FEDERAL COURT OF AUSTRALIA Connect TV Pty Ltd v All Rounder Investments Pty Ltd [2011] FCA 1049 Citation: Connect TV Pty Ltd v All Rounder Investments Pty Ltd [2011] FCA 1049 Parties: CONNECT TV PTY LTD ACN 119 901 932, NTV HUNGARY COMMERCIAL LIMITED LIABILITY COMPANY, PSJC NTV BROADCASTING COMPANY, JSC CHANNEL ONE RUSSIA WORLDWIDE and CHANNEL ONE RUSSIA LTD v ALL ROUNDER INVESTMENTS PTY LTD ACN 064 031 714, IP TV SOLUTIONS PTY LTD ACN 135 797 527, LINSYS NETWORKS PTY LTD ACN 088 520 825, ARTHUR DZHAGINYAN, ANATOLI ROUBINCHTEIN, RUSSIAN TV 4 U CO, LEONORA LURIE, YURI GRINBERG, STANISLAV KOZIN, GLOBUSNETTV INC, ANDREW SOMOV, V ASH TELEKANAL LTD, RUSSIAN STATE TELEVISION AND RADIO BROADCASTING COMPANY and VLADIMIR GRINBERG File number: VID 768 of 2010 Judge: TRACEY J Date of judgment: 5 September 2011 Catchwords: PRACTICE AND PROCEDURE – Adjournment application Cases cited: Eastman v R (2000) 203 CLR 1 referred to Ngatayi v R (1980) 147 CLR 1 referred to R v Presser [1958] VR 45 cited Dates of hearing: 1 and 5 September 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 28 Counsel for the Applicants: Mr R Richter QC (on 1 September 2011) & Mr J Korman Solicitor for the Applicants: Lloyds and Barclay Lawyers Counsel for the First, Tenth and Eighteenth Respondents: Mr M Goldblatt Solicitor for the First, Tenth and Eighteenth Respondents: Geoff Dillon & Co Commercial Lawyers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 768 of 2010 BETWEEN: CONNECT TV PTY LTD ACN 119 901 932 First Applicant NTV HUNGARY COMMERCIAL LIMITED LIABILITY COMPANY Second Applicant PSJC NTV BROADCASTING COMPANY Third Applicant JSC CHANNEL ONE RUSSIA WORLDWIDE Fourth Applicant CHANNEL ONE RUSSIA LTD Fifth Applicant AND: ALL ROUNDER INVESTMENTS PTY LTD ACN 064 031 714 First Respondent IP TV SOLUTIONS PTY LTD ACN 135 797 527 Second Respondent LINSYS NETWORKS PTY LTD ACN 088 520 825 Third Respondent ARTHUR DZHAGINYAN Fourth Respondent ANATOLI ROUBINCHTEIN Eighth Respondent RUSSIAN TV 4 U CO Ninth Respondent LEONORA LURIE Tenth Respondent YURI GRINBERG Eleventh Respondent STANISLAV KOZIN Twelfth Respondent GLOBUSNET TV INC Thirteenth Respondent ANDREW SOMOV Fourteenth Respondent VASH TELEKANAL LTD Fifteenth Respondent RUSSIAN STATE TELEVISION AND RADIO BROADCASTONG COMPANY Seventeenth Respondent VLADIMIR GRINBERG Eighteenth Respondent JUDGE: TRACEY J DATE OF ORDER: 5 SEPTEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The tenth respondent's application for adjournment of the hearing of contempt charges be refused. 2. The respondents file and serve any evidence on which they intend to rely at the hearing on or before 11 November 2011. 3. The applicant file and serve any evidence in reply on or before 14 December 2011. 4. The hearing of the contempt charges be fixed for 19 December 2011 on an estimate of four days. 5. The proceeding be listed for mention on 2 December 2011. 6. The first, tenth and eighteenth respondents pay the applicant's costs of the adjournment application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 768 of 2010 BETWEEN: CONNECT TV PTY LTD ACN 119 901 932 First Applicant NTV HUNGARY COMMERCIAL LIMITED LIABILITY COMPANY Second Applicant PSJC NTV BROADCASTING COMPANY Third Applicant JSC CHANNEL ONE RUSSIA WORLDWIDE Fourth Applicant CHANNEL ONE RUSSIA LTD Fifth Applicant AND: ALL ROUNDER INVESTMENTS PTY LTD ACN 064 031 714 First Respondent IP TV SOLUTIONS PTY LTD ACN 135 797 527 Second Respondent LINSYS NETWORKS PTY LTD ACN 088 520 825 Third Respondent ARTHUR DZHAGINYAN Fourth Respondent ANATOLI ROUBINCHTEIN Eighth Respondent RUSSIAN TV 4 U CO Ninth Respondent LEONORA LURIE Tenth Respondent YURI GRINBERG Eleventh Respondent STANISLAV KOZIN Twelfth Respondent GLOBUSNET TV INC Thirteenth Respondent ANDREW SOMOV Fourteenth Respondent VASH TELEKANAL LTD Fifteenth Respondent RUSSIAN STATE TELEVISION AND RADIO BROADCASTONG COMPANY Seventeenth Respondent VLADIMIR GRINBERG Eighteenth Respondent JUDGE: TRACEY J DATE: 5 SEPTEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Last year the applicant in this proceeding filed an application seeking remedies relating to what were alleged to be breaches of its copyright in certain broadcast material emanating from Russia and elsewhere. Certain injunctive orders were made by the court on an interlocutory basis. The applicant subsequently alleged that some of the respondents had contravened the terms of the injunctions, and thereby were guilty of contempt of court. 2 Two statements of charge were filed. The first on 27 September 2010, which alleged that the first respondent had committed three contempts of court. The second statement of charge, which was filed 1 March 2011, made further allegations against the first respondent, but also alleged that other respondents, including Ms Leonora Lurie had been guilty of contempt of Court ("the respondents") by reason of contraventions of the injunctions. 