FEDERAL COURT OF AUSTRALIA

Thunder Studios Inc (California) v Kazal (No 6) [2017] FCA 1573

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 27 October 2017 be dismissed.

2.    The second respondent pay the applicants’ costs of the interlocutory application filed on 27 October 2017 and those costs be taxable forthwith.

3.    The time by which the second respondent can file an application for leave to appeal be extended to 14 days after the publication of these reasons.

4.    These orders not be entered without further order of the Court.

THE COURT NOTES:

5.    The undertaking dated 15 December 2017 given to the Court by counsel for the second respondent on behalf of Abraham Kazal that he will pay $100,000 into Court within three months of the determination of the interlocutory application filed on 27 October 2017, to be held on account of any costs orders against the second respondent as assessed or agreed in favour of the applicants.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 27 February 2017, I convicted and sentenced Adam Kazal, the second respondent, on six charges of contempt of court, imposing, ultimately, a total sentence of 18 months imprisonment that would conclude on 27 August 2018: Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202. That followed my findings on liability that I delivered on 21 December 2016: Thunder Studios Inc (California) v Kazal [2016] FCA 1598.

2    On 31 July 2017, the Full Court set aside two of the convictions that I had made and resentenced the contemnor on the remaining four counts to a total period of imprisonment of 15 months that would expire on 26 May 2018: Kazal v Thunder Studios Inc (California) [2017] FCAFC 111. In the event, the Full Court upheld the following four convictions:

    the contemnor breached orders 1 and 3 made on 11 November 2016 (the 11 November orders) by republishing, after 11 November 2016, 23 posts that first appeared on the website at www.kazalfamilystory.com, by causing to be displayed on one or more vans in O’Connell Street, Sydney on 18 and 22 November 2016 words and images that directed readers thereof to the website on which so many of the 23 posts appeared as had been posted at the respective time of republication (charge 3);

    the contemnor breached orders 1 and 3 of the 11 November orders by republishing, after 11 November 2016, each of the 23 posts by including in seven tweets that he published and displayed on 15, 16, 17, 18, 19, 20 and 21 November 2016 on his Twitter account (the seven tweets), that contained the emails that he addressed to Kate McClymont (a journalist with The Sydney Morning Herald), words and images that directed readers of those tweets to so many of the 23 posts as had by then been posted (charge 5);

    the contemnor was guilty of making public statements between 28 October 2016 and 11 November 2016 by publishing on his Twitter account, first, on 28 October 2016, a tweet that reproduced his email to Rodric David dated 28 October 2016 and, secondly, on 31 October 2016, his email to Walter MacCallum, the solicitor for Thunder Studios Inc (California), and Mr David, each being a statement that was intended and calculated to influence a party, namely Mr David, and expose him to the risk of public prejudgment of the merits or issues of the present proceeding (charge 8);

    the contemnor was guilty of making public statements after 11 November 2016 being each of the 28 and 31 October 2016 publications, the 23 posts, the seven tweets and the republication of one or more of the 23 posts by the display and publication on the vans referred to in charge 3, each being a statement that was intended and calculated to influence a party, being Mr David, and to expose him to the risk of public prejudgment of the issues or merits of the present proceeding (charge 9).

3    The Full Court imposed sentences of nine months imprisonment for charge 3, six months concurrently for charge 5, six months for charge 8 that operated cumulatively for its last three months, and 12 months for charge 9 that also operated cumulatively for its last three months, totalling 15 months full-time imprisonment.

4    On 27 October 2017, the contemnor applied in the present proceeding for an order pursuant to r 42.22 of the Federal Court Rules 2011 that he be discharged from his term of imprisonment before its end and, in particular, forthwith. Rule 42.22 provides:

Discharge before end of prison term:

If a person charged is committed to prison for a term, the person may apply to the Court for an order for the person’s discharge before the end of the term.

5    The rule is found in Pt 42 of the Rules dealing with contempts of the Court. On the same day that he filed the interlocutory application, the contemnor swore and filed a lengthy and detailed affidavit (the 2017 affidavit), almost all of which was read today, in which he explained a number of matters that had transpired since his sentencing. He gave evidence about his state of mind and matters that had occurred at the time of the offending. He also relied on an affidavit that he had sworn on 8 December 2016, albeit that it is incorrectly dated 8 November 2016 (the 2016 affidavit). (He said in the 2017 affidavit, and as is plain by the reference in paragraph 19 in the 2016 affidavit to orders made by Griffiths J on 6 December 2016, that the date of 8 November was incorrect.) The contemnor did not read or rely on his 2016 affidavit in this proceeding at any time before today. The contemnor gave evidence and was cross-examined before me today.

6    In essence, there are two substantive issues. The first is what jurisdiction is invoked by the present application under r 42.22, namely, whether it is an application in the original jurisdiction of the Court to deal with the discharge before the expiry of the term imposed by the Full Court, or whether it is in the appellate jurisdiction of the Court dealing with that topic (the jurisdictional issue). The second issue is whether the order for discharge ought be granted (the relief issue).

