FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The parties bring in a minute of order giving effect to the conclusions reached in this judgment within 7 days.

2.    The matter be stood over for a further case management hearing on Tuesday, 3 October 2017 at 9.30am.

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

REASONS FOR JUDGMENT

PERRAM J:

1. Introduction

1    On 6 December 2016, Griffiths J made Orders 2, 4 and 6 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 paragraphs 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 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;

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

2    The Second Respondent, Mr Charif Kazal (‘Mr Kazal’), maintained at the time these Orders were made a website with the domain name www.kazalfamilystory.com (‘the Website’). The pages on the Website contained both adverse statements about the Second Applicant, Mr Singh, and a photograph of Mr Singh. Despite Orders 2, 4 and 6, this material is alleged to have remained on the Website on each of the days 8, 9 and 12 December 2016. On 12 December 2016, an interlocutory application was filed by the Applicants seeking to have Mr Kazal dealt with for contempt for breaching the Orders on those days. Some fresh material was added to the Website on 13 December 2016 and this was subsequently added to the contempt case by way of amendment. By 15 December 2016, however, all of the material had been removed.

3    It is useful to begin with the structure of the Applicants’ case on the first charge.

2. Charge One: Structure

4    It is necessary to commence with the actual content published on the Website. The Applicants allege that this fell into two categories:

(a)    ‘the Pleaded Matters’; and

(b)    ‘the Additional Matters’.

5    The ‘Pleaded Matters’ are defined in Charge One to be the publication on the Website on 8, 9 and 12 December 2016 of the matters pleaded at paragraphs 35, 38, 41, 44, 47, 50 and 53 of the Statement of Claim. These publications were seven in number and each was said to have infringed Order 6(a) of the Orders made by Griffiths J. That Order required Mr Kazal not to publish ‘each of the First to Thirteenth CZ Singh representations’. The way these are pleaded in the Statement of Claim is repetitive and may be usefully distilled into six distinct representations:

(i)    Mr Singh is a corporate thief;

(ii)    Mr Singh committed crimes by stealing from Mr Kazal and his brother Tony;

(iii)    Mr Singh stole Mr Kazal’s and his brother Tony’s shares in GRL;

(iv)    Mr Singh had committed crimes against Mr Kazal and his brother Tony which warranted his imprisonment;

(v)    Mr Singh had stolen $180 million from Mr Kazal and his brother Tony; and

(vi)    Mr Singh had stolen GRL from Mr Kazal and his brother Tony.

6    The first question then is whether the matters alleged to have been published on the Website in paragraphs 35, 38, 41, 44, 47, 50 and 53 of the Statement of Claim (i.e. ‘the Pleaded Matters’) were published and then, if so, whether any of them conveyed any of the six matters set out above. There was no substantive argument mounted by Mr Coleman SC, for Mr Kazal, that these matters had not been conveyed by the Website, although it was not formally conceded. The evidence establishes each allegation beyond reasonable doubt. Briefly, given the absence of debate about it:

3. Charge One – The Pleaded Matters

(a) Paragraph 35

7    This alleged the publication of the contents of an email from Mr Kazal to Mr Singh dated 11 October 2016 entitled ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 16’. The subject line of the email conveyed the representations set out above at (i). The body of the email also conveyed (ii) and (iii). I do not think (vi) was conveyed. Mr Perkins gave unchallenged evidence that this material was visible on the Website on 8 December 2016 at paragraph 13(a) of his affidavit of 12 December 2016. Mr Hoy gave evidence that it was visible on 9 and 12 December 2016 in his affidavit of 12 December 2016. It was not suggested that I should not accept their evidence and I do accept it. For the balance of this section, I will not repeat that I accept their evidence but in each case I do.

(b) Paragraph 38

8    This alleged the publication of the content of an email from Mr Kazal to Mr Singh dated 13 October 2016 entitled ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 18’. The subject line conveyed (i). The balance of the email conveyed (ii)-(iv). Mr Perkins and Mr Hoy gave evidence that this page was visible on the Website on 8, 9 and 12 December 2016.

(c) Paragraph 41

9    This alleged the publication of the contents of an email from Mr Kazal to Mr Singh dated 14 October 2016 entitled ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 19.’ The subject line conveys (i). I am satisfied the balance of the email conveys (ii) and (iii) as well. The evidence of Mr Perkins and Mr Hoy establishes that it was visible on the Website on 8, 9 and 12 December 2016.

(d) Paragraph 44

10    This alleged the publication of the contents of an email from Mr Kazal to Mr Singh dated 15 November 2016 entitled ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 50’. The subject line conveys (i). The balance conveys (iii), (iv) and (v). The evidence of Mr Perkins and Mr Hoy establishes that it was visible on the Website on 8, 9 and 12 December 2016.

(e) Paragraph 47

11    This alleged the publication of the contents of an email form Mr Kazal to Mr Singh dated 20 November 2016 entitled ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 55’. The subject line conveys (i). I am satisfied that the balance of the email conveys (ii), (iii), (iv) and (vi). The evidence of Mr Perkins and Mr Hoy establishes that it was visible on the Website on 8, 9 and 12 December 2016.

