FEDERAL COURT OF AUSTRALIA

Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202

ORDERS

THE COURT ORDERS THAT:

1.    On the charges of contempt in the amended statement of charge dated 20 December 2016:

(a)    there be a verdict that the second respondent is not guilty on each of charges 1, 2 and 4, and in respect of charge 7, of particulars (i) and (iii);

(b)    there be a verdict on charge 3 that the second respondent is guilty of breaching orders 1 and 3 of the orders made on 11 November 2016 (the 11 November orders) by republishing, after 11 November 2016, each of the 22 posts in exhibit WM2 that first appeared at or about the date and time that each post respectively records as that of its posting, between 11 and 21 November 2016 on the website at www.kazalfamilystory.com in that the second respondent caused to be displayed on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 words and images that directed readers thereof to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

(c)    there be a verdict on charge 5 that the second respondent is guilty of breaching orders 1 and 3 of the 11 November orders by republishing, after 11 November 2016, each of the 22 posts by including in the seven tweets that he published and displayed on 15, 16, 17, 18, 19, 20 and 21 November 2016 on his Twitter account containing copies of emails that he had addressed to Kate McClymont, words and images that directed readers of the seven tweets to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

(d)    there be a verdict on charge 6 that the second respondent is guilty of breaching order 3(d) of the 11 November 2016 orders in that he continued to publish on the internet on and after 11 November 2016 the video entitled “Street protest and vans exposing corporate thieves Rodric David and David Singh” in that it continued to be accessible on the website up to and at 8 December 2016;

(e)    there be a verdict on charge 7 that the second respondent is guilty of breaching order 4 of the 11 November 2016 orders in that he failed to remove the video from the website;

(f)    there be a verdict on charge 8 that the second respondent is guilty of making public statements between 28 October 2016 and 11 November 2016 in that he published on his Twitter account:

(i)    on 28 October 2016 a tweet that reproduced his email a copy of which was annexed and marked “D” to the 11 November 2016 orders (the 28 October publication);

(ii)    on 31 October 2016 a tweet that reproduced his email a copy of which was annexed and marked “B” to the 11 November 2016 orders (the 31 October publication);

each being a statement that was intended and calculated to influence a party, being the second applicant, and to expose him to the risk of public prejudgment of the issues or merits of these proceedings.

(g)    there be a verdict on charge 9 that the second respondent is guilty of making public statements after 11 November 2016 being:

(i)    each of the 28 October and 31 October publications;

(ii)    the 22 posts;

(iii)    the seven tweets;

(iv)    the republication of one or more of the 22 posts by display and publication of the words and images that he caused to be made on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 that directed readers thereof to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

each being a statement that was intended and calculated to influence a party, being the second applicant, and to expose him to the risk of public prejudgment of the issues or merits of these proceedings.

2.    The following sentences be imposed on the second respondent:

(a)    on charge 3, 15 months imprisonment;

(b)    on charge 5, 9 months imprisonment;

(c)    on charge 6, 2 months imprisonment;

(d)    on charge 7, 2 months imprisonment;

(e)    on charge 8, 12 months imprisonment;

(f)    on charge 9, 18 months imprisonment.

3.    All sentences be served concurrently.

4.    The second respondent pay the applicants’ costs of the interlocutory application filed on 25 November 2016 on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    I must now sentence Adam Kazal, the second respondent (the contemnor), in respect of the six counts of being in contempt of Court as I found in my reasons of 21 December 2016: Thunder Studios Inc (California) v Kazal [2016] FCA 1598.

The power to punish for contempt

2    I found the contemnor guilty of four counts of contempt (charges 3, 5, 6 and 7) for breaching orders (the four breaches) that I had made with his consent on 11 November 2016 (the 11 November orders), and on two further counts of contempt (charges 8 and 9) committed because he had made public statements that were both intended and calculated to influence Rodric David, the second applicant, as a party, in the conduct of the principal proceedings and that exposed him to the risk of prejudgment of the issues or merits of those proceedings (the two interferences).

3    The nature of the two categories of contempt that I found is different in the sense that each of the four breaches involved personal disobedience to an order that directly bound the contemnor as a party to the proceedings to do, or refrain from doing, some act, while each of the two interferences involved acts or conduct that, as a matter of practical reality, had a tendency to interfere with the due administration of justice in these proceedings. However, the four breaches and the two interferences were all contempts of the Court because they interfered in the due administration of justice.

