Al Muderis v Duncan (No 4) - [2018] NSWSC 925

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Muderis v Duncan (No 4) [2018] NSWSC 925
Hearing dates: 09 November 2017
Date of orders: 14 June 2018
Decision date: 14 June 2018
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The second defendant/contemnor is guilty of criminal and civil contempt for counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge filed herein;

(2)   The second defendant/contemnor is guilty of civil contempt in relation to counts 4, 5, 10 and 11 of the Statement of Charge filed herein;

(3)   The plaintiff/prosecutor shall bring in a minute of order in relation to permanent injunctions, the necessary changes being made, in the terms of the interlocutory injunctions that have already issued;

(4)   The Court will hear the parties on appropriate penalty;

(5)   The second defendant/contemnor shall pay the plaintiff/prosecutor’s costs of and incidental to the proceedings on an indemnity basis;

(6)   Submissions on penalty shall be in writing:

(a)   The plaintiff/prosecutor shall file and serve (in accordance with the orders for substituted service) any further submissions on penalty within 21 days of this judgment;

(b)   The second defendant/contemnor shall file and serve written submissions in relation to the penalty within 21 days of the date of any email sent to the second defendant/contemnor by the plaintiff/prosecutor containing the further written submissions on penalty, if any;
(c)   If written submissions are filed by the second defendant/contemnor, the matter will be listed for hearing on a date to be fixed.
Catchwords:
CONTEMPT – finding of guilt – charges of non-compliance with a breach of Court orders – deliberate defiance of Court orders freezing assets and enjoining second defendant/contemnor from maintaining or publishing certain defamatory imputations – discussion of civil and criminal contempt – four charges treated as civil contempt – seven charges held to be both civil and criminal contempt – finding of guilt made – penalty to be subject to further submissions
COSTS – indemnity costs ordered
Legislation Cited: Crimes (Sentencing Procedure) Act 1919 (NSW), ss 3A, 21A
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Al Muderis v Duncan (No 3) [2017] NSWSC 726
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21;
Carr v Baker (1936) 36 SR (NSW) 301
Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431
Fabre v Arenales (1992) 27 NSWLR 437
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Jones v Southerland Shire Council [1979] 2 NSWLR 206
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Seymour v Migration Agents Registration Authority (2006) 215 FCR 168; [2006] FCA 965
The Queen v Baden-Clay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Al Muderis v Duncan (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 925
Decision Date: 14 June 2018

CaseChat Overview and Summary

The case of Al Muderis v Duncan (No 4) before the Federal Court involved a dispute between the plaintiff, Mr Al Muderis, and the defendants, Mr Duncan and others. The plaintiff sought enforcement of a judgment and associated orders, including asset freezing and injunctions against the defendants publishing defamatory statements. The court was tasked with determining whether the defendants had breached these orders and, if so, the appropriate penalties. The case raised complex issues concerning the nature and scope of civil and criminal contempt, as well as the appropriate sanctions to be imposed for non-compliance with court orders.

The primary legal issues centred on whether the defendants had deliberately defied the court's orders, and if so, whether such defiance constituted civil contempt, criminal contempt, or both. The court had to carefully distinguish between the various charges, considering whether each charge of non-compliance amounted to civil contempt, criminal contempt, or both. This involved an analysis of the nature of the orders breached, the intent of the defendants in breaching those orders, and the applicable legal principles governing contempt of court.

The court found that four of the charges constituted civil contempt, as the defendants had failed to comply with the court's orders without a deliberate intention to defy the court. Seven other charges were found to constitute both civil and criminal contempt, as the defendants had deliberately defied the court's orders. The court emphasised the need for strict adherence to court orders and highlighted the potential for both civil and criminal sanctions in cases of deliberate non-compliance. The court determined that the penalty for the contempt would be subject to further submissions, allowing the parties to present arguments on the appropriate sanctions.

The court ordered that the defendants pay the plaintiff's costs on an indemnity basis, reflecting the seriousness of the contempt and the need for deterrence. This decision underscores the importance of compliance with court orders and the potential consequences of non-compliance, both in terms of sanctions and financial liability.

Orders