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[2011] FCA 995
Federal Court of Australia
2011-08-23
Mr J, Moore J, Jagot J
Original judgment source is linked above.
BACKGROUND 1 By the notice of motion before me today, the applicant on the motion, Barbara Cassidy, seeks orders that the cross-respondents in the principal proceeding, EdSonic Pty Ltd, EdSonic Australia Pty Ltd and Robin Patrick Lick, be found in contempt of orders made by Moore J on 12 November 2010 (the 12 November orders). Mr Mitchell of counsel appears on behalf of Mr Lick. The applicant has adduced her evidence and closed her case. Mr Mitchell, on behalf of Mr Lick, seeks summary dismissal of charges 1, 2 and 3 in the amended statement of charge filed 14 April 2011, which document I granted leave to the applicant this morning to amend so that wherever the date "16 November 2010" appears it should instead read "12 November 2010".
Charge 1 2 Charge 1 of the amended statement of charge reads as follows: In breach of paragraph 4 of the Orders made by Justice Moore on 12 November 2010 in this matter, between 12 November 2011 [sic] and 24 January 2011, the Third Cross Respondent in his capacity as director of Edsonic Publications Pty Ltd, infringed Cassidy's Copyright by promoting courses, including the infringed Cassidy material and Schedule A material, the subject of the judgment, on the websites www.edsonic.com.au and www.edsonicpublications.com.au. 3 As apparent from charge 1, the essential matter which is alleged is breach of order 4 of the 12 November orders. Order 4 is as follows: The cross-respondents (and each of them) whether by themselves, their servants, agents or otherwise be restrained from infringing Cassidy's copyright in the Cassidy Material and the Schedule A Material by reproducing or authorising the reproduction of the Cassidy Material and the Schedule A Material, or any substantial part thereof, without the licence of Cassidy. 4 Mr Mitchell of counsel submits that the applicant has not proved any case to answer by Mr Lick in relation to charge 1, with the consequence that it must be dismissed on a summary basis. Mr Mitchell accepts that, in determining whether this is so, I am required to take all of the evidence at its highest in favour of the applicant. Mr Mitchell submits that charge 1 is bad on its face as it does not specify any conduct of Mr Lick, or how that conduct is said to have breached order 4, which restrains conduct constituting "reproducing or authorising the reproduction of the Cassidy Material and the Schedule A Material, or any substantial part thereof." 5 In his written submissions, Mr Mitchell has pointed to various decisions which support the proposition that a person should not be punished for contempt unless the specific charge against that person is directly stated and an opportunity of answering it given to him or her: see Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 46 at 579-580, as well as O 40 r 6 of the Federal Court Rules as in force at the time the statement of charge was filed. Accordingly, as Mr Mitchell said, the "particular act, matter, or thing alleged as the foundation of the charge" must be made clear: Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 (Johnson v Miller) at 489 as applied in Ali v Collection Point Pty Ltd (2010) 274 ALR 618; [2010] FCA 1066 (Ali v Collection Point) at [16]. It is Mr Mitchell's submission that charge 1 falls foul of this fundamental requirement. 6 In any event, Mr Mitchell says there is no evidence which has been adduced capable, even if taken at its highest, of establishing any such breach as that alleged in charge 1. His reasons are as follows: (1) The Cassidy Material and the Schedule A Material, as referred to in order 4 of the 12 November orders, are not in evidence on this motion for contempt. (2) The restraint in order 4 is addressed to reproducing or authorising the reproduction of the defined material. (3) When regard is had to annexures BMC-1 and BMC-2 to Ms Cassidy's affidavit of 23 February 2011 and annexure BMC-8 to Ms Cassidy's affidavit of 14 April 2011 it is not proved in any way that these documents constitute or refer to the defined material. 7 In her oral evidence Ms Cassidy conceded that her affidavit identifies BMC-1 with an incorrect date - 20 December 2010 - whereas the correct date is August 2009. August 2009, however, is a date before the range specified in charge 1 (namely 12 November 2011 to 24 January 2011). Mr Mitchell also pointed out in this regard that although the first of these dates must be in error (that is, the reference to 12 November 2011 cannot be correct and should be inferred to be a reference to 12 November 2010), the August 2009 date in any event is before the date range set out in charge 1. It is true that charge 1, insofar as it refers to 12 November 2011, is meaningless and could not be answered. However, of itself, that would not be a sufficient reason to uphold the no case to answer submission because, had an application been made to amend the date 12 November 2011 to 12 November 2010, I would have acceded to that application for further amendment of the statement of charge. This said, the fact remains, as Mr Mitchell submits, that BMC-1 dates (on Ms Cassidy's own evidence) from August 2009. That is a date well before the date range specified in the charge. 8 BMC-8, on its face, refers to a date of 6 or 8 March 2011, which is also outside the charge period. 