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Zomojo Pty Ltd v Hurd (No 5)

Zomojo Pty Ltd v Hurd (No 5)

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FEDERAL COURT OF AUSTRALIA
Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537

Citation: Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537

Parties: ZOMOJO PTY LTD (ACN 114 604 269) v MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087), TRADEMACH PTY LTD (ACN 155 683 864), ARK INTERNATIONAL GROUP PTY LTD, ARK INTERNATIONAL HOLDINGS PTY LTD, THOMAS CLINTON MADDOCK and JOHN BARRIE HURD

File number: VID 1478 of 2011

Judge: TRACEY J

Date of judgment: 28 May 2014

Catchwords:
CONTEMPT OF COURT – failure to comply with court orders – whether charges of contempt proven beyond reasonable doubt – contravention of inter parte undertakings – aiding and abetting – whether breach enforceable in the proceeding

EVIDENCE – admissibility of affidavit material – dispensation of Rule 42.12(b) of the Rules – whether affidavit material contained admissions – whether deponents protected by privilege against self‑incrimination

Legislation: Evidence Act 1985 (Cth) ss 81, 82, 83
Federal Court of Australia Act 1976 (Cth) s 31
Federal Court Rules 2011 (Cth) rr 1.34, 41.06, 42.12, O 40
Judiciary Act 1903 (Cth) s 24

Cases cited: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 – considered
Australian Competition and Consumer Commission v Hughes (2001) ATPR 41-807 – considered
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (No 2) (1985) 9 FCR 194 – cited
Heatons Transport v TGWU [1973] AC 15 – cited
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314 – cited
Lazar v Taito (Aust) Pty Ltd (1985) 5 FCR 395 – considered
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 – considered
Memory Corporation v Sidhu [2000] Ch 645 – cited
O Limited v Z [2005] EWHC 238 – cited
Re A (a Child) (2000) 115 A Crim R 1 – considered
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR – cited
R v GH (2000) 105 FCR 419 – considered
U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26 – cited
Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110 – cited
Witham v Holloway (1995) 183 CLR 525 – considered
Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 – considered

Date of hearing: 9, 10 and 17 May 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 139

Counsel for the Applicant: Dr M J Collins SC and Dr M R Sharpe

Solicitor for the Applicant: Corrs Chambers Westgarth

Counsel for the Respondents and the Fourth Third Party: Mr C D Wood

Counsel for the First, Second and Third Third Party: Mr J Karkar QC and Mr R Pintos-Lopez

Solicitor for the Respondents:

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.

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Details

Case: [2014] FCA 537
Decision Date

CaseChat Overview and Summary

Zomojo Pty Ltd v Hurd (No 5) involved a dispute concerning charges against Mr John Hurd and Trademach, a company associated with him. The nature of the dispute was related to alleged contraventions of specific statutory provisions, detailed in various charges. The case was heard in a relevant Australian court, the details of which were not specified in the text. The central issue before the court was the determination of whether the respondents, Mr Hurd and Trademach, were guilty of the charges brought against them, specifically relating to violations of statutory paragraphs.

The legal issues the court had to address were multifaceted, focusing on whether the evidence presented against the respondents met the required standard of proof beyond reasonable doubt. This involved a detailed examination of the charges, which numbered from 12 to 21 inclusive, with a specific focus on whether each charge was substantiated by the evidence. The court had to consider each charge individually, ensuring that the prosecution had successfully proven its case for each charge against the respective respondents.

The court's reasoning involved a meticulous analysis of the evidence and legal standards applicable to each charge. The court found that most charges were proven beyond reasonable doubt, except for one specific charge against Mr Hurd. This detailed assessment led to the conclusion that the respondents were guilty of the majority of the charges, while one charge was not proven against Mr Hurd. The court indicated that further steps needed to be taken before a hearing on penalty could be conducted, thereby setting the stage for the next phase of the proceedings.

The final orders included directions for the necessary steps to be taken prior to the penalty hearing and a formal record of the charges that were proven and those that were not. This decision was critical in establishing the respondents' liability under the charges, setting a precedent for the subsequent penalty determination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Charge 21 has been proven against Mr John Hurd and Trademach. CONCLUSIONS Each of the charges of contravention of paragraphs 12 and 14 to 21 inclusive have been established against the respondents against whom they were pressed beyond reasonable doubt save that charge 15 has not been proven against Mr John Hurd. I will give directions as to the steps which need to be taken in advance of a hearing on penalty.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537
Parties:	ZOMOJO PTY LTD (ACN 114 604 269) v MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087), TRADEMACH PTY LTD (ACN 155 683 864), ARK INTERNATIONAL GROUP PTY LTD, ARK INTERNATIONAL HOLDINGS PTY LTD, THOMAS CLINTON MADDOCK and JOHN BARRIE HURD
File number:	VID 1478 of 2011
Judge:	TRACEY J
Date of judgment:	28 May 2014
Catchwords:	CONTEMPT OF COURT – failure to comply with court orders – whether charges of contempt proven beyond reasonable doubt – contravention of inter parte undertakings – aiding and abetting – whether breach enforceable in the proceeding EVIDENCE – admissibility of affidavit material – dispensation of Rule 42.12(b) of the Rules – whether affidavit material contained admissions – whether deponents protected by privilege against self‑incrimination
Legislation:	Evidence Act 1985 (Cth) ss 81, 82, 83 Federal Court of Australia Act 1976 (Cth) s 31 Federal Court Rules 2011 (Cth) rr 1.34, 41.06, 42.12, O 40 Judiciary Act 1903 (Cth) s 24
Cases cited:	Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 – considered Australian Competition and Consumer Commission v Hughes (2001) ATPR 41-807 – considered Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (No 2) (1985) 9 FCR 194 – cited Heatons Transport v TGWU [1973] AC 15 – cited Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314 – cited Lazar v Taito (Aust) Pty Ltd (1985) 5 FCR 395 – considered Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 – considered Memory Corporation v Sidhu [2000] Ch 645 – cited O Limited v Z [2005] EWHC 238 – cited Re A (a Child) (2000) 115 A Crim R 1 – considered R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR – cited R v GH (2000) 105 FCR 419 – considered U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26 – cited Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110 – cited Witham v Holloway (1995) 183 CLR 525 – considered Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 – considered
Date of hearing:	9, 10 and 17 May 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	139
Counsel for the Applicant:	Dr M J Collins SC and Dr M R Sharpe
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondents and the Fourth Third Party:	Mr C D Wood
Counsel for the First, Second and Third Third Party:	Mr J Karkar QC and Mr R Pintos-Lopez
Solicitor for the Respondents: