Kith v SLH Industries Pty Ltd & Heng

The effect of the contempt on the administration of justice

1. The plaintiff submitted that Mr Heng's conduct has had the effect of subverting the authority of the Court, especially when characterised as persistent, deliberate defiance of the orders of the Court.
2. In Witham v Holloway,[38] the High Court stated that (emphasis added):

"All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties."

1. In Pelechowski v The Registrar, Court of Appeal_[39]_ McHugh J observed:

'if breaches of court orders were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order.'

1. Orders for production of documents are commonly made by the courts in order to allow a party to enforce the judgment debt awarded to them. If such orders were seen as being able to be flouted without recourse, the ability of the Court to effectively administer justice would collapse.
2. It cannot be allowed that a party only produces documents once they have been prosecuted for contempt.
3. That Mr Heng's conduct continued for so long and that the Court was required to make six sets of orders to attempt to compel the production of these bank statements, all to no avail, demonstrates just how serious an assault on the administration of justice Mr Heng's conduct was.
4. The administration of justice would be quite undermined if the course of conduct that Mr Heng adopted became systemic.[40]

Specific deterrence, general deterrence and denunciation

1. The plaintiff submitted that both general and specific deterrence are relevant factors. They say that a contemnor must be discouraged from committing further contempts, and the Court must also "set an example which will uphold the court's authority to deter others from disobedience".[41]
2. The plaintiff relied upon the following passage from Reliance,[42] which I adopt:

Vindication of the Court's authority is no less important in a commercial list case, such as this one, than in other proceedings in this Court. The flow of commerce depends upon the fact that in the overwhelming majority of transactions, business people respect each other's legal rights, including rights of ownership of property. ... [the contemnor] must accept that those commercial operations depended ultimately on the existence of a system of justice to determine disputes, and, in doing so, to decide disputed questions of ownership and legal right. As I have said, that system can only function if those within the commercial community accept the decisions of the courts, even when they go against them, and adhere to those decisions, whether they like them or not.

1. Ms Murphy submitted that the need for specific deterrence is low, owing to the fact that the Court should find it is unlikely Mr Heng would engage in similar conduct again, and that he has "purged the contempts, offered compensation for the plaintiff's legal costs and apologised personally to the plaintiff and to the Court". She accepted that general deterrence is a relevant factor, but submitted that it could be achieved with a fine or a suspended sentence.
2. I consider that specific deterrence remains a relevant factor in this case. I say this because of Mr Heng's conduct in putting forward, on affirmation before this Court in the Liability Hearing, reasons for the non-production of the account statements which I have found to lack credibility and rejected.
3. It appears to me that rather than giving a fulsome and honest account of how and why it was that he did not produce the documents when ordered, Mr Heng took a chance that his false story as to what occurred might be accepted by the Court and thereby he would avoid the consequences of his persistent non-compliance with orders for production. This suggests that even at that late stage he did not fully accept the consequences of his actions, nor the authority of the Court.
4. His conduct in total must be denounced by the Court in the strongest possible terms. Mr Heng has flouted the authority of the Court in its orders requiring him to produce documents. He did this in order to undermine its ability to give full effect to its judgment that he pay a very substantial sum of money to Ms Kith.
5. General deterrence in this case also looms very large. Parties to commercial disputes must understand that when orders are made by the courts, they must be complied with. They must also understand that if they are not complied with the wrongdoers will be held to account. When orders are not complied with for the purpose of undermining the court's ability to give full effect to its judgments, the penalty that the court will impose will be heavy.