3 The charges were listed for directions with a view to ensuring that the relevant evidence was filed and that a trial date for the hearing of the charges could be fixed. A date in March was fixed but had to be vacated, because the respondents complained that they had had inadequate opportunity to prepare and had only recently obtained legal representation. Further adjournments followed. 4 The matter was listed for a mention on 2 August and, on that occasion, the respondents foreshadowed an application for an adjournment, relying on what was said to be the ill health of Ms Lurie. On that occasion, the court indicated that, if an adjournment application was to be pursued on that ground, proper medical evidence would need to be placed before the Court, and the matter was adjourned until last Thursday, 29 August, so that that evidence could be obtained, filed and served. 5 The evidence that was relied on was evidence of Mr Vladimir Grinberg, Ms Lurie's son, who had sworn three affidavits relating to his mother's health and surrounding circumstances; an affidavit from her general practitioner Dr Lebedev; an affidavit from a consultant psychologist who worked in the same practice as Dr Lebedev, Dr Goloub; and the evidence from a consultant psychiatrist to whom Ms Lurie had been referred late in July, Dr Arulanantham. 6 The application was for an adjournment of the hearing of three to six months. 7 On 29 August, evidence was heard from the three medical practitioners on whom the respondents relied in support of the adjournment application. Dr Lebedev said that he had been a treating doctor of Ms Lurie for many years, and his records show that she had attended once or twice a year at his practice in the years leading up to the present consultations. He saw Ms Lurie in July, following what he had been told was a suicide attempt by her and he arranged for some psychiatric assessment to be undertaken by a psychiatric nurse employed by the practice, and subsequently gave Ms Lurie a referral to Dr Arulanantham. 8 Previously he had referred Ms Lurie to Dr Goloub who, I have already mentioned, worked in the same practice. 9 Prior to instituting these referrals, Dr Lebedev, who was plainly an extremely busy general practitioner, had seen Ms Lurie for approximately 10 minutes. 10 Dr Goloub, on the other hand, had had the opportunity of speaking with Ms Lurie for much longer periods, periods which totalled some hours, and it was his view that she did not suffer from any major depressive disorder, but rather that she was suffering from what he described as a major adjustment disorder, which had been induced by stress, including the stress of a pending court hearing relating to the contempt charges. He was not able to express an opinion that she shouldn't give instructions in relation to those hearings, and he was not prepared to say that she did not know the difference between truth and lies. 11 Dr Arulanantham has seen Ms Lurie four times since 27 July. He found her to be fearful of the consequences of the Court action but said that she did not understand what was involved in contempt of Court and the nature and consequences of any acts which she may have performed which may or may not have rendered her liable to be found in contempt of Court. He even went so far as to say that she was unable to distinguish between right or wrong, at least in the legal context. He diagnosed her as being seriously depressed. 12 I found the medical evidence less than persuasive. All of it suffered to a greater or lesser extent from the fact that the diagnoses depended upon the history provided by Ms Lurie. She seems to have been less than forthright in what she told her treating practitioners. 13 Although she was performing normal functions such as driving, shopping, drawing money from automatic teller machines, conducting animated conversations on a mobile phone and various other like activities, Ms Lurie appears to have been unable or unwilling to so advise the treating doctors. She told Dr Arulanantham that she started to feel depressed about four weeks before he first saw her. That was on 27 July. But at various times during July she was observed doing the sorts of things that I have earlier described that may reasonably be regarded as normal day-to-day activities. She also appears to have told both Dr Lebedev and Dr Arulanantham that she was hospitalised following a suicide attempt in July. She had not been admitted to any hospital at this time. 14 There is some doubt, at least, that there was any such suicide attempt. Mr Grinberg gave some graphic evidence about having come home and found his mother lying in bed with the gas on in the unit where they lived. 15 However, no ambulance was called and it was at least two weeks before any professional psychiatric treatment was sought, and then only on the eve of the mention in this Court on 2 August. 16 When his evidence on this issue was tested, Mr Grinberg was not able to identify the day on which such a momentous event was said to have occurred and proffered the explanation that his mother was not taken to hospital because she had threatened further harm at the hospital, should she be taken there. No mention of that reason appears anywhere in his affidavit. 