The jurisdictional issue

7    The parties both made submissions on the jurisdiction that I was exercising under r 42.22.

8    In my opinion, the rule applies to enable a contemnor to make an application to a single judge in the original jurisdiction of the Court for an order for his or her discharge. The rule is not framed in terms that require the person to apply to the judge or Full Court by whom the sentence was imposed. A similar situation arose, albeit not under the rules of this Court, in In re Barrell Enterprises [1973] 1 WLR 19, where Russell, Karminski and Cairns LJJ considered that the contemnor was able to make such an application before a judge sitting at first instance after her appeal against conviction and sentence had been refused by another, differently constituted, Court of Appeal.

9    In Young v Registrar of the Court of Appeal of New South Wales [No 3] (1993) 32 NSWLR 262 at 283B-C, Kirby P referred to the need for some new consideration, not before the court that imposed the sentence, to be demonstrated in order to authorise the later court, “of co-equal authority”, to discharge the contemnor from prison short of the term originally imposed under an analogue of r 42.22. However, the jurisdictional issue before me was not a question that was before the Court of Appeal, since it was the original sentencing court in that case.

10    Relevantly, s 22 of the Federal Court of Australia Act 1976 (Cth) empowers the Court, in every matter before it, to grant absolutely or on such terms and conditions as the Court thinks fit, all remedies to which any of the parties appear to be entitled in respect of a legal or equitable claim properly brought forward so that, as far as possible, all matters in controversy between them may be completely and finally determined in order to avoid multiplicity of proceedings. And, s 51 provides that proceedings in the Court are not to be invalidated by a formal defect or irregularity unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and cannot be remedied by an order of the Court.

11    In the event that my construction of r 42.22 in [8] above were incorrect, I am satisfied that I still have jurisdiction to hear and determine this application. That is because a single judge exercising the Court’s appellate jurisdiction under s 25(2B)(ab) can make an interlocutory order after the determination of an appeal to the Full Court, such as the orders resentencing the contemnor. This is an interlocutory application. In those circumstances, a judge sitting alone can exercise the power in r 42.22 in the appellate jurisdiction, and of course can do so in the original jurisdiction.

12    The parties were both content for me to deal with the matter on its merits, provided that I, as a single judge, had jurisdiction to do so. Any attempt to take more time to explore the jurisdictional issue is likely to delay a resolution of the proceeding. In my opinion, it is appropriate for me to deal with the contemnor’s application now because I am satisfied that I have original jurisdiction to do so, but if that is not so, I have appellate jurisdiction under s 25(2B)(ab). Having formed a clear view as to the merits, I propose now to decide the application under r 42.22.

The relief issue – principles

13    The exercise of the power to make an order under r 42.22 must be approached on the basis that the rule confers a discretion that is unconfined in its terms by the Rules. However, the principle governing the construction of such a discretion is that identified in R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ:

In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”, to use the words of Dixon J. in [Water Conservation and Irrigation Commission (N.S.W.) v.] Browning [(1947) 74 CLR 492, at p. 505]. In that case his Honour went on to remark, (as he had done earlier in Swan Hill Corporation v. Bradbury [(1937) 56 CLR 746, at p. 758]), “on the impossibility, when an administrative discretion is undefined, of a court’s doing more than saying that this or that consideration is extraneous to the power”. (emphasis added)

The relief issue – the contemnor’s submissions

14    The contemnor contended that he had established a sufficient case to invoke the exercise of the power, having regard to a suggested list of factors that Wilson LJ identified in CJ v Flintshire Borough Council [2010] 2 FLR 1224 at 1230-1231 [21]; [2010] EWCA Civ 393, that Logan J cited with approval in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563 at 575-576 [39]-[40]. In CJ [2010] 2 FLR at 1230-1231, Wilson LJ said:

21.    With the advantage of more time for reflection than was vouchsafed to the judge, I consider that, had I been hearing the appellant’s application for early discharge, I might have asked myself eight, somewhat overlapping, questions. In case they prove to be of any value to other judges confronted with applications for early discharge in similar circumstances, I set them out as follows:

(i)    Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

(ii)    Would the interest of the state in upholding the rule of law be significantly prejudiced by early discharge?

(iii)    How genuine is the contemnor’s expression of contrition?

(iv)    Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?

(v)    In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?

(vi)    Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?

(vii)    What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s 258(2) of the Criminal Justice Act 2003?

(viii)    Are there any special factors which impinge upon the exercise of the discretion in one way or the other?

22.    I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested [in Enfield London Borough Council v Mahoney [1983] 1 WLR 749], probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always: see, for example, the Enfield case, cited above) be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v Grant [1923] SC 789, at 791:

‘The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity … for repentance before sentence is pronounced. The appeal is simply to the clemency of the court … and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, “I realise my transgression and apologise for it” – however sincerely such an apology may be made.’