1. In considering the appropriate sentence I have taken into account all of the matters referred to above.
2. I have considered the mitigating circumstances that Mr Heng has referred to including his family circumstances, his antecedents and the apology that he has offered. I have also taken into account his offer to pay Ms Kith's costs in a fixed sum of $200,000. For the reasons discussed above, I have been unable to reach a view on the extent to which a fine would be burdensome on him. However, if I considered a fine to be the appropriate sentence, this would not prevent me from ordering one. I have considered the fact that he has not fled the jurisdiction and has participated in the contempt process. This must be tempered by the fact that he put forward a false narrative at the liability phase of this proceeding. I have taken into account that he has produced the documents concerned - but only after the contempt proceeding was commenced and after any credit balance in the accounts had been entirely dissipated.
3. Mr Heng annexed to his Opening Submissions on the Penalty Hearing a table of sentences imposed by courts in other contempt matters. Ms Kith's counsel did not take issue with the table. I have taken it into account.
4. In R v Murray[43] Riordan J pointed to the difficulties in relying on sentences imposed in other cases:

...'because the circumstances are incidentally variable as is the impact of different contempts upon the court process'. Further, '[i]n fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.' Comparable cases establishing a range do not fix 'the boundaries within which future judges must, or even ought, to sentence', but may serve as a 'yardstick' useful to 'illustrate (although not define) the possible range of sentences available.'[44]

1. As observed by Riordan J in the passage just quoted, none of the matters in Mr Heng's table is a direct analogue to the facts of this case.
2. One case that bears some similarities to this is Fahey v Bird (No.2) [2023] VSC 540 in that it concerned a failure by an executor to have produced administration accounts for the estate he was administering. The similarity lies in that this was a case of failing to produce documents ordered by the court. There were distinct differences in that the contemnor ultimately pleaded guilty, the contempts were continuing and the contemnor was occupying a public office. The Court sentenced the contemnor to 4 months imprisonment to be suspended on condition that the accounts were produced within 28 days.
3. In the very recent decision of SeaRoad Shipping Pty Ltd v Pannell & Ors (No 2) [2025] VSC 448 Watson J dealt with a breach of freezing orders in which the contemnor failed to file an affidavit as to his assets and disposed of assets subject to the freezing order. The contemnor pleaded guilty to contempt. Watson J imposed a sentence of 2 weeks imprisonment for each of the charges of failing to provide an affidavit of assets to be served concurrently with a sentence of 11 weeks imprisonment for disposal of the assets.
4. As I have indicated above, I consider Mr Heng's contempts to be most serious. In order to serve the purposes of specific and general deterrence and to properly denounce his conduct I consider that nothing short of a sentence of imprisonment would be adequate. I do not consider that suspending any sentence of imprisonment sufficiently responds to the gravity of the offences. Neither do I consider that a fine or an order to perform community service would do so.
5. When passing sentence I am conscious of the fact that in respect of NAB 053 Account, charges 1, 5, 8 and 11, all concern categories of documents ordered in the 5 November 2021 orders. As such, and properly understood, Mr Heng's failure to have produced them really concerned one act of non-production that responded to several different categories in those orders.
6. This is to be contrasted with charges 14, 17, 30, 42 and 43 which were each the subject of orders made on different dates and were therefore independent and separate acts of non-production.
7. I also note that the breaches under charges 14 and 17, for the NAB 446 Account documents, were also breaches of orders made on the same dates as for other breaches which concerned the NAB 053 Account. I will take this commonality of orders into account when sentencing.
8. Taking into account all of the above matters Mr Heng is guilty of the 11 charges of contempt of court, convictions will be recorded for each contempt and I sentence him as follows:

(a) On charge 1 to 2 weeks of imprisonment;

(b) On charge 5 to 2 weeks of imprisonment;

(c) On charge 8 to 2 weeks of imprisonment;

(d) On charge 11 to 2 weeks of imprisonment;

(e) On charge 14 to 2 weeks of imprisonment;

(f) On charge 17 to 2 weeks of imprisonment;

(g) On charge 30 to 2 weeks of imprisonment;

(h) On charge 42 to 2 weeks of imprisonment;

(i) On charge 43 to 2 weeks of imprisonment

(j) On charge 14 to 2 weeks of imprisonment; and

(k) On charge 17 to 2 weeks of imprisonment.

