FEDERAL COURT OF AUSTRALIA

Thunder Studios Inc (California) v Kazal (No 7) [2018] FCA 996

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ application for recusal filed 6 June 2018 be dismissed.

2.    The respondents/cross-claimants file and serve any written submissions (limited to five pages) upon which they propose to rely in support of their interlocutory application to amend the cross claim, on or before 22 June 2018.

3.    The applicant/cross-respondents file and serve any written submissions (limited to five pages) and evidence upon which they propose to rely in opposition to the interlocutory application to amend the cross claim, on or before 6 July 2018.

4.    The applicants/cross-respondents file and serve any expert reports upon which they propose to rely on their claim, on or before 6 July 2018.

5.    The interlocutory applications of each of the parties be stood over to 10 August 2018 for hearing.

6.    The respondents/cross-claimants pay the costs of today, including the costs thrown away by reason of the applicants not being able to proceed on their interlocutory application.

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    Charif and Adam Kazal, the respondents, have applied by interlocutory application dated 5 June 2018 that I recuse myself from further hearing the proceeding. This proceeding has had a long history, and has been in my docket for over two and a half years.

2    The basis on which the application is made is that in the course of the past 18 months:

    I convicted Adam on six counts of contempt: Thunder Studios Inc (California) v Kazal [2016] FCA 1598, and subsequently sentenced him to a total of 18 months imprisonment: Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202;

    I refused to allow Adam to file a defence nearly two and a half years out of time while he was in contempt: Thunder Studios Inc (California) v Kazal (No 3) [2017] FCA 1170;

    I refused to extend the time in which Charif could comply with, and to set aside, a springing order that operated on his failure to file and serve verified answers to interrogatories on 15 September 2017 with the consequence that his defence was then struck out: Thunder Studios Inc (California) v Kazal (No 5) [2017] FCA 1572; and

    I dismissed Adam’s application under r 42.22 of the Federal Court Rules 2011 that he be discharged before the end of the prison term imposed by the Full Court, after it had allowed an appeal from convictions on two of the six counts of contempt that I had found and it resentenced him to a total term of 15 months on the remaining four counts in respect of which the Full Court upheld the convictions I had entered: see Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 and Thunder Studios Inc (California) v Kazal (No 6) [2017] FCA 1573.

3    On 26 April 2018, Bromwich J refused Charif’s application for leave to appeal from my decision not to allow his defence to be reinstated: Kazal v Thunder Studios Inc (California) [2018] FCA 593.

The submissions in support of recusal

4    As refined in the course of argument, counsel for Charif and Adam said that, essentially, the fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the balance of the case, and in particular, to circumstances on which I would have to exercise judicial discretions. That was because of the cumulative impression that my reasons and decisions in the four instances to which I have referred were capable of creating in the mind of a fair-minded lay observer. He suggested that that observer reasonably might apprehend that I had been provoked to a sense of indignation about past conduct of each of Charif and Adam that might carry through to future situations in which I might have to exercise a discretion as to the conduct of their cases or in deciding what remains in the substantive cases.

5    Importantly, Charif and Adam stated that there was nothing that I had said to give rise to any apprehension of bias in the course of deciding to dismiss Adam’s application to be discharged from his imprisonment prior to the expiry of the term fixed by the Full Court, other than my ultimate decision to dismiss that application (Thunder Studios (No 6) [2017] FCA 1573).

6    They argued that the Full Court set aside two of the convictions that I entered in respect of Adam’s failure to take down a video from the internet. I had convicted him on the basis that he had consented to an order that he would do so. The Full Court found that I erred because there was an explanation consistent with innocence for that conduct even though, as Charif’s and Adam’s submissions on this application recorded, the Full Court said that explanation was “morally discreditable”: Kazal [2017] FCAFC 111 at [67] per Besanko, Wigney and Bromwich JJ. They also argued that the Full Court observed that the sentences I had passed on Adam were undoubtedly very stern and perhaps at the higher end of the range that might have been applied in the past. They argued that, while the Full Court had made those observations:

… in the course of upholding the exercise of your Honour’s discretion and only reduced the sentences passed to take account of the two offences on which the convictions were quashed, it is submitted that the hypothetical observer, not being a lawyer and not being inhibited by the considerations that led the Full Court to reject the comparison material sought to be relied upon at the appeal, would be quite surprised, even shocked, at the total sentence imposed in comparison to that imposed on other offenders, however legally unsound that comparison might be.

