Attorney General for Western Australia v Chen - [2023] WASC 338

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- CHEN [2023] WASC 338
CORAM:   HOWARD J
HEARD:   8 AUGUST 2023
DELIVERED          :   6 SEPTEMBER 2023
FILE NO/S:   CIV 1388 of 2022
BETWEEN:   ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Applicant
AND
LILY CHEN
Contemnor

Catchwords:

Contempt - Inquiry into the City of Perth - Contemnor issued with a notice to produce statement of information - Whether seven payments received by Contemnor should have been disclosed in notice - Whether Contemnor furnished information knowing it to be false or misleading - Construction of notice - Whether payments fell into exclusions of 'income' under the notice - Whether payments were from Contemnor's occupation/s - Contemnor not under obligation to include the payment in the notice

Legislation:

Corruption, Crime and Misconduct Act 2003 (WA), s 3
Criminal Code 1913 (WA), s 1
Evidence Act 1906 (WA), s 79C
Local Government Act 1995 (WA), s 8.19
Royal Commissions Act 1968 (WA), s 8A
Rules of the Supreme Court 1971 (WA), O 55 r 1

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	C S Bydder SC & J M Misso
Contemnor	:	D Edwardson KC & L Wicks

Solicitors:

Applicant	:	State Solicitor's Office
Contemnor	:	Tindall Gask Bentley Lawyers

Case(s) referred to in decision(s):

CEO, Department of Environment and Conservation v Szulc [2010] WASC 195
Collopy v Commonwealth Bank of Australia [2019] WASCA 97
Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd (2007) WAR 201
Kenworthy v R (No 2) [2016] WASCA 207
R & I Bank of Western Australia v Anchorage Investments Pty Ltd (1993) 10 WAR 59
R v Baden-Clay (2016) 258 CLR 308
Rodgers v State of Western Australia [2023] WASCA 52

HOWARD J:

Introduction and this Contempt Charge

Lily Chen was a councillor of the City of Perth.
The City of Perth Council, including Ms Chen, was suspended on 2 March 2018 by the Minister for Local Government pursuant to s 8.19 of the Local Government Act 1995 (WA) (LG Act).
On 24 April 2018, the Hon Minister appointed an Inquiry Panel constituted by Anthony Power (Inquiry Panel).
The Inquiry Panel conducted an inquiry under Pt 8 Div 2 of the LG Act into the City of Perth (Inquiry).
The Inquiry Panel had the powers of a Royal Commission with such modifications as were required and in terms made applicable to the Inquiry: LG Act s 8.20.
On 1 March 2019, the Inquiry Panel issued to Ms Chen a notice to produce a statement of information; it was numbered SOI 7 of 2019 (SOI Notice).[1] The SOI Notice was said to be issued under s 8A of the Royal Commissions Act 1968 (WA) (RC Act) and said to have effect under s 8.20 of the LG Act.
[1] The SOI…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 338
Decision Date

CaseChat Overview and Summary

The Attorney General for Western Australia brought an application against Lily Chen for contempt of an inquiry into the City of Perth. The Attorney General alleged that Ms Chen failed to disclose certain payments in her statement of information (SOI) as required by a notice to produce a statement of information (SOI Notice). The Attorney General sought a finding of contempt and a fine. The proceedings were heard in the Supreme Court of Western Australia before Howard J. The court had to determine whether the omitted payments were required to be disclosed in the SOI, and if Ms Chen knew that her SOI was false or misleading in a material particular. The Applicant argued that the omitted payments were success fees under a fund raising agreement between Ms Chen and Devwest Group Pty Ltd. The Court found that if the omitted payments were success fees, they were income received from Ms Chen's occupation and therefore excluded from being income by the SOI Notice. The Court further found that if the omitted payments were success fees, they were not income received from a trust. The Court also found that the omitted payments, except for one payment of $67,500, were not success fees paid under the fund raising agreement. The Court concluded that the Applicant had failed to prove beyond reasonable doubt that Ms Chen was in contempt of the inquiry. The application was dismissed.

Orders