FEDERAL COURT OF AUSTRALIA

Re. Group Pty Ltd v Kazal (No 3) [2017] FCA 754

ORDERS

THE COURT ORDERS THAT:

1.    The no-case submission in relation to Charge One be partially upheld but otherwise be rejected.

2.    The no-case submission in relation to Charge Two be rejected.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The Applicants have charged the Second Respondent, Mr Charif Kazal (‘Charif’), with three counts of contempt of court. The hearing of these charges was set down for 21-22 June 2017. At the conclusion of the Applicants’ case, Senior Counsel for Charif advanced a no case submission. For the reasons which follow that submission should largely, although not entirely, be rejected.

A. How the Contempt Proceeding arises

2    The contempt application has been made by way of an interlocutory application in the substantive proceeding – also brought by the Applicants – against Charif and his brother, the First Respondent, Mr Adam Kazal. The allegation in the substantive proceeding against Charif is, broadly speaking, that he has maintained a website which, when the proceedings were initiated on 2 December 2016, contained numerous statements highly critical of the Second Applicant, Mr Singh, and which also featured a photograph of Mr Singh, the exclusive right to use the copyright in which is alleged to inhere in the First Applicant (‘Re.Group’).

3    In the former case, the statements are said to constitute the tort of injurious falsehood. In the latter, an allegation of breach of copyright is made. In both cases, damages, including aggravated damages, are sought.

4    The substantive proceeding was commenced on 2 December 2016 by an originating application which also contained claims for interim injunctive relief. At the time that the originating application was filed, a Judge of the Court made orders for short service in relation to those claims and made them returnable before the Duty Judge on 6 December 2016.

5    On 6 December 2016, a contested hearing took place before Griffiths J who, at around 5.15 pm, made a series of orders against both brothers. Only Orders 2, 4 and 6 are relevant to the current contempt proceeding. These Orders were as follows:

‘2.    An order that, until the final determination of this proceeding or earlier further order, the Second Respondent, by himself, his employees, servants or agents, be restrained from using the photographs of the Second Applicant that are Annexure “A” to this Originating Application in any way that would infringe the copyright in those photographs without first obtaining the permission or licence of the owner of the copyright in those photographs.

…

4.    An order that the Second Respondent cause to be removed, within 48 hours, the photographs of the Second Applicant that are Annexure “A” to this Originating Application from the Website referred to in the Statement of Claim.

…

6.    An order that, until the final determination of this proceeding or earlier further, order, the Second Respondent, by himself, his employee, servants or agents, be restrained from publishing:

a.    each of the First to Thirteenth CZ Singh Representations;

b.    any representation substantially the same as any of the First to Thirteenth CZ Singh Representations;

c.    each of the First to Thirteenth CZ Re. Group Representations;

any of the representation substantially the same as any of the First to Thirteenth CZ Re. Group Representations.’

6    It is now alleged by the Applicants that these Orders were breached. It is said that the negative statements about Mr Singh and the photograph persisted on the website after 6 December 2016 in breach of them.

7    The interlocutory application seeking to have Charif found guilty of contempt and punished therefor was accompanied by a statement of charge which initially contained two charges. The first charge alleged a breach of Order 6. The second charge, breaches of Orders 2 and 4.

8    When the contempt proceeding came on for hearing on 21 June 2017, the Applicants sought, and I granted, leave to amend the statement of charge to separate into a third charge the allegations concerning Order 4. This amendment was opposed on the basis that, whilst it occasioned no procedural prejudice, it did deprive Charif of some substantive points he might have had in relation to the drafting of Charge Two. I did not consider that prejudice of that kind ought to stand in the way of an amendment. I reserved for further argument any costs issues which might arise from the amendments.

9    The charges before the Court are, therefore, those set out in the document styled the Further Amended Statement of Charge filed on 21 June 2017. I note that there does not appear to have been filed at any point an Amended Statement of Charge so the word ‘Further’ may not be accurate. But nothing turns on this. In support of the three charges the Applicants then adduced the following evidence:

1.    Paragraphs 30-31 and 34-36 of the affidavit of Mr Nicholas James Perkins, a solicitor, sworn 1 December 2016;

2.    The affidavit of Mr Perkins sworn 12 December 2016 save that paragraphs 9, 11 and 12 were not read and neither were the words ‘and observed that…. but some had not’ in paragraph 6;

3.    The affidavit of Mr Perkins sworn 15 December 2016;

4.    The affidavit of Mr Perkins sworn 25 May 2017;

5.    The affidavit of Mr Perkins sworn 20 June 2017;

6.    The affidavit of Mr James Patrick Hoy, a solicitor, affirmed 12 December 2016, except paragraph 5(h) which was not read;

7.    The affidavit of Ms Imogen Loxton, a solicitor, affirmed 14 December 2016, except for paragraph 6;

8.    The affidavit of Dr Bradley Schatz, a forensic computer scientist, sworn 18 May 2017. Dr Schatz’s evidence was of an expert nature and his two reports were annexed to his affidavit. He produced a short video file on a USB flash drive which was tendered as Exhibit 2. Exhibit 2 was a video of Dr Schatz removing a picture of a kitten from the internet. I admitted Dr Schatz’s evidence, including the kitten, subject to a direction pursuant to s 136 of the Evidence Act 1995 (Cth) that it not be used as evidence either bearing upon the construction of Orders 2, 4 or 6 or on what those Orders required. Two letters attached to Dr Schatz’s affidavit both dated 8 December 2016 were excluded from the evidence. In addition, the Applicants tendered a third report of Dr Schatz dated 20 June 2017 which became Exhibit 1; and

9.    The affidavit of Mr Taufik Elgazzar, a photographer, sworn 13 June 2017.

10    None of the Applicants’ witnesses were required for cross-examination. Having read the above affidavits and having tendered Exhibits 1 and 2, the Applicants then closed their case on Charges One to Three. At that point, Senior Counsel for Charif submitted that he had no case to answer on Charges One and Two. He accepted that he did have a case to answer on Charge Three.

