FEDERAL COURT OF AUSTRALIA Francis v Allen & Unwin [2014] FCA 1027 Citation: Francis v Allen & Unwin [2014] FCA 1027 Parties: JANETTE GAIL FRANCIS v ALLEN & UNWIN PTY LIMITED, LINDSAY SIMPSON, PAMELA WALTERS, REX WALTERS and LORRAINE WALTERS File number: NSD 339 of 2014 Judge: KATZMANN J Date of judgment: 22 September 2014 Catchwords: PRACTICE AND PROCEDURE – application by respondents for summary judgment – whether applicant has reasonable prospect of successfully prosecuting the proceeding – claim of infringement of copyright and moral rights in artistic work – photograph – photograph alleged to be a self-portrait of the applicant – factual dispute about the identity of the subject – whether real issue of fact to be tried – whether applicant's case that she is the subject of the photograph fanciful, frivolous, vexatious or an abuse of process – Federal Court of Australia Act 1976 (Cth), s 31A(2) Legislation: Copyright Act 1968 (Cth) ss 10, 31, 31A, 35 , 36, 115, 189, 195AC, 195AI, 195AK, Division 6 of Part IX Evidence Act 1995 (Cth), s 75 Federal Court of Australia Act 1976 (Cth) s 31A(2) Cases cited: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 Cachia v Hanes (1994) 179 CLR 403 George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 George v Fletcher (Trustee) [2010] FCAFC 53 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Visscher v Teekay Shipping (Australia) Pty Limited (No 3) [2012] FCA 212 Date of hearing: 18 September 2014 Place: Sydney Division: GENERAL Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person. Counsel for the First, Second, Fifth and Sixth Respondents: Mr D Thomas Solicitor for the First, Second, Fifth and Sixth Respondents: Banki Haddock Fiora Counsel for the Fourth Respondent: No appearance. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 339 of 2014 BETWEEN: JANETTE GAIL FRANCIS Applicant AND: ALLEN & UNWIN PTY LIMITED First Respondent LINDSAY SIMPSON Second Respondent PAMELA WALTERS Fourth Respondent REX WALTERS Fifth Respondent LORRAINE WALTERS Sixth Respondent JUDGE: KATZMANN J DATE OF ORDER: 22 september 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory application filed by the first, second, fifth and sixth respondents on 18 July 2014 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 339 of 2014 BETWEEN: JANETTE GAIL FRANCIS Applicant AND: ALLEN & UNWIN PTY LIMITED First Respondent LINDSAY SIMPSON Second Respondent PAMELA WALTERS Fourth Respondent REX WALTERS Fifth Respondent LORRAINE WALTERS Sixth Respondent JUDGE: KATZMANN J DATE: 22 september 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On the first Sunday in September 1984 seven people were killed in a notorious shootout between two rival motorcycle gangs in the southwest of Sydney in what came to be known as the Milperra massacre. One of the victims was Leanne Walters, then aged 15, who was caught in the crossfire. 2 Two journalists, Lindsay Simpson and Sandra Harvey, wrote a book about the event entitled "Brothers in Arms: The Inside Story of Two Bikie Gangs". The book was published by Allen & Unwin. The first edition appeared in 1989. The book includes two copies of a photograph of a young woman, who is named as Leanne Walters ("the photograph"). In this proceeding the applicant, Janette Francis (formerly Hall), insists the photograph does not depict Ms Walters but is a photograph of her at the age of 27. She pleads that she took the photograph herself in a photo booth in Liverpool and that it is an artistic work showing her smoothing her lips inside the booth. She alleges that the photograph was reproduced in the book without her permission, and that, by reason of the publication, each of the respondents has infringed her copyright and also her moral rights in the photograph. 3 Rex Walters is Leanne's father, Pamela Walters is her mother, and Lorraine Walters is Rex Walters's wife. Their involvement, if any, in the alleged infringement is presently obscure. 4 The Copyright Act 1968 (Cth) permits the owner of a copyright to bring an action for an infringement of the copyright (s 115). Subject to s 35 of the Act, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work (s 35). A photograph is an artistic work, regardless of whether it is of artistic quality (s 10). For the purposes of the Act, unless the contrary intention appears, copyright, in relation to an artistic work is the exclusive right to reproduce the work in a material form, to publish the work and to communicate the work to the public (s 31). Subject to the Act, the copyright in an artistic work is infringed if a person who is not the owner of the copyright or who does not have the licence of the owner does or authorises to be done in Australia any act