The events of late October and November 2016
216 The online campaign directed at Mr David intensified in late October 2016 and morphed into a physical and disturbing form. Mr and Mrs David also gave evidence of the traumatising effect of the conduct and threatening behaviour that Adam and his brothers orchestrated in Sydney and Los Angeles in late October and November 2016.
217 On 26 October 2016, at about 6:15am, Mrs David walked downstairs in their Los Angeles home, which was in a cul de sac. It was dark outside but she saw a car full of men driving slowly past their house and slowly back again. Mr David had gone to the gym earlier that morning. She received a call from her neighbour who normally picked up their son to take him to school. The neighbour informed Mrs David that there were men on the street holding signs with Mr David's picture on them. Her son went outside and got into the neighbour's car. About two minutes later, the boy phoned her, hysterical, about the men, the signs and their allegations against his father. She told him that she would deal with things, he could go to school and she would talk to him later. At that stage she had not seen what was outside. She told their daughter not to leave the house because she did not feel safe. She locked up, leaving her daughter in the home, put on the alarm and got into the car. When she got to the corner she saw about five men holding large posters with Mr David's face on them that proclaimed him to be a "Corporate Thief". They had also placed two metre long banners on trees and stop signs. She rang her husband and said that she did not know what was happening. Mrs David also called the police because she was so distressed.
218 Mr David arrived home from the gym while his wife was speaking to the police. The police told the protestors that they could not hang their signs on public or private property, but the police told Mrs David that there was not much else that they could do as the men were on public property. Mrs David said that, given their experiences of the Kazals, she felt a heightened sense of threat and fear from this incident. She said their daughter, who usually walked to her school, which was a short distance away, was in tears, confused and terrified. She had to go with her daughter into the classroom and discuss the situation with the school principal. The men returned again over the next days. Their daughter did not walk to school until after Christmas 2016.
219 When he arrived at Thunder's premises later on 26 October 2016, Mr David saw about 12 protestors doing the same thing as at his home, disrupting the driveway into the studios. Mr David rang his wife from work and told her that the same thing was happening outside Thunder's premises. He called the sheriff who told the protestors that they could not approach private property. He was horrified, exasperated and very afraid because of those actions and posters. To him, "this was a step that we could never imagine". He felt powerless to protect his family and children from this abnormal conduct. He said that the protestors were posting what they were doing on social media. He also saw a van (as depicted in [221] below) driving slowly in Los Angeles near his home, the children's school's front gates and Thunder's premises. Mr David said that the protestors chanted "Rodric the robber" and took videos of their activities and posted these on Youtube and the Kazal website as appears below:
220 On 26 October 2016, Mr David rang his wife and said that the same thing was happening in Sydney (where it was 27 October 2016). At some point that day he also told her that vans were driving around Sydney. Mr David's brother sent him photos of the similar activities of protestors and vans in Sydney, in the Central Business District and Eastern Suburbs, one of which is below:
221 Within a few days, Mrs David saw a van with the detailing below driving past their home, her daughter's school and the neighbourhood:
222 Mrs David said that on one occasion the van and some accompanying cars were taunting her as she spoke to police about her fears. She said, and I find, that "it was terrifying. It was intimidating". She engaged a security company to change all the locks at their home and install security lights and security cameras. She said that the Kazals were having her followed and photographed. Her doctor had to prescribe her with anti-anxiety medication as the extraordinary behaviour escalated. She began losing her hair and losing weight. The behaviour was, as I would infer could be expected, having a significant, adverse impact on their children and, of course, to her observation, on Mr David. She said his reaction was "fury… tempered by anxiety and fear". Mrs David said that:
there just seemed to be this ever escalating series of events, and this was this was sort of our nightmare come true, that them being here on our doorstop, with men and aggressive tactics you know, we had tried very hard to keep our address in the United States secret, private used a PO Box for everything, you know, purchased the house in the name of a trust that had nothing, no reference to our Christian names. You know, the idea of them being here in Los Angeles, on our doorstep, around our children's school, around his business, was it was terrifying, so whilst there was a lot of anger and rage and fury, there was equally fear and anxiety. It was gobsmacking.
223 On 28 October 2016 (Sydney time), Adam sent an email to Mr David and numerous Thunder employees, in the same manner of communication that Charif and Tony had used since about April 2016. Adam's email was headed "Adam Kazal Demands Answers from Online Identity Thief Rodric David - Day 1" and read:
Rodric David,
You defrauded companies you owned with my brothers Charif & Tony.