11    Both parties then made extensive written and oral submissions on the no case submission. At the conclusion of the hearing on 22 June 2017, I stood the matter over for further hearing on Thursday 6 July 2017 in relation to Charge Three. I reserved judgment on the no-case submissions on Charges One and Two.

B. Relevant Principles

12    There are three principles relevant to the resolution of the present debate. First, the standard of proof for both civil and criminal contempt is that all charges must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 534. Secondly, where a no-case submission is made the question to be decided is whether on the evidence as it stands, the accused could lawfully be convicted, which is a question of law: May v O’Sullivan [1995] HCA 38; (1955) 92 CLR 654 at 658. Thirdly, a conviction for contempt will not be possible where it is unclear what the order in question factually required of the respondent: Universal Music v Sharman Networks [2006] FCAFC 41; (2006) 150 FCR 110 (‘Universal Music’) at 117. This kind of ambiguity as to the factual circumstances in which an otherwise clear legal standard applies is distinct from the concept of ambiguity in construction, where the issue is not how a term is applied, but what it actually means. The former will stand in the way of a conviction for contempt but the latter need not do so necessarily. As Branson J explained in Universal Music at 119-120 [38] ‘an injunction is not rendered invalid, or incapable of founding a charge of contempt, merely because it leaves a respondent with room to wonder whether future conduct falls within it.’ Consequently, where the proper construction of an order is one which the respondent ought fairly to have contemplated, a conviction is open: ibid.

13    It is useful to begin with Charge One.

C. Challenges to Charge One

14    Charge One is as follows:

‘Charge 1 - Publication of injurious falsehoods on the website

http://www.kazalfamilystory.com in breach of order 6 of the orders made by Griffiths J on 6 December 2016

1.     By publishing on the website http://www.kazalfamilystory.com (Website):

(a)     each of the First to Thirteenth CZ Singh Representations referred to in the Statement of Claim filed on 2 December 2016 (Statement of Claim);

(b)     representations substantially the same as the First to Thirteenth CZ Singh Representations;

(c)    each of the First to Thirteenth CZ Re.Group Representations referred to in the Statement of Claim;

(d)     representations substantially the same as the First to Thirteenth CZ Re.Group Representations;

after 6 December 2016, you have committed contempt of the Federal Court of Australia.

Particulars:

(i)     The Second Respondent is the publisher of the material appearing on the Website, as admitted by him in paragraph 1 of the letter dated 30 November 2016 from his solicitors, Mitry Lawyers, to Ashurst Australia, the solicitors for the Applicants.

(ii)     On 6 December 2016 Griffiths J made orders a copy of which are Annexure 'A' to this Further Amended Statement of Charge (Orders).

(iii)     The Orders include orders in respect of the Second Respondent as follows:

"2.     An order that, until the final determination of this proceeding or earlier further order, the Second Respondent, by himself, his employees, servants or agents, be restrained from using the photograph of the Second Applicant that is Annexure 'J1"to [the] Originating Application [filed on 2 December 2016] in any way that would infringe the copyright in that photograph without first obtaining the permission or licence of the owner of the copyright in that photograph.

4.     An order that the Second Respondent cause to be removed, within 48 hours, the photograph of the Second Applicant that is Annexure "A" to [the] Originating Application [filed on 2 December 2016] from the Website referred to in the Statement of Claim.

6.     An order that, until the final determination of this proceeding or earlier further order, the Second Respondent, by himself, his employees, servants or agents, be restrained from publishing:

(a)     each of the First to Thirteenth CZ Singh Representations;

(b)     any representation substantially the same as any of the First to Thirteenth CZ Singh Representations;

(c)     each of the First to Thirteenth CZ Re. Group Representations;

(d)     any representation substantially the same as any of the First to Thirteenth CZ Re.Group Representations.".

(iv)     The Originating Application filed on 2 December 2016 is Annexure '8' to this Further Amended Statement of Charge (Originating Application) (pages 10 to 17 of this Further Amended Statement of Charge) and includes the photograph which was Annexure A to the Originating Application (Photograph) (page 17 of this Further Amended Statement of Charge).

(v)     The Statement of Claim (also filed on 2 December 2016), referred to in the Orders, is Annexure 'C' to this Further Amended Statement of Charge (pages 18 to 88 of this Further Amended Statement of Charge).

(vi)     On or about 7 December 2016 the Second Respondent was notified of the terms of the Orders, by his solicitor, Mr Richard Mitry, by telephone and/or electronically (by email) in conformity with Rule 41.07(2)(b) of the Federal Court Rules 2011. A copy of a letter from Ashurst Australia to Mr Mitry of 7 December 2016 asking that Mr Mitry confirm that the Second Respondent had been notified of the terms of the Orders is Annexure 'D' to this Further Amended Statement of Charge (pages 89 to 93 of this Further Amended Statement of Charge) and a responsive email by Mr Mitry to Ashurst Australia on 7 December 2016 is Annexure 'E' to this Further Amended Statement of Charge (pages 94 to 95 of this Further Amended Statement of Charge).

(vii)     On each of 8, 9 and 12 December 2016 inclusive the Second Respondent published on the Website each of the matters which was pleaded in paragraphs 35, 38, 41, 44, 47, 50 and 53 of the Statement of Claim, each of which was set out in Annexures C, D, E, F, G, H and I respectively to the Statement of Claim (Pleaded Matters).

(viiA)     On 13 December 2016 the Second Respondent published on the Website each of the matters comprising Annexures 'F' to 'FF' of this Further Amended Statement of Charge (pages 96 to 232 of this Further Amended Statement of Charge) (Additional Matters).

(viii)     By publishing each of those Pleaded Matters and Additional Matters the Second Respondent consequently published each of the Representations referred to in order 6(a) of the Orders (Representations) or alternatively representations which were substantially the same as those Representations.