4    Our society is structured on the basis that the Courts of law must be accessible to all persons, rich or poor, weak or strong, popular or unpopular, and whose cases may or may not be considered by others or the public to be good or bad. It is essential that everyone knows that the Courts are independent, not only of government but also of other influences, and that the Courts are also seen to be entirely free from outside influences, including public pressure. It is also fundamental that persons must obey, and cannot be allowed to ignore, orders that the Courts make. The due administration of justice requires that everyone be able to access the Courts to hear and determine disputes, that all persons in our society accept that the orders made by the Courts reflect the application of the law by which all are governed and that those orders must be obeyed while they are in force.

5    It is a very serious matter where a person disobeys a Court order knowing the Court has made it. If that conduct went unpunished by the Courts, a fundamental aspect of our society would suffer. Other people would come to think that they also could disobey or flout orders that a Court had made. The rule of law would be seriously undermined were such a situation left unpunished. Justice could not be done satisfactorily if the ordinary respect that members of our society have for the authority of the Courts to resolve disputes, as a part of our system of government, came to be undermined by persons openly disobeying Court orders or bringing public pressure on a litigant in proceedings that sought to influence the litigant or condemn him, her or it in the public eye for pursuing or defending the litigation. Gibbs CJ, Mason, Wilson and Deane JJ said in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 that:

… the underlying rationale of every exercise of the contempt power … [is] that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced. As the authors of Borrie and Lowe’s Law of Contempt, 2nd ed (1983) say, at p. 3:

If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute. (emphasis added)

6    These considerations underpin the inherent or implied power of every court, superior or inferior, to protect the due administration of justice in proceedings before it: cf Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at 388 [41] per French CJ, Kiefel, Bell, Gageler and Keane JJ; see too Kazal [2016] FCA 1598 at [105].

7    There is no maximum penalty for contempt of a superior court of record. That is because the Court must be able to determine and fashion a penalty that operates to impose an appropriate punishment on the contemnor, to make its denunciation of the contempt, as well as to deter others from committing similar or other contempts. As Besanko J, with whom Siopis J agreed, said in Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387 at 426 [137], it is difficult to identify a range of appropriate sentences for contempt or a standard or prevailing sentence for a serious contempt. That is due to the many and varied circumstances that can give rise to the particular contempt and the factors to which the Court can have regard in assessing what sentence is appropriate in the factual scenario at the time of sentencing.

8    In cases of a contemnor’s breach of an order it is appropriate to consider factors including those that Spender J identified in Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279 at 283 [16]-[17], which Besanko J cited with approval in Vaysman 222 FCR at 426 [139], namely:

    the relative seriousness of the contempt, which is, or may be, determined by the extent to which the contemnor appreciated that a contempt was being committed (cf: the position in a contempt by publication that may have been very serious, yet the contemnor may have been ignorant of the existence of the proceedings);

    whether the contemnor subjectively intended to disobey the order;

    the importance of bringing home to the contemnor the seriousness of the contempt;

    whether the contemnor has offered any apology or explanation for his or her conduct;

    the extent and degree to which the contemnor has recognised the nature of his or her offending conduct;

    any attempt by the contemnor to comply with the order in question and, where relevant, the degree to which he, she or it did comply with the order;

    the practical consequence of a contemnor’s failure to comply with an order and the effect of that non-compliance upon the effective administration of justice.

9    Of course, an order for imprisonment is always the last sentencing option that a Court should impose. Imprisonment will only be appropriate where no other punishment is appropriate. The fact that, as here, the contemnor is an undischarged bankrupt does not preclude the Court considering, and if appropriate, imposing, a fine or fines. As Gray J noted in Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596 at 619 [54], the status of bankruptcy does not relieve the bankrupt from the obligation to pay a fine, or to be amenable to serving a sentence of imprisonment in default of payment. The penal effect of, and the legal obligation to pay, the fine continues if it is unpaid after any discharge of the bankruptcy.

10    However, as Gibbs CJ, Mason, Wilson and Brennan JJ held in Gallagher v Durack (1983) 152 CLR 238 at 245, if:

the court comes to the conclusion that a person convicted of contempt of court will not personally suffer or be deterred by a fine, that is a matter which it may consider in imposing sentence.

