FEDERAL COURT OF AUSTRALIA Lindon v Internet Corporation for Assigned Names and Numbers [2001] FCA 265 PRACTICE AND PROCEDURE – ex parte application for leave to file application – whether proceeding abuse of process – whether claim against proposed respondents foredoomed to fail Federal Court Rules: O 20, O 46 r7A Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41‑591 Walton v Gardiner (1993) 177 CLR 378 LEN LINDON v INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS & ORS V 176 of 2001 GOLDBERG J 9 MARCH 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 176 of 2001 BETWEEN: LEN LINDON Applicant AND: INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS First Respondent LOUIS TOUTON Second Respondent VINT CERF Third Respondent ESTHER DYSON Fourth Respondent ICANN MELBOURNE MEETINGS HOST COMMITTEE Fifth Respondent au DOMAIN ADMINISTRATION LTD Sixth Respondent TONY STALEY Seventh Respondent GREG CREW Eighth Respondent CHRIS DISSPAIN Ninth Respondent PROFESSOR PETER GERRAND Tenth Respondent AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Eleventh Respondent MICHAEL COSGRAVE Twelfth Respondent JUDGE: GOLDBERG J DATE OF ORDER: 9 MARCH 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The notice of motion filed 9 March 2001 be dismissed. 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 176 of 2001 BETWEEN: LEN LINDON Applicant AND: INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS First Respondent LOUIS TOUTON Second Respondent VINT CERF Third Respondent ESTHER DYSON Fourth Respondent ICANN MELBOURNE MEETINGS HOST COMMITTEE Fifth Respondent au DOMAIN ADMINISTRATION LTD Sixth Respondent TONY STALEY Seventh Respondent GREG CREW Eighth Respondent CHRIS DISSPAIN Ninth Respondent PROFESSOR PETER GERRAND Tenth Respondent AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Eleventh Respondent MICHAEL COSGRAVE Twelfth Respondent JUDGE: GOLDBERG J DATE: 9 MARCH 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The matter before me is an ex parte application by motion filed this day by the applicant, Len Lindon, who appears in person, for leave to issue a proceeding which was lodged with the Court earlier in the day. The proceeding in respect of which leave is sought is against Internet Corporation for Assigned Names and Numbers ("ICANN") and various officers of it, an entity entitled ICANN Melbourne Meetings Host Committee, a company named au Domain Administration Ltd and officers of it, a representative of the Internet Society of Australia, and the Australian Competition and Consumer Commission ("the Commission") and one of its officers. 2 The leave is sought in the motion because earlier in the day this proceeding, an application, a statement of claim, a notice of motion and an affidavit were presented by the applicant to the Registry of the Court for issue. It appeared to a Registrar of the Court that these documents were an abuse of the process of the Court, or were frivolous or vexatious, and the Registrar sought a direction of a Judge pursuant to of O 46 r7A of the Federal Court Rules. Under that Rule, in the circumstances which occurred this morning, the Judge may direct the Registrar: · to accept or issue the relevant documents; · to refuse to accept or issue them; or · to refuse to accept or issue them without the leave of a Judge first had and obtained. The matter was referred to me and I directed the Registrar to refuse to accept or to issue the application, statement of claim, notice of motion and affidavit without the leave of a Judge first had and obtained. The applicant quite properly has taken advantage of that direction and has accordingly applied for leave. 3 On Monday 5 March 2001, the applicant sought to file an application, statement of claim, notice of motion, albeit in different form to which I will refer shortly, and on that day the Registrar referred the matter to a Judge of the Court, who pursuant to O 46 r7A of the Federal Court Rules directed the Registrar to refuse to accept or issue the application, the statement of claim, notice of motion and affidavit in support on the grounds that the application appeared to be on its face an abuse of the process of the Court, or to be frivolous or vexatious. 4 The applicant accepted that what lay at the core of his claim in the proceeding which he sought to file on 5 March 2001 ("the first proceeding") was similar to what lay at the core of the second proceeding sought to be filed this day. I raised with the applicant the issue whether what he may have been doing was, in effect, seeking to appeal to me against the direction given on Monday 5 March, on the basis that it was basically the same proceeding which he was now seeking to issue. 5 I pointed out to the applicant that if he had any complaint about what the Judge had done on Monday, the appropriate course was either to appeal, or to file an application for leave to appeal, against the direction. I express no view about whether that should or should not have been done because the matter can be resolved by reference to the substance of the documents filed this day. 6 The applicant submitted that there were significant differences between the first proceeding and the second proceeding. He pointed to the fact that the Commission was a nominated respondent in the second proceeding but not in the first proceeding. He pointed to the fact that there had been a claim for damages in the first proceeding, but in the second proceeding there was only a claim for injunctive relief, albeit mandatory injunctive relief. He also noted that the allegations in the second statement of claim had been pleaded more precisely. 7 In considering an application for leave to file a proceeding, it is necessary to form a view as to the nature of the proceeding. I am not dealing with a strike‑out application or an application to dismiss a proceeding pursuant to O 20. Nevertheless, it seems to me that in dealing with an application of this nature I should turn my attention to how the case is formulated and the cause of action, or the causes of action, which are sought to be raised. 