(f) Paragraph 50

12    This alleged the publication of the contents of an email from Mr Kazal to Mr Singh dated 26 November 2016 (but which appeared on the Website on 27 November 2016) entitled ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 62’. The subject line conveys (i). The balance conveys (iii), (iv) and (v). The evidence of Mr Perkins and Mr Hoy establishes that it was visible on the Website on 8, 9 and 12 December 2016.

(g) Paragraph 53

13    This alleged the publication of the contents of an email from Mr Kazal to Mr Singh dated 30 November 2016 with the subject line ‘Charif Kazal demands answers from Corporate Thief #2 Naveen David Singh – Day 65’. The subject line conveys (i). The balance conveys (iii), (iv) and (vi). The evidence of Mr Perkins and Mr Hoy establishes that it was visible on the Website on 8, 9 and 12 December 2016.

14    Accordingly, I have found that each of the ‘Pleaded Matters’ was published on 8, 9 and 12 December 2016 and each of them conveyed one or more of the CZ Singh Representations referred to in the Statement of Claim. Consequently, Order 6(a) of 6 December 2016 was breached by Mr Kazal.

4. Charge One – The Additional Matters

15    I turn then to the ‘Additional Matters’. These were said to have been published only on 13 December 2016. They did not form part of the allegations in the Statement of Claim which they post-dated by more than a week. The material said to constitute them was a large number of webpages which were attached to the Amended Statement of Charge from pp 96-232. By the time of the hearing, particulars of these had been provided. I have already considered each of these particulars in the context of Mr Kazal’s no-case submission on Charge One: see Re.Group Pty Ltd v Kazal (No 3) [2017] FCA 754 (‘Kazal (No 3)’) at [53]-[89]. The material consisted of webpages within the Website where a computer technician assisting Mr Kazal named ‘Dabab’, had excised references to Mr Singh and replaced them instead with the anonymised ‘Your Partner’. This editing process had not always been entirely successful and on some pages sporadic references to ‘Singh’ remained.

16    For convenience, I will refer to each webpage by the annexure name it was given in the Amended Statement of Charge. I concluded, following the no-case submission, that the charges relating to some of those pages could not be sustained. After their rejection, the following remained:

(1)    F.    (p 96);

(2)    G.    (p 103);

(3)    H.    (p 108);

(4)    I.    (p 112);

(5)    K.    (p 122);

(6)    L.    (p 126) but only as to the representation that Mr Singh stole Mr Kazal’s and his brother Tony’s shares in GRL;

(7)    M.    (p 131);

(8)    N.    (p 136);

(9)    Q.    (p 150);

(10)    R.    (p 155) and the identical representations in S, T, V, W, Y, Z and AA;

(11)    X.    (p 186);

(12)    BB.    (p 207);

(13)    CC.    (p 213);

(14)    DD.    (p 218); and

(15)    EE.    (p 224).

17    The central question with this material is whether it sufficiently identifies Mr Singh to contravene the Orders or whether Dabab’s editing efforts have succeeded in making it not clear beyond reasonable doubt who is the subject of the various remarks. The answer to that question turns in part on whom one thinks might be reading pages such as these. I am not able to identify any particular features of that relevant audience and, in particular, I am unable to say that a person reading the Website would be familiar with the underlying dispute. For all I know, a reader may have arrived at the Website via a google search for Mr Kazal or ICAC (which is frequently mentioned on the Website). Doing the best I can, I therefore ask what an ordinary reasonable reader of these pages could reasonably have understood the whole of the communication to convey. In the current context, that manifests itself as a question viewed through the prism of the criminal standard of proof. Because of that, I am not able to be satisfied beyond reasonable doubt that an ordinary reasonable reader of these pages could reasonably have understood that the pages were referring to Mr Singh.

18    It is true that the unifying feature of all the webpages which have been permitted to go forward under this heading is that they each contain a reference, at some point, to Mr Singh. For example, each page has a tag bar which is separate from the main text of the page. The words ‘David Singh’ appear on that bar. Each page at some point in its main text also has a reference to ‘Singh’. On the other hand, there is no photograph of Mr Singh.

19    It is quite possible, indeed I think it is likely, that the ordinary reasonable reader of these pages would not see ‘David Singh’ in the list of tags. If that be so, the only matter identifying Mr David Singh is the odd stray reference here and there to ‘Singh’. Without more background information about the dispute between these parties, I do not think the ordinary reasonable reader of these pages would be likely to have any idea that it was Mr David Singh who was being discussed. Accordingly, I am not satisfied beyond reasonable doubt that the publication of the Additional Matters breached Order 6(a).

5. Charge Two

20    Charge Two was in the following terms (omitting particulars):

‘2.    By publishing on the Website the Photograph after 6 December 2016, in a manner that infringed the copyright in the Photograph and without the permission or license of the owner of the copyright in the Photograph, you have committed contempt of the Federal Court of Australia.’

