Wride v IP Australia [2003] FCA 86

FEDERAL COURT OF AUSTRALIA

Wride v IP Australia [2003] FCA 86

COURTS – jurisdiction of the Federal Court – claim solely for damages for fraud – respondent sued as entity responsible for the Patent Office – Patent Office created by Federal statute – held that the alleged claim is not one arising under any law made by the Federal Parliament – application dismissed for want of jurisdiction.

Patents Act 1952 (Cth), s 12 Patents Act 1990 (Cth), s 205 Constitution, s 77(i) Federal Court of Australia Act 1976 (Cth), s 19(1) Judiciary Act 1903 (Cth), s 39B(1A)(c)

R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141 cited Felton v Mulligan (1971) 124 CLR 367 cited DONALD CHARLES WRIDE v IP AUSTRALIA No S 176 of 2002 von DOUSSA J ADELAIDE 3 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 176 OF 2002

BETWEEN: DONALD CHARLES WRIDE

APPLICANT

AND: IP AUSTRALIA

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 3 FEBRUARY 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Application dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 176 OF 2002

BETWEEN: DONALD CHARLES WRIDE

APPLICANT

AND: IP AUSTRALIA

RESPONDENT

JUDGE: von DOUSSA J

DATE: 3 FEBRUARY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The respondent by notice of motion seeks the following orders: 1 Pursuant to O 11 r 16 of the Federal Court Rulesthat the application dated 19 July 2002 be struck out as disclosing no reasonable cause of action. 2 The applicant pay the respondent's costs of the notice of motion. 2 FCR O 11 r 16 empowers the Court, where a pleading discloses no reasonable cause of action, to strike out the pleading – not the whole proceeding. Mr Krupka, who appears for the respondent, has informed the Court that the respondent is only seeking to strike out the application insofar as it constitutes the applicant's pleading. If such an order were made, it would remain open to the applicant to replead in an endeavour to disclose a reasonable cause of action. 3 There is, however, a threshold question to be decided before the notice of motion can be considered. The Court must first decide that the matter raised by the application is a matter that falls within the jurisdiction of the Federal Court of Australia. 4 It is plain from the papers filed by the applicant in these proceedings, and also in action number S175 of 2002 which the applicant has commenced against Mr Howard K Schulze and Mr G E Habel (the patent attorneys), that the applicant believes that he was wronged during dealings with the patent attorneys about certain inventions which he claimed to have made. These dealings occurred long ago. The papers refer to events between 1965 and 1976. The papers also suggest that there is a substantial history of proceedings about the dealings in the State courts in more recent years. 5 The application which commenced these proceedings was prepared by the applicant himself. In the application the applicant claims: "Compensation for loss of income from patent rights that were fraudulently taken away from the inventor, D C Wride, by his patent agents, Mr J C Schmidt [a former partner of the respondents] and G E Habel in collusion with IP Australia who the commissioner, Mr K B Petersson, was at that time, who in turn were in collusion with the Federal Liberal Party and government." 6 An affidavit in support was filed with the application. The affidavit and an attached statement are very difficult to follow but they appear to identify the "patent rights" that were allegedly taken as being rights in respect of inventions claimed by the applicant for a twin blade razor system which incorporated a lubrication strip, and for a hydraulic jack. 7 In these proceedings the respondent is sued as the entity responsible for the Patent Office, a statutory entity created by s 12 of the Patents Act 1952 (Cth)and s 205 of the Patents Act 1990 (Cth). About the razor system the applicant says: "[the patent attorneys] have been the conspirators of the Federal Patent Office and the Federal Liberal Party, and Governments from Mr Robert Menzies to Mr John Howard, because Mr Robert Menzies, Prime Minister in 1965, decided to use the Australian Patent Office in a scheme that used the Patent number system to steal a Twin Blade Razor System and a Lubrication Strip, to sell the devices to the US Government of Republican President Richard Nixon, who he was in collusion with and the Multi National Warner Lambert, Gillette." 