(ix)     In those circumstances the Second Respondent committed a civil contempt by breaching order 6 of the Orders

(x)     Further and in the alternative, that contempt was contumacious and therefore a criminal contempt having regard to the facts and matters particularised in subparagraphs (xi) to (xiii) below.

(xi)     The Second Respondent was notified of the terms of the Orders sometime after approximately 6:15pm on 6 December 2016, and in any event by no later than 12: 14pm on 7 December 2016.

(xii)     The removal of material from the Website was a straightforward matter.

(xiii)     Even five days after 7 December 2016 and until approximately 3:00pm on 12 December 2016, all of the Pleaded Matters remained on the Website.

(xiiiA)    Even six days after 7 December 2016, all of the Additional Matters were available for viewing and/or downloading on the Website.

(xiiiB)    Some of the Pleaded Matters were taken down from the Website after 5:15pm on 6 December 2016, but by 8 December 2016 were back on the Website and available for viewing and/or downloading.

(xiiiC)    The Second Respondent was able to remove or cause to be removed from the Website the Pleaded Matters within hours of being served (through his solicitors) with the Applicants' Interlocutory Application and Statement of Charge at approximately 5:58pm on 12 December 2016.

(xiiiD)     After 6 December 2016, the Second Respondent altered or caused to be altered the references on the Website to the Second Applicant to read "Your Partner', with the intent to defy, circumvent and/or evade the effect of order paragraph 6 of the Orders.

(xiv)     In those circumstances, it is to be inferred that the conduct of the Second Respondent in continuing to publish the Representations was contumacious.’

15    It will be seen that Charge One alleges a breach of Order 6(a) (particular (viii)) and Order 6 (particular (ix) and particular (xiiiD)). A minor point of detail: particular (ix) seems to me refer to particular (viii) and therefore should not be read as a reference to the whole of Order 6 but just Order 6(a). This is not so in relation to particular (xiiiD) which, read in context, is a reference to the entirety of Order 6.

16    I have set out Order 6 above at [5] of these reasons. As developed in Mr Coleman SC’s submission, there were a number of ambiguities in, or uncertainties about, Order 6.

First Objection: Problems with the meaning of the word ‘Publishing’

17    The first objection to Charge One put on behalf of Charif involved the contention that Order 6 was ambiguous and not expressed with sufficient clarity such that he could be punished for not obeying it.

18    The difficulty was said to be the word ‘publishing’. Mr Coleman submitted that in the context of defamation, the High Court had made clear that publication of an imputation on the world wide web entailed, not only that a defendant should have made the material available on a webpage, but also that the material should have been accessed by a reader: Dow Jones and Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (‘Gutnick’) at 600-601 [26]-[27] (‘Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer’). There was, so he continued, a good analogy between the requirements of the tort of defamation and the tort of injurious falsehood. It was natural, therefore, to construe the word ‘publishing’ in Order 6 by reference to the accepted meaning of that concept as explained in Gutnick. So construed, the Order was confusing because the person to whom it was addressed had already posted the material on the internet. Effectively, so it was said, it required the recipient to take down what had already been put up, but this it did not say.

19    I do not accept this submission. The question is the proper construction of the word ‘publishing’ in Order 6. In construing the order, it is relevant to have regard to the reasons for judgment to which it gives effect. As Santow JA (with whom Tobias JA agreed) explained in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 (‘Athens’) at 80 [140]:

‘Orders must conform to the judgment which gave rise to them, within the latitude conferred by that judgment. That originating judgment is not just an aid to construction. Rather it is the primary reference point. In that respect construing orders is not like resorting to extrinsic circumstances or external context to resolve ambiguity in a clause in a contract.’

20    In this case, Griffith J gave reasons ex tempore for making the orders: Re.Group Pty Ltd v Kazal [2016] FCA 1485. Those reasons make clear that the case against Charif was that he was engaging in the tort of injurious falsehood by making various representations contained in extensive material posted on a website with the URL http://www.kazalfamily.com (‘the Website’) and that these representations included both the suggestion, inter alia, that Mr Singh was a corporate thief and that his crimes warranted imprisonment: see, e.g., [12]. It was evidently this conduct which, inter alia, Griffiths J intended to restrain. It would be odd in that circumstance to construe the word ‘publishing’ as meaning any more than its ordinary meaning as a matter of English usage.

21    Nothing in Gutnick is to the contrary. The statement relied upon by Mr Coleman undoubtedly shows that a cause of action in defamation is not complete until the imputation is published and, in the law of defamation, the imputation is not published until it is read or seen by someone. But Gutnick says nothing about when an injunction may be obtained to restrain the commission of a tort. It would be absurd to require that all the elements of a tort first be committed before an injunction might issue to restrain those very acts of commission. Even on the facts of Gutnick this would have been absurd. On Mr Coleman’s submission, Rabbi Gutnick could not have restrained the publication of the defamatory article until it had not only been made available on the Wall Street Journal’s website but actually read by someone. Gutnick does not require that outcome.

22    Gutnick was concerned with the narrow conflict of laws question of when and where a tort claim in defamation was complete. It has nothing to do with the principles governing an application for, as here, a quia timet injunction.

23    In my opinion, ‘publishing’ in Order 6 bears its ordinary English meaning of issuing in print or digital format for distribution to the public. I am satisfied that it would be open to conclude beyond reasonable doubt that Order 6, so understood, required Charif to remove material from the Website containing the impugned representations.

Second Objection: Cross-Referencing

24    Mr Coleman’s second point about Order 6 was that it impermissibly cross-referenced what it required to ‘the First to Thirteenth CZ Singh Representations’. Order 6 did not indicate where these might be found. The recipient of the order could not, therefore, know with any, or any reasonable, certainty what he was required to do in order to comply with the Order.

25    It is, however, clear that the representations referred to in Order 6 are the 13 representations which Griffiths J considered at [11] of his Honour’s reasons. Those reasons likewise make clear that the 13 representations are the ones commencing at paragraph 35 of the statement of claim. And, it is at paragraph 35 ff that the 13 CZ Singh Representations are set out.