21    The particulars to Charge Two at (xvii) reveal that it is Order 2 made by Griffiths J on 6 December 2016 which is said to have been breached. Order 2 is set out above at [1]. It required Mr Kazal to cease using a photograph of Mr Singh in any way which would infringe the copyright in the photograph without first obtaining the permission of the owner of the copyright, or a licence therefrom. The photograph was attached to the originating process.

22    The particulars suggest at (xvi) that the photograph in question was visible on Mr Kazal’s Website on 8, 9, and 12 December 2016. There is no doubt that this is so. The photograph was contained in the emails to Mr Singh posted on the Website which I have dealt with above at [7]-[13]. For the reasons given there, I am satisfied beyond reasonable doubt that the photograph was visible on 8, 9 and 12 December 2016 as is alleged in the charge.

23    There was no dispute – and the evidence clearly establishes – that the person who took the photograph (which was one of a series of photographs) was a professional photographer, Mr Tawfik Elgazzar, and he took them in around March 2014. Mr Elgazzar billed Re.Group Ltd for his services and granted it an exclusive licence to use the photographs in relation to public relations and marketing activities. The licence was of 10 years’ duration. Because he took the photograph, Mr Elgazzar was the ‘author’ of the photograph (Copyright Act 1968 (Cth) (‘the Act’) s 10) and, hence, the owner of the copyright in it as an ‘artistic work’ (s 10) under s 35(2) of the Act. The rights comprised in the copyright in an artistic work under Part III of the Act include the right to communicate the work to the public (s 31(1)(b)(iii)) and, by s 10, this includes ‘to make available online’. By s 36(1), a person who, without the licence of the owner of the copyright in an artistic work does, in Australia, an act comprised in the copyright, infringes that copyright.

24    Mr Elgazzar gave evidence, which I accept, that he has never granted to Mr Kazal a licence to use or reproduce the photograph. It follows that Mr Kazal infringed the copyright in the photograph on 8, 9, and 12 December 2016 by making it available online to persons in Australia. It follows that Order 2 was breached.

6. Charge Three

25    Charge Three was in the following terms (omitting particulars):

‘3.    By failing to remove the Photograph from the Website within 48 hours of being notified of the terms of the Orders, you have committed contempt of the Federal Court of Australia.’

26    The particulars to Charge Three at (xxvi) explain that it is Order 4 made by Griffiths J on 6 December 2016 which is said to have been breached. Order 4 is set out above at [1] and required the photograph to be removed from the Website within 48 hours. For the reasons I have just given, it is incontestable that the photograph remained visible on the Website on 8, 9 and 12 December. Because the Order was made at around 5.10 pm on 6 December 2016, the breach of the Order did not occur until around that time on 8 December 2016. In any event, Order 4 was breached as charged.

7. The circumstances leading to the breaches

27    The injunctions were issued by Griffiths J sometime shortly before 5.10 pm in Sydney. They were communicated to Mr Kazal, who was in China on business, when his solicitor, Mr Mitry, spoke to him by phone from Australia. This occurred between 5.10 pm and 6.24 pm and Mr Mitry told him to remove from the Website the materials ‘relating to’ Mr Singh. At 6.24 pm, Mr Mitry sent Mr Kazal an email to the same effect. Sometime after that, but before 8.03 pm Sydney time, Mr Kazal spoke with one of his brothers, Abe, and had him send an email from Mr Kazal’s email address to Dabab which said, inter alia:

‘I have been instructed I must remove all of my emails sent to Singh. Can you please remove them immediately as I can be charged from tomorrow if they still remain on the website’

28    There was a difficulty with this instruction. The Website took the form of a publication of the contents of a very large number of emails from various members of the Kazal family to a number of persons perceived as their antagonists. So, for example, there were a large number of emails on the Website to Mr Singh from Mr Kazal of an accusatory nature. These emails were pungently expressed. The emails to Mr Singh contained many allegations against him but, importantly, it was not the case that Mr Singh had been traduced only in the emails which were addressed to him. Many of the allegations against him also appeared in emails posted on the Website which were addressed to other persons such as the businessman, Mr David, or the journalist, Mr Besser.

29    Although Mr Mitry’s advice to Mr Kazal during their telephone conversation on 6 December 2016 had been to remove the material relating to Mr Singh and this advice had been repeated in Mr Mitry’s email sent the same evening (this time using the words ‘about Mr Singh’), Mr Kazal appears to have misinterpreted that advice as being only to remove the emails to Mr Singh and as not requiring any attention to the statements made about Mr Singh in other parts of the Website.

30    This misinterpretation is puzzling given that the email to Dabab of 6 December 2016, in which this error first appears, was dictated by Mr Kazal to his brother Abe during a telephone call in which Abe had read out the Orders to Mr Kazal. Of course, even before then, Mr Mitry had sent the Orders to Mr Kazal. However, it was Mr Kazal’s evidence that he did not read the Orders (as opposed to hearing them) until he was back in his office in Sydney on Monday, 12 December 2016.

