FEDERAL COURT OF AUSTRALIA
Kazal v Thunder Studios Inc (California) [2017] FCA 238
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Details
- Case
- [2017] FCA 238
- Decision Date
CaseChat Overview and Summary
The case of Kazal v Thunder Studios Inc was heard in the Federal Court of Australia, involving the appellant, Adam Kazal, who appealed against his convictions and sentences for contempt of court and sought release from prison pending the determination of his appeal. The appellant was found guilty of breaching court orders prohibiting the publication of certain content online and was subsequently sentenced to various terms of imprisonment. The primary judge acquitted the appellant of some charges but found him guilty of others, resulting in a cumulative sentence of imprisonment. The appellant applied for a stay of his convictions and sentences and for his release from prison pending the appeal. Additionally, the respondents sought indemnity costs for the interlocutory application. The court had to determine whether the appellant's interlocutory application for a stay should be granted and if indemnity costs should be awarded to the respondents.
The central legal issues before the court were whether the appellant's application for a stay of his convictions and sentences should be granted and if indemnity costs should be awarded to the respondents for the interlocutory application. The appellant argued that the application should be granted due to the severity of the sentences imposed and the need to address the matter expeditiously. Conversely, the respondents contended that the application should be dismissed and that indemnity costs should be awarded due to the appellant's failure to provide a compelling reason for the stay and the need to deter similar applications in the future.
The court dismissed the appellant's interlocutory application for a stay of his convictions and sentences and also dismissed his application for release from prison pending the determination of the appeal. The court found that while the hearing should be expedited, the interlocutory application did not meet the criteria for a stay. The court also rejected the appellant's argument that he should be released from prison pending the appeal, emphasizing that the appellant had not demonstrated a compelling reason to warrant such relief. Regarding the indemnity costs, the court awarded the respondents the costs as agreed or taxed, indicating that the appellant's application did not justify an award of indemnity costs.
The court ordered that the hearing of the appeal be expedited and dismissed the interlocutory application filed by the appellant. Furthermore, the court ordered the appellant to pay the respondents' costs as agreed or taxed. This decision underscored the court's stance that the appellant's application did not provide sufficient grounds for a stay or release from prison, and it highlighted the importance of adhering to court orders and the consequences of contempt of court.
The central legal issues before the court were whether the appellant's application for a stay of his convictions and sentences should be granted and if indemnity costs should be awarded to the respondents for the interlocutory application. The appellant argued that the application should be granted due to the severity of the sentences imposed and the need to address the matter expeditiously. Conversely, the respondents contended that the application should be dismissed and that indemnity costs should be awarded due to the appellant's failure to provide a compelling reason for the stay and the need to deter similar applications in the future.
The court dismissed the appellant's interlocutory application for a stay of his convictions and sentences and also dismissed his application for release from prison pending the determination of the appeal. The court found that while the hearing should be expedited, the interlocutory application did not meet the criteria for a stay. The court also rejected the appellant's argument that he should be released from prison pending the appeal, emphasizing that the appellant had not demonstrated a compelling reason to warrant such relief. Regarding the indemnity costs, the court awarded the respondents the costs as agreed or taxed, indicating that the appellant's application did not justify an award of indemnity costs.
The court ordered that the hearing of the appeal be expedited and dismissed the interlocutory application filed by the appellant. Furthermore, the court ordered the appellant to pay the respondents' costs as agreed or taxed. This decision underscored the court's stance that the appellant's application did not provide sufficient grounds for a stay or release from prison, and it highlighted the importance of adhering to court orders and the consequences of contempt of court.
