FEDERAL COURT OF AUSTRALIA Brown v Zomba Music Publishers Australia Pty Limited [2004] FCA 324 PRACTICE AND PROCEDURE – motion to dismiss proceeding for non-compliance with directions to provide particulars – history of matter and related matters asserting same alleged claim – responses not arguably compliant – particulars essential to enable proper defence – application dismissed Corporations Act 2001 (Cth) s 459P Federal Court Rules O 10 r 7(1)(a) Brown v Edwards [2001] FCA 1169 cited Brown v Edwards [2001] FCA 1659 cited Brown v Edwards [2002] FCA 538 cited Brown v Edwards [2002] FCA 839 cited Brown v Theofelos [2004] FCA 210 cited Kestral Trading Pty Ltd v Montano Crop Pty Limited [2003] FCA 1382 cited Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 applied Textile Clothing & Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43 cited Universal Music Australia Pty Limited v Brown (2003) 47 ACSR 501 cited ROBERT GEOFFREY BROWN alias ROBERT JOHN MUTT LANGE alias MAURICE JOHN HOWE v ZOMBA MUSIC PUBLISHERS AUSTRALIA PTY LIMITED W3018 of 2003 RD NICHOLSON J 22 MARCH 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W3018 OF 2003 BETWEEN: ROBERT GEOFFREY BROWN alias ROBERT JOHN MUTT LANGE alias MAURICE JOHN HOWE PLAINTIFF AND: ZOMBA MUSIC PUBLISHERS AUSTRALIA PTY LIMITED (ACN 089 247 138) DEFENDANT JUDGE: RD NICHOLSON J DATE OF ORDER: 22 MARCH 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Pursuant to O 10 r 7(1)(a) of the Federal Court Rules the proceedings be dismissed by reason of the failure of the plaintiff to comply with the order of: (a) Justice Nicholson made 3 December 2003 that the Plaintiff answer the Request for Particulars contained in the Interlocutory Process by 17 December 2003; and (b) Registrar Jan made 10 February 2004 that the Plaintiff answer the Request for Particulars in the format attached to the Minute of Directions before the Registrar. 2. The plaintiff pay the defendant's costs of this notice of motion, the proceedings and any reserved costs. 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 W3018 OF 2003 BETWEEN: ROBERT GEOFFREY BROWN alias ROBERT JOHN MUTT LANGE alias MAURICE JOHN HOWE PLAINTIFF AND: ZOMBA MUSIC PUBLISHERS AUSTRALIA PTY LIMITED (ACN 089 247 138) DEFENDANT JUDGE: RD NICHOLSON J DATE: 22 MARCH 2004 PLACE: PERTH REASONS FOR JUDGMENT 1 On 9 March 2004 the defendant filed a notice of motion pursuant to O 10 r 7(1)(a) of the Federal Court Rules seeking the dismissal of this proceeding by reason of the failure by the plaintiff to comply with the following orders: '(a) Justice Nicholson made 3 December 2003 that the Plaintiff answer the request for particulars contained in the Interlocutory Process by 17 December 2003; and (b) Registrar Jan made 10 February 2004 that the Plaintiff answer the Request for Particulars in the format attached to the Minute of Directions before the Registrar.' Following oral submissions on 22 March 2004 I allowed the notice of motion and made orders accordingly. These are the reasons why I did so. It is a consequence of those orders that the hearing date listed for 29 March 2004 is now vacated and the further application filed by the plaintiff on 19 March 2004 lapses. 2 The present application is to be correctly perceived in relation to a series of proceedings brought by the plaintiff: Brown v Edwards [2001] FCA 1169 (being a decision of von Doussa J on 16 August 2001) Brown v Edwards [2001] FCA 1659 (being a decision of the Full Court constituted by Gray, Dowsett and Stone JJ on 5 December 2001) Brown v Edwards [2002] FCA 538 (being a decision of Carr J on 30 April 2002) Brown v Edwards [2002] FCA 839 (being a decision of Stone J on 2 July 2002) Universal Music Australia Pty Limited v Brown (2003) 47 ACSR 501 (being a decision of RD Nicholson J on 31 October 2003) Brown v Theofelos [2004] FCA 210 (being a decision of Lee J on 15 March 2004) 3 In one way or another the above litigation concerns unparticularised assertions made by the plaintiff that he is owed many millions of dollars by way of copyright earnings on a song or songs which he wrote. In one way or another the above actions resulted in the striking out of or dismissal of alleged claims brought by the plaintiff in respect of the alleged infringement of his copyright resulting in non-payment of royalties to him. These failures were due to the lack of particularisation of his claims. In Brown v Theofelos Lee J ordered that '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'. Among the respondents to that matter was the present defendant. 