Kazal v Thunder Studios Inc (California)

Link copied
Case Copied 18 min read

FEDERAL COURT OF AUSTRALIA

Kazal v Thunder Studios Inc (California) [2018] FCA 593

Appeal from: Application for leave to appeal: Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572
File number(s): NSD 2290 of 2017
Judge(s): BROMWICH J
Date of judgment: 26 April 2018
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory order of a judge of this Court – s 24(1A) of the Federal Court of Australia Act 1976 (Cth) –whether sufficient doubt about the primary judge’s decision – where primary judge refused to extend time to comply with procedural orders after the time for compliance had elapsed – where the defence of the first respondent in the principal proceedings was struck out upon default by operation of self-executing order – where the trial will otherwise proceed without either of the respondents having a defence in the proceedings
Legislation:

Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) s 18

Federal Court of Australia Act (Cth) s 24(1A)

Federal Court Rules 2011 (Cth) r 35.11

Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

House v The King (1936) 55 CLR 499

Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727

Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572

Date of hearing: 26 April 2018
Registry: New South Wales
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 21
Counsel for the Applicant: Mr C Dibb
Solicitor for the Applicant: Mitry Lawyers
Counsel for the Respondents: Mr M Polden
Solicitor for the Respondents: Aitken Lawyers

ORDERS

NSD 2290 of 2017
BETWEEN:

CHARIF KAZAL

Applicant
AND:

THUNDER STUDIOS INC (CALIFORNIA)

First Respondent

RODRIC MARC DAVID

Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

26 APRIL 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs.

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


REASONS FOR JUDGMENT
(Revised from transcript)

BROMWICH J:

Introduction

  1. This is an application by Mr Charif Kazal for leave to appeal from an interlocutory order made by a judge of this Court, refusing an extension of time to comply with orders previously made. As the orders were interlocutory, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

  2. Mr Charif Kazal and his brother, Mr Adam Kazal, are the first and second respondents respectively in proceedings commenced in this Court by Thunder Studios Inc (California) and its principal, Mr Rodric David. Broadly speaking, the proceedings concern the applicants’ claim that the respondents published material in May and August 2013 containing defamatory imputations, malicious falsehoods, and representations that were misleading or deceptive, or were likely to mislead or deceive: s 18 of the Australian Consumer Law (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)).

  3. On 7 September 2017, the primary judge relevantly made procedural orders in the following terms:

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Kazal v Thunder Studios Inc (California) 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] FCA 593
Decision Date

CaseChat Overview and Summary

This case involves an application for leave to appeal from an interlocutory order made by a judge of the Federal Court of Australia. The applicant, Charif Kazal, sought leave to appeal from a decision of Justice Rares, who had refused to extend time to comply with procedural orders. The refusal of this extension led to the striking out of the defence of the first respondent, Thunder Studios Inc, and potentially meant that the trial would proceed without either respondent having a defence. The legal issues before the court were whether the primary judge's decision was attended with sufficient doubt to warrant reconsideration on appeal, and whether substantial injustice would result if leave were refused.

The court found that none of the asserted errors sought to be agitated on appeal were viable. The applicant had not demonstrated how the conclusions reached by the primary judge were not open to him, nor had he shown that the primary judge erred in exercising his discretion. The court held that the primary judge's inference was fairly available to him, and that the applicant had not established an arguable case for error. The court also noted that the guidance for exercising the discretion to grant leave to appeal involves two interrelated tests: whether the decision is attended with sufficient doubt to warrant reconsideration on appeal, and whether substantial injustice would result if leave were refused. The court found that neither of these tests had been met in this case.

The application for leave to appeal was dismissed with costs. The court held that the proposed appeal was doomed to fail, and that the applicant had not demonstrated a real possibility of a viable argument that the primary judge had erred in exercising his discretion. The applicant was ordered to pay the respondents' costs of the application for leave to appeal.