You admitted under Oath to being the one the Sydney Morning Herald wrote their lies for to fabricate an ICAC Inquiry.
You used the Herald articles to avoid prosecution and steal the $180 million company you owned with Charif & Tony Global Renewables with help on the theft from CEO David Singh.
You had the Herald write an article attacking all of our family members and Oscar is suing them for that.
Now I find for at least the last 6 months you have stolen my identity to publish disgusting lies to embarrass me and my family just because I am Charif & Tony's brother. You also stole the identity of Charif, Tony & Karl.
You made it personal and I will show you that I am not going to put up with the crap you tried to dish out to my brothers.
My team in LA are going to expose you wherever you go until you are charged with your crimes and my team in Sydney will expose all of the spineless thieves who thought they could help themselves to steal from my family.
Getting your hyena to scream at the LA Police like she did yesterday exposing how the disgustingly racist elements of your family are not restricted just to your Syrian David blood is not going to stop me and my crew!!
I will show the good people of LA what scum they have allowed into their city that Australia is glad to be rid of. Let's see how you like having the truth of what you get up to reported for the world to see your true colours.
You and your crime lord father John David might be used to stealing white collar style with help from your family's ex-politician lapdog but I really don't care about any of that.
You start a fight with me, I will show you how Adam Kazal is different to the rest of the family.
See you around grub.
(emphasis added)
224 Adam's statement "Getting your hyena to scream at the LA police" was a reference to Mrs David's reaction to the shocking events that occurred on 27 October 2016 outside their home.
225 On 28 October 2016, Adam also republished that email on his Twitter feed under the heading: "hey @Rodric_David my team in LA are going to expose you wherever you go! - Day 1". That republication was the subject of Adam's conviction for contempt summarised in pars (c) and (d) by the Full Court (see [12] above).
226 When Mrs David read Adam's email of 28 October 2016 (which was dated 27 October 2016 when it was received in Los Angeles) and its reference to "my team in LA and my team in Sydney" she "thought it was terrifying". She knew of the earlier apprehended violence order against Adam as a consequence of his conduct toward her father-in-law. She said "I read this as a genuine threat. I read this as a threat to our safety, the safety of my children, the safety of my family". When she expressed her fears to Mr David, they agreed to approach the Federal Bureau of Investigation (FBI) and the local police because of the unpredictability of the situation and to apply to this Court for an injunction. She also said that Adam's misogynistic characterisation of her as a screaming animal was false and that she had not screamed at the police. Both she and Mr David read the contents of the email as a direct threat. She also learned that Adam had made the tweet of 28 October 2016.
227 Mr David burst into tears when he was taken in examination in chief to Adam's email of 28 October 2016. He gave this evidence, that I accept, of its effect on him:
I was traumatised. I was in fear of my life and the life of my family. My extended family in Australia. My father.
228 Immediately afterwards, in response to questions in chief, Mr David said that his cultural heritage included Swedish, Lebanese, Egyptian and Syrian strands. He was then asked whether, although he was not a Muslim, he was proud of that racial heritage and said "Absolutely, I'm a proud son". However, in late 2018 in the jury trial in the District Court proceeding, Mr David gave the following evidence concerning Adam's racist taunt about "your Syrian David blood" in the 28 October 2016 email:
Do you have Syrian blood? --- That's the funny thing, no.
(emphasis added)
229 In cross-examination before me, Mr David denied lying to the jury by saying that he did not have Syrian blood. He said that there was a family debate about the location of an ancestral village on his father's side as to whether it was in Lebanon or Syria and asserted that "I misspoke at the time. It wasn't a deliberate lie… It's innocuous to me". His cross examination continued:
You gave that answer to the jury, and you denied your Syrian blood to the jury, because you wanted them to find against the Kazals, who you painted as Muslims, and Arabs, isn't that right? --- No, it's not.
And you painted them as having links to Hezbollah, isn't that right? --- No, it's in the articles that were written about them.
And you thought that by telling lies about your Syrian blood, you would obtain an advantage over the Kazals in this trial before the jury, didn't you? --- No.
Lets have a look at how your counsel opened this jury trial, at transcript page 13, please. Can we go down to line 14. You see there, Mr Wiener told the jury, in his opening, these articles, which will be introduced by both sides, also link the Kazals to Hezbollah, which is a terror organisation, and the Libyan regime of Muammar al Qaddafi; do you see that? --- I do.
And your counsel put that to the jury on your instructions; didn't he? --- No, counsel ran the case as he saw fit. I'm not the lawyer.
