Allanson, Kerstin Ing-Marie v State of Queensland [1998] ACOPYT 2

CATCHWORDS COPYRIGHT TRIBUNAL - motion for summary dismissal of claim under s 183 of the Copyright Act 1968 - form of application - remedy for irregularity - requirement to "identify the work ... to which the application relates" and "the act comprised in the copyright that was done" - application could not possibly succeed - form of costs order. Copyright Act 1968, ss 174, 183 Copyright Tribunal (Procedure) Regulations, regs 7, 33C, 48 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

KERSTIN ING-MARIE ALLANSON v STATE OF QUEENSLAND & ANOR CT 2 of 1997 Burchett P Sydney 4 June 1998

COMMONWEALTH OF AUSTRALIA COPYRIGHT ACT 1968 IN THE COPYRIGHT TRIBUNAL CT 2 of 1997

BETWEEN: KERSTIN ING-MARIE ALLANSON

Applicant

AND: STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

TRIBUNAL: BURCHETT P

PLACE: SYDNEY

DATE: 4 JUNE 1998

THE TRIBUNAL DETERMINES AND DIRECTS THAT: The proceeding against the second respondent be dismissed with costs, to be taxed by the Secretary of the Tribunal under s 174 of the Copyright Act 1968 in the same manner in which costs are taxed by Registrars of the Federal Court of Australia, including the application of Order 62 r 46 of the Federal Court Rules.