7    They contended that when I refused Charif’s application to restore his defence and allow his answers to interrogatories to be filed out of time, the hypothetical observer, similarly, might be surprised by the result and might agree with the observation I made that the result was harsh: Thunder Studios (No 5) [2017] FCA 1572 at [61]. They submitted that the fair-minded lay observer might reason that, first, Charif’s lawyers had not finalised the answers until minutes before the deadline set by the Court of 15 September 2017 and that copies of those unverified answers in final form had been provided to the applicants’ solicitors less than an hour after Charif had finalised them in New York on that day.

8    Secondly, in light of the email and other evidence of communications between Charif and his lawyers, they argued that he was keen to seek to comply with the order that his answers to interrogatories be filed and served on or before 15 September 2017 and submitted that:

[i]n those circumstances, the observer might regard it as quite reasonable that [Charif] had gone to bed by 2 am and that “unavailable to verify” might have referred to this circumstance; that is, that being overseas and unable to verify had been two statements, rather than being cause and effect, especially as English is [not] Charif’s first language.

In that context, they argued that the fair-minded lay observer would have noted that in my reasons I had found that Charif “never intended to” verify his answers and:

chose to wait, as I infer he always intended, until it suited him to verify his answers after his subsequent return to Australia.

9    They pointed to my choice of language when I referred to Charif’s “wilful and deliberate flouting of the Court’s orders” and his “lack of commitment to his duty to comply with his obligations” under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Their submissions accepted that, subsequently, Bromwich J had refused Charif leave to appeal (Kazal [2018] FCA 593) but they reasoned that the hypothetical lay observer was less careful in his or her analysis.

10    Charif and Adam argued that the cumulative effect of my four decisions in the previous 18 months have had serious and detrimental consequences for each of them in these proceedings and that these factors might lead the hypothetical lay observer, who lacked a lawyer’s understanding of the attributes of a trained, professional judge:

to wonder whether your Honour might be harbouring strong feelings of indignation towards the Respondents such that you might not be able to bring an open and impartial mind to the determination of the remaining issues in this case.

11    The applicants took a neutral stance in relation to the application.

Consideration

12    In Johnson v Johnson (2000) 201 CLR 488 at 492 [11], Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:

the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide (eg, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v NSW Bar Association (1983) 151 CLR 288; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41).

13    Their Honours said that the fictional observer is not to be assumed to have a detailed knowledge of the law or of the character or ability of a particular judge. Rather, they said that (201 CLR at 493 [13]):

the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (emphasis added)

14    In Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344–345 [6]-[8], Gleeson CJ, McHugh, Gummow and Hayne JJ explained how the test worked. They said that its underlying rationale was to give effect to the principle that justice should both be done and be seen to be done. That reflects the fundamental importance that the tribunal, or judge, be independent and impartial. Hence, they pointed out, that even the appearance of a departure from the rule that the tribunal, or judge, be independent and impartial is prohibited:

lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. (italic emphasis in original, bold emphasis added)

15    In Zhai v Luo [2015] FCAFC 144 at [20], Rares, McKerracher and Gleeson JJ said:

A reasonable apprehension of bias will exist if the fair-minded lay observer might reasonably consider, as a real possibility, that the judge might be so committed to a conclusion already formed that he or she is incapable of altering it, whatever evidence or arguments may be presented: Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25]-[29] per Kenny, Tracey and Middleton JJ. And as their Honours added ([2010] FCAFC 111 at [32]), “disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”. (emphasis added)

16    In the present circumstances, the fair-minded lay observer would be aware that in reaching the conclusions to which I came in the judgments on which Charif and Adam rely, I did not decide all issues in those matters rigidly against them. For example, in the course of my judgment finding Adam guilty of contempt (Thunder Studios [2016] FCA 1598), I ultimately found him not guilty of three charges, as well as not guilty in respect of part of charge 7 – see order 1(a) made on 27 February 2017: Thunder Studios (No 2) [2017] FCA 202.

