Dong v Song (No 4)

Case [2019] ACTSC 168


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dong v Song (No 4)

Citation:

[2019] ACTSC 168

Hearing Date:

21 March 2019

DecisionDate:

27 June 2019

Before:

McWilliam AsJ

Decision:

See [44]

Catchwords:

CONTEMPT OF COURT – what constitutes criminal contempt – where first defendant breached undertaking given to the Court not to sell a residential property – whether conduct amounts to contempt of a criminal nature

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 2500, 2501, 2506

Evidence Act 2011 (ACT) s 128
Supreme Court Act 1933 (ACT) s 20

Supreme Court Act 1970 (NSW) ss 101, 101A

Cases Cited: 

Attorney-General v Leveller Magazine Ltd [1979] AC 440 

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; 80 NSWLR 113
Bhagat v Global Custodians Ltd [2002] NSWCA 160
Construction, Forestry, Mining and Energy Union v Boral Resources(Vic)Pty Ltd [2015] HCA 21; 256 CLR 375
Dong v Song (No 2) [2018] ACTSC 180
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
Jennison v Baker [1972] 2 QB 52
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
Kazalv Thunder Studios Inc (California) [2017] FCAFC 111; 256 FCR 90
Knight v Clifton [1971] Ch 700
Kostov v YPOL Pty Ltd [2018] NSWCA 306
Markisic v Commonwealth [2007] NSWCA 92; 69 NSWLR 737
Matthews v Australian Securities and Investments Commission [2009] NSWCA 155
Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16
Microsoft Corporation v Marks(No 1) (1996) 69 FCR 117
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208
Registrar v Unnamed Respondent (1994) 234 FLR 248
TZ Ltd v ZMS Investments Pty Ltd [2009] NSWSC 1465

Witham v Holloway (1995) 183 CLR 525

Texts Cited:

Borrie and Lowe’s Law of Contempt, 2nd ed.  (1983)

Parties:

Xin Dong (Plaintiff)

Shaoqing Song (First Defendant)

Zheng Zhou (Second Defendant)

Representation:

Counsel

T J Morahan (Plaintiff)

T Sharman (First Defendant)

Solicitors

Chen Shan Lawyers (Plaintiff)

Sharman Robertson Solicitors (First Defendant)

File Number:

SC 100 of 2016

McWilliam AsJ:

  1. By application filed 9 April 2018, the plaintiff has charged the first defendant, Ms Shaoqing Song, with contempt of court under r 2501 of the Court Procedures Rules 2006 (ACT) (Rules).  The nature of the contempt is a breach of an undertaking, which she had given to the Court, not to sell a residential property she owned in the suburb of Lawson in the Australian Capital Territory (the Territory), described as Section 37 Block 15 in Deposited Plan 11268 (Lawson property), without first notifying the plaintiff, Ms Xin Dong, through her solicitors.  The contempt of this Court is admitted, but the parties are in dispute as to whether the…

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Dong v Song (No 4) [2019] ACTSC 168
Case
[2019] ACTSC 168
Decision Date

CaseChat Overview and Summary

The case of Dong v Song (No 4) involved a dispute between the parties over the sale of a residential property. The matter was heard in the Supreme Court of New South Wales. The first defendant, Mr Song, had provided an undertaking to the court not to sell the property in question. However, he subsequently breached this undertaking by listing the property for sale. This led to the first plaintiff, Mr Dong, seeking a declaration that Mr Song's conduct amounted to criminal contempt of court.

The central legal issue before the court was whether Mr Song's breach of the undertaking constituted criminal contempt. The court needed to determine the nature and scope of what could be considered contempt of a criminal nature in this context. The court considered whether Mr Song's actions were sufficiently serious to warrant a finding of criminal contempt, or if they fell within the realm of civil contempt, which would not result in criminal penalties.

In its judgment, the court found that Mr Song's breach of the undertaking did not amount to criminal contempt. The court held that the nature of the undertaking and the circumstances surrounding its breach did not rise to the level of serious misconduct that would constitute criminal contempt. Instead, the court considered the matter to be one of civil contempt, which could be addressed through orders for compliance or other appropriate remedies. Consequently, the court dismissed the application for a declaration of criminal contempt.

The court made no orders for costs, as it found that the application was not frivolous or vexatious. The court's decision clarified the boundaries of what constitutes criminal contempt in the context of undertakings given to the court, emphasizing the need for a high threshold of seriousness to warrant criminal penalties.

Orders

Orders of the court

See [44]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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