26    Order 6 therefore directs attention to the 13 representations pleaded in the statement of claim. That conclusion disposes of the submission that Order 6 does not reasonably convey what it required Charif to do. It required him to stop making available on the internet material containing any of the 13 representations set out in the statement of claim (or anything substantially the same as them).

27    That it is not the end of the matter, however. Mr Coleman also submitted that cross-referencing in an order to another document, whilst not invariably fatal in a contempt case, was certainly risky and that in this case it was not permissible.

28    The relevant principle was explained by Santow JA in Athens at 79 [139]:

‘Self-containment for orders is in any event not essential. Thus concision in orders is not always achievable without incorporation by reference of some more complex or detailed matter. The legitimacy of doing so will depend on what is incorporated and how. The fundamental requirement is that such incorporations by reference must not impede the recipient of an order from understanding what the order requires in order to obey it. So long as what is incorporated is readily accessible to the parties, that requirement is fulfilled. Here, for example, had the orders expressly incorporated by reference the relevant definition in the LEP, that would have occasioned no difficulty. Indeed it would have assisted in terms of clarity. The LEP was readily available as a public document and was very much part of the context of the proceedings. Moreover, it was of legislative force, though that feature is by no means essential. Orders would become excessively long if one had to repeat laboriously what could simply and accessibly be incorporated by reference.’

29    In this case, the 13 representations contained in the statement of claim were readily accessible. They were, after all, in the hands of Charif’s lawyers, including his counsel, and submissions had been made on his behalf about those orders at a contested hearing.

Third Objection: Confusion arising from ‘Matter Complained of’

30    Mr Coleman then submitted that recourse to the statement of claim would only have generated confusion. To understand this submission, it is necessary to understand the pleading in a little more detail. I will confine my observations to the treatment of the First CZ Singh Representation dealt with it paragraphs 35 and 36. Those paragraphs are as follows:

‘35.     On or about 11 October 2016 the Second Respondent published in New South Wales and throughout the Commonwealth of Australia, on the Website, an Internet webpage titled "Charif Kazal queries why David Singh felt he was entitled to 50% of the company at no cost - Day 16" (third matter complained of), a copy of which is Annexure "C" to this Statement of Claim.

Particulars of publication

(i)     The third matter complained of was made available for viewing on the Website at the URL http://www.kazalfamilystory.com/charif-kazal-david-singhday-16 where it has been downloaded and read by members of the public in New South Wales and throughout the Commonwealth of Australia.

(ii)     The third matter complained of was downloaded and viewed in or about November 2016 by persons including Vishal Beri.

(iii)     The Second Respondent sent a link to the third matter complained of to all of his followers on Twitter, which was read by a number of followers, particulars of which will be provided.

(iv)     Further particulars will be provided, including after discovery and any interrogatories.

36.     The third matter complained of, in its natural and ordinary meaning, conveyed to those members of the public to whom it was published the following representations (First CZ Representations):

a.     The Second Applicant is a corporate thief (First CZ Singh Representation);

b.     The Second Applicant committed crimes by stealing from the Second Respondent and Tony Kazal, being crimes which warranted his imprisonment (Second CZ Singh Representation).’

(emphasis in original)

31    The argument was that the reader of paragraphs 35 and 36 was left to work out which parts of the matter complained of conveyed the representations.

32    This may well be true. However, it is also irrelevant. The effect of Order 6 is unrelated to the matter complained of. Order 6 simply required Charif to cease publishing the First CZ Singh Representation, i.e., to stop saying that Mr Singh was a corporate thief on the Website. The meaning of that was clear. Similar reasoning applies to the other 12 representations.

33    Accordingly, I do not think that the cross-referencing gives rise to any difficulty in this case.

Fourth Objection: Complexity

34    The next point was closely related to the last one and was that a pleading in the form of paragraphs 35 and 36 was too complex for it to be reasonably expected that the recipient of Order 6 could understand it. I do not agree with this for two reasons. First, only paragraph 36 is relevant to Order 6 so that the suggested complexity in paragraph 35 is not to the point. Paragraph 36 is clear in its identification of the content of the representation. Secondly, while the pleading of the injurious falsehood case is expansive, no doubt, its complexity needs to be assessed against the extent of the material on the Website. What appeared there was not a small headline or a brief statement. It was, instead, an extensive series of web pages containing a large amount of repetitive material. The pleading needs to be understood in that context. While I would agree that the pleading is hardly elegant that, in itself, is not an objection (unless that inelegance leads to ambiguity of the kind explained in Universal Music).

Fifth Objection: The expression ‘substantially the same as’

35    The next complaint about Order 6 related to its use of the formula ‘any representation substantially the same as’ the 13 representations about Mr Singh. These words were also used in relation to another 13 representations about Re.Group, but the issues arising from both are the same.

36    Mr Coleman submitted that such words necessarily called for the exercise of judgment by the recipient so that the content of the order became debatable and therefore lacked the kind of clarity needed to found a contempt charge.

37    The Full Court of this Court has held, for the purposes of the law of contempt, that the following injunctions were sufficiently clear notwithstanding that they left the recipient with decisions to make:

    an injunction restraining a respondent ‘from engaging in the practice of resale maintenance in the manner alleged in the statement of claim or in any similar manner’; and

    an injunction to restrain the respondent from ‘reproducing or authorising the reproduction of the whole or a substantial part of any of the computer programs’.