I suggest that, subject to what I have said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion. (emphasis in original)

15    In essence, the contemnor put forward seven reasons, based on his evidence, why he contended that it is appropriate to make an order discharging him from serving the balance of his term of imprisonment. First, there has been a significant change in circumstances since his sentencing. As he noted, a significant factor in the exercise of the discretion that both I and the Full Court applied in sentencing him was his failure to co-operate with his trustee in bankruptcy for the previous almost six years. He had not filed a statement of affairs in all that time which indicated he was not a person who fulfilled or recognised his civic obligations. Since then, as the contemnor’s affidavit established, he has filed a statement of affairs and has been discharged from bankruptcy. His trustee issued a certificate recording the contemnor’s discharge from bankruptcy on 1 August 2017.

16    The contemnor also gave evidence that one factor contributing to his behaviour, leading to both the contempts and the impact of the custodial sentence on him, is his feeling of depression and anxiety that he believed had been triggered by, at least substantially, conduct of the applicants, Thunder Studios and Mr David, in this proceeding. The contemnor’s senior counsel accepted that there was no medical evidence of his depression. However, senior counsel referred to the report of a counsellor who had been seeing the contemnor intermittently, that was tendered at his sentencing hearing. That report indicated that, immediately before I sentenced him on 27 February 2017, he had a high level test score in the range of severe stress, anxiety and depression.

17    Secondly, the contemnor put that he had been transparent in his 2017 affidavit as to his financial circumstances. The contemnor tendered his tax returns that had been filed on his behalf. He explained his life circumstances, including the fact that since about 2008 he has not been employed. However, he said that he has given what he called “help” to his wider family, including his brothers, some or all of whom obviously care deeply for him, and received “help” from them in supporting him, his wife and children. That financial support included paying the rent of the contemnor’s family home and his children’s private school fees. The contemnor disclosed in his affidavit that he had requested to his brothers to assist him to end his bankruptcy and to make this application.

18    The contemnor said that his brothers have supported him for a number of years including through the series of steps of the contempt proceeding up to and including today. Indeed, his brother Abraham unconditionally undertook to pay into Court within three months of today $100,000 as security to meet the costs of the applicants in the contempt proceeding when agreed or taxed. It is common ground that his brothers spent a very large sum of money, totalling many hundreds of thousands of dollars, in the defence of the contempt proceeding and the prosecution of the appeal.

19    Thirdly, the contemnor apologised and expressed contrition in his 2017 affidavit. In his affidavit, the contemnor sought to regularise a number of matters that he perceived told against him in the sentencing processes. He also said that, since being incarcerated, he had had a lot of time to reflect on his actions and their consequences, not only for himself, his children and brothers, but also for the applicants and the Court. He said:

115.    I am very apologetic and remorseful for my actions that caused me to be in contempt of Court, and ultimately now incarcerated. I believed I was trying to comply, including acting on legal advice and it was never my intention to breach any orders made by the Honourable Court. However, I accept that I have, and I apologise to the Court and to the applicants.

116.    I apologise that I displayed words and images on vans that were visible on O’Connell St in Sydney on 18 and 22 November 2016, in breach of orders restraining me from doing so.

117.    I apologise that I retained, hired, engaged and directed people to cause the matter in paragraph 112 above to occur.

118.    I apologise that I caused posts to be published to Twitter (between 11 and 21 November 2016), which included words that I was restrained by the 11 November 2016 Orders from publishing, including emails that I had sent to Kate McClymont of the Sydney Morning Herald (and directing readers to www.kazalfamilystory.com in doing so), and that I failed to remove them.

119.    I apologise for:

(a)    sending the email to Rodric David on 28 October 2016 and then tweeting it the same day; and

(b)    sending the email to Walter MacCallum on 31 October 2016 and then tweeting it the same day.

120.    I also apologise for making public statements (being the matters outlined at paragraphs 112 to 115 above) from 31 October onwards which were found by this Court to be intended and calculated to influence the applicants generally and Rodric David in particular in the conduct of these proceedings and exposing him to risk of public prejudgment of the issues or merits of these proceedings. Whilst this was never my intention, I accept that the Court found it was, and I apologise to the Court, and to the applicants, for this.

121.    I now understand, upon reflection on my conduct and the findings of the Court, that my actions were wrong and were definitely not the best way to address the issues I felt needed to be addressed. I should not have sent the email to Walter MacCallum, made the social media posts, or arranged for the vans to be circulated or the posters to be published containing the material that they contained.

20    In addition, he offered to give several undertakings. He accepted that some of those undertakings reflected the orders made on 11 November 2016, some of which were the subject of the contempt charges, but said that he wished to offer them in the context that he now fully understood their nature. He also offered new undertakings that unless required for the purposes of the conduct of this proceeding, which he did not expect would occur, he would refrain permanently from having any direct contact with Mr David or his solicitor, Mr MacCallum, and was willing to undertake to the Court not to use Twitter or any other form of social media for any duration that the Court saw fit to impose. He added that it was his genuine intention, having reflected on it during his time in prison, to ensure that nothing like what had happened to him, in being found guilty and punished for contempt, ever happened again.

