FEDERAL COURT OF AUSTRALIA Brown v Theofelos [2004] FCA 210 PRACTICE AND PROCEDURE – motion to dismiss proceeding – whether reasonable cause of action disclosed – whether proceeding an abuse of process. Federal Court Rules O 20 r 2, O 46 r 7A Brown v Edwards and Anor [2001] FCA 1169 cited Brown v Edwards and Anor [2001] FCA 1659 (Full Court) cited Brown v Edwards et al [2002] FCA 538 cited Brown v Edwards et al [2002] FCA 839 cited Universal Music Australia Pty Ltd v Brown [2003] FCA 1213 cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) CLR 125 cited Walton v Gardiner (1993) 177 CLR 378 cited Garvey v Australian Federal Police [1994]FCA800 cited ROBERT GEOFFREY BROWN alias ROBERT JOHN MUTT LANGE v MARY THEOFELOS alias EILLEEN REGINA EDWARDS alias SHANIA TWAIN and OTHERS W3033 of 2003 LEE J 15 MARCH 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W3033 OF 2003 BETWEEN: ROBERT GEOFFREY BROWN THE SOLE SECRETARY & SOLE DIRECTOR OF "OUT OF POCKET, PRODUCTIONS LIMITED" P.K.A. ROBERT JOHN MUTT LANGE APPLICANT AND: MARY THEOFELOS A.K.A. EILLEEN REGINA EDWARDS P.K.A. SHANIA TWAIN FIRST RESPONDENT UNIVERSAL MUSIC AUSTRALIA PTY LTD ACN 000 158 592 SECOND RESPONDENT CENTENARY MUSIC AUSTRALIA PTY LTD ACN 085 156 216 THIRD RESPONDENT ZOMBA MUSIC PUBLISHERS AUSTRALIA PTY LTD ACN 089 247 138 FOURTH RESPONDENT JUDGE: LEE J DATE OF ORDER: 15 MARCH 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the second, third and fourth respondents' costs. 3. Until further order the Registry of the Court is not to receive initiating process from the applicant for filing where any of the respondents in this matter is a proposed respondent unless the applicant has first obtained the leave of the Court to do so. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W3033 OF 2003 BETWEEN: ROBERT GEOFFREY BROWN THE SOLE SECRETARY & SOLE DIRECTOR OF "OUT OF POCKET, PRODUCTIONS LIMITED" P.K.A. ROBERT JOHN MUTT LANGE APPLICANT AND: MARY THEOFELOS A.K.A. EILLEEN REGINA EDWARDS P.K.A. SHANIA TWAIN FIRST RESPONDENT UNIVERSAL MUSIC AUSTRALIA PTY LTD ACN 000 158 592 SECOND RESPONDENT CENTENARY MUSIC AUSTRALIA PTY LTD ACN 085 156 216 THIRD RESPONDENT ZOMBA MUSIC PUBLISHERS AUSTRALIA PTY LTD ACN 089 247 138 FOURTH RESPONDENT JUDGE: LEE J DATE: 15 MARCH 2004 PLACE: PERTH REASONS FOR JUDGMENT LEE J: 1 By notices of motion the second and third and the fourth respondents seek an order that these proceedings be dismissed pursuant to O 20 r 2 of the Federal Court Rules ("the Rules"). The first respondent is not within the jurisdiction and no application has been made by the applicant for leave to serve process upon the first respondent out of the jurisdiction. 2 On 15 December 2003 the applicant filed a document in the Western Australian District Registry of this Court headed "Application for Determination of Equitable Remuneration". The application stated: "THE APPLICANT SEEKS DETERMINATION OF THE EQUITABLE REMUNERATION PAYABLE TO THE APPLICANT AS OWNER/EXCLUSIVE LICENSEE OF THE E.L. RIGHTS IN THE ELIGIBLE LAYOUT DESCRIBED IN THE SCHEDULE HERETO. (THE SCHEDULE) ALL SONGS © 1997 SONGS OF POLYGRAM INTL./LOON ECHO INC. (BM1) OUT OF POCKET PRODUCTIONS LIMITED ALL RIGHTS ON BEHALF OF OUT OF POCKET PRODUCTIONS LTD CONTROLLED BY ZOMBA MUSIC PUBLISHERS, LIMITED ALL RIGHTS RESERVED USED BY PERMISSION INTERNATIONAL COPYRIGHT SECURED 1. THE APPLICANT THE COPYRIGHT OWNER, THE EXCLUSIVE LICENSOR (UNRESERVES) ALL HIS RESERVED RIGHTS BY VIRTUE OF THE LODGEMENT TO THE FEDERAL COURT THIS APPLICATION, PURSUANT TO (FORM 66) APPLICATION FOR DETERMINATION OF EQUITABLE REMUNERATION UNDER CIRCUIT LAYOUTS ACT 1989 (SUBSECTION 20(2) ORDER 58, RULE 24 2. ON THE PRIMA FACEAS OF THE FACTS. DESCRIBED IN THE SCHEDULE; 3. THE RESPONDENTS, IN THE MATTER NO W OF 2003 ARE FOREWARNED OF THE PRECURSOR. IN PARAGRAPH FOUR. 4. SCHEDULE 1 AMENDMENT OF THE CRIMINAL CODE ACT 1995 CRIMINAL CODE AMENDMENT (THEFT, FRAUD, BRIBERY AND RELATED OFFENCES) ACT 2000. 