11    Although contempt of Court is not a federal offence for the purposes of the Crimes Act 1914 (Cth), some of the matters identified in s 16A(2) are relevant by analogy in sentencing a contemnor, including:

    the nature and circumstances of the contempt;

    any relevant course of conduct, if the particular count forms part of a course of conduct consisting of the same or similar conduct;

    the impact or effect of the contempt, including any loss, damage or other harm caused by it;

    any contrition that the contemnor has shown;

    any co-operation that the contemnor has shown in the investigation of his, her or its offending;

    the deterrent effect that any sentence may have on, first, the contemnor (specific deterrence) and, secondly, other persons (general deterrence);

    the need to ensure that the contemnor is adequately punished for the offence;

    the contemnor’s character, age, antecedents, means, physical and mental condition;

    the prospect of the contemnor’s rehabilitation; and

    the probable effect of any sentence on the contemnor’s family and dependants.

12    Where a Court sentences an offender on multiple counts, the Court must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624 [44]-[46] per McHugh, Hayne and Callinan JJ.

13    Gibbs CJ, Mason, Wilson and Deane JJ explained in Mudginberri 161 CLR at 115 the nature of the Court’s power to deal with and punish contempt of Court as follows:

These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [[1970] 2 QB 114 at 129]. It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result. (emphasis added)

14    Their Honours said that the armoury of remedies available to a superior court is designed to serve an important public interest (161 CLR at 115). Importantly, they held that a contempt will be classified criminal where wilful disobedience to an order is accompanied by public defiance (at 108). Moreover, their Honours held, there is much for the view that all contempts should be punished as if they were quasi-criminal in character. They noted the distinction between casual, accidental and unintentional disobedience on the one hand, and wilful disobedience on the other (at 109).

Personal circumstances

15    You are 50 years old, married and have five sons, one of whom is 29 years old. He is from a previous marriage and independent. Your other four sons are aged between five and 17. Your wife and your other four sons live with you in your home in the Upper North Shore of Sydney. Two of them are in primary school. Your sons are all close to you and you are a very important figure in each of their lives. Your wife of 19 years does not work. Her mother in Lebanon is not in good health and your wife wishes to visit her and care for her from time to time.

16    You only disclosed, on 23 February 2017, to your wife and family the possibility that you might be sentenced to imprisonment on or after today. Understandably, that disclosure has caused them significant concern and distress which you, up till now, have borne yourself. Your wife and eldest son have spoken highly of your role as a husband and father. Your wife had a panic attack on the night of Friday 24 February 2017, which caused her to be admitted overnight to hospital. That event, I accept, came about because of her concern about what might happen as a result of you being sentenced to prison.

17    I find that if you were sentenced to imprisonment that would throw the primary burden of caring for your dependant sons on her. However, your wife has three sisters who also live in Sydney, and you have a brother, Oscar, who is prepared to assist you in paying a fine, were I to impose such a sentence. During the course of submissions, your senior counsel put an offer from your wife that she would cause her anticipated share of an inheritance of a property in Lebanon left to her and her sisters by her late father, which she instructed him was estimated to be worth about USD40,000, to be available to be applied in payment of any fine that I might impose.

18    You also have at least two other brothers, Charif and Tony, with whom you appear to be close, having regard to the contents of the 28 and 31 October publications, the 22 posts, seven tweets and your conduct the subject of the evidence that I had before me at the hearing of the contempt charges.

19    You were made bankrupt on 18 February 2011. You remain an undischarged bankrupt. Your counsel has admitted you have not filed a statement of affairs in what is now six years since your bankruptcy. There is no evidence of how you support yourself or your means, assets or liabilities.

20    A letter of support dated 26 February 2017 by your treating clinical social worker, Ms Mohini Prasad, observed that she considered you to be suffering from trauma and associated dissociative symptoms, including acute stress. She considered that the current manifestation of your symptoms is associated with the imminence of your sentencing and your concerns about its potential impact on your family.

21    You have provided references from three retired senior police officers, including a former assistant police commissioner, each of whom has read my reasons for finding you in contempt. Each has said that your offending behaviour is inconsistent with what he knows of your character. Each has spoken of your role as a prominent member of the Lebanese community and of the important assistance you have given the police in their work with that community. Each referee has also spoken of his experience of you where you had always exhibited respect for the law and the Australian legal system. Each referee has also expressed his concern about the impact that a custodial sentence would have on you and your wife and children. I have had regard to these references as they reflect on your previous good character. I am also mindful that any custodial sentence will have a significant impact on your wife and children.

