Applicant Janette Francis brought proceedings against publisher Allen & Unwin over a photograph in Brothers in Arms: The Inside Story of Two Bikie Gangs, a 1989 book by Lindsay Simpson and Sandra Harvey about the 1984 ‘Milperra Massacre’. Francis claimed that publication of the photograph infringed her copyright and moral rights. The caption of the photograph - "Leanne Walters, shot dead" - indicated that its subject was 15-year-old Leanne Walters, killed in the bikie shooting. The source of the photograph (and all accompanying photographs) is said to be the NSW Police Department.
Francis claimed that she had taken the photograph of herself in a photo booth when she was 27 (ie it was not of Walters) and that the photograph had been used without her permission and without attribution (hence the moral rights claim).
The respondents sought a summary judgment or an order striking out the Francis’s statement of claim, contending that the assertion regarding the photograph was fanciful, implausible, improbable and contrary to all available evidence. The proceeding had no reasonable prospect of success, and was frivolous and vexatious, given that there was no real question of fact as to identity.
In rejecting those contentions the FCA cited Spencer v Commonwealth of Australia (2010) 241 CLR 118 in which French CJ and Gummow J indicated that where there are factual issues capable of being disputed are in dispute the Court should not give summary judgment to the respondent merely because of a view that the applicant is unlikely to succeed on the factual issues. In doing so, it considered its power to give summary judgment for one party where it is satisfied that the other party has no reasonable prospects of success.
The FCA in rejecting the application for summary judgment held that in this instance there was a factual issue capable of being disputed and in dispute. The application by Allens was insufficient to establish the onus of proof for summary dismissal. Allens provided no evidence as to the critical issue of who took the photograph or the circumstances in which it was made. They did not provide sworn evidence from Walters’s father as to his belief that the photograph depicted his daughter. On the other hand Francis provided evidence asserting the photograph was a self portrait and the circumstances in which it was taken, along with a written statement from a former husband that was capable of corroborating her assertions.
The FCA acknowledged that Francis’s claim may be "irrational in some respects", appear to "lack credibility" or involve an "overreaction" to publication of the image. However the Court noted that questions of credibility were inherently unfit for summary resolution. It was not persuaded that the case should not proceed to trial.
The judgment states that evidence by Allens features -
- 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.
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:
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.
The FCA judgment also referred to -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.
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”.