(emphasis added)
230 I do not accept that Mr David was mistaken in giving his answer to the jury that he did not have Syrian blood. I find that he lied on that occasion. This has made me examine closely his evidence in general and be cautious in treating it at face value before accepting the large part of it in these reasons as I have, including his account of what happened to him while detained in the UAE during May 2010. Most of his evidence, apart from his state of mind, was consistent with objective facts or satisfied me as to its inherent plausibility. I have said that some of his account is coloured by the hurt and pain of the abusive conduct of the Kazals beginning with his arrest in the UAE, and continuing with the online and then physical threats and harassment to which he was exposed. Nonetheless, in considering the evidence as a whole, which spanned events over 13 years and concerned the considerable antipathy between the parties, I formed the view that the findings that I have made are warranted after having had regard to the matters and standard of satisfaction that I must reach prescribed in s 140 of the Evidence Act.
231 I have allowed in making my findings for the emotional scarring of the years of traumatising behaviour to which the Kazals have subjected Mr David and his family, which is likely to have detracted somewhat from his ability to give a wholly detached account. Having considered Mr David's evidence as a whole, including as to his state of mind, I am satisfied that, in general, he was endeavouring to tell the truth and recounting a reasonably accurate history of his experiences of the verifiably extraordinary behaviour of the Kazals towards him and his family.
232 I accept Mr David's evidence that Adam's email of 28 October 2016 "changed the game". He was in fear of his life and said that "[t]he escalation was extreme, and here is a clear and concise statement saying he is going to be very much different to his brothers in the way he seeks to deal with this". He described Adam's use of the anonymous face mask on his Twitter feed as reinforcing his perception that the behaviour to which he and his family were subjected in late 2016 was a vendetta. He was also concerned that Adam had included in his emails and tweets the individual email addresses of many of Thunder's staff. This conduct caused Thunder to install a new firewall.
233 On 28 October 2016 Mr MacCallum wrote to Mitry Lawyers. Mr MacCallum put them on notice that Mr David believed that their client, Charif, and his brother, Adam, were responsible for the vans, protestors and posters that had been displayed in Los Angeles and Sydney. The letter noted that overnight posters had been affixed to telegraph and light poles along New South Head Road and Victoria Road in Sydney's Eastern suburbs that appeared in the form below:
234 Mr MacCallum sought, by 5pm on Monday 31 October 2016, an undertaking from Charif that he would not post or display any signs, including on vans, to the above effect, or convey any of the imputations pleaded in the statement of claim, or any imputations that Mr David was a corporate thief, stole $180 million, was guilty of fraud, was a conman or conspired with Mr Singh to steal $180 million.
235 On 31 October 2016 Adam sent an email to Mr MacCallum headed "Response to your Letter". Relevantly (as I found in Kazal [2016] FCA 1598 [6]-[9]), the email said that Adam had received Mr MacCallum's letter and that the letter appeared:
to be trying to link me back to a case I was removed from at the outset when I removed the content your Client claimed offence to from my Twitter feed.
236 Adam wrote in the email that he did not regard Mr MacCallum's threat in his letter of 28 October 2016 as related to the case involving his brother, Charif, being, I infer, this proceeding. Adam said this was a separate issue and a case that, for him, had ended a long time before. The email then proceeded to say among other things:
Regarding the van, do you seriously claim to be a lawyer? You are the same person as I recall that orchestrated and fabricated the ICAC case with Rodric David just to create a smokescreen for his highway robbery. That makes you nothing more than a common thug and liar fabricating claims to enable this man to steal from innocent victims. Is that what a lawyer does? I don't think so.
You want me to cease using the Van? Are you serious?
(emphasis added)
237 In the email, Adam made a series of allegations accusing Mr David of creating or being involved in the creation of false webpages that purported to be associated with members of the Kazal family, including Adam, but were, in fact, operated and controlled by Mr David and Thunder Studios (seemingly a reference to the Kazal Family Truth website). He asserted that those webpages defamed Adam, his entire family, and others. I infer that this allegation related to the subject matter of Charif's abandoned cross-claim. Adam wrote in the email:
So if you think I am going to stop then clearly you also aren't a very good lawyer!
238 It continued by referring to Mr David allegedly supplying The Sydney Morning Herald with misleading information that was used to defame, allegedly, the Kazal family in more than 30 articles, including some concerning Adam personally. It then said:
Unless your Client removes the offensive website and transfers the domain name www.adamkazal.com to me as the lawful owner, pays my costs of $666,666.66 for Legal & Marketing Costs, Pain and Disruption to the Bank Account mentioned below and issues a written public apology by 4pm tomorrow, I reserve the right to not only continue using the Van, but to also increase the size of my fleet.