22    There is no information in the material before me of how you support yourself and your family, your work, if any, your means to pay any fine or of any disability or problem affecting you, other than what is in Ms Prasad’s letter. I have had regard to that letter. While your mental state and health is a relevant matter that I have taken into account in the sentences I will impose, the law is that, if you are to be imprisoned, it is the responsibility of the prison authorities to provide you with appropriate care and treatment: see R v Smith (1987) 44 SASR 587 at 589 per King CJ with whom Cox and O’Loughlin JJ agreed, and Sage v ZZ (No 2) 234 FCR 251 at 254-255 [8]-[9] where I discussed the authorities.

23    Although your referees referred to your generally law abiding character, I must also have regard to your admitted failure for the last, probably, six years to comply with your obligation under s 54(1) of Bankruptcy Act 1966 (Cth) to make out and file with the Official Receiver a statement of your affairs within 14 days from the day on which you had been notified of the making of the sequestration order. Although it is not clear when you were told of that order being made, I am satisfied beyond reasonable doubt that you have been aware of that order for considerable period of time, being many of the years since it was made.

24    Moreover, you have put no evidence before me about how you can live in your home, have four children go to private school and be able to organise and fund the considerable and costly teams of people in Los Angeles and Sydney that featured in the evidence. I note that there were nine or ten persons visible who held signs in a screenshot of the video taken by Ms Sambrook that was reproduced in her evidence. Moreover, there were four vans on 22 November 2016 in the central business district of Sydney that I infer had to be driven by at least three other drivers. However, the source of the resources necessary to finance your lifestyle and your contemptuous conduct is not in evidence.

25    In my opinion, your continuing failure to comply with your civil obligation to make and file a statement of your affairs and the concomitant inability of your trustee in bankruptcy to assess whether, and if so to what extent, you need make contributions from any income to pay to your creditors of your bankrupt estate, cause me some hesitation in accepting that you are a person who recognises and respects his legal obligations.

26    I consider that you have some prospects of rehabilitation following any custodial sentence, but I have had regard to your lack of compliance with your civic obligations to cooperate at all in the conduct of your bankruptcy.

27    Through senior counsel, you submitted that you did not intentionally disobey the orders the subject of the four breaches or intentionally commit the two interferences that I found to be contempts. Your senior counsel submitted, on your instructions, that you deeply regretted that you were in the position of having been found by the Court to have breached its orders and that you had deliberately committed the six contempts. The regret also extended to the impact that those findings might have on your family in the future. However, I find that that expression of “regret”, as one of your referees put it, is a regret of being found in contempt. It was not an apology or any sort of contrition.

28    Your senior counsel also submitted that there was evidence that you were in a confused state about the 11 November orders. I reject that submission as inconsistent with my findings in my primary judgment (Kazal [2016] FCA 1598 at [24]) where, based on your former solicitor’s evidence, you indicated that you understood those orders at the time I made them. Subsequently you were served with a copy of the orders, bearing the endorsement that you might be imprisoned or fined were you to disobey the orders.

29    Each of the four breaches was a contravention of an order that was intended to prevent you bringing further pressure on Mr David and his lawyer. The 11 November orders were made to stop any continuation or repetition of the conduct that is the subject of charge 8. The basis on which the applicants had sought those orders was made plain at the time of the application for those interlocutory injunctions, namely they alleged that your conduct, that they sought to be enjoined, was capable of being seen as being a contempt by bringing improper pressure on a litigant.

The four breaches

30    Charge 3 involved your use of the vans. The vans had professional detailing that you intended would catch the eye of persons as they were driven around Sydney and when they were parked. You wrote to Mr David, in the 28 October publication, that you had teams of people in both Sydney and Los Angeles who would “expose” him and that those in Sydney would also expose “all of the spineless thieves who thought that they could help themselves to steal from my family”. In the 31 October publication, you told Mr MacCallum that you reserved “the right to not only continue using the Van, but to also increase the size of my fleet” unless your demands were met, including a demand that you be paid $666,666.66.

