FEDERAL COURT OF AUSTRALIA
Re.Group Pty Ltd v Kazal (No 5) [2018] FCA 546
File number: NSD 2080 of 2016 Judge: PERRAM J Date of judgment: 23 April 2018 Catchwords: CONTEMPT OF COURT – sentencing – whether civil or criminal contempt – whether contemnor’s contempt was contumacious – whether fine or custodial sentence appropriate – whether assessment of fine should account for indemnity costs order – where respondent found guilty of three charges of breaching court order – where charges particularised to specific days Legislation: Bankruptcy Act 1966 (Cth) s 82(3)
Evidence Act 1995 (Cth) s 4(2)
Cases cited: Australia Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111
Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; 149 FCR 494
Matthews v ASIC [2009] NSWCA 155
Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd (No 4) [2012] FCA 657
Date of hearing: 16 February 2018 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: Catchwords Number of paragraphs: 63 Counsel for the Applicants: Mr A Leopold SC with Mr R Jedrzejczyk Solicitor for the Applicants: Ashurst Australia Counsel for the Respondents: Mr A Coleman SC with Mr P Strickland Solicitor for the Respondents: Mitry Lawyers ORDERS
NSD 2080 of 2016 BETWEEN: RE.GROUP PTY LTD ACN 166 255 947
First Applicant
NAVEEN DAVID SINGH
Second Applicant
AND: ADAM KAZAL
First Respondent
CHARIF KAZAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
23 APRIL 2018
THE COURT ORDERS THAT:
1.The Second Respondent is to pay the Applicants’ costs of the contempt proceedings on an indemnity basis.
2.A Registrar is to assess the quantum of those costs on a lump sum basis pursuant to a procedure determined by that Registrar.
3.Upon the determination by the Registrar of the sum referred to in Order 2, the Applicants be at liberty to enforce the sum so determined without the need for any further grant of leave by the Court.
4.The contempt proceeding stand over for a case management hearing on 19 June 2018 at 9:30am at which time the Applicants are to inform the Court of the extent to which the costs have been paid.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
I. Introduction
On 25 September 2017 I concluded that the Second Respondent was guilty of civil contempt: Re. Group Pty Ltd v Kazal (No 4) [2017] FCA 1084 (‘Kazal (No 4)’). On 3 October 2017 I made orders giving effect to that conclusion. The relevant orders were:
‘THE COURT DECLARES THAT:
1. The Second Respondent is guilty of civil contempt of the Federal…
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- Case
- [2018] FCA 546
- Decision Date
CaseChat Overview and Summary
The court held that Kazal's contempt was civil, not criminal, and that his actions, while serious, did not warrant a contumacious label. It found that a fine was appropriate rather than a custodial sentence. The court ruled that the assessment of the fine should not account for the indemnity costs order, as the contempt and the indemnity costs were separate matters. It concluded that Kazal's breaches of the court order were deliberate and intended to frustrate the court's processes, but did not reach the level of contumacious behaviour that would necessitate a custodial sentence. Instead, the court ordered Kazal to pay the applicants' costs on an indemnity basis and set a procedure for assessing those costs.
The court's decision was that Kazal was to pay the applicants' costs of the contempt proceedings on an indemnity basis, with a Registrar to assess the quantum of those costs on a lump sum basis. The proceedings were to stand over for a case management hearing, at which the applicants would inform the court of the payment status. This case underscores the court's approach to balancing enforcement with proportionality in sentencing for civil contempt. The orders reflect the court's intent to ensure that the applicants' costs are fully compensated while maintaining a distinction between the contempt matter and the indemnity costs order.
Orders
Orders of the court
1. The Second Respondent is to pay the Applicants’ costs of the contempt proceedings on an indemnity basis.
2. A Registrar is to assess the quantum of those costs on a lump sum basis pursuant to a procedure determined by that Registrar.
3. Upon the determination by the Registrar of the sum referred to in Order 2, the Applicants be at liberty to enforce the sum so determined without the need for any further grant of leave by the Court.
4. The contempt proceeding stand over for a case management hearing on 19 June 2018 at 9:30am at which time the Applicants are to inform the Court of the extent to which the costs have been paid.
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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