38    Orders of this kind were not criticised by Full Courts as being ambiguous in, respectively, Commodore Business Machines Pty Ltd v Trade Practices Commission [1990] FCA 77; (1990) 92 ALR 563 at 575 and Microsoft Corporation v Marks (No 1) [1996] FCA 709; (1996) 69 FCR 117 and were upheld against other challenges. In Universal Music, Branson J also observed that these kinds of order had not been criticised by the Full Courts in those cases, but her Honour appeared to go further and to accept, at 121 [45]-[48], that orders of that kind were acceptable from a contempt perspective. Finkelstein J agreed (at 123 [57]) as did Lindgren J at 122 [53]. Lindgren J gave an example which is instructive at [55]:

‘55     If an order restrains a person from doing something ‘in daylight’ and the person does the thing at midday in broad daylight, it is no answer to a charge of contempt that the order might have had an uncertain application requiring a dismissal of the charge if the evidence had shown that the person did the thing at twilight. The facts hypothesised would have suggested that the potential uncertainty of operation could have been avoided if the order had been expressed in terms of hours of the day, rather than in terms of ‘in daylight’. This does not signify, however, that ‘the nature and terms’ of the order were such that a charge of contempt was always destined to fail.’

39    It is therefore always a question of context. The degree of judgment involved in assessing whether it is ‘daylight’ is fairly minimal and unlikely to generate reasonable disputation. An injunction to stop a respondent holding parties at which bad music is played too loudly falls, no doubt, on the other side of the line.

40    The Thirteen CZ Singh representations (with paragraph references to the statement of claim) are:

1.     Mr Singh is a corporate thief (paragraph 35(a));

2..     Mr Singh committed crimes by stealing from Charif and Tony Kazal, being crimes which warranted his imprisonment (paragraph 35(b));

3.     Mr Singh stole Charif’s and Tony Kazal's shares in GRL (paragraph 39(a));

4..     Mr Singh committed crimes by stealing from Charif and Tony Kazal, being crimes which warranted his imprisonment (paragraph 39(b));

5.     Mr Singh stole Charif’s and Tony Kazal's shares in GRL (paragraph 42(a));

6.     Mr Singh committed crimes by stealing from Charif and Tony Kazal, being crimes which warranted his imprisonment (paragraph 42(b));

7.     Mr Singh stole $180 million from Charif and Tony Kazal (paragraph 45(a));

8.     Mr Singh committed crimes by stealing from Charif and Tony Kazal, being crimes which warranted his imprisonment (paragraph 45(b));

9.     Mr Singh stole the company GRL from Charif and Tony Kazal (paragraph 48(a));

10.     Mr Singh committed crimes by stealing from Charif and Tony Kazal, being crimes which warranted his imprisonment (paragraph 48(b));

11.     Mr Singh stole $180 million from Charif and Tony Kazal (paragraph 51(a));

12.     Mr Singh committed crimes by stealing from Charif and Tony Kazal, being crimes which warranted his imprisonment (paragraph 51(b)); and

13.    Mr Singh committed crimes by stealing from Charif and Tony Kazal being crimes which warranted his imprisonment (paragraph 54).

41    I do not consider that a requirement not to publish anything substantially the same as these 13 representations is ambiguous. These are not subtle statements and it requires no sophistication to discern whether a statement is substantially the same as ‘Mr Singh is a corporate thief’. There is, it is true, a great deal of duplication in the way these representations are pleaded. One can see, however, that the repetition has arisen from the way the injurious falsehood case has been pleaded out. It is a bloated way of putting the case and obvious economies might have been available. However, that aesthetic criticism does not detract from the pleading’s legal efficacy.

Sixth Objection: The Meaning of Particular (viii) to Charge One

42    The challenge was based upon particular (viii) to Charge One which is set out above, but which I repeat here for ease of reading:

‘(viii)     By publishing each of those Pleaded Matters and Additional Matters the Second Respondent consequently published each of the Representations referred to in order 6(a) of the Orders (Representations) or alternatively representations which were substantially the same as those Representations.’

43    It will be seen that the particular operates by reference to the ‘Pleaded Matters’ and also ‘the Additional Matters’. The Pleaded Matters are defined in particular (vii) in a way which links them to those parts of the statement of claim where the matters complained of are set out. As an example, one of these, paragraph 35, is set out above. It will be seen that the structure of the pleading is to allege that the content of particular pages was published, next define that as the matter complained of, and then allege that it contained various individual representations. So understood, the reference to the Pleaded Matters in particular (viii) is, in substance, a reference to the allegation that the representations were published by means of the various webpages.

44    The concept of the ‘Additional Matters’ is defined in particular (viiA) and is quite different. It is defined to mean a series of publications on the internet which occurred on 13 December 2016. The webpages in question were annexed to the Further Amended Statement of Charge. These are additional web publications which took place on 13 December 2016 and they do not form part of the case in the substantive proceeding. That is no obstacle, however, to a complaint that they nevertheless constituted a breach of Order 6.

45    Indeed, to cut out a lot of detail, it seems that the Additional Matters may be the result of taking the Website as it stood on 6 December 2016, replacing most of the references to Mr Singh with the words ‘your partner’, and at the same time taking down the photograph of Mr Singh. It is not necessary to reach an actual conclusion on that question for these reasons and I do not.

46    It will be apparent that the Additional Matters may also rest, perhaps unlike the Pleaded Matters, on that part of Order 6 which deploys the language of substantial identicality.

47    This difference from the Pleaded Matters formed the basis for Mr Coleman’s next submission. It was focussed on the precise language of particular (viii). The point was that particular (viii) alleged that it was:

    the Pleaded and Additional matters which resulted in a publication of the representations contrary to Order 6(a); or

    the Pleaded and Additional Matters which resulted in a publication of representations substantially identical to those representations.

48    It was submitted that on its proper construction the expression ‘the Pleaded Matters and the Additional Matters’ in particular (viii) was ‘conjunctive’ so that both concepts were to be read as a single concept. Mr Coleman then developed an argument based on the actual content of the Additional Matters in an attempt to show that the proposition that ‘the Pleaded Matters and the Additional Matters’ (understood as a conjoint expression) could convey any of the CZ Singh Representations or something substantially similar to them was untenable.

49    I do not accept the premise upon which the argument rests. I do not read the ‘Pleaded Matters and the Additional Matters’ conjointly. I read them as separate concepts. So read the problem does not arise.

Seventh Objection: Insufficient Evidence

50    Mr Coleman’s next submission was that the material relied upon to prove that Order 6 had been breached by the publication of the Additional Matters was not sufficient to leave open a conclusion that Charif had done so beyond reasonable doubt.