31    I find beyond reasonable doubt that after 11 November 2016, you changed the appearance of the vans to remove any direct reference to Mr David by covering up his photograph and express references to him and replacing them with duplicate photographs and references to Mr Singh who was already emblazoned on them. The vans as depicted in O’Connell Street, Sydney, on 18 and 22 November 2016 displayed references only to Mr Singh. However, you intended that anyone who saw a van, with the appearance of the professionally detailed livery that is reflected in the photographs in evidence, some of which I reproduced in my earlier reasons (Kazal [2016] FCA 1598 at [33], [35], [37]) would visit the website.

32    You intended that all members of the public who saw any of the vans as they appeared after 11 November 2016, would go to the website and, as the detailing on the vans promised in one or more versions, “read the full story” as well as “read how the thief robbed his partners”, the thief in that reference being Mr Singh, and ascertain how “all involved to be exposed”. You knew that the website contained, or would probably contain, the material or material to the effect in each of the 22 posts that would name Mr David as an alleged co-conspirator with Mr Singh in the alleged theft, proclaimed on the vans, that would “be exposed”. You also knew that that material would, or probably would, convey one or more of the imputations which orders 1 and 3 prohibited you from publishing: see The Queen v Crabbe (1985) 156 CLR 464 at 469 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ.

33    You had no lawful justification or excuse for causing the republication of those imputations. You may have thought it clever to change the detailing of the vans to be in the form in which they appeared on 18 and 22 November 2016, without them referring to Mr David by name or photograph. But there is no shadow of a doubt that you intended anyone who read them to go to the website, where you knew that they would, or probably would, see a republication of one or more of the imputations that the 11 November orders prohibited you from publishing or conveying directly. And, you boasted to Ms McClymont in your email and tweet of 15 November 2016 that, by having a van drive round the Eastern Suburbs of Sydney “promoting” Mr Singh’s alleged theft of $180 million, “many people have contacted me to voice their support”. That boast was also supported by the increased number of your Twitter followers as at 28 October 2016 from about 12,000 to 9 November 2016 when they amounted to about 25,000. You also told Ms McClymont that the website “has all the facts”.

34    In 2013-2014, the evidence is that the website had attracted only about 8,900 page views in Australia by a little over 1,600 new users. However, I infer that the numbers of views and users changed substantially after the conduct that you initiated in October 2016 the subject of the 28 and 31 October publications. This inference is supported by the very large increase in your Twitter account following between 28 October 2016 and 9 November 2016. I infer that substantially more people visited the website as a result of the conduct in the four breach counts than the increase of about 13,000 in your Twitter followers between 28 October 2016 and the present time.

35    I am satisfied beyond reasonable doubt that the contempt in charge 3 constituted a deliberate and very serious flouting by you of orders 1 and 3 made on 11 November 2016. It was highly organised, ongoing, and you involved a number of other participants who, on 22 November 2016, drove at least three of the four vans to convey your messages. That conduct of yours represented a very public defiance of the authority of the Court and the 11 November orders.

36    It was a contumacious and serious contempt of a criminal nature. Wilful disobedience of a Court’s order, occurring in circumstances of public defiance, as here in each of the four breaches and in count 9, involves a public injury and calls into play the Court’s penal or punitive jurisdiction to deal with criminal contempt: Mudginberri 161 CLR at 108.

Charges 5

37    Charge 5 involved your use of the seven tweets to direct persons to the website as part of the course of conduct involved in each of the four breaches. Once again, your conduct constituting the contempt in charge 5 was an act of public defiance of the 11 November orders. As I have noted, the followers of your Twitter account doubled to around 25,000 followers during your conduct complained of and have remained at around that figure. I find that a large number of those persons would have visited the website, having regard to the significant increase in those Twitter followers following the commencement of the conduct complained of on 28 October 2016.

Charges 6 and 7

38    The only evidence of any ability to view the video was, as I found in my earlier reasons (Kazal [2016] FCA 1598 at [51]-[54], [84]), if one entered a search term of “van” on the website. Mr MacCallum’s evidence was that his other attempts to access the video resulted in it appearing to be blocked. I infer that you took some steps to bring that blocking response about, but did nothing beyond having your solicitor write on 11 November 2016 to your brother Charif’s solicitor in relation to the accessibility of the video from or on the website.

