Re.Group Pty Ltd v Kazal (No 5)

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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

Re. Group Pty Ltd v Kazal (No 4) [2017] FCA 1084

Witham v Holloway (1995) 183 CLR 525

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

  1. 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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Details
Case
[2018] FCA 546
Decision Date

CaseChat Overview and Summary

Re.Group Pty Ltd and others initiated proceedings against Kazal in the Federal Court of Australia, seeking enforcement of a court order and subsequent contempt proceedings against Kazal for breaching that order on multiple occasions. The central issue before the court was whether Kazal's contempt was civil or criminal, which would dictate the appropriate sentence. Another pivotal point was whether Kazal's actions were contumacious, warranting a custodial sentence, and whether the fine should account for the indemnity costs order. The court had to determine the nature of the contempt, the appropriate punishment, and the implications of the indemnity costs order on the fine assessment.

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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