Hurd v Zomojo Pty Ltd

The appeal, heard by the Full Court of the Federal Court of Australia, involved Hurd, both John and Matthew, as appellants, and Zomojo Pty Ltd as the respondent. The dispute centred on the appellants’ alleged contempt of court by contravening certain court orders. The primary judge had found the appellants guilty of contempt, leading to the current appeal. The legal issues that the court had to decide included whether the respondent needed to prove that the appellants did not act in good faith, whether the respondent successfully proved beyond reasonable doubt that the conduct was not casual, accidental, or unintentional, and whether the primary judge had correctly considered the basis for holding a third party liable for aiding or abetting or otherwise causing the contraventions. The court also had to determine whether the primary judge erred in allowing the respondent to reopen their case to tender affidavits containing admissions and whether the orders of the primary judge were clear, unambiguous, and capable of compliance.

The court found that there was no error in the primary judge’s order regarding costs. The court did not see any required kind of error in his Honour’s order as to costs. The court also concluded that the declarations of contempt made by Tracey J relating to paragraphs 12, 14, 16, 17, and 18 of Gordon J’s orders of 5 February 2013 should be set aside. However, the court agreed with the reasoning and conclusions concerning Hurd senior in relation to paragraphs 19, 20, and 21 of Gordon J’s orders. The court concluded that the contempt proceedings against Hurd senior were only in respect of accessorial liability concerning the relevant corporate parties’ contempt of Gordon J’s orders. The court found that the appellants had not proved beyond reasonable doubt the knowing and deliberate acts or omissions that brought about or facilitated the impugned conduct amounting to the contempt by the corporate contemnors.

ORDERS:
1. The appeal by Mr John Hurd be allowed in part.
2. The declaration in paragraph 8 and the order in paragraph 10 of the orders made by Tracey J on 19 June 2014 be set aside and in lieu thereof there be the following declaration and order:
8. The Fourth Third Party is guilty of contempt of paragraphs 12, 14, 16, 17, and 18 of the order of the Court made on 5 February 2013.
10. The First to Third and Fifth to Eighth Respondents pay the costs of the Applicant’s interlocutory application dated 7 March 2013, including reserved costs, save for the costs relating to the orders sought by the Applicant against the First to Third Third Parties and the costs relating to the appointment of Rodney McKemmish. The Fourth Third Party is to pay 50% of such costs.
3. There be no order as to the costs of the appeal by Mr John Hurd.
4. The appeal by Mr Matthew Hurd be dismissed.
5. Mr Matthew Hurd pay the respondent’s costs of his appeal.