Bank:…
Account Name:…
BSB…
Account #:…
If you fail to meet my demands and include a copy of any EFT Confirmation issued by the Bank the I reserve the right to do whatever is necessary to expose the Corporate Fraudsters Rodric David & David Singh who stole $180 million from my family as well as all other persons that have intentionally aided and abetted the Fraudsters in the process. Feel free to warn all involved to ensure they have a good digital image online if they want to look their best on the side of my growing fleet of vans……
For the avoidance of any doubt, that includes you too Sir.
(emphasis added)
239 Adam also posted the Tweet below that also reproduced his 31 October 2016 email:
240 When Mr David saw Adam's email of 31 October 2016 it reinforced in his mind that Adam "was well prepared and capable of taking the law into his own hands as he saw it".
241 On 4 November 2016, Perram J granted an ex parte injunction against Adam that enjoined further publication of defamatory imputations of and concerning Mr David including on the vans. On 5 November 2016 Mr David became aware of a video that showed the placards, posters and vans had been posted on YouTube and multiple other outlets, including the Kazal website and channels called John Doe, David Singh and Rodric David. The video showed activities outside the Sydney office of the Prime Minister at 1 Bligh Street, as well as Mr Singh's home with him, and later his wife, leaving it in cars. There was narration accompanying on the video directed at Mr David. After Perram J granted the injunction, the video on the Rodric David channel was taken down only in Australia but was still available elsewhere.
242 I set down the hearing of the application to extend the injunctions until the trial for 11 November 2016. I recorded a summary of relevant findings in my reasons that Adam had committed contempts (Thunder [2016] FCA 1598 at [11]-[22]). Both the Full Court and I found that Adam had contravened orders 1 and 3 (in annexure A to these reasons) because he published the Kazal website, by his express reference to it on the vans and posters, in circumstances where the Kazal website displayed 23 posts that conveyed the proscribed imputations about Mr David: Kazal 256 FCR at 119-120 [57]. The Full Court affirmed Adam's convictions on counts 8 and 9, namely that, by sending and publishing the 28 and 31 October 2016 emails and tweets, he had intended to put improper pressure on Mr David, Thunder and Mr MacCallum that had the tendency to interfere in the administration of justice. Those publications contained deliberate threats to escalate his conduct involving the posters, pamphlets, protestors, vans and defamatory publications that were calculated to bring improper indeed, as Besanko, Wigney and Bromwich JJ said, "extreme" pressure on Mr David, Thunder and Mr MacCallum to desist in this litigation: Kazal 256 FCR at 129 [87]. Their Honours held that "it was a plain, deliberate and serious administration of justice contempt".
243 I am satisfied by Mr and Mrs David's evidence that Mr David genuinely felt that extreme pressure and was traumatised by Adam's conduct of publishing and causing the republication of the defamatory imputations conveyed by the landing page and the Intro article as part of his campaign of intimidation and harassment that he pursued relentlessly in late October and until late November 2016. In my opinion, as I explain later, that conduct must sound in a significant award of compensatory and aggravated damages: Praed v Graham (1889) 24 QBD 53 at 55 per Lord Esher MR, with whom Lindley and Lopes LJJ agreed.
244 Even after I found Adam guilty of contempt on 21 December 2016 (Thunder [2016] FCA 1598) and sentenced him on 27 February 2017 (Thunder (No 2) [2017] FCA 202), the Kazal website remained active and contained posts that Charif updated or caused to be updated, by reason of his control of it, until at least 2 March 2017 when Tony posted, and emailed to Mr David, Thunder, six of its employees and Charif his article, "Rodric David Reminded the Kazal Family Refused his Family's Witness Tampering Attempts - Day 163" (see [205] above). Mr David said that in separate proceedings that Mr Singh and his company, Re.Group, brought in respect of similar conduct including that posting in October and November 2016, Perram J had made an order that had the consequence that "the website was, in effect, shut off". Whatever order, if any, was in effect, it was not before me, but I accept that from about March 2017 the Kazal website ceased being updated, but has remained online.
