicant's royalties are released to him by the trustee company which it is said holds them. It is said that those funds are held in a public common trust fund. I can see no basis upon which any such order could be made against the respondent, or for that matter the Commission, on the material presently before me. Neither the respondent nor the Commission is in control of the production, distribution and exhibition of the film, nor are they in any way the recipients of any royalties which might be derived from the exhibition of the film, nor do they control the disposition of any such royalties as might be due from the film. 9 In the course of his submissions to me, the applicant seemed to accept this position. I say that because the applicant, in the course of his submissions, informed the Court that he had been fighting for royalties from Crocodile Dundee films for some considerable time and wanted the royalties released to him because he claims an entitlement to them. When I put it directly to the applicant as to what was the form of order which he was asking the Court to make, he put it in terms that: "The Minister has the power to get things done …" and he invited me to order the respondent to use his power to have royalties obtained from the trust fund released to the applicant. Regrettably for the applicant, I do not have the power or jurisdiction to make any such order. The respondent may have the power to get things done, but I can only deal with the matter before me on the basis of legal rights and entitlements and legal obligations. If the applicant can substantiate his claim for copyright in the Crocodile Dundee story and the Crocodile Dundee character, and if royalties have been derived from the exploitation of that story and that character, any claim to be made by the applicant should be made against the person or persons who have exploited the story and the character and against the persons who it is said hold any royalties derived or received from that exploitation. On the evidence before me, neither the respondent nor the Commission are such persons. 10 Even if there could be established some claim to be entitled to royalties from the exploitation of the third Crocodile Dundee film to be released for exhibition on or about 2 April 2001, I do not consider it would be an appropriate exercise of discretion to grant interlocutory relief restraining the exhibition of the film. In such circumstances, irreparable harm would not be done to the applicant if no injunction was granted because, as he is claiming an entitlement to royalties, damages would be a sufficient remedy if in the future an infringement of copyright was ultimately established by the applicant: see, for example, Whiteley v Murdoch Magazines Pty Ltd (1995) 33 IPR 31. 11 For all these reasons, the applicant is not entitled to the relief sought in the notice of motion filed on 8 February 2001, and is not entitled to the interlocutory relief sought in the application filed on 8 February 2001. Accordingly, the claim for interlocutory relief and the claims made in the notice of motion will be dismissed.