Orders
Orders of the court
1. The hearing of the appeal be expedited.
2. The interlocutory application filed by the appellant on 2 March 2017 otherwise be dismissed.
3. The appellant pay the respondents’ costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, the hearing should be expedited but the interlocutory application should otherwise be dismissed. Background The events the subject of the judgments below apparently arose out of the breakdown of a business relationship between the appellant’s brother, Charif, and the second respondent Rodric David and another man with whom he was associated, David Singh. On 15 August 2014 the respondents sued the Kazal brothers alleging that, on a website owned and operated by Charif at the URL (the Kazal website), elsewhere on the internet, in emails, on Facebook, and in tweets, they had both made representations that were defamatory, amounted to injurious falsehoods, and were misleading or deceptive in contravention of s 18 of the Australian Consumer Law contained in Sch 2 to the Competition and Consumer Act 2010 (Cth). They applied for damages and a permanent injunction restraining further publications of the representations on the website. In October 2016, while the application was pending, the appellant sent two emails, the first to Mr David, copied to Charif and another brother, Tony Kazal, as well as a number of people at Thunder Studios, and the second to the solicitor acting for Mr David on the application, Walter MacCallum (the October emails). In the first email, sent on 28 October 2016, which the appellant also posted on his Twitter account, the appellant accused Mr David of having defrauded companies that Mr David owned with Charif and Tony, of having lied to an inquiry conducted by the Independent Commission Against Corruption (ICAC), of being responsible for the publication in The Sydney Morning Herald of lies about members of the Kazal family, and of using articles in that newspaper to “steal the $180 million company [Mr David] owned with Charif & Tony … with help on the theft from CEO David Singh”. The appellant threatened on Twitter and in the email to publicly expose Mr David. The email also contained what the primary judge described as a vitriolic attack on Mr David and his racial background. The email concluded:You start a fight with me, I will show you how Adam Kazal is different to the rest of the family.See you around grub. It seems that the appellant carried out his threat to expose Mr David. Amongst other things, he used a van emblazoned with references to the alleged theft, carrying large photographs of Mr David, describing him as “the corporate thief”, warning others not to be “his next victim”, and inviting people to go to the Kazal website, the URL of which was prominently displayed, to “read the whole story”. In the second email, sent on 31 October 2016, the appellant made a series of allegations against both Mr David and Mr MacCallum. They included:Regarding the van, do you seriously claim to be a lawyer? You are the same person as I recall that orchestrated and fabricated the ICAC case with Rodric David just to create a smokescreen for his highway robbery. That makes you nothing more than a common thug and liar fabricating claims to enable this man to steal from innocent victims. Is that what a lawyer does? I don't think so.You want me to cease using the Van? Are you serious?
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 20 December 2016 the respondents filed an amended statement of charge alleging multiple breaches of orders 1, 3 and 4 and additionally charging him with two counts of making public statements intended and calculated to influence a party in the conduct of pending proceedings and which exposed a party to the risk of prejudgment of the issues or merits of those proceedings.The decisions of the primary judge The primary judge acquitted the appellant of charges 1, 2 and 4 but found him guilty of charges 3, 5, 6, 7 (in part), 8 and 9 and sentenced him to the following terms of imprisonment to be served concurrently:(a)15 months on charge 3;(b)9 months on charge 5;(c)2 months on charge 6;(d)2 months on charge 7;(e)12 months on charge 8; and(f)18 months on charge 9. Charge 3 alleged that the appellant had breached orders 1 and 3 by including on each van the words identified in charge 1, being words directing readers to the website on which one or more of the 22 posts had appeared. Charge 5 concerned the seven tweets addressed to Ms McClymont. It charged that orders 1 and 3 of the 11 November 2016 orders had been breached by including in the tweets words directing readers to visit the website on which the various posts were published. The primary judge was satisfied beyond reasonable doubt that the use of “the apparent hyperlink” to the website in the seven tweets and the appearance of the website’s address on the vans constituted a republication of all of the contents of the website (relying, in particular, on the Privy Council’s judgment in Buchanan v Jennings [2004] 1 AC 115) and of each of the 22 posts, and that all 22 posts were published to Mr MacCallum, who gave unchallenged evidence on this question. His Honour also found that the appellant was aware that the Kazal website contained material relating to Mr David in the 22 posts that conveyed, and was capable of conveying, each of the proscribed imputations referred to in orders 1(b) and 3(e) A, E, G, H and I. Charge 6 charged that since 11 November 2016 the appellant had breached order 3(d) by continuing to publish the video on the internet. Charge 7 charged that since 11 November 2016 the appellant had breached order 4 by failing to remove from the internet, Twitter and “any third party website to which it had been distributed” the material referred to in order 3. The primary judge considered these charges together. His Honour rejected the appellant’s submissions that the failure to remove the offending material from the Kazal website was beyond his control and that the respondents had not proved that he had power to do more than he had done, which was to have his solicitor send an email to Charif’s solicitor. His Honour was satisfied beyond reasonable doubt that the appellant was the publisher, that the order was breached, and that the publication of the video and its availability for download on the website remained unchanged since the 11 November orders were made. He held that, by consenting to order 3(d), the appellant had admitted to being the publisher of the video in that his consent and the order acknowledged, in terms, that he had control over its publication on the two sites: YouTube and the Kazal website. His Honour said that there was no evidence that the appellant did anything to check whether Charif or anyone else had complied with his solicitor’s request or whether the request had been acted on or that there was any difficulty with compliance. He was also satisfied beyond reasonable doubt that the appellant agreed to orders 3(d) and 4 because he could stop the publication of the video on the website and cause its removal and that he “had the capacity to cause that to happen”. He found that the email from his solicitor to Charif did not “amount to [the appellant] using his best endeavours to comply with the orders or … cast any evidentiary onus, if there be one, back onto the [respondents] to demonstrate, to the extent that [the appellant]’s consent to orders 3(d) and 4 did not establish it, that removal of the material was within [his] capacity”.
Ratio Decidendi
Legal Principle Established
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