31    Mr Kazal’s explanation was that this misinterpretation was just an error he had made and that, in effect, he had done his best. I propose to accept this submission and the evidence to a similar effect which was adduced from Mr Kazal. However, in my opinion, this was not an error which should have been made. The short of the matter is that:

    Mr Kazal was aware that he had received the Orders made by Griffiths J;

    he had been provided with a copy of those Orders on 6 December 2016 when they were made, but failed to read them until 6 days later on 12 December 2016. At all times he could have obtained access to them either on his phone, or at the business centre at his hotel in China, or when he arrived back in Sydney on Friday, 9 December 2016. His evidence that he did not have access to email over the following weekend was an entirely self-imposed problem he could trivially have surmounted if he had desired so to do;

    he was told twice by Mr Mitry on 6 December 2016 (including once in writing) to remove material relating to Mr Singh; and

    the Orders had been read out to him over the phone by Abe.

32    These matters might well justify the serious conclusion that Mr Kazal’s erroneous interpretation was confected in order to allow him to continue his campaign against Mr Singh even whilst seeming to be attempting to comply with the Orders. I have contemplated making that finding but have come to the view that I cannot be sure about it beyond reasonable doubt. The doubt principally relates to the size of the Website and the fact that a great deal of the damaging material is indeed contained in the emails to Mr Singh. It is a reasonable hypothesis that Mr Kazal had developed a misconception that the material about Mr Singh was contained only in the emails to him and that he thereafter interpreted everything that was told to him in light of that assumption (an example, perhaps, of confirmation bias).

33    In reaching that conclusion, I do not overlook the unwarranted nature of the error. But I do accept that there is a reasonable hypothesis available that Mr Kazal made the unwarranted error upon which he relies.

34    It was in that context that the erroneous direction to Dabab was given at 8.03 pm on Tuesday, 6 December 2016. At 9.49 pm Sydney time, Dabab replied:

‘All emails sent from you to Singh have been removed from site. They are kept as draft in the system (not public).’

35    Mr Kazal received this email from Dabab on his phone in China. Dabab sent another email which arrived in Mr Kazal’s inbox at 4.19 am Sydney time on Thursday, 8 December 2016. This email was as follows:

‘…as we were upgrading the servers to accommodate for more traffic removing david singh articles did not take permanent effect. The articles are still visible to public. The tech team is working on this matter with urgency given the below. Appreciate a 48 hours [sic] window to fix the situation.’

36    Mr Kazal accepted that this email indicated to him that the Orders were not being complied with. There are three aspects of Dabab’s email to which I would draw attention:

    the email suggested that certain servers were being upgraded and that these servers were, in some way, associated with Dabab (‘…we were upgrading the servers…’);

    there was a tech team working on the problem ‘with urgency given the below’. The reference to ‘below’ was a reference in the email chain to the earlier email sent by Abe to Dabab from Mr Kazal’s email address on Tuesday, 6 December 2016. This email included the statement (above) that Dabab should remove the material since ‘I can be charged tomorrow if they still remain on the website’; and

    the upgrading of the servers to which Dabab referred had two features:

(a)    it did not prevent the Website being visible to the public (hence ‘The articles are still visible to the public’); and

(b)    the emails to Mr Singh had been removed but the effect of the server upgrade was that they had nevertheless reappeared.

37    Thus, Dabab’s email shows that at least by Thursday, 8 December 2016 at 4.10 am Sydney time, the emails to Mr Singh had become visible again. And, of course, the material relating to Mr Singh but not contained in the emails to him, had never been taken down at all.

38    This evidence is corroborated by the solicitor, Mr Perkins. His evidence shows that even after Dabab’s report to Mr Kazal of the upgrading of the servers, the material remained visible on the Website. Mr Perkins accessed the Website on 8 December 2016 and downloaded a quantity of material from it covered by the injunction. Another solicitor, Mr Hoy, successfully accessed the Website on the afternoon of Friday, 9 December 2016 and performed a similar exercise and again on the morning of Monday, 12 December 2016.

39    In any event, it is also clear from Mr Kazal’s evidence about the steps he took on Monday, 12 December 2016 that the material remained visible at that time.

40    There was no direct evidence that the Website remained visible to the public between the date at which Mr Hoy visited it on Friday afternoon and Monday morning when he accessed it again. However, it is an inescapable inference that it remained visible to the public throughout that period. This is because the only difficulty identified by Dabab was the upgrading of the servers which it is quite clear did not prevent the Website being visible to the public. There is no evidence to suggest that the Website became inaccessible during this period and there is no reason to think that it did.

41    I therefore conclude that the Website remained visible to the public throughout the period from Tuesday, 6 December 2016 to Monday, 12 December 2016.

42    It is now necessary to say something about the software used to operate a website. Dr Schatz, a forensic computer scientist, gave evidence, which was not challenged, that Mr Kazal’s pages had been generated by blogging software called Wordpress. He also gave evidence that it was a straightforward process to remove material on a website blog which had been created using Wordpress.