9 BMC-2 bears another date at the bottom of the page which is likely to be incorrect: that date is 21 December 2011, a date many months in the future. On the basis that I am required to take the evidence at its highest, and having regard to Ms Cassidy's evidence, I would accept that BMC-2 should be understood as having been brought into existence, at least in the sense of having been printed in some way, on 21 December 2010 rather than 21 December 2011. Again, however, as Mr Mitchell has submitted, BMC-2 is on its face a form of Christmas greeting. I am unable to see how anything set out on BMC-2 involved an act of reproduction or the authorisation of an act of reproduction at all, let alone an act of reproduction or authorisation of an act of reproduction of the Cassidy Material and/or the Schedule A Material. Furthermore, as Mr Mitchell submits, nothing in the evidence suggests a link between the existence of BMC-2 and Mr Lick having carried out such an act. 10 Otherwise, Mr Mitchell has drawn my attention to para 7 of Ms Cassidy's affidavit of 23 February 2011 which, as he has said, is evidence of conduct on 28 January 2011 - again, a date which is not only outside the date range specified in charge 1, but is also after the dates on which Mr Lick resigned as a director of both EdSonic Publications Pty Ltd and EdSonic Australia Pty Ltd. Again, para 7 does not prove any relevant conduct by Mr Lick. 11 Counsel for Ms Cassidy was given an opportunity to address these issues of concern, but I have not been taken to any material which in any way suggests to me that the submissions which Mr Mitchell put are factually incorrect. 12 As such, I am satisfied that charge 1 is bad on its face. It does not specify any conduct of Mr Lick, whether in his capacity as a director of EdSonic Publications Pty Ltd or otherwise, which is said to involve the reproduction or authorisation of the reproduction of the defined material. For that reason alone there is no case to answer on charge 1. In addition the evidence, even taken at its highest, is incapable of establishing any such act, not the least because the Cassidy Material and the Schedule A Material is not in evidence. Although the applicant applied for leave to reopen its case by calling Ms Cassidy to give evidence about her opinion as to what might constitute the Cassidy Material and the Schedule A Material, I rejected that application on the basis that Ms Cassidy's opinion could not prove the fact. Identification of the Cassidy Material and the Schedule A Material must be proved by other means and, ultimately, what constitutes the defined material and whether or not the evidence shows any reproduction or authorisation of the reproduction of that material would be facts for determination by the Court. The applicant made no further application for leave to reopen her case and, accordingly, the evidence is incapable of establishing any breach of order 4 of the 12 November orders as alleged in charge 1. 13 Charge 1 accordingly must be dismissed.
Charge 2 14 Charge 2 in the amended statement of charge filed 14 April 2011 is as follows: In breach of paragraph 5 of the Orders made by Justice Moore on 12 November 2010 the third cross respondent has represented in a creditor's report dated February 2011 that CAL is holding assets valued at $90000.00 for the third cross respondent, thereby representing himself to be the sole owner of the copyright in the materials for which money is allocated by CAL. 15 As is evident, the charge alleges a breach of order 5 of the 12 November orders. That order is as follows: The cross-respondents (and each of them) whether by themselves, their servants, agents or otherwise be restrained from representing that any of them, or any person other than Cassidy, is the owner of the copyright in the Cassidy Material and the Schedule A Material, or any substantial part thereof including in relation to any moneys allocated by Copyright Agency Limited (CAL) as a result of the reproduction or communication of the Cassidy Material and the Schedule A Material. 16 It is apparent from order 5 that the relevant restraint relates to the making of a representation that any person other than Ms Cassidy is the owner of the copyright in the Cassidy Material and the Schedule A Material including, at least on the most generous interpretation of order 5, a representation relating to ownership of moneys allocated by Copyright Agency Limited (CAL) as a result of the reproduction or communication of the Cassidy Material and the Schedule A Material. 17 As noted above in respect of charge 1, the Cassidy Material and the Schedule A Material is not in evidence. What is in evidence is a two-page extract from Mr Lick's Statement of Affairs. Each page is numbered 16 and is in question and answer format. The first question, question 41, is, "Have you been in business as a sole trader or in partnership at any time in the last 5 years?" On both pages, the answer is given as "yes". On the first page, the business name is said to be "Pattrupp Holdings Ltd (formerly EdSonic P/L)", and a certain business address and ABN are provided. On the second page, the business is said to be "Rumminn Holdings Ltd (formerly EdSonic Australia P/L)", and the same business address and a different ABN are listed. Under question 41H there is a sub-question, "Are there any other business assets not sold?" In each case, the answer given is "no". In a table thereunder there are three columns: type of asset, resale value and location of assets. Under the entry "royalties", the page for EdSonic Pty Ltd lists "resale value" as $20,000 and "location of assets" as "Copyright Agency Ltd". The "royalties" entry for EdSonic Australia Pty Ltd is listed as $80,000, with the location of the assets also listed as "Copyright Agency Ltd". A reference to royalties is also made in annexure BMC-6 to Ms Cassidy's affidavit of 23 February 2011. BMC-6 is an undated report to creditors of Chris Lin for the Official Receiver, and is the report referred to in charge 2. On the second page the report is a table setting out assets and liabilities of the separate estate of Robin Patrick Lick. Under "other items of value" there is a reference to royalties in the sums of $20,000 and $80,000 respectively. The submissions Mr Mitchell of counsel makes on behalf of Mr Lick are as follows: (1) There is no evidence that either of the ABNs listed on the two pages 16 of Mr Lick's Statement of Affairs relates to any business of Mr Lick as opposed to the entities nominated