39    In those circumstances, I am of opinion that the contempts in respect of charges 6 and 7 were less serious than those in charges 3 and 5. Charges 6 and 7 related substantially to one cognate course of conduct. I am satisfied that your lack of activity to ensure that the video had been removed from the website, coupled with your deliberate promotion of visits to the website, nonetheless, amount to a wilful defiance of orders 3(d) and 4 and so was contumacious, albeit to a lesser degree of seriousness than your other four contempts.

Charges 8 and 9

40    I found that the conduct the subject of charges 8 and 9 was of a deliberate, organised and planned nature in my earlier reasons (Kazal [2016] FCA 1598 at [106]-[116].

41    In each of the 28 and 31 October publications, you deliberately set out to intimidate Mr David and, in the 31 October publication, his lawyer Mr MacCallum, by making threats and referring to what you had done, and intended to do, to give them effect on two continents, as each publication stated. There is no doubt that you intended at the time that you wrote and posted each of those publications that it would bring improper pressure on the applicants and, in the latter case, on Mr MacCallum, for the reasons that I gave (Kazal [2016] FCA 1598 at [106]-[113]). I am also satisfied beyond reasonable doubt that your conduct after 11 November 2016 (that I found in Kazal [2016] FCA 1598 at [114]-[116]) was a deliberate and intended public defiance of the 11 November orders. Your escalation of the use and number of the vans from one to two and then to four and your posting of the seven tweets demonstrated that public defiance: Mudginberri 161 CLR at 108.

Sentencing considerations

42    I have given anxious consideration as to whether I should impose a fine, even one conditioned on the proviso that you would have to serve a sentence of imprisonment in default of payment, whether or not your brother Oscar or your wife or other family members failed to cause the fine to be paid. I am satisfied that the nature and scale of your offending conduct make the imposition of a fine an inappropriate penalty. It would not punish you appropriately (Gallagher 152 CLR at 245) or address the need for general deterrence of such conduct.

43    I have also considered whether a suspended sentence of imprisonment, with or without a fine, would meet the demands of justice. However, I am satisfied that only a custodial sentence is appropriate.

44    The circumstances demonstrate that you understood at the time of the making of 11 November orders that your conduct on which those orders were based was being restrained by the Court, yet you defied those orders in as public a way as you could. You covered up the references to and photographs of Mr David on the vans and put duplicate ones of Mr Singh over them. But, you made sure that the message was apparent for all to see how “all involved to be exposed”, and you invited the readers to “read how the thief robbed his partners” by visiting the website. You knew, or knew it was probable, that they would find and read matter on the website conveying the very imputations, or imputations to their effect, relating to Mr David that the orders of 11 November prohibited you from conveying directly. You reinforced that conduct by posting the seven tweets with the same deliberate intention, appreciating that since 28 October 2016 the number of your Twitter followers had doubled to around 25,000, doubtless, in no small regard, due to the activities of your vans and your other tweets.

45    In my opinion, it was not necessary for any of the charges to allege explicitly that your conduct complained of was contumacious. The conduct alleged against you in respect of each of the four breaches involved public acts of wilful disobedience of the Court’s orders. In addition, the conduct charged in respect of the two interferences involved deliberate and intended conduct that, as a matter of practical reality, had a tendency to interfere with the due administration of justice in these proceedings by bringing improper pressure to bear on the applicants.

46    I do not accept that your sense of grievance with Mr David or Mr Singh justified or palliates the seriousness of your conduct that I have found to be in contempt of Court.

47    Each of the four breaches and charge 9 related to one course of conduct. The four breaches were the means by which you committed, after 11 November 2016, the interference contempt in charge 9. Had you desisted, after consenting to the 11 November orders, that consent and conduct would have been a significant mitigating factor in relation to any charge that might have been brought in the nature of charge 8 and could well have been seen, at that time, as a recognition of your wrongdoing and an attempt to make amends. But you did not desist. You made a small change to your behaviour by altering the appearance of the vans so that they ceased to refer directly to Mr David by name and photograph. But, you then escalated your public pressure on the applicants by using more vans and posting more tweets, by your threats that “all would be exposed” and by your public invitations, at every opportunity you had, to readers of the material that you published, that I have found in breach of the orders of 11 November, to “read the full story” by visiting the website.

48    Your senior counsel acknowledged on your behalf that your language in the 28 and 31 October publications was “prima facie extravagant”, but, it was much more than that. The two publications were replete with threats. Courts cannot allow such conduct to go unsanctioned. That conduct and the public acts of defiance of the 11 November orders by the four breaches, with their concomitant effect of constituting the interference the subject of charge 9, require a custodial sentence.

