Recent Cases

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 (03 November 2023) (Wigney, Wheelahan and Abraham JJ)


Catchwords:


PRACTICE AND PROCEDURE — appeal and new trial – apprehended bias – where some time prior to trial the primary judge found the second appellant guilty of contempt of court and sentenced him to a term of imprisonment – where before trial the appellants made an application to the judge that he disqualify himself from further hearing the proceeding on the ground of apprehended bias – where the primary judge refused to disqualify himself – no application by the appellants for leave to appeal at the time – not reasonable for the appellants to save up apprehended bias point as a ground of appeal from the primary judge’s final orders – point given up by the appellants.

PRACTICE AND PROCEDURE — appeal and new trial – apprehended bias – where the primary judge made findings in the final judgment adverse to the appellants and beneficial to the respondents – where the appellants appealed on the ground that the conduct of the trial and the primary judge’s findings disclosed a reasonable apprehension of bias – no apprehended bias established.

PRACTICE AND PROCEDURE — appeal – where the first appellant failed to comply with orders to provide verified answers to interrogatories – where against that background, the primary judge made a self-executing order that the first appellant’s defence be struck out if he did not provide verified answers to interrogatories by 15 September 2017 – where the first appellant failed to comply with that order – where the primary judge refused an application to extend time to comply with the self-executing order – interlocutory application for leave to appeal interlocutory orders dismissed – whether appellate jurisdiction of the Court exhausted – whether decision to refuse extension of time affected the final result – whether House v The King errors affected the judge’s refusal to extend time – no error shown.

STATUTORY INTERPRETATION – practice and procedure – where prior to trial an interlocutory application to stay the hearing of the proceeding was made to the primary judge on the ground that other proceedings in the docket of another judge of the Court gave rise to a risk of inconsistent findings – where neither appellant had a defence on foot – where the primary judge refused the interlocutory application, inter alia, because there was no substantive risk of conflicting judgments – no error by the primary judge in reaching that conclusion – where the primary judge concluded on the interlocutory application that r 16.07(2) of the Federal Court Rules 2011 (Cth) gave rise to deemed admissions of allegations in a statement of claim where no defence was on foot – primary judge’s construction of r 16.07(2) in error – previous first instance decisions should not be followed – not material to the disposition of the interlocutory application – orders on interlocutory application did not affect the final result – point not taken at trial – no reliance by trial judge on r 16.07(2) in making findings of fact at trial – no material error shown.

DEFAMATION — imputation – where the respondents alleged defamation by the appellants by the publication of matters on the internet – primary judge found that the first matter conveyed a meaning and representation that doing business with the respondents ran the risk of physical injury – challenge to imputation on appeal – no error by the primary judge.

DEFAMATION — excluded corporation – where the pleaded case of the first respondent was that it ceased to be an “excluded corporation” within the meaning of s 9(2)(b) of Defamation Act 2005 (NSW) on 11 October 2013 – where the appellants alleged that the primary judge erred in failing to find that the first respondent ceased to be an “excluded corporation” by that date and therefore erred in the assessment of damages for defamation of the first respondent – the primary judge erred as alleged – however the same conduct constituted a breach of s 18 of the Australian Consumer Law (ACL) and the same award of damages for such contravention of ACL was not limited by whether the first respondent was an “excluded corporation” – therefore the primary judge’s error was not material.

CONSUMER LAW — appeal – where the respondents alleged contraventions of s 18 ACL by the appellants in relation to matter published on the internet – where the primary judge found that the nature of the publications was to induce readers to click on hyperlinks to divert them to a website and its articles for the purpose of warning readers against engaging commercially with the respondents – where the primary judge found this to be misleading and deceptive conduct “in trade or commerce” within the meaning of s 18 of the ACL – where the appellants appealed on the ground that the primary judge erred in finding impugned conduct occurred “in trade or commerce” – the impugned conduct arose out of commercial disputation and was intended to have commercial effects in the way found by the primary judge – no error established.

PRIVATE INTERNATIONAL LAW — damages – where the primary judge found that the second appellant engaged in, or sanctioned, conduct in the United States that aggravated damage to the respondents – where that conduct had been found by the United States Court of Appeals for the Ninth Circuit to be constitutionally-protected under the First Amendment to the United States Constitution for the purposes of liability for the tort of stalking under the laws of California – where the appellants appealed on the ground that the Court of Appeals’ decision gave rise to an issue estoppel – no submission to the primary judge that an issue estoppel arose – in any event no issue estoppel established – false issue – conduct in aggravation of damage as a result of a tort does not itself have to be unlawful.

DAMAGES — defamation – where appellants appealed on the ground that the assessments of damages were excessive on the basis of various specific errors – where the primary judge made some errors but not others – where the only order sought by respondents was that a new trial be ordered – where the powers of the Full Court in exercise of its appellate jurisdiction under s 28 of the Federal Court of Australia Act 1976 (Cth) are extensive and include the power to reassess damages – where the errors of the primary judge were minor in broad context – where the Full Court would assess damages in sums no less that those assessed by the primary judge – primary judge’s awards not excessive.

EVIDENCE — appeal – where no defences on foot – where the appellants sought to cross-examine the second respondent on matters said to go to mitigation of damage in reliance on Burstein v Times Newspapers Ltd [2001] 1 WLR 579 – cross examination permitted on some matters but not others – no error by primary judge.