On 24 July 2020, I delivered ex tempore reasons for ordering that the second defendant, Mr Cha, pay the plaintiffs' costs of the plaintiffs' application that Mr Cha be held in contempt, except insofar as the costs are of an unreasonable amount or were unreasonably incurred. I imposed no further punishment. This is an edited version of those reasons.
The plaintiff moved by chamber summons of 3 August 2016 that Mr Cha be committed for contempt of court for breaching orders of the court made on 19 December 2014, which I will refer to as the injunction orders.
On 17 June 2020, I found Mr Cha guilty of contempt. See Fu v Winstar Group Pty Ltd [No 3] [2020] WASC 222. On 24 July 2020, I heard submissions concerning the penalty to be imposed on Mr Cha. These reasons should be read together with my reasons published as Fu v Winstar [No 3] 2020 WASC 222.
Order 55 r 7 of the Rules of the Supreme Court 1971 (WA) provides that a court may punish contempt of court by committing the contemnor to prison or by imposing a fine or both. Generally, imprisonment is a punishment of last resort. The imposition of a fine is a more common punishment. It is not necessary in all cases to impose a punishment.
I will order Mr Cha to pay the costs of the plaintiffs in bringing the contempt proceeding. Contempt proceedings follow the usual rule in civil proceedings that costs follow the event. Indemnity cost orders are commonly made in contempt proceedings, the rationale being that an applicant who successfully brings a contempt application serves a public interest and should not be out of pocket. A litigant who needs to enforce contempt proceedings should not be out of pocket.
Mr Fu, the first plaintiff, informed the court that the costs of the contempt proceeding have been incurred by the company, Australian Institute of Commerce and Technology, which is the third plaintiff. The third plaintiff is now in administration. The administrator has not taken any part in the proceeding since I delivered reasons for judgment on the contempt application on 17 June 2020.
I will order Mr Cha to pay the plaintiffs' costs. It will be for a plaintiff who seeks to have their costs paid to tax their costs, and in doing so to prove that they have incurred any costs they seek to recover. In accordance with the common principle, I will order that those costs be on an indemnity basis, that is, Mr Cha should pay the costs incurred by the plaintiffs, except insofar as they are of an unreasonable amount or have been unreasonably incurred.
Mr Cha denied that he was responsible for the offending publications, and thus put the plaintiffs to the unnecessary expense of proving Mr Cha's responsibility for the publications. Furthermore, the case was prolonged by Mr Cha's conduct as a witness which I referred to in the reasons for judgment. For all of those reasons, I will make the order for costs to be paid on an indemnity basis.
I have decided that it is not necessary to impose any punishment in addition to the payment of the costs having regard to the following matters. It is not necessary to impose a punishment as a coercive sanction to compel compliance with the court order. The breach of the court order occurred in 2016. The offending posts were published on four occasions over a period of one hour commencing at 3.52 pm and concluding at 4.55 pm.
It occurred in circumstances where the corporate plaintiff, AICT, had received adverse publicity that prompted Mr Cha to react in the manner outlined in the four posts. The offending posts were removed from the Facebook page about two weeks later and there is no evidence that Mr Cha has posted any material on Facebook breaching the order since then. There is no evidence that Mr Cha has breached the court orders since then.
The orders which were breached by Mr Cha were made in relation to the claim of the corporate plaintiff, AICT. There is no evidence that the posts caused or are causing any harm to AICT. AICT was suspended by the authority, ASQA, about the time of the posts. As I have said, AICT was subsequently placed into external administration, and the administrator has not chosen to participate in this proceeding.
Through his counsel, Mr Cha acknowledged that he tried to justify his breaches of the injunction orders, however, he now accepts that what he did was wrong. The public interest in upholding the integrity of the court orders has been vindicated by the prosecution itself, the burdens of the prosecution, the published findings of the court and the order for costs.
Accordingly, I ordered that Mr Cha should pay the costs incurred by the plaintiffs in respect of the plaintiffs' application that Mr Cha be held in contempt, except insofar as they are of an unreasonable amount or have been unreasonably incurred. I imposed no further punishment.
[2]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.