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.