51    Assessment of that contention needs to begin with the particulars of breach in relation to the Additional Matters provided by the Applicants. This document set out the parts of the Additional Matters said to infringe Order 6 including by reference to each relevant representation. The argument under the current rubric was that the particulars could not support the allegations. The various webpages were annexed to the Further Amended Statement of Charge beginning at Annexure F. In this section I group them the same way and give the relevant page reference to that annexure in the Further Amended Statement of Charge.

52    There were 18 of these. I deal with them in turn.

1. Annexure F (p 98)

53    Annexure F to the Further Amended Statement of Charge is material which appeared on the Website on 13 December 2016 in the form of an email from Charif to a journalist, Mr Linton Besser. It is said that this material conveyed the Ninth CZ Singh Representation, that is to say, that Mr Singh had stolen the company GRL from Charif and Mr Tony Kazal; or alternatively, that it conveyed something substantially identical. The material relied upon by the Applicants is as follows:

‘Your attacks allowed him to convince the Courts to let him steal the $170 million Global Renewables Limited (GRL) business at Eastern Creek in Sydney from my brother Tony and I during the actual litigation process. He and his co-conspirator Your Partner, the CEO of GRL whom we had granted a massive salary of $370,000 per annum + benefits and 20% of the company couldn’t help themselves. As Directors of GRL they breached their Fiduciary Duties to Tony & I in multiple ways including:-

…

Entering into Side Deeds drawn up by the company lawyer that were written for the sole benefit of Rodric David & Your Partner at significant detriment to Tony & Charif Kazal. These corrupt Deeds granted Singh a further 30% of the company at no cost taking his shareholding in GRL up to 50% (Given GRL is worth circa $300 million, that sounds quite generous don’t you think?)

Rodric David was entitled under his Side Deed to demand Singh return the 30% of GRL shares that Rodric had allocated to him illegally under the Side Deed. If Singh wasn’t in on the theft, why would anyone agree to give the shares back if they felt they were legally entitled to be gifted them in the first place?’

54    In my opinion, this material is capable of proving beyond reasonable doubt that the Ninth CZ Singh Representation or something substantially identical to it was said on this page.

2. Annexure G (p 103)

55    This material was a post to the Website on 13 December 2016 in the form of an email from Charif to Mr David. It contained this statement:

‘[Y]ou manipulated the Court with support from company CEO Your Partner to enable you both to steal the $170 million GRL business Tony and I jointly owned with you. It sure is good knowing there are such men of integrity in the world that will allow their business partner to spend all the money, not take a cent from the business and then you steal the business from them! I will not rest until you and Singh are brought before the Courts for the damage you caused by your deliberate criminal behaviour.’

56    It is alleged that this material had the same effect of representing that Mr Singh had stolen GRL from Charif and Tony Kazal (or something substantially identical with that). In my opinion, this material could establish that beyond reasonable doubt.

3. Annexure H (p 108)

57    This material was part of a post to the Website on 13 December 2016 again in the form of an email to Mr David. It contained this statement:

‘You deliberately used the Sydney Morning Herald to generate negative front page headlines about Charif to enable you and Global Renewables CEO Your Partner to steal that $170 million company that Charif & I were shareholder in along with you (40%) and Singh (20%). … You also entered into unauthorised contracts with Singh to defraud Charif & I of millions of dollars and steal shares from us … . How do the pair of you sleep at night after stealing from the partners that providing [sic] the $2.6 million security to enable the initial acquisition of Global Renewables … . Clearly neither of you has any conscience if you both feel comfortable…stealing our shares without so much as blinking an eye… . The website www.kazalfamilystory.com is tracking the truth of what occurred and highlights the may crimes committed by you and your co-conspirators.’

58    The material is said to convey the representation that Mr Singh stole GRL from Charif and Mr Tony Kazal (or something substantially identical with that). A reading of the full passage persuades me that this passage could demonstrate that beyond reasonable doubt. In the balance of this section, I omit further express reference to substantial identicality to avoid repetition. It has been considered, however.

4. Annexure I (p 112)

59    This material was published on the Website on 13 December 2016 as an email to Mr David. The relevant portion is as follows:

‘You & Singh sold Global Renewables located at Eastern Creek in Sydney to Ironbridge Capital for $25 million. Half of this sale went to Singh because you and he corruptly stole shares that belonged to my brother Charif & I without our knowledge…’

60    This is alleged to convey the Third and Fifth CZ Singh Representations (or something substantially identical to them). The third was that Mr Singh stole Charif and Tony Kazal’s shares in CRL; the fifth was the same. I am satisfied that this material could establish that beyond reasonable doubt.

5. Annexure J (p 117)

61    This material was published on the Website on 13 December 2016. The portion relied upon was as follows:

‘You stole shares in Global Renewables from Tony & I with the assistance of the CEO Your Partner. Instead of the legal record 40% you, 40% Tony and I and 20 Singh after we gifted him his 20% at the time we acquired the business, you two signed “Side Deeds” without the knowledge or approval of Tony and I. This grossly illegal and immoral act was on top of the 2 of you signing consulting agreements for each other also without our knowledge to enable you both to plunder millions from the company without the approval of a 40% shareholder. He knew and you knew you were guilty as charged so they [sic] only way to avoid the law was to break it in unspeakable ways and frame innocent victims of your frauds before further defrauding them with the final act of betrayal in staling Global Renewables from us…when the CEO claimed the company would otherwise go into voluntary administration when really he just wanted the money to keep paying our unauthorised consulting agreements.’

62    This was said to convey the third, fifth and ninth CZ Singh Representations, i.e., that Mr Singh stole Charif and Tony Kazal’s shares in GRL and that Mr Singh stole GRL from them. The passage, however, does not identify Mr Singh. I do not think that I can assume that the reference to the CEO is sufficient to identify Mr Singh. The particulars provided do not suggest that recourse to other parts of the Website could help to identify Mr Singh. In that circumstance, I do not think it would be open to conclude that this allegation was proved beyond reasonable doubt.