17    In my opinion, the fair-minded lay observer would have at least understood from that that I was prepared to, and did, acquit where the evidence against Adam did not establish guilt beyond reasonable doubt. Notwithstanding that, of course, the fair-minded lay observer would be aware that the Full Court allowed an appeal against two other convictions that I recorded against Adam on the basis that I had erred in failing to find that the evidence left open a possibility that was consistent with innocence.

18    Nonetheless, when resentencing Adam, after setting aside those two convictions, and sentencing him in light of the whole of the remaining conduct reflected in the four affirmed convictions, the Full Court placed some weight on my conclusions as to the quality of Adam’s conduct. They imposed new sentences in a fresh and independent exercise of their sentencing discretions for each charge: Kazal [2017] FCAFC 111 at [174]. They held that the two charges on which they had allowed Adam’s appeal comprised a relatively small part of the overall case and that he had succeeded in reversing his convictions on those counts “because it could not be proved that his consent was not falsely given, such that the possibility could not be excluded that he did not in fact have that control and thus that capacity” to take down the videos: see Kazal [2017] FCAFC 111 at [196].

19    Given that the Full Court upheld the convictions on the other counts and imposed sentences that reflected a similar view of the gravity of the offending conduct that I had expressed, I am of opinion that the fair-minded lay observer might not reasonably apprehend that I might not bring an impartial mind to the resolution of any future question. Moreover, Adam did not give evidence in the contempt proceedings and the convictions (so far as they survived appeal) were arrived at on other, basically objective, evidence beyond reasonable doubt. And as I have said, I found him not guilty on a number of the counts, indicating to the fair-minded lay observer that I was not prepared to convict him regardless of the evidence.

20    Finally, when Adam applied to be discharged before the end of his prison term, he did so in circumstances conscious that he was asking me to hear that application a week after I had given ex tempore reasons for dismissing Charif’s application to restore his defence (Thunder Studios (No 5) [2017] FCA 1572). As I recorded in my reasons dealing with Adam’s application for release (Thunder Studios (No 6) [2017] FCA 1573 at [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.

21    Adam consciously made no application that I ought not hear his application by reason of my having been the judge who had convicted and sentenced him for contempt, subsequently had refused his application to file a defence out of time and had also refused his brother’s application to restore his struck out defence. And, counsel for Charif and Adam put to me today when I inquired, there was nothing in what I said or did in the reasons or the conduct of the hearing on 15 December 2017 in which I decided not to grant Adam’s application for discharge before the end of his prison term, that he pointed to as indicating any ground giving rise to an apprehension of bias.

22    Moreover, on that application I considered Adam’s written and oral evidence before me. I made some findings against him and some in his favour, in the course of expressing my reasons for the view to which I ultimately came, which was (Thunder Studios (No 6) [2017] FCA 1573 at [63]-[64]):

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.

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. (emphasis added)

23    The principal focus of the argument for my recusal appears to centre on the way in which I expressed my reasons for rejecting Charif’s application filed in Court on 4 December 2017. He had sought an order to extend the time for him to comply with the order made on 7 September 2017 that caused his defence to be struck out for his failure to file and serve his verified answers to interrogatories on or before 4pm on 15 September 2017: Thunder Studios (No 5) [2017] FCA 1572 at [2]. In the hearing of that application on 8 December 2017, I raised a concern that an affidavit Charif had sworn, but on which he was not cross-examined, had not given a sufficient explanation as to how he came not to have filed verified answers until after his return to Australia on 21 September 2017. As I said in Thunder Studios (No 5) [2017] FCA 1572 at [35]-[36]:

Charif’s evidence explaining his breach of order 4 was simply that, although he knew of the order to verify and file the answers by 15 September 2017, on that day:

I was still in the United States … out of the country and unavailable to verify the Answers.