21    Fourthly, the contemnor explained that he had followed legal advice to comply with the 11 November orders, albeit he accepted the findings that, in fact, he had not complied with them. The contemnor explained in the 2017 affidavit that one statement that he had made in his 2016 affidavit was wrong. On one view this can be seen as giving rise to inconsistent evidence.

22    He swore, in par 3 of the 2016 affidavit, that, although he was not present in Court on 11 November 2016 when the 11 November orders, the subject of some of his convictions, were made by consent, he had instructed his then solicitor, Kiki Kyriacou, to consent to the Court making those orders on that date. He said that Mr Kyriacou subsequently communicated the orders to him at about 2.00pm and that he began acting on them to put them into effect by 4.00pm that day. He also said in the 2016 affidavit that the vans that Mr MacCallum observed on 18 and 22 November 2016, the subject of charge 3, were his responsibility and that he did not believe that the material on the vans contravened any order that the Court had made on 11 November 2016 adding, “I took particular care to try to not breach those orders”. He also swore that it was his intention that the words and images on the vans only referred to only David Singh and not Mr David.

23    The contemnor said in his 2017 affidavit, and in his oral evidence today, that on 10 November 2016, he had told Mr Kyriacou that he would not consent to any orders and would not do so unless the applicants also consented to similar orders not to publish material about him and his brothers. He deposed to a conversation with Mr Kyriacou in the 2017 affidavit, that he said had occurred when Mr Kyriacou phoned to tell him of the making of the orders at 2.00pm on 11 November 2016 in the following terms:

77.    Mr Kyriacou told me that I had to consent to the Orders and that he had done this on my behalf in Court that day. I was upset that the Orders were not imposed on both parties. For the reasons outlined above (under Dispute between Kazals and Rodric David and David Singh) I was of the view that Rodric David had been doing the same if not worse to me and my brothers. I had the following conversation with Mr Kyriacou, with words to the effect of:

Me:    Why did you consent? I did not want you to consent.

Mr Kyriacou:    It had to be done.

Me:    Are the Orders imposed on both parties?

Mr Kyriacou:    No.

78.    Regrettably, I did not depose to this conversation in my affidavit of 8 December 2016 filed in these proceedings, at a time when I was represented by Mr Kyriacou. I did not fully examine the draft of that affidavit when it was sworn. I had in fact instructed Mr Kyriacou to draft my affidavit to identify that I had not consented, and expected that the above conversation was in the affidavit. (emphasis added)

24    The contemnor said in cross-examination that he had overlooked the absence of the word “not” in par 3 of his 2016 affidavit. I asked him about his failure to notice, when he swore the 2016 affidavit, the absence of the conversation, or words to the effect of the conversation, that he now asserted in par 77 of the 2017 affidavit. The contemnor responded that he had also overlooked this omission but could not explain why he had not picked it up when he swore the 2016 affidavit.

25    His senior counsel pointed out that in this material the contemnor had sought to explain why he asserted that the 2016 affidavit was inaccurate. Senior counsel said that this material had to be adduced because the contemnor intended to rely, for other purposes in this application, on the different versions that he gave, in the 2017 affidavit, in the context of the contemnor’s corrections of the earlier errors. His senior counsel said that the contemnor wished to clarify that he had not intended to consent to the orders originally, albeit he accepted immediately what Mr Kyriacou told him on 11 November 2016, namely that he was bound by the orders and had to seek to obey them. The contemnor argued that his conduct of revealing now that he had been inaccurate in the 2016 affidavit demonstrated his sincere contrition and wish to be genuinely transparent with the Court in explaining his state of mind, behaviours and intention to comply with the Court’s orders.

26    The contemnor set out in his 2017 affidavit his attempts, as he put it, to comply with the Court’s orders. For example, he exhibited Mr Kyriacou’s email to him on 16 November 2016 in which Mr Kyriacou said that he had been shown photos of a van that, on both the driver’s and passenger’s doors, displayed the statement, “All involved will be exposed”, to which Mr Kyriacou added, “I would suggest that it be taken off”. The contemnor said that he had acted on Mr Kyriacou’s advice immediately afterwards. But when cross-examined, he admitted that one of the vans had been in the possession of one of his friends and that the statement had not been removed from it. Based on photographs that Mr MacCallum took of a van displaying the statement, “All involved to be exposed” on both 18 and 22 November 2016, I found that this van was in O’Connell Street, Sydney on both dates and I accepted Mr MacCallum’s evidence that the contemnor was present on 22 November 2016 when he (Mr MacCallum) photographed that van: Thunder Studios [2016] FCA 1598 at [33]-[38]. That conduct had been a part of the finding of contempt in respect of charge 3.

27    The contemnor’s senior counsel argued that the evidence and those findings were consistent with the account that the contemnor gave in the witness box of his having attempted to comply with the 11 November orders. He submitted that this was because he had removed the statement, “All involved will be exposed”, from the other vans than the one that remained in the possession of his uncontacted friend.