6. Annexure K (p 122)

63    This material was published on the Website on 13 December 2016 as an email to Mr David. The portion relied upon was as follows:

‘[M]y brother Tony & I were 40% shareholders of Global Renewables… . [Y]ou and Singh both teamed up to steal shares owned by Tony & I… .’

64    This is said to have conveyed that Mr Singh had stolen Charif and Tony Kazal’s shares in GRL (or something substantially to the same effect). In my opinion, this material is capable of demonstrating that matter beyond reasonable doubt.

7. Annexure L (p 126)

65    This material was published on the Website on 13 December 2016 as an email to Mr David. The portion relied upon was in these terms:

‘Then you used the company lawyer to draft illegal Side Deeds to enable you and Singh to steal shares from Charif & I in Global Renewables… . Justice is closing in on you and I look forward to seeing you before the Courts with all those that assisted you in these evil crimes against me and my family.’

66    This is said to have conveyed the following:

(a)    Mr Singh committed crimes by stealing from Charif and Tony Kazal and this warranted his imprisonment;

(b)    The Third and Fifth CZ Singh Representation that Mr Singh stole Charif and Tony Kazal’s shares in GRL;

(c)    The Fourth, Sixth, Eighth, Tenth, Twelfth and Thirteenth Representations which were all to the effect that Mr Singh committed crimes by stealing from Charif and Tony Kazal’s and this warranted his imprisonment.

67    I do not think that this material can convey beyond reasonable doubt that the impugned conduct warranted imprisonment. But I am satisfied that it could sustain the conclusion in (b) beyond reasonable doubt. The material in Annexure L may go forward to trial only as a particular relating to the Third and Fifth CZ Singh Representations.

8. Annexure M (p 132)

68    This material was published on the Website on 13 December 2016 as an email from Mr Tony Kazal sent to Mr David. The portion relied upon by the Applicants was as follows:

‘Then you used the company lawyer to draft illegal Side Deeds to enable you and Singh to steal shares from Charif and I in Global Renewables… . Justice is closing in on you and I look forward to seeing you before the Courts with all those that assisted you in these evil crimes against me and my family.’

69    This was said to have conveyed the Third and Fifth CZ Singh Representations that Mr Singh stole Charif and Tony Kazal’s shares in GRL. The material relied upon is capable of conveying that beyond reasonable doubt.

9. Annexure N (p 136)

70    This material was published on the Website on 13 December 2016 as an email from Mr Tony Kazal sent to Mr David. The portion of the email relied upon was in these terms:

‘The truth is available for all journalists who want to see the criminal behaviour of Rodrick David and his partners in crime who stole the $170 million Global Renewables business at Eastern Creek from my brother Charif & I… . You were stealing $50,000 per month from Global Renewables without my knowledge or approval and your fellow Corporate Thief Singh was taking even more.’

71    This was alleged to have conveyed the First and Ninth CZ Singh Representations that Mr Singh was a corporate thief and that Mr Singh had stolen GRL from Charif and Mr Tony Kazal. In my opinion, this material is capable of conveying those representations beyond reasonable doubt.

10. Annexure O (p 141)

72    This material was published on the Website on 13 December 2016 and consists of an email from Mr Tony Kazal to a Mr Baker. It contains the following statement:

‘Rodric David defrauded millions of dollars from my brother Charif & I before going on to also steal the $170 million Global Renewables Waste Recycling business at Eastern Creek in Sydney from us with assistance from CEO Your Partner.’

73    This was said to have conveyed the First and Ninth CZ Singh Representations that Mr Singh was a corporate thief and that he had stolen GRL from Charif and Tony Kazal. I do not think that material could demonstrate that beyond reasonable doubt. He is not mentioned.

11. Annexure Q (p 150)

74    This material was published on the Website on 13 December 2016 in the form of an email from Mr Tony Kazal to a Mr Baker. The Applicants relied upon these parts of it:

‘Rodric David defrauded millions of dollars from my brother Charif & I before going on to also steal the $170 million Global Renewables Waste Recycling business at Eastern Creek in Sydney from us with assistance from CEO Your Partner. Despite the crimes of David and Singh against my family, you and your employer write only to protect these Corporate Thieves…’

75    This was said to convey the First and Ninth CZ Singh Representations, that is to say, that Mr Singh was a corporate thief and that he had stolen GRL from Charif and Mr Tony Kazal. I think it would be open to conclude beyond reasonable doubt that these matters were conveyed by this passage.

12. Annexure R (p 155)

76    This material was posted on the Website on 13 December 2016 in the form of an email from Mr Tony Kazal to Mr Baker. It contained the following statement:

‘Despite the crimes of David and Singh against my family, you and your employer write only to protect these Corporate Thieves…’

77    This is said to convey the First CZ Singh Representation that Mr Singh was a corporate thief. This material is capable of conveying that beyond reasonable doubt.

13. Annexures S, T, V, W, Y, Z and AA (pp 160, 165, 175, 180, 192, 197 and 202)

78    These were all the same as Annexure R and the same conclusion follows in each case.

14. Annexure X (p 186)

79    This took the form of an email from Charif to Mr David of 17 November 2016. It was posted on the Website on 13 December 2016. The Applicants relied on this passage:

‘You conspired with Your Partner to defraud my brother Tony & I of millions of dollars you both stole from the business Global Renewables Tony & I jointly owned with you through our 50/50 partnership of Emergent Capital Limited (ECL). This you did by … fabricating legal Side Deeds to steal shares from Tony and I in Global Renewables. Then when I moved to take legal action to wind up all of our business dealings starting with parent entity ECK, you and your co-conspirator Singh executed you plant to steal Global Renewables. Together with pp. 190-191: “My family will continue to pursue you and your co-conspirators for your crimes… . I will not rest until you … serve time in prison for the despicable crimes committed against me in my entire family!’

