FEDERAL COURT OF AUSTRALIA Wills v Morris [2008] FCA 784 ANDREW C WILLS v CINDY MORRIS, ROSS STEWART, RUSSELL SMITH, STEVE DESCHAMP, RONAN CHARLES, CRAIG BALLANTYNE, BRAD REID, COMMUNITY TELEVISION PERTH INC, CHANNEL 31, AUSTRALIAN BROADCASTING CORPORATION AUSTRALIA, AUSTAR, FOXTEL WAD 370 of 2006 GILMOUR J 14 MAY 2008 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 370 of 2006 BETWEEN: ANDREW C WILLS Applicant AND: CINDY MORRIS ROSS STEWART RUSSELL SMITH STEVE DESCHAMP RONAN CHARLES CRAIG BALLANTYNE BRAD REID COMMUNITY TELEVISION PERTH INC CHANNEL 31 AUSTRALIAN BROADCASTING CORPORATION AUSTRALIA AUSTAR FOXTEL Respondents JUDGE: GILMOUR J DATE OF ORDER: 14 MAY 2008 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The proceedings against the Australian Broadcasting Corporation be dismissed. 2. The applicant pay the Australian Broadcasting Corporation's costs of and incidental to the notice of motion dated 4 March 2008 and the cost of the proceedings including any reserve 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 WAD 370 of 2006 BETWEEN: ANDREW C WILLS Applicant AND: CINDY MORRIS ROSS STEWART RUSSELL SMITH STEVE DESCHAMP RONAN CHARLES CRAIG BALLANTYNE BRAD REID COMMUNITY TELEVISION PERTH INC CHANNEL 31 AUSTRALIAN BROADCASTING CORPORATION AUSTRALIA AUSTAR FOXTEL Respondents JUDGE: GILMOUR J DATE: 14 MAY 2008 PLACE: PERTH REASONS FOR JUDGMENT 1 Mr Wills filed an application in the Court on 19 December 2006 for relief in the following terms: (1) Restitutio integritas for breach of copyright matters relating to the applicant who claims ownership as the author of intellectual property being specifically a series of cinematographs. These claims of authorship rights are made pursuant to sections 22, 90, 98, 204 of the 1968 Australian Copyright Act. (2) Unliquidated claims for criminal negligence, exemplary, aggravated, contemptuous, punitive damages ex causating, suffering and loss related to effluxion of applicant's publications/authorships, prerogative rights as defined by sections 27, 29, 34, 36, 37, 43, 86, 87, 90, 91, 101, 103, 111, 115, 116 of the 1968 Australian Copyright Act. (3) Any other costs/damages that this honourable court shall deem fit as evidence of further torts and breaches may be discovered during the proceedings relevant to the abovementioned matters. 2 Interlocutory relief was also sought in the application as follows: (i) Respondent's account of profits a period of time that applicant's restitution integrum covers. (ii) The constitution of qualified witnesses accepted statements who can validate commercial lost potential of applicants. (iii) Claims for restitution. 3 The application was directed to seven individuals and five media organisations. One of which is the tenth-named respondent, the Australian Broadcasting Corporation ("ABC"). 4 The application was supported by an affidavit sworn by the applicant on 19 December 2006 it is in the following terms: (1) I filmed cinematographic material for the purpose of producing a network of independent show reels to promote a conceptional format destined for interactive use on the internet which I had invented. (2) This material was then taken without my consent or payment or negotiation and broadcast and edited in environments that exploited and undermined my prerogative rights relevant to the Australian Copyright Act of 1968. (3) The sole objective of the individual private parties deceptive behaviour towards me in relation to editing my cinematographic material was to save themselves from further costs. The Broadcasting Corporation's complicity in this matter caused the premature publication of material which prejudiced against the maker of the cinematographer's reputation because the post production of the material constitutes derogatory treatment of the cinematographic material resulting in the loss of professional kudos. The broadcasters were negligent in failing to safeguard against this as this exploitation serviced their commercial interests. 5 The ABC was eventually served, and filed a notice of appearance dated 25 February 2008. The matter, prior to that, had come before the Court on numerous occasions for directions, mostly related to dealing with the question of service of the application on the respondents. 6 The matter was again before the Court on 26 February this year at which time orders were made that the ABC file and serve any motion to strike out the application together with any supporting material by 4 March 2008. The applicant was to file and serve any material in response to the motion by 18 March 2008. 7 A notice of motion was filed by the ABC on 4 March 2008, which was before the Court on 2 April 2008. On that occasion, further orders were made including that the applicant file and serve any further affidavit in support of the application against the ABC, by 4 pm on 16 April 2008. The reason that order was made was because the ABC had contended that the affidavit of the applicant dated 19 December 2006 did not disclose any cause or causes of action as against it. 8 The notice of motion sought various relief and it is before the Court again today, however, I am advised by counsel for the ABC that the relief sought is for summary dismissal of the applicant's claim against the ABC pursuant to s 31A of the Federal Court Act 1976 (Cth). 9 The applicant, despite the orders made on 2 April 2008, did not file any further affidavit in support of his application against the ABC by 16 April 2008 or at all. Nonetheless, before me this morning, the applicant who appeared in person spoke at great length as to what his claim was said to be as against the ABC. 10 I have carefully considered the terms of his only affidavit in light of the terms of his application. Nonetheless, and doing the best I can, I am unable to discern any comprehensible cause of action as against the ABC. Indeed, without intending to be unkind to Mr Wills, the application and the affidavit in support tend towards being incoherent. I have, nonetheless, no doubt that Mr Wills feels that he has some deep personal grievance or grievances against those named in the application, including the ABC. 11 He has, however, in my opinion, despite many opportunities over a very long period of time been unable to articulate these. For present purposes he has not been able to articulate these as against the ABC. Indeed, even if I had before me, in affidavit form, the content of what Mr Wills said from the bar table this morning, it would have done nothing to cure the difficulty which the ABC has and indeed which the Court has in understanding what is the cause or what are the causes of action as against the ABC. 12 Section 31A of the Federal Court of Australia Act is intended to lower the bar for obtaining summary judgment, in this case, summary dismissal: White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [54]. Nonetheless, I am conscious that the summary dismissal of an application is a step not lightly taken. 13 I am confident in saying that the Court has given to Mr Wills extraordinary leeway and certainly far more leeway than would otherwise be afforded to an applicant represented by a solicitor or counsel. He has, however, been unable to articulate in any comprehensible manner, as a matter of fact and law, any cause of action upon the material which is before the Court. I have had regard to the recent decision of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 particularly at [31]-[48], where his Honour set out the relevant principles by reference to the proper construction and effect of s 31A. 14 I am persuaded that the application as against the ABC should be dismissed. 15 The orders that I will make are: (1) The proceedings against the Australian Broadcasting Corporation be dismissed. (2) The applicant pay the Australian Broadcasting Corporation's costs of and incidental to the notice of motion dated 4 March 2008 and the cost of the proceedings including any reserve costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 14 May 2008 The Applicant appeared in person: Counsel for the Respondent: Mr B H Taylor, Ms C H Meighan Solicitor for the Respondent: ABC Corporation Date of Hearing: 2 April 2008, 14 May 2008 Date of Judgment: 14 May 2008