Orders

Orders of the court

1. The application for leave to appeal be dismissed with costs.

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

Counsel was unable to explain how it was not open to the primary judge, on the totality of the evidence before his Honour, including the sparse and limited evidence from Mr Charif Kazal himself, to conclude that there was no intention to verify the answers while overseas, but rather, as had happened before, initially providing them as an unverified draft and verifying them only upon return to Australia. As the passage quoted from House v The King above at [12] makes clear, it is not enough that an appeal court might reach a different conclusion. In my opinion, the inference his Honour drew was fairly available to him. Indeed, even though it was not the only conclusion open, it was a reasonably compelling inference to draw on the available evidence. No arguable case for error has been demonstrated. That aspect of the error sought to be agitated on appeal therefore has no serious prospect of success. This reason for granting leave to appeal is not made out.Third, fourth and fifth asserted errors as to weight or emphasis given to evidence In terms, the third, fourth and fifth asserted errors refer to the weight or emphasis that the primary judge gave to the facts that were established on the evidence before his Honour along with inferences his Honour drew. This language points to the difficulty in any of these arguments succeeding. As with the second asserted error, it has not been shown how it was that the conclusions his Honour reached were not open to him. The asserted errors do not rise above discontent with aspects of the reasons his Honour gave for the conclusion reached. No arguable case for establishing error has been demonstrated. Those aspects of the errors sought to be agitated on appeal therefore have no serious prospect of success. These reasons for granting leave to appeal are not made out.Conclusion None of the asserted errors sought to be agitated on appeal have been shown to be viable. The proposed appeal is doomed to fail. The application for leave to appeal must therefore be refused with costs.

Decision

Reasons for decision

In terms, the third, fourth and fifth asserted errors refer to the weight or emphasis that the primary judge gave to the facts that were established on the evidence before his Honour along with inferences his Honour drew. This language points to the difficulty in any of these arguments succeeding. As with the second asserted error, it has not been shown how it was that the conclusions his Honour reached were not open to him. The asserted errors do not rise above discontent with aspects of the reasons his Honour gave for the conclusion reached. No arguable case for establishing error has been demonstrated. Those aspects of the errors sought to be agitated on appeal therefore have no serious prospect of success. These reasons for granting leave to appeal are not made out.Conclusion None of the asserted errors sought to be agitated on appeal have been shown to be viable. The proposed appeal is doomed to fail. The application for leave to appeal must therefore be refused with costs.

Ratio Decidendi

Legal Principle Established

The proposed ground of appeal in Mr Charif Kazal’s draft notice of appeal is as follows:His Honour Justice Rares erred in refusing to extend from 4pm 15 September 2017 to 4pm 22 September 2017 the time for compliance with his self-executing order made 7 September 2017 for the service of further verified answers to interrogatories.Leave to appeal considerations While the discretion to grant leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act and the corresponding rule for bringing such an application, being r 35.11(a) of the Federal Court Rules 2011 (Cth), is unfettered, the legislature has evinced a policy against the bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave. Generally speaking, a tight rein should be kept on interlocutory decisions on a point of practice. However, leave will more readily be granted on an interlocutory decision determining a substantive right: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor v Dart) at 399-400. Given that the effect of the orders in the present case is to maintain the position whereby Mr Charif Kazal is forced to proceed to trial without a defence, this application will be treated as at least involving something akin to a substantive right, without deciding whether it truly has that character. The guidance to the exercise of discretion to grant leave to appeal approved in Decor v Dart is cast in the form of two interrelated tests that bear on each other:(1)whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and(2)whether substantial injustice would result if leave were refused, supposing the impugned decision to be wrong. The correctness of those tests is not in doubt. There will continue to be cases raising special considerations and, accordingly, this Court should not regard its hands as tied by these tests. No special consideration has been suggested as applying to this case beyond the practical impact of the primary judge’s decision standing. Because the decision sought to be appealed is discretionary, Mr Charif Kazal needed to at least point to the real possibility of a viable argument that the primary judge erred in the manner described by the High Court in House v The King (1936) 55 CLR 499 at 504-505. Although that passage is well-known, its pithy exposition warrants reproduction because of its direct application to this case:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.