28    However, the contemnor’s new evidence did not explain why the van with the statement, that Mr Kyriacou had advised him be removed, was in the contemnor’s presence in O’Connell Street on 22 November 2016, as I found in Thunder Studios [2016] FCA 1598 at [38].

29    Fifthly, the contemnor said that he had been motivated to act as he did because, as at October 2016, he felt that his brothers and he had been defamed, bullied and discredited, and were suffering as a result of actions taken by Mr David and that those actions had caused both him and his brothers financial difficulties. The contemnor said that his and his brothers’ children had been bullied at school because of media articles about the family, and that, “I needed to respond in some way and had to put the Kazal’s side of the story forward. I had to do something to defend my family name and pride”. The contemnor said that when he saw his and his brothers’ names being used on websites for which he thought Mr David was responsible, he felt that he had to react.

30    He said he had suffered from depression and anxiety for the previous eight or more years and felt that that had “sent me over the edge”, leading to the offending conduct that he recognised in his 2017 affidavit. He said that, at the time of the offending, he did not appreciate that he was still a party to this proceeding, although he knew that it had been commenced against him in 2014. He considered that, after he had sent an email to Mr MacCallum and not heard anything subsequently, as a matter of formality, he was no longer, he thought, a party to this proceeding. He now realised that was wrong.

31    The contemnor said that he wrote his email dated 31 October 2016 to Mr MacCallum, the subject of the convictions on charges 8 and 9, out of frustration at being asked to give an undertaking to stop using the vans and pull down the website, when Mr MacCallum had not told his client (Mr David) to do the same or to offer similar undertakings. The contemnor added, “I did not intend to intimidate anyone and I regret the words I used in the email I sent to him.”

32    The contemnor promised that if he were discharged early, he would seek to take up the offer one of his brothers had made to employ him in a restaurant at a wage of $1,000 per week and would devote $400 a week to repaying or to paying to reduce his liability to the applicants for the costs of the contempt proceeding. But, he accepted that, obviously, it would take quite some time to meet this liability. He also referred to assistance that was to be provided, as he understood, by his brother Abraham, including what transpired to be the undertaking to pay $100,000 into Court by Abraham that I have noted above.

33    Sixthly, the contemnor’s senior counsel pointed out that in his 2017 affidavit the contemnor proffered several undertakings to the Court that he repeated today, which seek to both recognise the wrongful nature of his past conduct and to provide a genuine offer of future appropriate behaviour, conditioned by the contemnor’s knowledge of the consequence of his past breaches of the Court’s orders, and the punishment that he has received to date by serving his sentence.

34    The contemnor pointed to the strong subjective factors of the impact of his incarceration on himself and his immediate family. His mother, to whom he is close, is suffering from the initial stages of dementia. His incarceration has caused him to miss celebrating his 20th wedding anniversary, the 17th and 18th birthdays of his sons and that of his youngest six-year-old son, all of which has impacted on him emotionally, as has his separation from his family and his understanding of the impact of that separation on them.

35    Seventhly, the contemnor’s senior counsel urged that as things now stand, he has served two-thirds of the sentence imposed by the Full Court, and that a significant rehabilitative effect has occurred, so far as the contemnor’s behaviour and expected future behaviour is concerned. He argued also that the considerations to which the Full Court referred in their reasons, as to why a significant custodial sentence was called for in his case in respect of the contempts for which he was found guilty, at Kazal [2017] FCAFC 111 at [167]-[176], had now been substantively met. His senior counsel acknowledged that the sentence that the Full Court imposed had been appropriate. But, he contended that because the contemnor’s circumstances had changed in the ways in which the contemnor described, an order for discharge ought be made on the basis of considerations that Wilson LJ suggested were relevant in CJ [2010] 2 FLR at 1230-1231 [21].

36    The contemnor said that English was not his first language and that he had arrived in this country after his upbringing and schooling in Lebanon. During the course of cross-examination, senior counsel for the applicants questioned the contemnor about his answer “no” to question 16 in his statement of affairs, being:

Do you, or any member of your family, receive or expect to receive any benefit from any other person or entity? (include rent, low interest loans, payment of your expenses or children’s education)

37    The contemnor answered on a number of occasions that what he received from his brothers was “help”, not “a benefit”, and that as he understood the word “benefit”, it was something received in the form of a payment for services or the like, whereas, as I understood his evidence, “help” was in the nature of a gift.