comprised in the copyright (s 36). Since 2000, "moral rights" have also been protected by the Copyright Act. A "moral right" in relation to an author is a right of attribution of authorship, a right not to have authorship falsely attributed or a right of integrity of authorship (s 189). Section 195AC provides that the author of a work has a right not to have authorship of the work falsely attributed. Section 195AI provides that the author of a work has the right not to have the work subjected to derogatory treatment (defined in s 195AK in relation to an artistic work to include the doing of anything in relation to the work that is prejudicial to the author's honour or reputation). The circumstances in which infringement of moral rights may occur are set out in Division 6 of Part IX of the Act. 5 No defence has been filed. Rather, on 18 July 2014 the first, second, fifth and sixth respondents ("the respondents") filed an application for summary judgment or, alternatively, an order striking out the substance of the statement of claim. The application is supported by three affidavits from Peter Christopher Banki, the solicitor for the respondents. The basis of the application, as it was outlined in the respondents' written submissions, is that the proceeding enjoys no reasonable prospect of success because: the allegation that the Photograph depicts [Ms Francis] is fanciful, implausible and improbable and contrary to all available material. The likelihood of [Ms Francis] proving the contention on the balance of probabilities at trial is non-existent. In the absence of the allegation, [Ms Francis's] pleaded case falls away. 6 The respondents contend that there is no "real question of fact" as to whether Ms Francis was the person in the photograph (Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [47]). The respondents also contend that the allegation that the photograph depicts Ms Francis, rather than Ms Walters, is "frivolous" and "vexatious" and that there is no evidence of it. The evidence they rely on to support their contentions is essentially contained in Mr Banki's affidavit of 18 July 2014 and a signed copy of the first edition of the book, which they tendered. Errors in the 18 July 2014 affidavit are corrected in Mr Banki's second affidavit, affirmed on 23 July 2014. 7 The evidence establishes, relevantly, that the photograph in issue appears in the book in the top left hand corner of page ix and the fourth page of photographs between pages 132 and 133. Under the copy of the photograph on page ix the words "Leanne Walters, shot dead" appear. The source of the photograph, along with all the accompanying photographs, is said to be the NSW Police Department. Rex Walters told Mr Banki (when, where and in what circumstances Mr Banki does not say) that he (Mr Walters) was certain the photograph was a photograph of his daughter, Leanne. The other photograph (which is identical to the first) appears as part of a "Sex License" and bears the name in handwriting "Leanne Walters" which Mr Walters told Mr Banki he was certain was his daughter's signature. Mr Walters attended the launch of the book and the authors gave him the copy of the book that was tendered in evidence. It is inscribed by the authors with messages of gratitude to Mr Walters for his assistance. 8 Mr Banki's evidence also demonstrates that Allen & Unwin is a reputable publisher, that Ms Simpson is a former journalist for the Sydney Morning Herald and the author and co-author of six works of non-fiction, and that Ms Harvey is dead. I interpolate that Ms Harvey was named as the third respondent but was later removed as a party. Mr Banki stated that he was told by Mr Walters that Leanne's mother, Pamela Walters, is also dead. At this stage, however, she remains a party. Over Ms Francis's objection and in the absence of a death certificate, death or funeral notice or an obituary or, indeed, anything more than the bare assertion, I decline to make a similar order in her case. 9 The rest of Mr Banki's evidence consists of: references to websites operated by Ms Francis; a hearsay account of Ms Francis driving a vehicle in the streets of Campbelltown painted with the words "Walters is a liar", which was apparently reported to the police; a reference to an action brought by Ms Francis in the Equal Opportunity Tribunal of South Australia against Christies Beach Medical Centre, the relevance of which is opaque; and a reference to a proceeding in the Supreme Court of South Australia in which Ms Francis sued Allen & Unwin over its use of the photograph, in which she maintained it was a photograph of her. 10 The Supreme Court of South Australia struck out Ms Francis's statement of claim and dismissed