80    This was said to convey the representations that Mr Singh had committed crimes by stealing from Charif and Mr Tony Kazal which warranted his imprisonment, and that Mr Singh stole the company GRL from Charif and Mr Tony Kazal.

81    In my opinion, this material could convey those representations beyond reasonable doubt.

15. Annexure BB (p 207)

82    This took the form of an email from Charif to Mr David dated 29 November 2016. It was published on the Website on 13 December 2016. The Applicants rely upon the following passages:

‘When looked at in the context of your failing defamation case and our cross-claim action to expose you for the Fraudster you are, the fear you are entitled to is the fear of going to prison for your crimes and being exposed for being a disgusting human being who did whatever it took no matter how immoral the act you had to commit to get there in order to steal the Global Renewable business at Eastern Creek in Sydney from Tony & I. You stole shares, defrauded millions, entered into illegal contracts/Deeds with CEO Your Partner to mutually enrich one another at the expense of Tony & I who owned 40% of the business… . Tony & I made the deal happen, kept the business afloat and then as soon as it became profitable you and Singh stole the business hoping not to get caught. … My family will continue to pursue you and your co-conspirators for your crimes… . I will not rest until you serve time in prison for the despicable crimes you committed against me in my entire family!’

83    This was alleged to convey the representation that Mr Singh had committed crimes by stealing from Charif and Mr Tony Kazal which warranted his imprisonment and that Mr Singh had stolen the company GRL from Charif and Mr Tony Kazal. In my opinion, this material could convey these representations beyond reasonable doubt.

16. Annexure CC (p 213)

84    This took the form of an email from Charif to Mr David dated 15 November 2016 and was published on the Website on 13 December 2016. The Applicants relied on the following passages:

‘You defrauded Global Renewables our Eastern Creek Based business in Sydney of millions of dollars with the collaboration of your partner in crime Your Partner. Not satisfied with just stealing millions in cash from the company, ultimately you and Singh stole shares in this company from Tony & I… . Now after Tony & I commenced pursuing you and Singh for justice for your many, many crimes … . My family will continue to pursue you and your co-conspirators for your crimes… . I will not rest until you serve time in prison for the despicable crimes committed against me and my entire family!’

85    This was said to convey the representations that Mr Singh committed crimes by stealing from Charif and Mr Tony Kazal which warranted his imprisonment, that Mr Singh had stolen their shares in GRL and that he had stolen the company GRL from them. In my opinion, this material could convey those representations beyond reasonable doubt.

17. Annexure DD (p 219)

86    This took the form of an email from Charif to Mr Besser dated 2 December 2016 which was posted on the Website on 13 December 2016. The Applicants relied on the following passage:

‘…Rodrick David that breached his fiduciary duties and colluded with Your Partner to steal the $170 million Global Renewables business located at Eastern Creek in Sydney after having used fraudulent contracts between he and Singh to personally enrich themselves without the knowledge or approval of Tony & I their fellow shareholders.’

87    This was alleged to convey that Mr Singh had stolen GRL from Charif and Tony Kazal. This is capable of doing so beyond reasonable doubt.

18. Annexure EE (p 224)

88    This takes the form of an email from Charif to Mr David dated 2 December 2016 which was posted to the Website on 13 December 2016. The Applicants rely upon the following portions:

‘Now that Singh has finally put his hand up and said it’s time to face the music, let’s see what the Courts decide about the actions the pair of you took to defraud Tony & I. Let’s see if defrauding millions, stealing shares and breaching your Fiduciary Duties is acceptable behaviour by one set of shareholders who did all of this without the knowledge or approval of their fellow shareholder.’

89    This is alleged to convey that Mr Singh had stolen Charif and Tony Kazal’s shares in GRL. It is capable of conveying that beyond reasonable doubt.

D. Conclusion on Charge One

90    Senior Counsel for Charif’s objection to Charge One should be rejected in relation to each of the particularised annexures except J and O. In relation to Annexure L, Charif only has a case to answer in relation to the Third and Fifth CZ Singh Representations.

E. Challenges to Charge Two

91    The challenges to Charge Two were based on alleged ambiguities in Order 2 (set out above at [5]). The first focussed attention on the words ‘using the photograph of the Second Applicant … in any way that would infringe the copyright in that photograph…’.

92    It was submitted that this involved impermissible cross referencing. A related point was that the concept of infringement was, itself, quite complex and hence what Order 2 required was not sufficiently clear.

93    Copyright in original literary, dramatic, musical or artistic works is dealt with in Part III of the Copyright Act 1968 (Cth). A photograph is an artistic work: s 10. Infringement is regulated by s 36(1) which provides:

‘36 Infringement by doing acts comprised in the copyright

(1)    Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

...’

94    The acts comprised in the copyright for an artistic work such as a photograph are set out in s 31(1)(b):

‘31 Nature of copyright in original works

(1)     For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

…’

(b)      in the case of an artistic work, to do all or any of the following acts:

(i)     to reproduce the work in a material form;

(ii)     to publish the work;

(iii)     to communicate the work to the public; and

…’

95    I do not think there is any confusion about what Order 2 required. The reasons for judgment of Griffiths J make clear that what was being complained of was the presence of Mr Singh’s photograph on the Website. Ultimately, there was no dispute about Order 2 before Griffiths J because Charif was content to proffer an undertaking in the form of Order 2. I do not think he can have been – or was entitled to be – in any doubt about what Order 2 required him to do. He was to remove the photograph from the Webpage.

96    I also reject the second objection to Order 2. This concentrated on the words ‘without first obtaining the permission or licence of the owner of the copyright in those photographs’. It was submitted that it might be difficult to work out who that was. This, however, is not an objection to the form of the order. It is a criticism, instead, of the scope of an exemption.

97    I reject the challenges to Charge 2.

F. Conclusions

98    I accept the no-case submission in relation to Charge One to the extent I have indicated. I reject the challenge to Charge Two.

Associate:

Dated: 4 July 2017