38    As his senior counsel pointed out, a Court should be cautious to apply to a witness whose first language is not English, and whose cultural background is different to that of a person who was born and grew up in Australia, cultural or linguistic presuppositions that might be apposite in determining demeanour based findings about the witness’ evidence, as, indeed, Ipp JA noted in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 190 [20]-[22], citing what Sir Thomas Bingham had written in “The Judge as Juror: the Judicial Determination of Factual Issues” (1985) Current Legal Problems 1 at 10-11. I accept that submission as apposite to assessing the written and oral evidence of the contemnor about the description of the assistance that he had received from his family and how he understood question 16 in his statement of affairs. He said he filled his statement of affairs out or signed it while he was in jail during an interview with his solicitor. As his senior counsel put, there was no advantage to him in giving a deliberately false answer to question 16 in that form, since the contemnor’s object had been to procure his discharge from bankruptcy, and, in order to do so, it would have been necessary to have, first, completed a statement of affairs and, secondly, paid out all his debts in full, including the trustee’s fees, which I infer must have happened through the assistance of his brothers.

The relief issue – consideration

39    The question that arises is what is the appropriate approach to the application of r 42.22. There is a distinction between civil and criminal contempts that, although sometimes illusory or elusive, is nonetheless still relevant. The High Court recognised the distinction recently in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at 388 [40]-[41].

40    The proceeding for the contempts for which the contemnor was convicted arose in the civil jurisdiction of the Court, although, in my opinion, the four contempts that the Full Court affirmed and on which it sentenced the contemnor were criminal in nature. That is because, first, the convictions on charges 3 and 5 related to the contemnor’s past, once for all, breaches of the 11 November orders and the punishment imposed could not be seen as intended (or at least primarily intended) to enforce compliance with those orders. All of the contemnor’s offending conduct had ceased by the time that the charges were laid. In other words, those two charges and convictions were for past breaches of the 11 November orders on particular occasions that could not be undone. The Full Court upheld my finding that the contemnor’s conduct underpinning his convictions on charges 3 and 5 was both deliberate and a public defiance of the Court’s authority and, accordingly, contumacious (Kazal [2017] FCAFC 111 at [130]-[133]).

41    The contempts in charges 8 and 9 were even more serious. They recorded convictions based on the contemnor’s interference with the administration of justice (Kazal [2017] FCAFC 111 at [135]-[139]). Interference with the administration of justice is a criminal contempt. In Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333, Dixon CJ, Kitto and Taylor JJ said: “Contempt of court is a criminal offence punishable summarily by the Supreme Court”. But as Mason CJ, Wilson, Deane, Toohey and Gaudron JJ held in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89, in applying McRae 93 CLR 325:

Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.

42    Moreover, Gibbs CJ, Mason, Wilson and Deane JJ said in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106:

Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as “civil contempt”; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as “criminal contempt”: Fox, History of Contempt of Court (1927), p. 1. As Lord Diplock said in Attorney-General v. Leveller Magazine Ltd [[1979] AC 440, at p 449], criminal contempts “ … all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process”. (emphasis added)

43    Their Honours commented on the “unsatisfactory nature” of the distinction between civil and criminal contempt (161 CLR at 107) and continued (161 CLR at 108):

… disobedience to an order which is wilful or contumacious amounts to criminal contempt: see [Australian Consolidated Press Ltd v ] Morgan [(1965) 112 CLR 483], per Barwick CJ [(at 489)], per Windeyer J [(at 499-500)]. The point in these cases is that wilful disobedience to a court’s order, especially if it occurs in circumstances where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt: Tony Poje v. Attorney-General (British Columbia) [[1953] 2 DLR 785]; Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd [[1964] Ch 195]; Jennison v. Baker [[1972] 2 QB 52].

…

very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other. … The concept that disobedience to an order becomes criminal when the primary purpose of exercising the power changes from vindication of the rights of the plaintiff to vindication of the authority of the court is both complex and artificial. ... when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is vindication of the court’s authority. (emphasis added)

44    The convictions on charges 3 and 5 were in respect of contumacious breaches of the 11 November orders and are clearly in the class of criminal contempt by reason of the contemnor’s wilful, public and defiant disobedience to those orders. The convictions on charges 8 and 9, for interference with the administration of justice, are also substantively criminal contempts. His convictions in respect of both of those categories of charge are different to categories of civil contempts in which the applicant or plaintiff seeks merely to have the orders of the Court enforced. That is why the punishment which the Full Court (and I) considered to be necessary and appropriate involved significant elements of both specific and general deterrence that required substantial custodial sentences. That punishment was necessary, among other reasons, because of the seriousness of the contempts themselves and the importance, in the circumstances, of deterring other members of the contemnor’s immediate and extended family, his friends, and others who had helped him, with, for example, the vans, from engaging in similar behaviour in the future.

45    As Logan J found in Chaste 235 FCR at 575-576 [39]-[40], the decision of their Lordships in CJ [2010] 2 FLR 1224 was helpful in identifying matters relevant to the exercise of the discretion in r 42.22. The learned authors of Arlidge, Eady & Smith on Contempt (5th ed) Sweet & Maxwell, London, 2017 at [14-33]-[14-34] discussed r 83.31(1) of the Civil Procedure Rules 1998 (UK), being an analogue of r 42.22. They suggested that as a result of CJ [2010] 2 FLR 1224, the court did not have an unfettered discretion in considering an application for discharge under the English rule and opined that the court “is looking at new factors, albeit that these may affect what is to be considered as necessary and proportionate”. Earlier, however, at [3-195], they said that while, generally, the court would look for a change of circumstances to justify early release, that was not always necessary.