4 The present application is brought in reliance on s 459P of the Corporations Act 2001 (Cth) ('the Act') seeking an order for winding up of the defendant on the ground of insolvency in that the defendant has failed to comply with a statutory demand dated 26 March 2003. The statutory demand was addressed to the sum of $9 million said to be due to the plaintiff as royalties by way of the copyright earnings. 5 On 31 October 2003 in this proceeding I dismissed an application on behalf of the defendant for summary dismissal and for directions to be made. On 3 December I directed that the plaintiff provide answers to a request for particulars contained in the process known as 'interlocutory process' and to do so by 17 December 2003. The request was directed to elucidating the nature of the plaintiff's alleged claim by compelling him to particularise it. 6 On 10 February 2004 the District Registrar further directed that by 5 March 2004 the plaintiff separately address and answer in accordance with an attached format each of the questions contained in the request for particulars. The attached format provided space between each question within which it was possible for the plaintiff to formulate and write an answer. 7 The plaintiff purported to provide a response in a document dated 12 December 2003 and a further document filed on 5 March 2004. It is sufficient to say of each of these documents seek to assert again the broad principle of the alleged claim and completely fail to address the questions or to provide particulars in answer to the questions the subject of the directions. 8 In oral submissions the plaintiff again addressed the broad character of his alleged claim; he did not address the particulars; he did not offer an explanation as to why he had failed to comply with either of the above directions. 9 Order 10 r 7(1)(a) reads: '7(1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice – (a) if the party in default is an applicant – for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding; (b) … (c) … 7(2) The Court may make an order of the kind mentioned in sub-rule (1) or any other order, or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just. 7(3) …' 10 In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 Wilcox and Gummow JJ at 396, after reviewing the scope of O 10 r 7, said: 'The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant's state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations.' Earlier their Honours said at 395 - 396: 'It is noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of "inordinate and inexcusable delay" on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.' This reasoning has been applied in this Court: see Kestral Trading Pty Ltd v Montano Crop Pty Limited [2003] FCA 1382 and Textile Clothing & Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43. 11 In my opinion the failure by the plaintiff here to comply with the abovementioned directions supports an exercise of the discretion to dismiss the proceeding as a whole. My reasons for that conclusion are as follows. The history of the matter shows that in the context of all other matters brought by the plaintiff, it cries out for particularisation. This is not a case where particularisation is addressed to issues around the margin. Rather, the particulars are sought in order that the defendant can address them at the forthcoming hearing (listed for 29 March 2004). The purported responses from the plaintiff are not in any shape or form answers to the request for particulars. The prospect of obtaining such particulars viewed in the context both of this matter and of the related matters cannot be regarded as likely. This follows also from a consideration of the nature of the oral submissions made by the plaintiff in which he made no attempt to suggest that the orders had been complied with or that opportunity should be provided to enable them to be complied with. 12 Accordingly in all the circumstances I considered that the discretion arising pursuant to O 10 r 7 must be exercised so as to allow the notice of motion and result in the orders sought. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 24 March 2004 The Plaintiff represented himself Counsel for the Defendant: Mr AR Beech Solicitor for the Defendant: Watson Mangioni Date of Hearing: 22 March 2004 Date of Judgment: 22 March 2004