137.2 FALSE OR MISLEADING DOCUMENTS. (1) A PERSON IS GUILTY OF AN OFFENCE IF; (a) THE PERSON PRODUCES A DOCUMENT TO ANOTHER PERSON; AND (b) THE PERSON DOES SO KNOWING THAT THE DOCUMENT IS FALSE OR MISLEADING; AND (c) THE DOCUMENT IS PRODUCED IN COMPLIANCE OR PORPORTED COMPLIANCE WITH A LAW OF THE COMMONWEALTH. PENALTY: IMPRISONMENT FOR 12 MONTHS. (2) SUBSECTION (1) DOES NOT APPLY IF THE DOCUMENT IS NOT FALSE OR MISLEADING IN A MATERIAL FORM. ARE CLAIMED DATE; 24/10/1983" [sic] 3 No statement of claim was filed. An affidavit filed with the application recited no facts, material or otherwise, from which a cause of action could be discerned. 4 Order 20 r 2 of the Rules provides as follows: "(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding: (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court; (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding." 5 There has been a series of proceedings commenced by the applicant in various District Registries of the Court against all or some of the present respondents. Each proceeding has followed the same path. The applicant has asserted a claim in copyright without identifying any factual basis therefor. On each occasion the proceeding has been dismissed as failing to disclose a reasonable cause of action or as an abuse of the process of the Court. (See Brown v Edwards & anor [2001] FCA 1169; Brown v Edwards & anor [2001] FCA 1659 (Full Court); Brown v Edwards et al [2002] FCA 538; Brown v Edwards et al [2002] FCA 839; c.f. Universal Music Australia Pty Limited v Brown [2003] FCA 1213). The applicant acts on his own behalf and is indigent. As a result, filing and other Court fees have been waived. Thus, the usual control that the expense of such fees, or the risk of incurring an order for costs, may exert is absent. 6 In August 2001 in Brown v Edwards [2001] FCA 1169 at [9] von Doussa J described the documents filed by the applicant as nonsensical and failing to disclose the basis of a claim of any kind let alone a cause of action. The deficiencies in the applicant's documents so described by his Honour, and as reiterated in decisions of the Court in subsequent proceedings, remain apparent in the process filed by the applicant in this matter. 7 On 15 January 2003, pursuant to O 46 r 7A of the Rules, an officer in the Registry presented to me for consideration and direction, documents the applicant had presented for filing to commence a proceeding against some or all of the present respondents. I directed as follows: "The proposed application, insofar as it discloses any coherent statement, fails to reveal circumstances materially different from those set out in previous proceedings determined to be an abuse of process. The application should not be received by the Registry." 8 On 3 February 2003 I made a direction in the same terms when the applicant again sought to commence proceedings against the first respondent and others. 9 It may be accepted that dismissal of a proceeding for want of a cause of action, or as an abuse of court process, should only occur in the plainest of cases. (See: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) CLR 125). 10 This proceeding is such a case. 11 The application and supporting affidavit disclose no semblance of a cause of action and the proceeding is doomed to fail. If in truth a cause of action exists the applicant has had ample opportunity to present a claim based on such an entitlement in law. Despite the liberty extended to the applicant in the original proceeding and in the filing of numerous proceedings thereafter the applicant has been unable to set out any elements of a cause of action. To allow this proceeding to continue would occasion unnecessary, and presumably irrecoverable, costs for the respondents and would be an abuse of process. (See: Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane, Dawson JJ at 393; Garvey v Australian Federal Police [1994]FCA800). The orders sought by the motions must be granted and the applicant must pay the respondents' costs. 12 It will be further ordered that no process initiating further litigation against the respondents or any of them, is to be filed in this Court by the applicant without the leave of the Court being first obtained. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 11 March 2004 The applicant represented himself Counsel for the 2nd – 4th respondents: KL Christensen Solicitor for the 2nd – 4th respondents: Gilbert & Tobin Date of Hearing: 4 March 2004 Date of Judgment: 15 March 2004