49    I have had regard to the authorities to which I was referred, including what Besanko J, with whom Siopis J agreed, found in Vaysman 222 FCR at 426-427 [137]-[144] (and see too R v Kilic (2016) 339 ALR 229 at 234-236 [17]-[22] per Bell, Gageler, Keane, Nettle and Gordon JJ, esp at 236 [22]), where their Honours considered that a sentence of two years imprisonment was appropriate in that case. I am satisfied that you chose to persist in a strategy to “expose”, as you saw it, Mr David while contriving to circumvent the effect of the 11 November orders by omitting his name and photograph in your publications on the vans and in the seven tweets.

50    You have shown no respect for the orders of the Court. You have shown no remorse for your conduct. You have shown no respect for the right of the applicants to litigate their dispute with you and your brother Charif on its merits in these proceedings.

51    Mr Kazal, would you please stand. On the charges of contempt in the amended statement of charge dated 20 December 2016, I order that:

(a)    there be a verdict that the second respondent is not guilty on each of charges 1, 2 and 4, and in respect of charge 7, of particulars (i) and (iii);

(b)    there be a verdict on charge 3 that the second respondent is guilty of breaching orders 1 and 3 of the orders made on 11 November 2016 (the 11 November orders) by republishing, after 11 November 2016, each of the 22 posts in exhibit WM2 that first appeared at or about the date and time that each post respectively records as that of its posting, between 11 and 21 November 2016 on the website at www.kazalfamilystory.com in that the second respondent caused to be displayed on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 words and images that directed readers thereof to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

(c)    there be a verdict on charge 5 that the second respondent is guilty of breaching orders 1 and 3 of the 11 November orders by republishing, after 11 November 2016, each of the 22 posts by including in the seven tweets that he published and displayed on 15, 16, 17, 18, 19, 20 and 21 November 2016 on his Twitter account containing copies of emails that he had addressed to Kate McClymont, words and images that directed readers of the seven tweets to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

(d)    there be a verdict on charge 6 that the second respondent is guilty of breaching order 3(d) of the 11 November 2016 orders in that he continued to publish on the internet on and after 11 November 2016 the video entitled “Street protest and vans exposing corporate thieves Rodric David and David Singh” in that it continued to be accessible on the website up to and at 8 December 2016;

(e)    there be a verdict on charge 7 that the second respondent is guilty of breaching order 4 of the 11 November 2016 orders in that he failed to remove the video from the website;

(f)    there be a verdict on charge 8 that the second respondent is guilty of making public statements between 28 October 2016 and 11 November 2016 in that he published on his Twitter account:

(i)    on 28 October 2016 a tweet that reproduced his email a copy of which was annexed and marked “D” to the 11 November 2016 orders (the 28 October publication);

(ii)    on 31 October 2016 a tweet that reproduced his email a copy of which was annexed and marked “B” to the 11 November 2016 orders (the 31 October publication);

each being a statement that was intended and calculated to influence a party, being the second applicant, and to expose him to the risk of public prejudgment of the issues or merits of these proceedings.

(g)    there be a verdict on charge 9 that the second respondent is guilty of making public statements after 11 November 2016 being:

(i)    each of the 28 October and 31 October publications;

(ii)    the 22 posts;

(iii)    the seven tweets;

(iv)    the republication of one or more of the 22 posts by display and publication of the words and images that he caused to be made on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 that directed readers thereof to the website on which so many of the 22 posts appeared as had been posted at the respective time of republication;

each being a statement that was intended and calculated to influence a party, being the second applicant, and to expose him to the risk of public prejudgment of the issues or merits of these proceedings.

52    I sentence you to serve the following terms:

(a)    on charge 3, 15 months imprisonment;

(b)    on charge 5, 9 months imprisonment;

(c)    on charge 6, 2 months imprisonment;

(d)    on charge 7, 2 months imprisonment;

(e)    on charge 8, 12 months imprisonment;

(f)    on charge 9, 18 months imprisonment.

53    I order that all the sentences be served concurrently. That means you will be released on 27 August 2018.

54    I order that you pay the applicants’ costs of the contempt charges on an indemnity basis.

Associate:

Dated:    3 March 2017