1. I consider that a term of less than 2 weeks imprisonment for any of the charges would not adequately reflect the gravity of each individual offence.
2. Insofar as each of Mr Heng's failures to have produced the documents was a separate act done at a separate time and over a long period of time, in defiance of each of the 6 sets of orders, I consider that, subject to what follows, the terms of imprisonment should be served cumulatively.
3. As I noted above, charges 1, 5, 8 and 11 related to different categories of one set of orders. Accordingly, I will order the sentences of imprisonment to be served for charges 5, 8 and 11 to be served concurrently with that for charge 1.
4. As I have also noted above, as the breaches in respect of the NAB 446 Account (charges 14 and 17) and those in respect of the NAB 553 Account (the balance of the charges) were committed in respect of the same sets of orders as were breached by the balance of the charges, the terms of imprisonment in paragraph (g) and (h) should be served concurrently with those in paragraph (a) to (f).
5. Notwithstanding the sentences that I have fixed for each of the charges (which properly reflects the gravity of each of those offences) I consider that the totality principle[45] requires that I fix an overall sentence of 10 weeks imprisonment to properly reflect the degree of gravity of the offending as a whole. For that reason I will also order that the sentence in respect of charge 43 set out in (f) above be served concurrently with the sentences in paragraphs (a) to (e).

1. I refer to paragraphs 72 to 74 above and will make orders in those terms.

I certify that these 37 pages are a true copy of the judgment of His Honour Judge Wise delivered on 21 August 2025.

[1] Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107.

[2] Deputy Commissioner of Taxation v Gashi (No 3) (2011) 85 ATR 262; [2011] VSC 448 at [5] and the cases cited therein; Matthews v ASIC [2009] NSWCA 155 at [129]; see also Re Group Pty Ltd v Kazal (No 5) [2018] FCA 546 [29]-[30]; ASIC v Michalik [2004] NSWSC 1259 at [29].

[5] Michalik at [49] and the authorities cited therein.

[6] CFMEU v Grocon Constructions (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527, 569 [170], noting the qualification at 570 [173]-[174]; Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569 at [12].

[7] [2019] VSC 625.

[8] at [10] citing CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 [275]-[276].

[9] Bisognin (No 2) at [31] citing Primelife v Corporation Ltd v Newpark Pty Ltd [2003] VSC 106 [39].

[10] Witham v Holloway (1995) 183 CLR 525, 530; CFMEU v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375, 395 at [65].

[11] Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569 at [14].

[13] [2017] FCAFC 111; (2017) 256 FCR 90 at [106].

[14] [2022] VSC 603 at [19]- [20].

[15] [2022] VSC 271; (2022) 67 VR 469 at [48].

[16] R v Witt (No 2) [2016] VSC 142 at [92]; The Queen v The Herald & Weekly Times Pty Ltd [2021] VSC 253 at [210] and the authorities cited therein.

[20] Testel Australia Pty Ltd v KRG Electrics Pty Ltd [2014] SASC 119 at [24].

[22] United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 340, 347.

[23] D Rolph, Contempt (The Federation Press, 2023) at 820-822.

[24] Khoury v Kirwan (No 4) [2021] VSC 333 at [112].

[25] United Telecasters at 347 with the concurrence of Clarke JA and Meagher JA.

[26] Australian Securities and Investments Commission v Matthews [1999] FCA 803; (1999) 32 ACSR 404 at [30]; Deputy Commissioner of Taxation v Hickey [1999] FCA 259 at [34].

[28] Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387 at 401 [38] (Dowsett J).

[29] Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

[30] Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 at [10].

[31] Noting that the statements were ultimately produced on 15 November 2024.

[33] See extract at paragraph 19 above.

[34] See extract at paragraph 22 above.

[35] ( [2019] NSWSC 511 at [39].

[37] See for example, the authorities stated at paragraph 17.

[38] (1995) 183 CLR 525 at 532.

[39] [1999] HCA 19; (1998) 198 CLR 435 at 463 at [88].

[40] Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 at [4]- [5].

[43] [2018] VSC 133.

[45] R v Holder & Johnston [1983] 3 NSWLR 245; R v Visconti [1982] 2 NSWLR 104.