her action with costs when she failed to appear at a directions hearing. According to an account of what occurred from the lawyers who appeared, presumably as agents for Allen & Unwin's solicitors, the orders were made because the statement of claim did not disclose a reasonable cause of action and was "vexatious" and because the court considered that Ms Francis was unable to plead "a cause of action known to law on which there could be a fair trial". The respondents drew particular attention to the following two orders Ms Francis sought in that proceeding: 13 Urgently, I want the foreign objects of technological advancement hindering me and hurting me internally and externally, removed by qualified medical personnel not affiliated with any person involved with the 1984 murders of the seven people in Milperra as previously stated, and to be funded by Defendants. 14 I want the Allen & Unwin Pty Ltd directors' to experience exactly what they have caused me, I want them bankrupt, penniless, with no future, lousy health, and no help, and no support, and tortured for at least 22 uninterrupted years, and a criminal record. 11 Mr Banki's affidavit of 18 July 2014 also refers to a large number of documents, few of which ultimately made their way into evidence. Those that did include statements made on websites operated by Ms Francis in which she claimed, amongst other things, that: Allen & Unwin, the Walters family, the NSW Government, the Commonwealth Government, the Australian Labor Party and the Liberal Party of Australia are engaged in a criminal partnership by using her photograph and causing the book to be published. Allen & Unwin had "totally offended [her] and was allowed to get off without any penalty whatsoever after they breached all the Australian laws of copyright and libel" and that it was "[her] turn to display photographs of the types of people who do this in Australia and are able to pay the Judge enough cold hard rewards to successfully buy their way out of being sued in court using diversionary tactics". 12 The substance of the respondents' case is that Ms Francis's claim should not be accepted over the evidence of Mr Banki about what he was told by Mr Walters because it is Mr Walters who is best placed to give evidence as to the identity of the subject of the photograph. The respondents argued that it was implausible that Mr Walters would attend the book launch, keep a copy of the book containing the photograph and instruct lawyers to prosecute this interlocutory application if it were not a photograph of his daughter. They also submitted that it was implausible that the inscriptions of gratitude in the book would have been made if the photograph were not of his daughter. They urged the Court to look critically at Ms Francis's evidence and weigh it against the other evidence. They submitted that Ms Francis's statements (made on her websites and in the statement of claim that was struck out) showed that the evidence of Ms Francis ought to be given less weight than that of the respondents. They submitted that the material posted on Ms Francis's websites was "ridiculous" and contained "outlandish, highly extravagant and unfounded allegations" against Allen & Unwin. They submitted that Ms Francis's statements showed that she was a vindictive person who had conducted a campaign against the publisher since at least 2006 (when the South Australian proceeding was filed). On this basis, they submitted that the Court could not be confident that the allegations made by Ms Francis were sensibly made and invited the Court to find that Ms Francis's application was "frivolous or vexatious or an abuse of process" (Spencer v Commonwealth of Australia (2010) 241 CLR 118 ("Spencer") at [22]). 13 For the reasons that follow these contentions must be rejected. 14 Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) confers upon the Court the power in a civil action to give judgment for one party against another in relation to the whole or any part of a proceeding if the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. For the purpose of the section, subs (3) relevantly provides that the proceeding or part thereof need not be hopeless or bound to fail for it to have no reasonable prospects of success. 