EdSonic Pty Ltd v Cassidy (No 3) - [2011] FCA 995

FEDERAL COURT OF AUSTRALIA
EdSonic Pty Ltd v Cassidy (No 3) [2011] FCA 995

Citation: EdSonic Pty Ltd v Cassidy (No 3) [2011] FCA 995

Parties: EDSONIC PTY LTD ACN 094 797 010 v BARBARA MOLLY CASSIDY; BARBARA MOLLY CASSIDY; EDSONIC PTY LTD ACN 094 797 010, EDSONIC AUSTRALIA PTY LIMITED ACN 101 545 206 and ROBIN PATRICK LICK

File number(s): NSD 517 of 2009

Judge: JAGOT J

Date of judgment: 23 August 2011

Catchwords: CONTEMPT OF COURT – motion for contempt for failure to comply with orders relating to copyright materials – application for summary dismissal of charges – whether charges bad on their face – whether insufficient evidence to show case to answer

Legislation: Federal Court Rules O 40 r 6

Cases cited: Ali v Collection Point Pty Ltd (2010) 274 ALR 618; [2010] FCA 1066
Coward v Stapleton (1953) 90 CLR 573
Johnson v Miller (1937) 59 CLR 467

Date of hearing: 23 and 24 August 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 27

Counsel for the Respondent and Cross-Claimant: Mr S Brennan

Counsel for the Third Cross- Respondent: Mr J Mitchell

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 517 of 2009

BETWEEN:
EDSONIC PTY LTD ACN 094 797 010
Applicant

BARBARA MOLLY CASSIDY
Cross-Claimant

AND:
BARBARA MOLLY CASSIDY
Respondent

EDSONIC PTY LTD ACN 094 797 010
First Cross-Respondent

EDSONIC AUSTRALIA PTY LIMITED ACN 101 545 206
Second Cross-Respondent

ROBIN PATRICK LICK
Third Cross-Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

23 AUGUST 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. On a summary basis, paragraphs 1, 2 and 3 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion filed 23 February 2011 be dismissed.

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 517 of 2009

BETWEEN:
EDSONIC PTY LTD ACN 094 797 010
Applicant

BARBARA MOLLY CASSIDY
Cross-Claimant

AND:
BARBARA MOLLY CASSIDY
Respondent

EDSONIC PTY LTD ACN 094 797 010
First Cross-Respondent

EDSONIC AUSTRALIA PTY LIMITED ACN 101 545 206
Second Cross-Respondent

ROBIN PATRICK LICK
Third Cross-Respondent

JUDGE:

JAGOT J

DATE:

23 AUGUST 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BACKGROUND

By the notice of motion before me today, the applicant on the motion, Barbara Cassidy, seeks orders that the cross-respondents in the principal proceeding, EdSonic Pty Ltd, EdSonic Australia Pty Ltd and Robin Patrick Lick, be found in contempt of orders made by Moore J on 12 November 2010 (the 12 November orders). Mr Mitchell of counsel appears on behalf of Mr Lick. The applicant has adduced her evidence and closed her case. Mr Mitchell, on behalf of Mr Lick, seeks summary dismissal of charges 1, 2 and 3 in the amended statement of charge filed 14 April 2011, which document I granted leave to the applicant this morning to amend so that wherever…

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.

Continue reading EdSonic Pty Ltd v Cassidy (No 3)

Details

AGLC: EdSonic Pty Ltd v Cassidy (No 3) [2011] FCA 995
Case: [2011] FCA 995
Decision Date: 23 August 2011

CaseChat Overview and Summary

EdSonic Pty Ltd sought to hold an individual, Cassidy, in contempt of court for failing to comply with orders relating to copyright materials. The matter was before the Federal Court of Australia, which was asked to consider an application for summary dismissal of the charges. The primary legal issues before the court were whether the charges against Cassidy were bad on their face and whether there was insufficient evidence to demonstrate that a case existed to be answered.

The court found that paragraphs 1, 2 and 3 of the amended statement of charge were insufficient on their face as they did not clearly articulate the nature of the contempt or the specific orders that had been breached. The court further found that the evidence provided did not establish a prima facie case against Cassidy. As a result, the court dismissed the charges as they were not adequately substantiated.

The Federal Court of Australia dismissed the charges against Cassidy on a summary basis, finding that the charges were insufficiently articulated and that the evidence did not support a case to be answered. The court's decision was based on the failure to provide clear and sufficient details in the charges and the lack of adequate evidence to substantiate the allegations. The orders made by the court were to dismiss paragraphs 1, 2 and 3 of the amended statement of charge filed on 14 April 2011, which accompanied the notice of motion filed on 23 February 2011.

Orders

Orders of the court

1. On a summary basis, paragraphs 1, 2 and 3 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion filed 23 February 2011 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:		EdSonic Pty Ltd v Cassidy (No 3) [2011] FCA 995
Parties:		EDSONIC PTY LTD ACN 094 797 010 v BARBARA MOLLY CASSIDY; BARBARA MOLLY CASSIDY; EDSONIC PTY LTD ACN 094 797 010, EDSONIC AUSTRALIA PTY LIMITED ACN 101 545 206 and ROBIN PATRICK LICK
File number(s):		NSD 517 of 2009
Judge:		JAGOT J
Date of judgment:		23 August 2011
Catchwords:		CONTEMPT OF COURT – motion for contempt for failure to comply with orders relating to copyright materials – application for summary dismissal of charges – whether charges bad on their face – whether insufficient evidence to show case to answer
Legislation:		Federal Court Rules O 40 r 6
Cases cited:		Ali v Collection Point Pty Ltd (2010) 274 ALR 618; [2010] FCA 1066 Coward v Stapleton (1953) 90 CLR 573 Johnson v Miller (1937) 59 CLR 467
Date of hearing:	23 and 24 August 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Respondent and Cross-Claimant:	Mr S Brennan
Counsel for the Third Cross- Respondent:	Mr J Mitchell

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 517 of 2009

JUDGE:	JAGOT J
DATE OF ORDER:	23 AUGUST 2011
WHERE MADE:	SYDNEY

JUDGE:	JAGOT J
DATE:	23 AUGUST 2011
PLACE:	SYDNEY