46    As I have explained above, the subject matter, scope and purpose of r 42.22, in the context of the Rules as a whole and the inherent power of the Court, as a superior court of record, govern the matters that may or may not be taken into account on an application for early release under r 42.22. Indeed, I am of opinion that the separate judgments of each of Wilson, Aikens and Sedley LJJ in CJ [2010] 2 FLR 1224 show that each Lord Justice approached the exercise of the discretion by evaluating, non-exhaustively, what factors might justify a departure from the continuing operation of a court order that had determined on a final basis the punishment, by way of imprisonment, that was necessary and appropriate in the earlier factual circumstances applying at the time of sentencing. That was a case in which the sentences had a protective purpose to prevent the prisoner breaching, in the future, orders not to contact his children in order to prevent him committing abuses of them in breach of the orders as he had in the past. It was not a case, like this, of criminal contempt.

47    Their Lordships approached the proceeding as a case of civil contempt. They noted that committal of a person to custody for a civil contempt could occur for two reasons; first, to punish the contemnor for disobedience or secondly, either to coerce him or her into complying with an order or to protect against the likelihood that he or she would commit further breaches of an order in the future, in addition to being punished for a past breach (CJ [2010] 2 FLR at 1230 [20] per Wilson LJ, at 1232 [26] per Aikens LJ and at 1233 [32] per Sedley LJ).

48    Aikens LJ (at 1232-1233 [28]-[29]) identified two broad questions. First, whether the contemnor had demonstrated that he or she had now received sufficient punishment for his or her breach of the court’s order. That involved examining whether he or she accepted his or her guilt and was genuinely sorry for the conduct. If not, Aikens LJ said, it was difficult to see how the court’s power to consider discharging the remaining custodial sentence could be exercised. Secondly, if the first question were answered affirmatively, the court had then to consider “will the interests of justice be best served in permitting his [or her] early discharge?”. That question required the Court weighing a variety of considerations, such as in Wilson LJ’s list.

49    Sedley LJ noted the distinction for civil contempts between breaches of prohibitory orders and mandatory orders (at 1233 [32]). He said that:

while compliance with a mandatory order may be the kind of proof of contrition which a court can evaluate, contrition sufficient to purge a breach of a prohibitory order is much more elusive and, many people might think, not really the business of the courts. Their task is completed, subject to any appeal, at the moment of sentence. (emphasis added)

50    His Lordship’s remarks echoed those of the Lord President, Lord Clyde in Johnson v Grant 1923 SC 789 at 791 that Wilson LJ had quoted at CJ [2010] 2 FLR at 1231 [22] (see also Swindon Borough Council v Webb [2016] 1 WLR 3301 at 3317-3318 [37] per Tomlinson LJ, with whom Lewison LJ agreed). Sedley LJ, while accepting the general utility of Wilson LJ’s questions, like both Wilson and Aikens LJJ, cautioned against using them prescriptively ([2010] 2 FLR at 1234 [36]). He concluded that an application under an analogue of r 42.22 required the contemnor to advance a reason for his or her early discharge ([2010] 2 FLR at 1234 [37]).

51    In my opinion, it is important to bear in mind on an application under r 42.22 that one purpose of imprisonment for a criminal contempt involving public defiance is to bring about, if possible, the rehabilitation of the offender. Generally, sentencing for criminal conduct has three broad purposes, namely, specific deterrence in the form of punishment of the offender, general deterrence to convey to the public the seriousness of the offending conduct and rehabilitation of the offender. Here, the insight which the contemnor has gained into the behaviour that he engaged in, leading to his convictions and sentence, is part of his rehabilitation, which can be expected as an incident of the overall punishment that the Full Court considered was appropriate to impose on him.

52    I have weighed the evidence that the contemnor has given about his current state of mind very carefully. I accept that he has now come to appreciate that what he did that led him to be sentenced and imprisoned was wrong and unacceptable, and that he appears to have learnt his lesson from it. I have found it difficult to weigh all of his evidence as favourably to him as he would like, notwithstanding the considerations that I referred to earlier about his use of language and his cultural background.

53    I am of opinion that on an application under r 42.22 the contemnor must satisfy the Court that, first, there is a reason for discharging him or her early, and, secondly, that it is in the interests of justice to do so.

54    The four contempts for which the Full Court sentenced the contemnor were of the most serious kind as Besanko, Wigney and Bromwich JJ recognised in their reasons. The convictions involved not just the contemnor’s public defiance of the Court’s orders for a period of time, but also his interferences in the administration of justice by the public intimidation of both a party and his solicitor. In substance, the contemnor’s conduct amounted to several acts of public defiance, over a total period exceeding three weeks, of the authority of the Court as the institution in our society with the power to resolve disputes between citizens and others in the community.