15 There is no doubt, as the respondents submitted, that the terms of s 31A demonstrate that Parliament's intention was to "relax" the requirements for obtaining summary judgment or dismissal. In Spencer at [53] Hayne, Crennan, Kiefel and Bell JJ described the test in s 31A as a radical departure from the provisions it replaced, which required "demonstrated certainty of outcome", rather than an assessment of the prospects of success (at [53]–[56]). I also accept that in George v Fletcher (Trustee) [2010] FCAFC 53 the Full Court said at [75] that the mere existence of a factual controversy, "however trifling, implausible, tenuous or tangentially relevant" does not preclude the Court from exercising the power in s 31A. 16 The respondents relied on the following remarks of Finkelstein J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [23]: [T]he section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party's assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. 17 I accept that a party's assertion that there is a real question of fact to be decided should be examined critically. Still, the power remains draconian. As Allen & Unwin acknowledge, it must be applied with caution and is not to be exercised lightly: Spencer at [60]. In Spencer French CJ and Gummow J observed at [25] that s 31A(2) requires a practical judgment as to whether the applicant has more than a fanciful prospect of success. Nevertheless, their Honours continued: Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. 18 In my opinion this is such a case. Here there is a factual issue capable of being disputed and in dispute. Ms Francis asserts that it is she who is depicted in the photograph. Mr Banki's affidavit includes a statement to the effect that Mr Walters is certain that the photograph published in the book is a photograph of his daughter and that the signature on the so-called "Sex License" is his daughter's signature. Ultimately, whether Ms Francis's assertion is made good will depend on whether she can satisfy the Court on the balance of probabilities that she is, indeed, the subject of the photograph. If she gives evidence to support her assertion, the Court will need to evaluate the strengths and weaknesses of that evidence against all the other evidence. That will include an assessment of her honesty and reliability and, if Mr Walters gives evidence, his honesty and reliability also. Neither exercise can be undertaken at this early stage. 19 The respondents bear the onus of proof on the present application. Having cast a critical eye over the evidence, I do not consider they have discharged it. I am unable to accept the submission that Ms Francis's allegation is fanciful, even if it might be improbable. More particularly, I am not satisfied that there are no reasonable prospects Ms Francis will succeed. Nor am I satisfied that her action is frivolous or vexatious. 20 By her statement of claim Ms Francis alleges that the photograph is her self-portrait. She is capable of giving evidence to that effect. This is, however, no bare assertion. Contrary to the assertion in the respondents' submissions, there is evidence to support it. In her affidavit of 4 August 2014 Ms Francis states that the photographs in the book purporting to be photographs of Leanne Walters are in fact photographs of her at the age of 27. Her case does not rest there. She has demonstrated that there is evidence capable of corroborating her assertion. Annexed to her affidavit of 6 August 2014 is a handwritten statement dated 6 July 2002 from William Peters to whom Ms Francis says she was married for 13 years and to whom she would have been married when she was 27 years old. In that statement Mr Peters refers directly to the photograph appearing on page ix of the book. He states that the photograph said to be of Leanne Walters is, in his opinion, that of "Jenette Gail Hall" with whom he lived from 1974 to 1984. In the affidavit Ms Francis states that she was known as Ms Hall "due to a defacto (sic) relationship after [her] marriage" and Mr Peters has spelled her Christian name incorrectly. 21 In addition, annexed to Ms Francis's affidavit of 4 August 2014 are copies of newspaper articles about the death of Ms Walters published in the Sun newspaper on 3 and 4 September 1984, and in the Daily Mirror on 6 September 1984. The two articles in the Sun are accompanied by a photograph purportedly of Ms Walters. In the article in the Daily Mirror, there is a photograph of Rex Walters, shown holding that photograph of Ms Walters, which is described as "a cherished photo of Leanne". While the quality of the copies in evidence is admittedly poor, I am not presently persuaded by the respondents' submission that the photographs published in the newspaper are of the same person depicted in the photographs in the book. The photograph published in the book appears to be of an older woman with different facial features. There is no evidence to suggest that any member of the Walters family supplied the photograph to either the authors or the publisher. The book contains a statement to the effect that the photograph was supplied by the NSW Police Department, although the NSW Police Department wrote to Ms Francis denying that they were the source of the photograph. 