17 Whilst I harbour some scepticism about whether the event occurred or whether it occurred in the way that is alleged or whether it developed to the level of seriousness which is asserted by Mr Grinberg, I do not consider that I should reject the evidence of some suicidal attempt having been made by Ms Lurie in mid-July. 18 There is also some doubt about her attendance at the Alfred Hospital early in June following what was described by Mr Grinberg as a panic attack. It is alleged that Ms Lurie was in the hospital emergency department for some four hours being attended to by a psychiatric nurse in the waiting area without any hospital records being made of the attendance. Even a name and address do not appear on any hospital records relating to such an alleged attendance. Again, I do not reject the evidence, but I do express some scepticism about whether the event occurred in the way that is alleged. And I note that it was again some time after the event before professional assistance was secured to assist Ms Lurie in respect of the condition which allegedly prompted the panic attack and the attendance at the hospital. 19 I have further concerns about the medical evidence relied on by the respondent. The clinical notes and records of interview maintained by Dr Goloub and, more significantly, by Dr Arulanantham seem to be grossly inadequate. 20 Dr Arulanantham gave evidence that he had been told a number of things by Ms Lurie that are not mentioned in any of the notes that he took. He also gave evidence that he had prescribed certain drugs for Ms Lurie. There is no note in his clinical records of him having done so. Given the significance of this application, which would, if it is successful, cause the adjournment of the hearing of the contempt charges which have been pending now for many months, for a further three to six months, I regard the reports as wholly inadequate. They simply do not meet the necessary medico-legal standards and, in that regard, I accept the evidence of the principal witness called by the applicant, Dr Kornan, who has had vast experience in dealing with Court procedures and applications of the present kind. 21 Dr Kornan was an impressive expert witness. He had not examined Ms Lurie and frankly acknowledged that he was, as a result, thereby disabled from expressing any clinical views about her condition. He did, however, opine that if, as Dr Goloub has diagnosed, she is suffering from an adjustment disorder, the symptoms of such a disorder can often be found in patients who are confronting a Court appearance, particularly when that Court appearance may lead to some prejudicial action being taken against them. 22 The other witness relied upon by the applicant was a private investigator, Mr John Ioannou who had observed Ms Lurie on various occasions in June, July and August this year and was the source of the material relating to her performing what at least, to all appearances, were normal domestic and other activities outside the home. In addition to the ones I have mentioned, they involved visits to other persons' homes and, on one occasion at least, skilfully driving, probably above the speed limit, moving in and out of lines of traffic whilst having one hand on the wheel and one holding a cigarette outside the car window. 23 The relevant authorities relied on by the parties include R v Presser [1958] VR 45, where, at 48 Smith J, said: "He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." Reference was also made to Ngatayi v R (1980) 147 CLR 1 and Eastman v R (2000) 203 CLR 1. All of these cases deal with the test that must be satisfied in order to determine whether or not a person is fit to plead to a criminal charge. 24 I am prepared to assume in favour of Ms Lurie that a lesser standard would be sufficient for the purpose of securing an adjournment in order for her properly to instruct legal advisers in relation to issues likely to arise at the contempt hearing. However, I am not satisfied that it has been established that she is incapable of giving such instruction to her legal advisers. 25 Accordingly, I reject the application for an adjournment. 26 The position is, however, that the earliest date that the Court can make available to conduct the trial of the contempt proceeding is 19 December, and that date will be fixed as the starting date of the hearing. 27 As I understand it, there are no further procedural steps that need to be taken with a view to readying the matter for trial on that date. If I am wrong about that, I will immediately upon completion of delivery of these reasons hear the parties with a view to giving directions as to any outstanding steps that need to be taken. 28 I note that, as chance would have it, the limitations of the Court calendar will produce the result that in a de facto if not de jure manner the application of the respondents for an adjournment will succeed, at least in part. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 5 September 2011