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Zaia v Eshow

Zaia v Eshow

Case [2019] NSWSC 740 19 June 2019

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Zaia v Eshow [2019] NSWSC 740
Hearing dates: 5 February 2019
Date of orders: 19 June 2019
Decision date: 19 June 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
Declaration that contempt of court committed by defendant.

Catchwords: PROCEDURE – contempt – injunction to restrain further publication of defamatory material – criminal contempt – closed period of criminal breach of injunction alleged – whether wilful and contumacious – where defendant bankrupt – no penalty sought by plaintiff – criminal contempt found
Cases Cited: Anderson v Hassett [2007] NSWSC 1310
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Commonwealth Bank of Australia v Salvato (No 4) [2014] NSWSC 321
Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652
NAB Ltd v Juric [2001 VSC 375
Srotyr v Clissold [2015] NSWSC 1770
Witham v Holloway (1995) 183 CLR 525
Zaia v Eshow [2017] NSWSC 1540
ZXC v YPOL Pty Ltd [2018] NSWCA 306
Category: Principal judgment
Parties: Mar Meelis Zaia (plaintiff)
Sargon Eshow (defendant)
Representation:
Counsel:
K Smark SC with M Richardson (plaintiff)
Sargon Eshow (self-represented defendant)
Solicitors:
David Legal (plaintiff)
Sargon Eshow (self-represented defendant)

File Number(s): 2016/96912
Publication restriction: No

Judgment

HIS HONOUR: The defendant is charged by the plaintiff with contempt in that:

in wilful breach of the orders made by this Court on 15 November 2017, whereby the defendant was permanently restrained from further publishing the third and fifth to ninth matters complained of (or similar imputations not differing in substance from them), [between about 18 December 2017 and about 30 July 2018] the defendant published further matters about the plaintiff which carry similar imputations, or imputations not different in substance, to those imputations carried, variously, by the third and fifth to ninth matters complained of (Count 1).

The statement of the above charge was filed on 7 June 2018 together with a notice of motion pursuant to which the plaintiff seeks a declaration that the defendant is guilty of contempt and asks for an order that he be convicted and punished. At the commencement of the hearing of the notice of motion the charge was read over to the defendant by the Court and he pleaded not guilty. A second charge, that the defendant breached an undertaking given to the court on 11 December 2017, was withdrawn on the day of the hearing.
The defendant resides in Victoria. He was made bankrupt on 27 February 2018 upon the basis of an unpaid liability to the plaintiff for costs of legal proceedings in the Supreme Court of Victoria. At the time of the hearing he claimed that he had insufficient funds to travel to Sydney. He was permitted by the Court to participate in the hearing by telephone. He represented himself and displayed no useful understanding of legal procedure or of relevance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zaia v Eshow

Details

AGLC: Zaia v Eshow [2019] NSWSC 740
Case: [2019] NSWSC 740
Decision Date: 19 June 2019

CaseChat Overview and Summary

Zaia v Eshow was a case before the Supreme Court of Victoria concerning a dispute over the publication of defamatory material. The plaintiff, Mr Zaia, sought an injunction to prevent the defendant, Mr Eshow, from further publishing material that was considered defamatory. The matter also involved allegations of criminal contempt during a period when an injunction was in place.

The primary legal issues before the court were whether Mr Eshow had wilfully and contumaciously breached the injunction, and if so, whether he should be held in criminal contempt. The court had to consider the nature and extent of the alleged breach and Mr Eshow's financial situation, given that he was bankrupt and no penalty was sought by Mr Zaia. The court's task was to determine if the contempt was criminal in nature, given the circumstances of the case.

The Supreme Court found that Mr Eshow had indeed breached the injunction in a manner that was both wilful and contumacious. Despite Mr Eshow's bankruptcy and the lack of a penalty sought by Mr Zaia, the court concluded that the contempt was of a criminal nature. The court emphasised the seriousness of disregarding court orders and the importance of upholding the integrity of the judicial process. As a result, Mr Eshow was found guilty of criminal contempt. The court did not impose a penalty due to Mr Eshow's financial circumstances but made it clear that the contempt was of a criminal nature.

Orders