GENERAL DISTRIBUTION COMMONWEALTH OF AUSTRALIA COPYRIGHT ACT 1968 IN THE COPYRIGHT TRIBUNAL CT 2 of 1997

BETWEEN: KERSTIN ING-MARIE ALLANSON

Applicant

AND: STATE OF QUEENSLAND

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

TRIBUNAL: BURCHETT P

PLACE: SYDNEY

DATE: 4 JUNE 1998

REASONS FOR DECISION BURCHETT P By s 183 of the Copyright Act 1968, provision is made for the use of copyright material "for the services of the Commonwealth or [a] State". Subsecs (1) and (5) read: "(1) The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State. ... (5) Where an act comprised in a copyright has been done under subsection (1) the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright, or in default of agreement, as are fixed by the Copyright Tribunal." Regulations have been made which govern (inter alia) the procedure for the making of an application under s 183(5). They are to be found in the Copyright Tribunal (Procedure) Regulations, reg 7 of which deals with the filing of the application and reg 33C with its contents. Regulation 33C reads: "An application to the Tribunal to fix terms under sub-section 183(5) of the Act for the doing of an act comprised in the copyright by the Commonwealth or a State or a person authorized in writing by the Commonwealth or a State - (a) shall set out the circumstances or events giving rise to the application and, in particular, shall - (i) identify the work or other subject-matter to which the application relates; (ii) identify the act comprised in the copyright that was done, or is proposed to be done, under sub-section 183(1); (iii) state whether the applicant is the owner of the copyright in the work or other subject-matter or the Commonwealth or a State; (iv) if the applicant is the owner of the copyright - state whether the act that was done, or is proposed to be done, under sub-section 183(1) was done, or is proposed to be done, by the Commonwealth or a State, and if done or proposed to be done by a State, identify the State; and (v) if the applicant is the Commonwealth or a State - state the name of the copyright owner; and (b) shall request the Tribunal to fix terms as between the copyright owner and the Commonwealth or the State for the doing of any of the acts comprised in the copyright under sub-section 183(1)." In the present matter, Mrs Allanson filed an amended application under s 183(5) without complying with reg 33C, particularly reg 33C(a)(i) and (ii). The amended application relevantly states: "1. The Applicant was at all material times a qualified person in accordance with S.32 of the Copyright Act, 1968. 2. During the period 1984 to 1991, the Applicant created several original literary works together which comprise a strategy for a process to distribute products and services in a global trade environment ('the literary work'), and is the owner of the copyright therein. ... 4. The Second Respondent has done acts comprised in the copyright of the literary work for the services of the Commonwealth. PARTICULARS (a) The literary work was provided to the Second Respondent when the Applicant applied for the National Procurement Development Program in 1991. (b) The Applicant's literary work was subsequently adopted by the Second Respondent in or about 1992. (c) In or about 1992, the Second Respondent made admissions that it had done acts comprised in the copyright of the Applicant's works. (d) The Applicant reserves the right to refer to other copyright uses of the literary work and other acts comprised in the copyright by the Second Respondent upon Discovery. ... 6. The Applicant has not consented to the conduct of the Second Respondent referred to in paragraph 4 herein, and has not been provided with notice under Section 183(4) of the Copyright Act, 1968, pursuant to the provisions of regulation 25 of the Copyright Regulations. 7. The Applicant hereby applies pursuant to the provisions of section 183(4) of the Copyright Act, 1968, to be furnished with information as to the doing of acts comprised in the copyright by the First Respondent and the Second Respondent. 8. Further, the Applicant applies pursuant to the provisions of section 183(5) of the Copyright Act, 1968 for the Copyright Tribunal to fix the terms of the acts done by the First Respondent and the Second Respondent." Although this document plainly did not "identify the work ... to which the application relates" or "identify the act comprised in the copyright that was done ... under sub-section 183(1)", as required by reg 33C(a), it was accepted for filing, and successive presidential members of the Tribunal gave directions designed to assist Mrs Allanson in rectifying the defects in her claim. However, none of the directions achieved this object. With the clearer vision of hindsight, it can now be seen that it would have been better if the power under reg 7 to "refuse to accept a document for filing if the document does not comply with the provision of [the] Regulations applicable in relation to the document" had been exercised, or the Tribunal had set aside the proceeding as irregular under reg 48, upon terms permitting the matter to proceed only after the filing of an appropriate form of application. What in fact happened was that Mrs Allanson filed a number of very lengthy documents, and obtained the issue of summonses to produce documents, but did nothing approaching compliance with the directions, and filed nothing that could fulfil the substance of the requirements of reg 33C. Nor does anything in the voluminous material put before the Tribunal suggest that any relevant act may have been done for the services of the Commonwealth under s 183. No allegation of any such act has been formulated by Mrs Allanson with sufficient precision to enable the Tribunal to investigate it. Since the proceeding was commenced, there have been at least five changes of legal representation for Mrs Allanson, without the matter being advanced significantly. An application to set the proceeding aside was eventually made by the first respondent, the State of Queensland, and ultimately, on 23 March 1998, Mrs Allanson responded to this by abandoning her claim against that respondent. However, she continued to maintain it against the second respondent, the Commonwealth. The Commonwealth had taken out a motion for dismissal on 24 December 1997 on the ground that "no cause of action [was] disclosed by the Amended Application", and for failure to comply with directions. On 23 March, I gave Mrs Allanson a further opportunity to comply, directing that within seven days she file and serve on the Commonwealth "a document listing: - 1. Each document the copyright [in] which the applicant alleges has been infringed; 2. Each document by which such an infringement has allegedly occurred ...". There has been no compliance with this direction. The motion came before me on 1 June 1998, when Mrs Allanson appeared in person. She tendered a large number of documents, but was either unable or unwilling to identify her case except in terms so amorphous as to be impossible to examine. To the extent that her allegations took any shape, they appeared to relate, not to a claim under s 183, but to some sort of equitable claim for alleged breach of confidence. Although the Tribunal, of course, is not a Court, I accept that it owes the same obligation which would bind a Court not to dismiss a claim of this kind summarily as not maintainable, except where the claim cannot possibly succeed. Cf. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. In the present case, I am satisfied the claim, as formulated, cannot possibly succeed. In addition, the proceeding has been filed in a form that defies the applicable rule, and repeated directions have not been complied with. I determine and direct that the proceeding against the second respondent be dismissed with costs, to be taxed by the Secretary of the Tribunal under s 174 in the same manner in which costs are taxed by a Registrar of the Federal Court of Australia, including the application of Order 62 rule 46 of the Federal Court Rules. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Burchett P.