22 Against that, all the respondents offer is hearsay and innuendo. While hearsay evidence is admissible on an interlocutory application (Evidence Act 1995 (Cth), s 75), it is generally entitled to less weight than direct evidence. It was open to the respondents to proffer sworn evidence from Mr Walters but they elected, without explanation, not to do so. I do not doubt for present purposes that Mr Walters honestly believes that the photograph is a photograph of his daughter but the statement attributed to Mr Walters is a bare assertion. Without more, it is insufficient to persuade me that it renders Ms Francis's case fanciful, frivolous or vexatious. The fact that he instructed lawyers to bring this application may speak to the genuineness of his belief but no more than that. That the authors of the book expressed gratitude for Mr Walters's assistance tells us nothing about the subject matter of the photograph. The source of the photograph is not said to be Mr Walters. That Mr Walters attended the launch of the book and kept a copy of it sheds no further light on the matter. 23 In any event, the proposition that Mr Walters is best placed to identify the subject of the photograph is open to question. Buried within it is an assumption, yet to be proved, that the photograph is indeed a photograph of his daughter. If Ms Francis took the photograph, however, and if the photograph is of her, then surely she is best placed to identify its subject. The evidence relating to either the pleading in, or the disposition of, the South Australian proceedings does not support the conclusion that the proceeding in this Court is vexatious. In contrast to that case, the relief sought in the present case is orthodox. Moreover, in the South Australian case Ms Francis raised no claim of copyright infringement. Plainly, the possibility of such a claim had not at that time occurred to Ms Francis. 24 The subtext of the respondents' case is that Ms Francis is delusional and/or deceitful, actuated by some ulterior purpose, although they stopped short of making such a submission. The wild and outlandish statements upon which the respondents relied were made after Ms Francis became aware of the publication. If she is to be believed, she was deeply offended by the association of her image with statements in the book which, because of the use of her image, she regarded as highly defamatory. That is not implausible. She said in her affidavit of 17 September that the websites were "a form of defence of [her] good character". She stated: I was and am infuriated by the theft of my visual identity, the websites were a direct result of being ignored by the respondents I was thereby provoked into believing all my complaints had been linked to a common cause; to discredit my reputation. 25 While her response to the publication of the photographs might be regarded as an overreaction, even irrational in some respects, and while many of the statements, on their face, appear to lack credibility, I am not persuaded on the whole of the evidence that the case she wishes to make should not proceed to trial. Questions of credibility are quintessentially unsuitable for summary resolution. 26 Of course, the real question is not who is depicted in the photograph but who took it. The respondents offered no evidence touching on this question. Nor did they offer any evidence as to the circumstances in which the photograph was taken. The statement of claim pleads that it was Ms Francis who took the photograph and outlines the circumstances in which it was taken. There is nothing implausible in that allegation. For present purposes, at least, the respondents apparently accept that, if the photograph is in fact of Ms Francis, then she is the artist who owns the copyright. Whether or not that allegation is made out should be determined at trial. 27 In these circumstances the motion for summary judgment must be rejected. No submissions were directed to the alternative relief. 28 Accordingly, the respondents' application should be dismissed. Costs should follow the event. I note that as a litigant in person Ms Francis is not entitled to recover costs for the time and effort she spent in preparing her case or for presenting it in court (Cachia v Hanes (1994) 179 CLR 403; George v Fletcher (Trustee) (No 2) [2010] FCAFC 71), but she may recover her out-of-pocket expenses, such as filing fees and photocopying expenses (George v Fletcher (Trustee) (No 2) at [17]; Visscher v Teekay Shipping (Australia) Pty Limited (No 3) [2012] FCA 212 at [9]). I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 22 September 2014