That evidence was not correct. He would have been able to verify the answers, had he made arrangements in New York to do so. He chose not to make any arrangements there either in advance of the time specified in order 4 or later. It is not an explanation of his default for him to assert that, by the time he and his lawyers finalised the drafting of his answers, it was in the early morning, around 2.00am, in New York, which he knew was about 4.00pm on 15 September 2017 in Sydney. Both Charif and his lawyers knew that his answers had to be verified and filed by that time. (emphasis added)

24    I made findings against Charif, that Charif and Adam have characterised, not unfairly in the present application, as unfavourable to Charif, including that he had engaged in “wilful and deliberate flouting of the the Court’s orders”, that had the result that my decision (Thunder Studios (No 5) [2017] FCA 1572 at [39]) was:

harsh on him in this litigation, for he has presently lost his defence to the current statement of claim. But he lost that defence because he did not intend to, and did not, comply with the order to verify his answers until it suited him on his subsequent return to Australia. Nothing prevented him from putting himself into the position to verify his answers with, if need be, his own amendments to the draft he then had in New York during 14 or early on 15 September 2017 New York time, or seeking to do so, after receiving the final version, later that day on 15 September 2017 after, perhaps, the time had passed in Sydney and then returning the verified answers promptly.

25    Importantly, the fair-minded lay observer would be aware of what I said (Thunder Studios (No 5) [2017] FCA 1572 at [46]-[47]), namely:

At the conclusion of the interlocutory hearing on 4 December 2017, I raised my concerns with counsel for Charif about the gaps in the evidence he had led, including the absence of any evidence about any steps that had been taken to arrange for Charif to verify his answers in New York at any time while he was there, knowing, as he did, of the self-executing order for the striking out of the defence if he did not comply with order 4 in time. I indicated that, on the material then before me, I was not minded to grant Charif relief but wished him to have the opportunity to provide any further evidence by 6 December 2017, so that I could consider it today. Charif left Australia for overseas on 6 December 2017 without providing any further evidence, although Mr Mitry did.

In the circumstances, I find that Charif made no arrangements or inquiries while he was in New York about how he could verify his answers while he was there (even after the time in order 4 had expired) and he did not intend to do so until it suited him after his return to Australia: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384-385 [62]-[64] per Heydon, Crennan and Bell JJ. (emphasis added)

26    The fair-minded lay observer would be aware that I had informed Charif or those acting for him in open court that I was concerned that the evidence he had led had left gaps and that there would be most likely a harsh consequence for him if those gaps remained as they were and if he did not address those concerns. In the event he did not address them.

27    Obviously, it is difficult for a judge asked to disqualify himself or herself to be able completely to put himself or herself into the position of a fair-minded lay observer assessing what reasonably might be garnered by others from the judge’s own remarks or conduct the subject of the application. But, as Gleeson CJ, McHugh, Gummow and Hayne JJ noted in Ebner 205 CLR at 345 [8], the apprehension of bias principle admits of the possibility of human frailty, and that its application is as diverse as human frailty.

