Ali v Collection Point Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 993 of 2010

AND: COLLECTION POINT PTY LTD (ACN 079 904 984)

JUDGE: GRAY J DATE: 1 FEBRUARY 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By notice of appeal filed on 19 November 2010, the appellant has appealed from a judgment of a single judge of the Court in Ali v Collection Point Pty Ltd, in the matter of Collection Point Pty Ltd (No 3) [2010] FCA 1176, whereby he was fined for contempt of court in failing to comply with an injunction previously granted. The injunction was granted in proceeding number VID 808 of 2009, in which the appellant was plaintiff and Collection Point Pty Ltd was defendant. The proceeding was brought pursuant to the Corporations Act 2001 (Cth), in respect of the defendant. In the course of that proceeding, injunctions were granted against the appellant, requiring him to destroy certain computer records which contained data files of ZacXan Pty Ltd and T Bulzomi Financial and Legal Services, a business name of a business conducted by Antonio Bulzomi. 2 Evidence emerged subsequently that the computer records had not been destroyed. On 15 September 2010, ZacXan Pty Ltd and Mr Bulzomi filed a notice of motion in the proceeding at first instance, and an accompanying statement of charge, seeking to punish the appellant for his contempt of court in failing to comply with the injunction. It should be noted that ZacXan Pty Ltd and Mr Bulzomi were not parties to the proceeding at first instance. Subsequently, as between the plaintiff and the defendant, that proceeding was settled. The hearing of the notice of motion proceeded, on an amended statement of charge, before the primary judge. On 18 October 2010, her Honour delivered judgment, in which she found that the appellant was in contempt of court. 3 Her Honour then adjourned the further hearing of the notice of motion until a later date, in order to permit the consideration of further evidence and submissions as to the appropriate penalty. On 29 October 2010, her Honour delivered a further judgment in which she made orders declaring that the appellant was in contempt by failing to destroy a computer disk containing the data files in question, and ordering him to pay a fine of $20,000 and to pay the costs of ZacXan Pty Ltd and Mr Bulzomi of the notice of motion dated 15 September 2010. The two judgments of her Honour are published respectively as Ali v Collection Point Pty Ltd, in the matter of Collection Point Pty Ltd (No. 2) [2010] FCA 1125 and Ali v Collection Point Pty Ltd, in the matter of Collection Point Pty Ltd (No. 3) [2010] FCA 1176. 4 In the notice of appeal filed on 19 November 2010, the appellant named only Collection Point Pty Ltd as the respondent to the appeal. On 10 December 2010, ZacXan Pty Ltd and Mr Bulzomi filed a purported notice of cross-appeal. They seek to appeal on the grounds that the penalty imposed on the appellant was manifestly inadequate, because it did not require the appellant to pay their costs on an indemnity basis, or for other reasons, and that the failure to order costs on an indemnity basis was an error in the exercise of the primary judge's discretion. The question agitated by a subsequent notice of motion, filed in the appeal on 21 December 2010, is whether the position of ZacXan Pty Ltd and Mr Bulzomi as respondents to the appeal can be regularised, and whether their filing of a notice of cross-appeal can be regularised. 5 In the first place, it is clear that the real parties against whom the appeal is brought are ZacXan Pty Ltd and Mr Bulzomi. Because of the settlement of the primary proceeding, the original defendant, Collection Point Pty Ltd, had no involvement in the contempt proceeding and has no involvement in the appeal. There is no doubt that the primary judge permitted the bringing of the contempt application by ZacXan Pty Ltd and Mr Bulzomi. It appears that there was no objection taken to that course, and that the actual capacity in which the motion was brought was not explored in full. 6 There is some authority to the effect that someone not a party to a proceeding has the capacity to make an application for punishment for contempt of court. See, for instance, R v Dunbabin (1935) 53 CLR 434. That case was a case of alleged scandalising of the High Court. It is easy to see how a contempt of that nature might be regarded as different from a contempt by failing to comply with an order of the Court. On the other hand, the fact that the computer records that were ordered to be destroyed, and were not destroyed, were those relating to ZacXan Pty Ltd and Mr Bulzomi clearly gave those parties an interest in having the Court's order carried out. Because there was no point taken at first instance, and no ground of appeal asserts that ZacXan Pty Ltd and Mr Bulzomi lacked standing to bring the contempt application at first instance, it appears to me to be appropriate to add those parties as respondents to the appeal and to make the necessary amendments to the title to the proceeding. 7 That course appears better than the alternative proposed in the notice of motion filed on 21 December 2010, which is to give leave to appeal to ZacXan Pty Ltd and Mr Bulzomi as non-parties, or leave to intervene in the appeal, again as non-parties. As I have said, the real interest that the appellant has is to contest the punishment imposed on him on the application of ZacXan Pty Ltd and Mr Bulzomi at first instance. They are the proper contradictors to the appeal on any view. To join them as respondents will give them that status. 8 The next question is whether the filing of the notice of cross-appeal should be regularised retrospectively. If ZacXan Pty Ltd and Bulzomi had been named as respondents in the notice of appeal originally, they would have had unquestionably a right to cross-appeal. The fact that I propose to join them as respondents also gives them that right without any leave. If they were simply to refile the notice of appeal, they would need an extension of the time limit by which they were required to do so. The simplest solution to the problem seems to be to order that the notice of cross-appeal, filed on 10 December 2010, be treated as having been filed validly. 9 Counsel for the appellant made some complaint about the notice of appeal, suggesting that ZacXan Pty Ltd and Mr Bulzomi do not have the necessary interest in the outcome to entitle them to appeal on the grounds they have relied on. It seems to me that arguments like that are proper to be left for the Full Court to determine on the hearing of the appeal. Accordingly, any order regularising the filing of the notice of cross-appeal should be expressed to be subject to any order that the Full Court might make. Otherwise it is only necessary to make standard orders of the kind ordinarily made on a callover of appeals. The orders I make are as follows:

1. ZacXan Pty Ltd, ACN 116 472 710, be added as the second respondent to the proceeding, Antonio Bulzomi be added as the third respondent to the proceeding, and the title to the proceeding be amended accordingly.
2. Subject to any order of the Full Court, the notice of cross-appeal filed on 10 December 2010 be treated as having been filed validly.
3. The appeal be listed for hearing in the Full Court and appellate sittings of the Court in Melbourne, commencing on 2 May 2011.
4. The hearing be listed for an estimate of one and a half days.
5. Unless otherwise ordered, the following timetable for the filing of outlines of submissions and part C of the appeal book shall be in accordance with practice note APP2.
6. No later than 4.00 pm, 20 clear working days before the hearing of the appeal, the appellant must file and serve a copy of his outline of submissions on the second and third respondents.
7. No later than 4.00 pm, 15 clear working days before the hearing of the appeal, the second and third respondents must file and serve a copy of their outline of submissions on the appellant, together with a list of materials they require to be included in part C of the appeal book.
8. No later than 4.00 pm, 10 clear working days before the hearing of the appeal, the appellant must file and serve a copy of any submissions in reply on the second and third respondents.
9. No later than 4.00 pm, five clear working days before the hearing of the appeal, the appellant must file and serve part C of the appeal book on the second and third respondents, and file four copies of part C. The appellant must also prepare an appropriate number of copies for service on the second and third respondents.
10. Outlines of submissions not exceed 10 pages in length, including any annexures.
11. Each party file and serve a list of authorities and legislation in accordance with practice note CM2.
12. By consent, the costs of the notice of motion, filed on 21 December 2010, be costs in the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.