43    He said that this could be done in ‘a timeframe measured in the low numbers of hours’. I accept this, which appears consistent with the initial events following the making of the Orders on 6 December 2016. It will be recalled that Dabab was first contacted by an email from Mr Kazal (dictated to his brother Abe) at 8.03 pm Sydney time on Tuesday, 6 December 2016 seeking the removal of the emails to Mr Singh. Dabab replied at 9.49 pm Sydney time reporting that this had been done. This is consistent with Dr Schatz’s evidence about Wordpress.

44    The Applicants’ primary case was that Dr Schatz’s evidence showed that it would have been very easy for Mr Kazal to have caused the removal of the offending material from the Website. But Dr Schatz’s evidence was prepared before anyone, apart from Mr Kazal, knew about Dabab and the difficulties he had encountered as a result of the server upgrade. As to the server upgrade, more evidence about it is to be found in Dabab’s email sent at 1.57 am Sydney time on Tuesday, 13 December 2016. Relevantly, Dabab reported to Mr Kazal that:

‘I hereby confirm the removal of all David Singh articles from website.

The situation stretched by an additional 24 hours as time given by web hosting company was approximate. Given that our hosting is for a blog website and not a high traffic website, we do not enjoy an emergency type of customer support rather a standard one.

Sorry for the inconvenience this may have cause you.’

45    This email is capable of suggesting that:

    the Website was actually hosted by a web hosting company; and

    Dabab did not enjoy ‘an emergency type of customer support’ from this company.

46    It is an available inference from these matters that the difficulty which existed was not at Dabab’s end but rather further up the chain at the level of the web hosting company. From this two difficulties may emerge:

    the statement by Dabab in his email of Thursday, 8 December 2016 that ‘we were upgrading the servers’ makes no sense because if he were using a web hosting company he would not be maintaining any servers; and

    the email of Thursday, 8 December 2016 suggested that a ‘tech team’ was working on the matter ‘with urgency’ and that the problem would be solved within 48 hours. But on Tuesday, 13 December 2016 Dabab was explaining that the additional 24 hour delay had occurred because he only had a ‘standard’ rather than an ‘emergency type’ of customer support.

47    I do not think that Dabab’s account is entirely consistent. No attempt was made before me to prove that Dabab (whose email address is ‘john doe <noretreat2013@gmail.com>’ and who was not called to give evidence) did not exist or was someone else. I must proceed therefore on the basis that Dabab does exist. Further, no submission was made to me that anything could be done with the fact Dabab was not called as a witness. And, indeed, it is well established that use of the reasoning in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in a criminal context, such as the present, is problematic: Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at 291 [5]-[6] per Gaudron and Hayne JJ and 328 [123] per Callinan J. Notwithstanding a certain degree of scepticism about the role of Dabab, it seems to me that I must proceed on the basis that he is a genuine person and further that I should not seek to concern myself with why he was not called or what he might have said if he had been called.

48    It seems to me that I should therefore conclude that:

(a)    Dabab used a web hosting company to operate the Website to which he blogged using the Wordpress software;

(b)    Dabab deleted the emails to Mr Singh on 6 December 2016 which took effect by no later than 9.49 pm Sydney time on 6 December 2016; and

(c)    at some point between 6 and 8 December 2016 there was a difficulty with one of the servers which was involved in maintaining the Website and this caused the material to reappear.

49    Whatever the difficulty with that server was (and regardless of whose server it was), I am satisfied beyond reasonable doubt that it did not have the effect of preventing the public from accessing the Website at any time between 6 and 13 December 2016. As will be seen, this is an important conclusion when it comes to considering the second aspect of Dr Schatz’s evidence to which it is now necessary to turn.

50    The primary thrust of Dr Schatz’s evidence was, of course, that Mr Dabab could very easily have taken the material down using Wordpress but, as I have said, I am satisfied that Dabab, in fact, did so, at least in relation to emails on the Website to Mr Singh. The difficulty arose subsequently when the server upgrade began, sometime between 6 and 8 December 2016. Once it began, I do not think that I can conclude that it was possible for Dabab to remove the material using only Wordpress, at least until the server problem was resolved which, as I discuss below, appears to have happened only by the morning of Tuesday, 13 December 2016.

51    However, Dr Schatz also gave evidence of other ways the material might have been removed apart from using Wordpress. One such method was to disable the Website in its entirety. This method involved preventing the Website’s Domain Name System (‘DNS’) name from resolving to an IP address or, instead, causing it to resolve to a different IP address. Those statements require some explanation. Dr Schatz gave this evidence about the way in which a user visits a particular webpage:

‘54.    When the average user located at home visits a website for the first time, by clicking on a link, or typing in a web address, the following generally occurs:

a)    The web browser identifies the domain name from the address;

b)    The web browser looks up what IP address is associated with the domain name, using the Domain Name System (DNS) implementation in the computer’s operating system (for example Windows);

c)    The computer’s operating system asks the local ADSL modem’s DNS server for the IP address;

d)    The ADSL modem’s DNS server asks the DNS server of the home user’s ISP for the IP address;

e)    The ISP’s DNS server asks the website’s DNS server for the IP address.’