28    In Re Morling; Ex parte Australasian Meat Industry Employees Union [1985] 66 ALR 608 at 611-612, Dawson J considered an application for a writ of prohibition against Morling J who was part-heard in a matter. His Honour had granted permanent injunctive relief against the union, and was continuing to hear the claim for damages that the applicant, Mudginberri Station Pty Ltd, had made in this Court. Dawson J had to consider whether Morling J was disqualified because he had found, that a person who was, in effect, the proprietor of Mudginberri Station, was a reliable witness when determining to grant the permanent injunction. Dawson J concluded that:

I am not persuaded that there is any foundation for supposing that Morling J, in expressing the conclusions which he did upon the evidence which was then before him, was demonstrating any incapacity to bring to the resolution of the question of damages an impartial or unprejudiced mind. The course which the proceedings before him took, and which apparently commended itself to the parties at the time, required him to reach separate conclusions in relation to the issue of injunctive relief and the issue of damages. This must have been obvious when that course was adopted. But having expressed his views regarding the evidence adduced upon the question of injunctive relief, there is no reason to suppose that, upon the question of responsibility of the union for any loss or damage suffered by the claimant and the extent of any such loss or damage, his Honour will not reach his conclusions in accordance with the evidence which, having regard to the course taken, may not be the same evidence as that upon which his Honour granted an injunction. …

The way in which the proceedings have been conducted carries with it the difficulty that the judge must reach conclusions at different stages upon evidence which may not be the same, but there is no reason to suppose that Morling J will be unable to approach the resolution of that difficulty in a fair and impartial manner. Whatever criticism might, and perhaps subsequently will, be made of the procedure, it does not provide the basis for any suspicion of lack of impartiality. It was, as I have already observed, a procedure adopted without objection from the union. (emphasis added)

29    Allsop CJ, Middleton and Katzmann JJ followed Dawson J’s approach in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 at [43].

30    In all the circumstances, having given anxious consideration to the submissions which Charif and Adam, through their counsel, have put respectfully and appropriately, I am not persuaded that I should recuse myself.

31    I am not able to see that the fair-minded lay observer might draw a logical connection between the four decisions which I made, or any one or more of them, and the fear that I might not deal with any future issues fairly and impartially: Ebner 205 CLR at 345 [8].

32    Indeed, I think it fair to say that, by accepting, indeed asking, that I should hear his application for discharge on 15 December 2017, Adam must have waived any objection to me hearing his case on the ground of an apprehension of bias up to that point. And, he has made no complaint or submission that the fair-minded lay observer reasonably might apprehend that I might not bring an impartial mind to his case, other than to refer to the objective fact of my ultimate refusal of his application that arose from that hearing. Of course, that conduct does not bind Charif, but, in Charif’s case, he applied for leave to appeal from the principal decision on which his argument for my recusal was based, which Bromwich J refused. His Honour said, Kazal [2018] FCA 593 at [19]:

Counsel was unable to explain how it was not open to the primary judge, on the totality of the evidence before his Honour, including the sparse and limited evidence from Mr Charif Kazal himself, to conclude that there was no intention to verify the answers while overseas, but rather, as had happened before, initially providing them as an unverified draft and verifying them only upon return to Australia. As the passage quoted from House v The King [(1936) 55 CLR 499 at 504-505] above at [12] makes clear, it is not enough that an appeal court might reach a different conclusion. In my opinion, the inference his Honour drew was fairly available to him. Indeed, even though it was not the only conclusion open, it was a reasonably compelling inference to draw on the available evidence. No arguable case for error has been demonstrated. (emphasis added)

33    His Honour then summarised at [20] other complaints about other asserted errors that Charif pointed to in supporting his application for leave to appeal saying that they:

do not rise above discontent with aspects of the reasons his Honour gave for the conclusion reached. No arguable case for establishing error has been demonstrated. (emphasis added)

34    In my opinion, a fair-minded lay observer would approach the assessment of whether I might bring, or be perceived to bring, an impartial mind to the future resolution of the issues that will arise in this case, having regard to the facts that, in all the circumstances, I arrived at the adverse conclusions in each of the four judgments complained of fairly and impartially, in light of an objectively appropriate assessment of the evidence, arguments, and legal and factual merits of each application, and for no other reason.

Conclusion

35    For those reasons, I am not persuaded that my decisions or conduct in the proceedings on which Charif and Adam rely have given rise to an apprehension of bias. I refuse their application.

Associate:

Dated:    29 June 2018