55    The contemnor was unable to explain in his affidavits and oral evidence, how, had he been assiduous in seeking to comply with the Court’s orders, the very statement that his solicitor (Mr Kyriacou) had told him ought be removed from the vans remained on at least one of them on both 18 and 22 November 2016. In my opinion, it was no answer to say, as the contemnor did, that his friend had been out of contact, and “I couldn’t get in touch with him to remove it” and “I did my best to remove all of them. If I missed … it’s not like I … done it on purpose”. The 11 November orders prohibited the very conduct that the contemnor engaged in on 18 and 22 November 2016, and on the latter occasion he was present and could see the words displayed on all the vans, including the one with the statement the subject of his solicitor’s advice.

56    I am not satisfied by the contemnor’s evidence that he made a serious attempt to comply with the 11 November orders. At least one of the vans, with a statement that he knew should not have been displayed, appeared publicly on two occasions after he received his solicitor’s advice. Moreover, as the Full Court found, affirming my findings, the public invitation displayed on all the vans, to visit the website to “read the full story”, was calculated to ensure that anyone who acted on the invitation would read the very matters that the 11 November orders had prohibited the contemnor from publishing.

57    As the Full Court recognised (at [174]), and as I do too, the original sentences that I passed were undoubtedly stern and perhaps at the higher end of the range that might have applied in the past. But their Honours imposed similar condign sentences for the four convictions of contempts that they upheld. The appeal had been argued on 6 April 2017 and judgment was delivered on 31 July 2017. Even up to the time of the Full Court’s decision not only had the contemnor not expressed contrition or remorse, but his conduct of the litigation before me and on appeal indicated that his only regret was having been found guilty.

58    I accept that his evidence today and in his 2017 affidavit suggests that he has had a significant revision of that state of mind. But this is the very kind of revision of attitude or rehabilitation that can be expected after most sentences for a criminal offence or criminal contempt. One purpose of sentencing is bring about in an offender or contemnor, a recognition that the conduct for which he or she has been convicted and sentenced was wrong.

59    The difficulty with evaluating the contemnor’s expressions of contrition is that exemplified in the reasons of Lord Clyde in Johnson 1923 SC at 791 and Sedley LJ in CJ [2010] 2 FLR at 1233 [32] that I have set out above (at [49]-[50]). Even accepting that these are sincere statements by the contemnor, they come in a context where, as I found and the Full Court upheld, he wilfully and deliberately committed very serious contempts, for which he is now serving his sentence. He had been represented throughout the contempt proceeding before me and on appeal, by competent senior and junior counsel and solicitors but never expressed his contrition at a time when a sentencing Court could take that into account.

60    In addition, I am not satisfied by the contemnor’s evidence that he did not consent to the orders before they were made, as he swore in his 2017 affidavit. His silence throughout the contempt proceeding when it was originally before me on that topic, was one of the factors that led me to be satisfied beyond reasonable doubt that he knew of and consented to the 11 November orders at the time they were pronounced in open court by consent (Thunder Studios [2016] FCA 1598 at [24]), and breached them thereafter. It may have been relevant to the exercise of my power (and that of the Full Court) to sentence and the discretion to deal with him at that time had the contemnor consented to the making of those orders as he now asserts. But I do not accept that his solicitor agreed to them contrary to his instructions. Yet not only did the contemnor say nothing then, but when he had new solicitors acting for him in the appeal, that point was also not raised, although it may have been very difficult to do so at that stage.

61    The contemnor’s motive for leading this evidence on this application was his wish to correct his earlier 2016 affidavit. I accept that raising the issue consciously was, in one sense, not in his interests because it suggested that he had sworn an incorrect affidavit. I also accept that he wanted to clear up what he thought might be a false impression. However, I consider that his preparedness to swear an affidavit (the 2016 affidavit) that contained a false statement leads me now to feel unpersuaded by his other evidence to the degree I would need to be to grant his application.

62    The question then becomes why is it in the interests of justice that I exercise the power to discharge him?

63    I have carefully considered the contemnor’s written and oral evidence as a whole and the submissions that have been made for him through his senior counsel, including the undertaking offered by his brother and the clear love and support that his family has for him, the contemnor’s expressions of contrition and all his other evidence on this application. The contemnor has shown definite signs of engaging in his own rehabilitation, his acceptance of the authority of the Court and of the rule of law as the way to resolve disputes.

64    However, I do not feel persuaded that it is in the interests of justice to discharge him before the end of the term of his imprisonment. While I accept that the contemnor is likely in the future to abide by the undertakings that he has offered, and that this reflects a reformation of his conduct and behaviour towards the applicants and the authority of the Court, I do not think that that conduct and his other evidence is sufficiently persuasive to warrant what is, in effect, a remission of a sentence imposed for the purposes and the reasons that the Full Court gave.

Conclusion

65    For these reasons the interlocutory application filed on 27 October 2017 must be dismissed with costs.

Associate:

Dated:    2 February 2018