52    The last two steps are important. Dr Schatz explained that the DNS configuration was an essential element necessary for a website to be accessible. He explained it this way:

‘121.    The DNS configuration of a website is a fundamental step that a web browser relies on in browsing a website. If no DNS entry exists for the website’s Domain Name, no website access will occur. If the DNS name is configured to point to an IP address other than the website (for example to a temporary holding page), the internet user will not be able to browse the original website.’

53    It is necessary now to pause and digest the implications of this evidence. Given the finding that at all times the Website remained visible it follows that, whatever Dabab’s server problem was, it was not a problem with the DNS servers which supported the site. On Dr Schatz’s evidence, there would be a DNS server maintained by the web hosting company and another by that company’s own internet provider. My prior conclusion that the Website remained accessible throughout the entire period, when considered alongside Dr Schatz’s evidence about DNS servers, proves beyond reasonable doubt that the Website’s DNS servers remained operational at all times because the Website itself remained visible to the public at all times. Even if Dabab was, himself, operating the servers which were being upgraded this would still have remained true. That the Website remained visible to the public throughout this period necessarily implies that its entries in the DNS system were operational and, correspondingly, that they could be disabled.

54    This then makes central Dr Schatz’s opinion that the entire Website could have been disabled easily ‘by preventing the DNS name www.kazalfamily.com from resolving to an IP address’. Elsewhere he gave evidence that this method of deleting the website’s DNS entry would be effected by the domain administrator as would be the equally efficacious process of redirecting traffic to a different IP address by varying, rather than deleting, the DNS entry.

55    This method was not Dr Schatz’s preferred method. He said:

‘119.    Based on my knowledge and experience with those methods, it is my opinion that the fastest and easiest way of disabling publishing of blog content is to use the username and password associated with publishing the blog to delete the relevant content, and purge any caches were [sic] necessary, as has been described in Section 10 of this report. Modifying the DNS configuration is a more technically complex operation, potentially requiring differing credentials to undertake, disables more content than is required, and the effects generally take longer to take effect. Accordingly, I would only consider making DNS configuration changes when the other methods in Table 2 are not feasible , for example due to not being able to log into the Blog as a Publisher.’

56    Further, without setting out all of the technical detail, Dr Schatz thought that the procedure for causing the domain name not to resolve to its IP address by altering the configuration of the DNS server of the operator of the Website, would take only minutes to perform. Having performed the procedure, it would take effect within no more than 8 hours.

57    I find beyond reasonable doubt that it was possible for the Website to have been fully shut down within no more than 14 hours once the difficulty with the servers became known. I have added 6 hours to Dr Schatz’s time estimate as a margin for contingencies.

58    The next question is whether Mr Dabab had sufficient technical expertise to shut down the Website by reconfiguring the DNS servers. The evidence about Mr Dabab suggests that Mr Kazal believed that he had the IT skills necessary to operate the Website. Mr Kazal gave evidence that Mr Dabab was a friend who lived in Dubai whom he had met whilst living there himself. Mr Kazal would email the material which he wanted put on the Website to Mr Dabab who would then arrange for it to be placed on the Website. Mr Kazal gave this evidence about Mr Dabab at T-219:

‘Now, did you – I withdraw that. Mr – Mr Dabab was a friend and doing what he did for you completely unpaid, correct? --- That’s correct.

How did you first come to know Mr Dabab? --- During my time I spent in Dubai. He lives in Dubai.

You never had any opportunity to personally witness any skill level or competence level that Mr Dabab had in information technology, did you?---No, I’m aware that he’s a consultant in the IT industry and he does his core business, yes.’

59    Mr Kazal clearly regarded Mr Dabab as an expert. He was questioned about the competence of the personnel at the web hosting company and gave this evidence during cross-examination:

‘You took no steps at all to find out who these people were, did you? --- I’m relying on my friend who’s supposed to be the expert. I don’t know.

60    An email sent by Mr Dabab supports the view that he was experienced in the administration of digital media. On 13 December 2016, Mr Dabab wrote to Mr Kazal reporting on the continuing efforts to remove the material from the Website. It contained this passage:

‘Guys, I really suggest you need to change your digital strategy. you need a front to publish your content (unrelated to you in person). costly but extremely effective.

best,

dabab’

61    I therefore conclude that if Mr Dabab had been instructed by Mr Kazal to take down the Website he would have been able to do so by changing the configuration of the DNS servers. Even without that conclusion, I am satisfied that if Mr Dabab had responded to a request by Mr Kazal to take down the whole Website by saying that he lacked the technical expertise to do so, there were certainly other people in Australia with that expertise. Dr Schatz described the process involved as ‘a more technically complex operation’ but nevertheless thought the outcome one which ‘could easily be achieved’. If Mr Kazal had wanted the Website taken down this was achievable very quickly, in any event, within 18 hours and done either by Dabab or any other IT expert retained to perform this relatively straightforward procedure.