8 In general terms, the complaint which lies behind the proceeding is that the applicant seeks to enable there to be access over the Internet to what he calls two non‑colliding name spaces, ".human rights" and ".court", which he has sought to set up and operate. He alleges in the statement of claim that ICANN and the other respondents, other than the Commission and the Commission's officer, will be holding a series of meetings, including in particular a meeting starting this day and ending on 13 March 2001 in Melbourne, and that they are engaging in conduct, or will engage in conduct, that constitutes a contravention of ss 45, 45B, 45D, 45DA, 45E and 46 of the Trade Practices Act 1974 (Cth) ("the Act"). It is further alleged that their conduct constitutes attempting to contravene such provisions, aiding, abetting, counselling or procuring a person to contravene such provisions, inducing or attempting to induce a person to contravene such provisions, being directly or indirectly knowingly concerned in, or party to those contraventions and conspiring with others to contravene such provisions. 9 It will be immediately appreciated that these are serious allegations. The particulars of the conduct which are then set out are that the proposed first to tenth respondents will do three things: · fail to allow the immediate recognition and resolution of all existing non‑colliding name spaces as currently recognised and resolved by the many existing root service providers; · support the US government legacy root service as the sole and exclusive root service provider for the whole Internet; · actively promote the extinguishment of all other, that is non‑ICANN, name spaces and all other non‑US government legacy root service providers. 10 There is then an allegation that the Commission has failed to investigate the allegations which the applicant has made in respect of the proposed first to tenth respondents and has failed, accordingly, to prepare any enforcement measures. 11 The relief which is sought in the application is a mandatory injunction, interlocutory and final, ordering the proposed first to tenth respondents forthwith to recognise and resolve all existing non‑colliding name spaces as currently recognised and resolved by the many existing root service providers, and an injunction restraining them from any conduct supporting the US government legacy root service as the sole and exclusive root service provider for the whole Internet and actively promoting the extinguishment of all other non-colliding name spaces and all other root service providers. 12 A mandatory injunction, interlocutory and final, is also sought against the Commission and one of its officers requiring them forthwith to conduct an expeditious investigation into competition in the markets for Internet root service providers and non‑colliding name space service providers. 13 So far as the claim against the Commission and its officer is concerned, the applicant relies upon the extensive power of the Court under s 80 of the Act to grant injunctive relief. Accepting for present purposes that the power to grant that injunctive relief under s 80 of the Act extends to enabling the Court to grant an injunction in such terms as the Court determines to be appropriate in respect of conduct, for example, I do not consider that there is any cause of action against the Commission and the officer of the Commission in respect of which such an injunction could be granted. 14 There is no provision in the Act in relation to the powers and duties of the Commission which would warrant the grant of such an injunction. The matters raised in the application, the statement of claim, and the affidavit do not satisfy me that there is any such obligation cast upon the Commission which would warrant the grant of such an injunction. 15 When I turn to the allegations against the other proposed respondents they are couched in such terms that such causes of action as are raised against them are, in my view, having regard to the matters alleged in the statement of claim and taking into account what is in the application and the affidavit, foredoomed to fail. 16 On a strike‑out application, the statement of claim, in its present form, would be bound to be struck out having regard to the inadequacy of the pleading of the breaches of Pt IV of the Act and the particulars of conduct relied upon: see Mitanis v Pioneer Concrete (Vic) Pty Ltd (1997) ATPR 41‑591. Allegations are made that the proposed first to tenth respondents have engaged in conduct which constitutes or would constitute contraventions of the Act in the manner to which I have referred. It is then said, for example, in relation to the contravention of s 46, "They have misused and will misuse their market power". These are the particulars of the conduct in contravention of s 46. This is not a pleading which ought to be allowed to proceed in this form. 17 Similarly, an allegation in the form that the proposed first to tenth respondents have engaged in conduct that would constitute conspiring with others to contravene the provisions of Pt IV of the Act should not be allowed to proceed in that form this Court. I make the same observations in relation to the allegations in par 7 of the proposed statement of claim that the conduct involves aiding, abetting, counselling or procuring a person to contravene the provisions of Pt IV of the Act. 18 I am therefore satisfied that the application and the statement of claim in the form placed before the Court, taking into account the matters referred to in the affidavit, are such that the statement of claim would be struck out. If that were to occur, then the claim against the proposed respondents on the material placed before me would be foredoomed to fail. I refer to the observations of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393: "… it has long been established that regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail." 19 I am satisfied that the proceeding in respect of which leave is sought this afternoon is foredoomed to fail, and the order of the Court will be that the motion filed this day is dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 15 March 2001 Counsel for the Applicant: The applicant appeared in person Date of Hearing: 9 March 2001 Date of Judgment: 9 March 2001