on each of those pages (namely, at least before their name changes, EdSonic Pty Ltd and EdSonic Australia Pty Ltd). (2) As a consequence of this the two documents, taken at their highest, may suggest that those corporate entities held royalties at CAL with a resale value of $20,000 and $80,000 respectively, but are incapable of supporting any inference that Mr Lick held those assets on his own behalf. In this regard Mr Mitchell notes that the essence of charge 2 is the making of a representation by Mr Lick that CAL is holding assets of a particular value for him, thereby representing himself to be the sole owner of the copyright in the defined materials. (3) There is no proof that these royalties held by CAL are in respect of the Cassidy Material or the Schedule A Material. (4) Insofar as the report to creditors is relied upon, it is written by Mr Chris Lin for the Official Receiver and, as such, may contain representations by that person but cannot be said to convey representations by Mr Lick. (5) Order 5 of the 12 November orders itself contains an ambiguity insofar as it uses the word "including". (6) The sum specified in the charge ($90,000) does not in any event match the sums in either the extract from the Statement of Affairs or the report to creditors. 18 Taking the evidence at its highest, I am not (at least in the context of a no case to answer submission) concerned by the discrepancy between the $90,000 referred to in charge 2 and the sums of $20,000 and $80,000 referred to in the balance of the evidence. For present purposes I will assume that, as has been put to me by counsel for Ms Cassidy, this is an error and the charge could be rectified. However, even on that assumption, the other defects to which Mr Mitchell refers are valid and cannot simply be dismissed. 19 It is not to the point that the two pages 16 from Mr Lick's Statement of Affairs indicate that he has been in business as a sole trader. The business, in each case, is identified as a corporate entity. Despite Mr Lick's being a director and sole shareholder of both companies, there is no basis upon which it can be said that the royalties referred to in those pages as being held by CAL are in any way represented to be owned by Mr Lick as opposed to the corporate entities. This said, the further problem is that nothing in the evidence is able to support any inference that the sums referred to are royalties in relation to the Cassidy Material or the Schedule A Material. Order 5 of the 12 November orders, insofar as it relates to cash held by CAL, concerns only moneys which exist as a result of the reproduction or communication of the Cassidy Material and the Schedule A Material. Without some connecting evidence as to the source of the royalties, particularly given that order 5 does not make reference to a specific amount, there is insufficient evidence to draw an inference of the required connection. The establishment of the requisite connection is not assisted by the earlier declarations made by Moore J on 31 May 2011 to the effect that Ms Cassidy is the owner of certain amounts (being allocations by CAL) identified in a letter dated 17 February 2011. The amounts specified in those declarations do not themselves bear any relationship to the amounts on the pages of the Statement of Affairs to which I have referred and, unless someone can inform me to the contrary, I understand that the letter referred to in the declaration is not itself in evidence. 20 Finally, insofar as the report to creditors is concerned, I accept that that report does not contain any representation by Mr Lick as opposed to a representation by the author of the report (as noted, Chris Lin for the Official Receiver). 21 On this basis, the evidence at its highest is incapable of supporting charge 2. Accordingly, that charge must also be dismissed on a summary basis.
Charge 3 22 Charge 3 in the amended statement of charge filed 14 April 2011 is as follows: In breach of paragraph 6 of the Orders made by Justice Moore on 12 November 2010 in this matter, the Cross Respondents or one or some of them, have provided a copy of the materials sold by the Second Cross-respondent, including the infringed Cassidy Materials and Schedule A materials, to EdSonic Publications Pty Ltd which is now promoting adapted versions of the materials for sale. 23 As is apparent, charge 3 asserts a breach of order 6 of the 12 November orders. Order 6 is as follows: The cross-respondents and (each of them) whether by themselves, their servants, agents or otherwise be restrained from representing that they (and any of them) had Cassidy's licence to reproduce, publish, communicate, make any adaptation of, offer for sale or otherwise exploit the Cassidy Material or the Schedule A Material after 1 July 2002. 24 Mr Mitchell submits that charge 3 is that it is bad on its face because, in essence, it alleges that the cross-respondents (or one or some of them) have carried out certain conduct but does not clearly specify any alleged conduct on the part of Mr Lick and, indeed, may make no allegation against Mr Lick whatsoever. Mr Mitchell further submits that there is no evidence before me which would be capable of supporting an inference that Mr Lick provided any of the materials referred to in charge 3 to EdSonic Publications Pty Ltd. 25 Mr Brennan, counsel for Ms Cassidy, made no submissions in support of charge 3. 26 I am satisfied that the charge is bad on its face for the reason Mr Mitchell has identified. The charge offends the basic principle set out in Johnson v Miller as applied in Ali v Collection Point. Insofar as it is submitted that there is no evidence capable of supporting the charge, I have not been taken to any such evidence despite the fact that the applicant's counsel was given an opportunity to do so. On that basis, I infer that there is no such evidence. 27 It follows that charge 3 also should be summarily dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
EdSonic Pty Ltd
Cassidy