62    Mr Kazal did not ask Mr Dabab to take the Website down, nor did he ask Mr Dabab as to whether there were other ways around the server problem which had been encountered. Mr Kazal was cross-examined as to why he did not give Mr Dabab such an instruction and gave three different responses. The first of these was that on the weekend of 10-11 December 2016 he was caught up in a ‘family situation’. It is not necessary to set out the detail of these domestic problems. It will suffice to say that, whilst no doubt distressing, they cannot have consumed all of Mr Kazal’s time or come to close to providing circumstances sufficient to justify ignoring Federal Court orders. The actual evidence about this was at T-223 when Mr Kazal said this:

‘You could have issued an immediate instruction to Mr Dabab to shut down the website, couldn’t you? --- I – I couldn’t do that, no.

You could not do that? --- I couldn’t do that, because I was caught up, I told you, with the family situation.’

63    I do not accept this evidence. Mr Kazal could very easily have told Mr Dabab to take the Website down. Mr Kazal gave surprising evidence that he did not have access to email for the weekend but, oddly, he also accepted that he received email on his phone. As I have already said, I regard the difficulties that Mr Kazal had with email on that weekend as being self-imposed. If Mr Kazal had desired to tell Dabab to disable the Website he could very easily have done so. He also gave evidence that he did not give such an instruction because he did not think of it, but also because he did not think that the Orders required it. These three answers are inconsistent. If taking the Website down did not occur to him, he cannot have concluded that the Orders did not require it. If he had so concluded about the Orders, it would not have been his domestic situation which prevented him from doing so.

64    Mr Kazal was in China on Thursday, 8 December 2016 in Guangzhou. He had his phone with him which was on roaming; however, he apparently had limited access to data. He had received Mr Mitry’s email of Tuesday, 6 December 2016, although he could not recall if he had received the attachments. The possibility that emails were not entirely reliable is supported by the observation that he had his brother, Abe, in Sydney, send the email to Dabab that evening. Despite that, Mr Kazal accepted he had received Dabab’s email of 8 December 2016 and had discussed it with Mr Mitry. Thus it seems to me that Mr Kazal was in a position to decide to take steps to have the Website disabled on that day. Although he was in China, he could easily have given such an instruction to Dabab just as he had on Tuesday, 6 December 2016 (when he was also in China). That Mr Kazal travelled from China to Sydney on Friday, 9 December 2016 makes no difference. Even if external IT consultants had been used for the task, Mr Mitry could have been instructed to arrange this.

65    Thus was the state of play on the evening of Sunday, 11 December 2016. The following day Mr Kazal went to his office and read the Orders of Griffiths J and the Statement of Claim. At some point during the day, Mr Mitry informed him that contempt proceedings had been commenced against him. Mr Kazal also reviewed the entire Website. Although he sought at one point to suggest that he had sent a detailed email to Dabab on Monday, 12 December 2016, the only email which matches that description was sent on the morning of Tuesday, 13 December 2016. Thus, although the Monday seems to have been a day of activity during which it must have been apparent to Mr Kazal that the Orders were not being complied with, he took no further steps to see what Dabab was doing. And this was so even though the 48 hour period mentioned by Dabab had expired on Saturday morning.

66    It was only on Tuesday, 13 December 2016 that Mr Kazal seems to have thrown himself fully into the task of getting the material down. By Tuesday morning, Dabab had succeeded in removing the emails to Mr Singh from the Website and he reported this by an email sent to Mr Kazal at 1.57 am on Tuesday morning Sydney time (4.56 pm in Dubai). This email is set out above at [44].

67    As a result of his exertions on Monday, Mr Kazal had realised that he needed to take down more than just the emails to Mr Singh. By 7.51 am on Tuesday morning, he had determined that a series of emails on the Website sent by his brother Tony to Mr David and Mr Baker would also need to be removed. There were 56 of these and at 7.51 am Mr Kazal sent an email to Dabab asking him to remove these as well. He also asked him to remove any references to Mr Singh. Following discussions with Mr Mitry, Mr Kazal again emailed Dabab on Tuesday, 13 December 2016 at 11:27 am Sydney time asking whether it was possible to block any searches of Mr Singh’s name. At 4.17 pm, Dabab replied that this was not possible as it was controlled by Google.

68    Dabab did not respond to Mr Kazal’s first email of Tuesday, 13 December 2016 sent at 7.51 am until Wednesday, 14 December 2016. This response was received at 4.21 pm in Sydney by Mr Kazal:

‘hi Charif,

nothing relates to David Singh on the site anymore.

all your communication to him has been put private (no one can see them but me)

all other communications mentioning the name david singh had been replaced by the word “Your Partner”

Guys, i really suggest you need to change your digital strategy. you need a front to publish your content (unrelated to you in person). costly but extremely effective.

best,

dabab’

69    Mr Kazal says that this email was diverted into his junk folder from which he did not retrieve it until Thursday, 15 December 2016. I accept this evidence. Its significance for present purposes is that it suggests that Dabab did not follow Mr Kazal’s instructions to remove the large number of emails he had instructed be removed, but had instead replaced most references to Mr Singh with a reference to ‘Your Partner’. Mr Kazal’s point was that this was not his, Mr Kazal’s, idea. It is true that Dabab reported to Mr Kazal that he had done this on Tuesday, 13 December 2016. It was also detected by the Applicants’ solicitors who found the ‘Your Partner’ material on the same day.

