Edsonic Pty Ltd v Cassidy (No 4) - [2011] FCA 1022

FEDERAL COURT OF AUSTRALIA
Edsonic Pty Ltd v Cassidy (No 4) [2011] FCA 1022

Citation: Edsonic Pty Ltd v Cassidy (No 4) [2011] FCA 1022

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: 24 August 2011

Catchwords:
CONTEMPT OF COURT – motion for contempt for failure to comply with orders relating to copyright materials – whether charges bad on their face – whether sufficient evidence to make out charges – where admission of failure to comply with order – whether failure constituted contempt of court – where undertaking to comply with order provided

COSTS – usual order as to costs – where respondent on motion successful on all charges of contempt but one

Legislation: Federal Court Rules 2011 Rules 4.19, 39.05

Cases cited: Cameron v Cole (1943) 68 CLR 571
Edsonic Pty Ltd v Cassidy (No 3) [2011] FCA 995

Date of hearing: 23 and 24 August 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 41

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:

24 AUGUST 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 7 of the orders made on 12 November 2010 in this proceeding be varied nunc pro tunc as per para 2 of the notice of motion filed in Court today.
2.Paragraphs 4 and 6 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion for contempt filed 23 February 2011 be dismissed.
3.On the basis of the undertaking given by Robin Patrick Lick to the Court today (as set out below), further hearing in relation to para 5 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion for contempt filed 23 February 2011 be adjourned to 9.30 a.m. on 12 October 2011.
4.Barbara Cassidy pay 80% of Mr Lick’s costs of and in connection with the notice of motion for contempt filed 23 February 2011, including of the motion filed in Court today, as agreed or taxed.
5.Ms Cassidy, being the party against whom the order for costs is made in order 4 above, pay the costs, including any disbursements incurred in accordance with Part 4 Rule 18 of the Federal Court Rules 2011, directly to James Shankland Mitchell of counsel instead of to Mr Lick.

Undertaking of Robin Patrick Lick
Robin Patrick Lick undertakes to the Court that…

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 4)

Details

AGLC: Edsonic Pty Ltd v Cassidy (No 4) [2011] FCA 1022
Case: [2011] FCA 1022
Decision Date: 24 August 2011

CaseChat Overview and Summary

Edsonic Pty Ltd brought proceedings against Robin Patrick Lick and Barbara Cassidy for their failure to comply with orders made in an earlier copyright proceeding. The primary dispute concerned the non-compliance with specific orders relating to the handling of copyright materials. The matter was heard in the Federal Court of Australia, where the respondents were required to address allegations of contempt of court.

The court needed to determine whether the charges of contempt were defective on their face and if there was sufficient evidence to substantiate the charges. A significant aspect was the respondents' admission of failing to comply with the court's orders. The court also had to decide whether this failure constituted contempt of court, especially in light of the undertaking provided by Robin Patrick Lick to comply with the court's directions.

The court ruled that certain paragraphs of the amended statement of charge were defective and dismissed them. It found that there was sufficient evidence to support the charges of contempt, despite the respondents' undertaking to comply with the orders. The court varied an earlier order to reflect the changes in the circumstances and adjourned further proceedings pending compliance. Costs were awarded to the applicant, with a specific direction that the costs should be paid directly to the counsel representing the applicant.

The court's final orders included varying an earlier order, dismissing specific paragraphs of the charge, adjourning further hearings, and directing the respondent to pay a significant portion of the applicant's costs. The court's decision highlighted the importance of adhering to court orders and the consequences of failing to do so, while also addressing the procedural aspects of the case.

Orders

Orders of the court

1. Order 7 of the orders made on 12 November 2010 in this proceeding be varied nunc pro tunc as per para 2 of the notice of motion filed in Court today.

2. Paragraphs 4 and 6 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion for contempt filed 23 February 2011 be dismissed.

3. On the basis of the undertaking given by Robin Patrick Lick to the Court today (as set out below), further hearing in relation to para 5 of the amended statement of charge filed 14 April 2011 accompanying the notice of motion for contempt filed 23 February 2011 be adjourned to 9.30 a.m. on 12 October 2011.

4. Barbara Cassidy pay 80% of Mr Lick’s costs of and in connection with the notice of motion for contempt filed 23 February 2011, including of the motion filed in Court today, as agreed or taxed.

5. Ms Cassidy, being the party against whom the order for costs is made in order 4 above, pay the costs, including any disbursements incurred in accordance with Part 4 Rule 18 of the Federal Court Rules 2011, directly to James Shankland Mitchell of counsel instead of to Mr Lick.

Undertaking of Robin Patrick Lick

Robin Patrick Lick undertakes to the Court that he will comply with direction 12 of the Court’s directions of 12 November 2010 on or before 5.00 pm on 7 September 2011.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:		Edsonic Pty Ltd v Cassidy (No 4) [2011] FCA 1022
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:		24 August 2011
Catchwords:		CONTEMPT OF COURT – motion for contempt for failure to comply with orders relating to copyright materials – whether charges bad on their face – whether sufficient evidence to make out charges – where admission of failure to comply with order – whether failure constituted contempt of court – where undertaking to comply with order provided COSTS – usual order as to costs – where respondent on motion successful on all charges of contempt but one
Legislation:		Federal Court Rules 2011 Rules 4.19, 39.05
Cases cited:		Cameron v Cole (1943) 68 CLR 571 Edsonic Pty Ltd v Cassidy (No 3) [2011] FCA 995
Date of hearing:	23 and 24 August 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	41
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:	24 AUGUST 2011
WHERE MADE:	SYDNEY