8 About the hydraulic jack, the applicant's affidavit in support says: "that IP Australia processed the phantom Australian Patent No. 472,935 into a patent with identical drawings and claims to the US patent 3,806,091 which had a priority date of 12/8/71. When it lapsed on 23/4/1976 and lost its priority date, according to the convention on cognates, it was lost and could not be revived. The Australian patent No. 472,935 never existed. IP Australia, according to Collison and Co [the patent attorneys], accepted an annuity payment on this invention which kept it alive until September 1977 when it was allowed to lapse for a fee, which was not paid, of $25 - only." 9 In the statement attached to the applicant's affidavit there is also a reference to the issue of a bogus receipt number given to the applicant in respect of the filing of a provisional application, which I infer is said to be part of the collusion of the Patent Officer in the fraud alleged in the application. 10 Confused though the story is in the applicant's affidavit and attached statement, it is possible to identify that his claim is one for damages for loss said to be caused by a fraud involving the patent attorneys, the Patent Office, and others. The jurisdictional question is whether this Court has jurisdiction to entertain proceedings that allege only a claim for damages for fraud. A claim for damages for fraud is a claim arising under the common law. Such a claim falls squarely within the jurisdiction of the State Courts. The question is whether this Court also has jurisdiction to hear such a claim. 11 The Federal Court of Australia is a Court created by statute with original and appellate jurisdiction. The jurisdiction of the Court is limited by the Act of the Federal Parliament which defines its jurisdiction pursuant to s 77(i) of the Constitution. Relevantly s 19(1) of the Federal Court of Australia Act 1976 (Cth) provides: "The Court has such original jurisdiction as is vested in it by laws made by the Parliament." 12 In my opinion the present claim does not arise under any law made by the Federal Parliament. Indeed, it does not even arise under a law made by a State Parliament. It arises, as I have already observed, under the common law. 13 Under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) the original jurisdiction in the Federal Court includes jurisdiction in any matter arising under any law made by the Federal Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. The fact that the Patent Office is an entity established by an Act of the Federal Parliament is not sufficient to attract the original jurisdiction of this Court. What attracts jurisdiction is not the creation by Federal statute of a party, but the nature of the matter which is said to involve that party. Here the relevant matter which the applicant seeks to have determined is his claim for damages for fraud. That is not a matter which arises under the Patents Acts as it is not one based on a right or duty that owes its existence to the Patents Acts, or depends on the Patents Acts for its enforcement: R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141 at 154. See also Felton v Mulligan (1971) 124 CLR 367 at 388. Here, the applicant's claim is based entirely on common law rights and duties, and arises independently of the Patents Acts. 14 The present application asserts only a claim for compensation (i.e. damages) for fraud. It alleges no other cause of action that would fall within the jurisdiction of this Court, and no question arises of this Court having accrued jurisdiction to determine a common law claim for damages for fraud. 15 In my opinion, this Court does not have jurisdiction to hear the subject matter of the application which the applicant has filed, and the proceedings must be dismissed for want of jurisdiction. 16 The Court has no jurisdiction to pass judgment on any of the allegations made by the applicant or on the contention of the respondent that no reasonable cause of action is disclosed. However, as a serious allegation of fraud is made in the application, I note that the allegation is pleaded without particulars, contrary to the universal requirement of the procedural rules of all Courts. I also note that a comprehensive affidavit in answer to the allegation of fraud on the part of the Patent Office has been filed by the Deputy Commissioner of Patents. The effect of that affidavit is that the allegations made about the conduct of the Patent Office are without substance, and reflect fundamental misunderstandings about many documents that have been received over the years by the applicant. 17 The formal order of the Court is that the application be dismissed with costs in favour of the respondent. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate: Dated: 18 February 2003 Applicant appeared in person. Counsel for the Respondent: Mr B J Krupka Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 February 2003 Date of Judgment: 3 February 2003