70    The charges against Mr Kazal do not extend past 13 December 2016 so the events after that day are not directly material. For the sake of completeness, however, it appears that all of the impugned material had been removed, after a number of steps, by 15 December 2016.

8. Were the Orders sufficiently clear?

71    As part of Mr Kazal’s no-case application resolved in Kazal (No 3), elaborate submissions were made to the effect that the Orders were not sufficiently clear to found a contempt charge. These arguments were repeated in final submissions. I gave detailed reasons for rejecting the arguments on the no-case submission in Kazal (No 3) at [12]-[49]. The formal legal question on the no-case submission was whether the material before the Court could sustain a finding beyond reasonable doubt that there had been a contempt. So the issues about the clarity of the Orders dealt with in that judgment were really questions as to whether the Orders were sufficiently clear (to group several disparate arguments under one label) to permit the conclusion, beyond reasonable doubt, that they had been disobeyed. The question now is not whether the view that they are sufficiently clear is open beyond reasonable doubt but rather whether they are sufficiently clear in that sense. Put another way, has it been demonstrated beyond reasonable doubt that the Orders were sufficiently clear to be disobeyed.

72    There are no difficulties with Orders 2 and 4 which are perfectly clear. The problem, if there is one, is Order 6. I approach the matter on the basis of the principles discussed at [12]-[49] in the previous judgment viewed through the slightly different procedural lens which arises at this stage of the trial. Without in any way wishing to suggest that the way the Orders were drafted by those who applied for them is in a style ever to be emulated, I think that the Orders were sufficiently clear to tell Mr Kazal what he was to do. I am satisfied beyond reasonable doubt that a failure by Mr Kazal to remove the offending material from the Website was disobedient to the Orders and he could not reasonably have been in any doubt as to what those Orders required of him.

9. Was there a contempt of court?

73    There was no real debate about the principles to be applied. Those principles are:

1.    The purpose of the law of civil contempt is to compel obedience rather than punish disobedience which, by contrast, is the domain of criminal contempt.

2.    Both are to be proved beyond reasonable doubt.

3.    In a case of civil contempt, the Plaintiff must prove that:

(i)    an order was made by a court;

(ii)    the order was sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with;

(iii)    the order was served on the alleged contemnor or that service was for some reason dispensed with under some lawful order;

(iv)    the alleged contemnor had knowledge of the terms of the order;

(v)    the alleged contemnor breached the order; and

(vi)    the alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order but rather that the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded.

4.    Whether the alleged contemnor intended to breach the order and to defy the Court is a matter going to penalty.

74    As to (i) see Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at 168 [133] per Hayne, Heydon and Crennan JJ; as to 2 and 3(i)-(v) see Advan Investments Pty Ltd v Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]-[32] per Gillard J; as to 3(v) see Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106-107; as to 4 see Kazal v Thunder Studios Inc (California) [2017] FCA 111 at [105] per Besanko, Wigney and Bromwich JJ; see also Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 at 598 [299].

75    For the reasons I have already given, I am satisfied beyond reasonable doubt that Orders 2, 4 and 6 made by Griffiths J were breached in the ways in which I have explained. I am satisfied beyond reasonable doubt that Mr Kazal had knowledge of the Orders too. They were sent to him, he knew they had been sent to him and if he did not arrange for himself to read them, I do not think he can benefit from self-inflicted ignorance. In any event, the Orders were read out to him by his brother, Abe, and explained to him twice by Mr Mitry including in writing. I am satisfied beyond reasonable doubt that Mr Kazal knew of the Orders and their terms.

76    I am also satisfied beyond reasonable doubt that Mr Kazal breached Order 6 by making available on his Website the various emails to Mr Singh set out above which contained the various representations about Mr Singh and did so on 8, 9 and 12 December 2016. Orders 2 and 4 were also breached in the manner I have indicated.

77    In each case, I am satisfied beyond reasonable doubt that the breaches of the Orders which occurred resulted from deliberate action in the sense that what happened was not accidental. The only possible argument to the contrary is the suggestion that somehow the actions (and inaction) of Dabab should not be attributed to Mr Kazal. I do not accept that that should be so. Mr Kazal engaged Dabab as his IT assistant and has sought in this Court to exculpate himself on the basis of what Dabab did. He cannot in that circumstance, both approbate and reprobate Mr Dabab’s authority. In this case, Dabab’s errors are Mr Kazal’s. I therefore conclude that 3(i)-(vi) from the list above are satisfied in relation to all charges.

78    I therefore convict Mr Kazal on each charge of civil contempt. There will now be a further hearing on the issue of penalty. This will involve centrally the question of whether Mr Kazal’s conduct was in defiance of the Court’s Orders, sometimes referred to in the authorities as contumacy. I will postpone making any orders at this stage other than for a further case management hearing. The parties are to propose an order giving effect to my conclusions so far.

Associate:    

Dated:    25 September 2017