245 However, during the trial, Mr MacCallum was able to play, in Court on 21 October 2020 (which was conducted electronically on Microsoft Teams), as real evidence, YouTube videos on youtube.com that were still available for viewing through using a Google article on the Kazal website. One video, that lasted for about two minutes 20 seconds, showed a van driving in Sydney and protestors holding posters and placards with Mr David and Mr Singh's photos (see [241] above) and "Robbed $180 million" and standing outside a house (which I infer was Mr Singh's) from which a man emerges and gets into a car. A voice-over states: "Mr Singh, Adam Kazal wants to know why four and a half years ago you had no money and now you live in a $30 million house at [a named eastern suburb in Sydney]. Can you explain that?" The video also showed about ten people holding the posters and placards outside 1 Bligh Street, chanting "Rodric the Robber" before concluding with a display of the Kazal website's internet address. This became Exhibit B.
246 Another short video of about 20 seconds, which became Exhibit D showed, progressively, still images of the names of the Kazal Family Story, Mr David with a cloak over his shoulder and a large hand reaching toward him (par 30, as seen in the landing page), a smiling labelled photo of Charif, a road sign "Integrity" the "Truth or Dare" sign (par 36), a "Caring for Sustainability Sign", the "Failure Types" graph (par 23), a sign "Contact us", followed by "NSW, Sydney, Australia" and the Kazal website's internet address. Music played in the background of this video.
247 When Mr MacCallum tried to copy Exhibit D after Court on 21 October 2020 he could not do so directly on his computer but made a copy using his mobile phone. That became the physical Exhibit D. However, overnight, the videos were removed from YouTube by the uploader and could not be viewed anymore.
248 On 24 February 2017, three days before Adam's sentencing hearing was to occur, Charif emailed Mr David, other Thunder employees and Tony, and posted an article on the Kazal website entitled "Charif Kazal Demands Answers from the Corporate Thief Rodric David - Day 162". The article referred to the ICAC proceeding and accused Mr David of making a false accusation that Charif had committed a crime which the Director of Public Prosecutions had determined raised no case for Charif to answer. He stated:
You were found guilty by the Court of stealing the shares owned by my brother Tony & I.
More recently you stole the online identities of Tony & I as well as our brothers Karl & Adam.
Our lawyer in America where you had your Thunder Studios employees carry out the online identity theft on your behalf is confident we will again prevail.
Finally we have our long running defamation proceedings. You have so far failed to meet the majority of Court imposed deadlines over several years, whilst I simply rely on the Truth Defence to expose you for what you did to Tony & I.
The truth is a powerful weapon. Too bad you will never get an opportunity to feel the power it brings to a Court case like ours!
My website www.kazalfamilystory.com is recording all of your lies, corruption and contradictions for the world to see and judge for themselves including the work of the Sydney Morning Herald who has written more than 30 malicious articles in the last 6 years attacking me and my family on your behalf.
The truth will never go away and I will continue to use it as a shield against your desperate lies and malicious threats including your online Identity theft and defamatory lies!
I will not rest until you repay what you stole plus damages, apologise publicly for the lies you told and serve time in prison for the despicable crimes you committed against me and my entire family!
(emphasis added)
249 Mr David felt exasperated when he read that email, especially in the context that Adam had been found guilty and was about to be sentenced for his contempt, including for his threats in his 28 and 31 October 2016 emails to interfere in the administration of justice. Mr David said "this is such extraordinary crazy behaviour" and that he believed that Charif "was stepping into his brother's Adam's shoes". When he read the paragraph "The truth is a powerful weapon. Too bad you will never get an opportunity to feel the power it brings to a Court case like ours" he understood that it "reemphasised that there was a threat to my life".
250 Mr David said that as a result of the campaign waged by Charif, Adam and other Kazals "I don't sleep comfortably in my own house because I know they know where I live" and:
Fatherhood is my greatest joy. It's not right, it's not normal, for a business dispute to attack family members, put protestors and vans and denigrate a parent in front of the childrens school. This has been an extraordinary campaign to defame, destroy, slander, smear, attack, assault my entire family. My dad has been assaulted.
251 Mr David now has weapons at home for protection on advice from the FBI and ordinarily when his wife and he attend a function they have armed body guards, electronic security at home, and security personnel now take his children to school. He gave consideration to abandoning this proceeding at times. He was deeply devastated by his inability to protect his wife and children from the behaviour of Adam, Charif and the Kazals. At one stage in this chain of events he was fearful that his marriage would not survive. He said that "I have no online reputation. It's been taken from me" and that in the modern business world people do online due diligence of potential business associates or persons.
252 As at 1 September 2020, the second page (of ten results) of a Google search of "Rodric David" displayed the Kazal Family Story Pinterest account with the caption "Another hopeless act by the corporate thief Rodric David".