Fu v Winstar Group Pty Ltd [No 3] - [2020] WASC 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FU -v- WINSTAR GROUP PTY LTD [No 3] [2020] WASC 222
CORAM:   LE MIERE J
HEARD:   20 FEBRUARY & 22 MARCH 2018
DELIVERED          :   17 JUNE 2020
FILE NO/S:   CIV 2650 of 2014
BETWEEN:   HONG FU
First Plaintiff
AHYEONG JEONG
Second Plaintiff
HANDS ON COMPUTER TRAINING INTERNATIONAL PTY LTD T/AS THE AUSTRALIAN INSTITUTE OF COMMERCE AND TECHNOLOGY
Third Plaintiff
AND
WINSTAR GROUP PTY LTD
First Defendant
BYOUNG JU CHA
Second Defendant
VOON MEI NG
Third Defendant
HAROLD KONRAD SIMON LEE
Fourth Defendant

Catchwords:

Contempt of court - Where interlocutory injunction order restrained defendants from publishing certain false statements - Whether second defendant guilty of contempt by publishing statements on Facebook contrary to injunction orders - Whether statements on Facebook conveyed statements or similar statements to the same effect as the statements in interlocutory injunction orders

Legislation:

Nil

Result:

The second defendant is guilty of contempt

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr J D MacLaurin
Second Plaintiff	:	Mr J D MacLaurin
Third Plaintiff	:	Mr J D MacLaurin
First Defendant	:	No appearance
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Cove Legal
Second Plaintiff	:	Cove Legal
Third Plaintiff	:	Cove Legal
First Defendant	:	No appearance
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	No appearance

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

Athens v Randwick City Council (2005) 64 NSWLR 58
Fu v Winstar Group Pty Ltd [2014] WASC 496

LE MIERE J:

Summary Orders

The plaintiffs have moved by chamber summons of 3 August 2016 that the second defendant, Mr Cha, be committed for contempt of court for breaching orders of the court made on 19 December 2014 (the Injunction Orders).
The Injunction Orders were made in an action brought by the plaintiffs for defamation and injurious (or malicious) falsehood against Mr Cha and the other three defendants. In this action the first and second plaintiffs, Mr Fu and Ms Jeong, allege that the defendants published statements on the Facebook page of the first defendant, Winstar Group Pty Ltd (Winstar), and in a pamphlet which are defamatory of them. The third plaintiff, Hands On Computer Training International Pty Ltd t/as the Australian Institute of Commerce and Technology (AICT) claims that the defendants published false statements maliciously that caused damage to AICT.
The plaintiffs applied for an interlocutory injunction restraining the defendants from publishing any matter that conveys certain representations or imputations. On 19 December 2014, the court made the interlocutory Injunction Orders which restrain Mr Cha, Winstar and the third defendant, Ms Ng, from publishing upon Winstar's Facebook page or otherwise, subject to certain exceptions and qualifications, any of the 13 statements set out in the Injunction Orders or any similar statements to the same effect.
The plaintiffs allege that Mr Cha breached the Injunction Orders by publishing on 27 July or 28 July 2016 upon the Winstar Facebook page seven specified statements (the July 2016 statements).
Mr Cha denies that he breached the Injunction Orders and denies that he published the July 2016 statements.
For the reasons which follow I find that Mr Cha is guilty of contempt in that he published four of the July 2016 statements contrary to the Injunction Orders.

Relevant parties

The first plaintiff, Mr Fu, was at relevant times the Chief Executive Officer, sole director and secretary of the third plaintiff, AICT. AICT is a company that delivers training in information technology, business and English.
Mr Cha, who uses the preferred name of David Cha, and Ms Ng, who uses the preferred name of Amanda Ng, were at relevant times the directors of Winstar. Winstar was at relevant times a migration and education agent. Winstar acted as agent for AICT under a written agreement by which Winstar agreed to find suitable prospective students for enrolment and study at AICT's training locations in consideration for a commission for each student who was recruited, enrolled and had paid the course fee to AICT. In October 2014, after differences had arisen between AICT and Winstar, both companies purported to terminate the agreement.

The publications sued on

Mr Fu and Ms Jeong claim that the defendants published statements on Winstar's Facebook page, in a pamphlet distributed to AICT's students, and in a letter from the fourth defendant, Mr Lee, published on Winstar's Facebook page which are defamatory of Mr Fu and Ms Jeong. AICT claims that the statements are false statements published by the defendant maliciously that caused damage to AICT.

The Injunction Orders

The plaintiffs applied by chamber summons of 4 December 2014 for an interlocutory injunction restraining the defendants from publishing any matter that conveys any of the representations or imputations specified in the chamber summons and requiring Winstar, Mr Cha and Ms Ng to remove all material of, and concerning, the plaintiffs from Winstar's Facebook page.
On 19 December 2014, I made the Injunction Orders which restrained Mr Cha, Ms Ng and Winstar, subject to some exceptions and qualifications, from publishing upon Winstar's Facebook page or otherwise certain statements or any similar statements to the same effect. The Injunction Orders relevantly provide:
1(a)until after judgment in this action, or further order, the first, second and third defendants be restrained from publishing upon the first defendant's Facebook page or otherwise but subject to … and save and except … any of the following statements or any similar statements to the same effect:
(i)that AICT has been engaged in criminal conduct, including (but not limited to) by hacking into third party computer systems or websites so as to, or attempt to, steal confidential information;
(ii)that AICT's school business is a sham operation (sham meaning);
(iii)that AICT is involved, as part of its operations, in the creation of sham documents or documents that contain knowingly false details or representations (false documents meaning);
(iv)that AICT has been engaged in fraudulent activity (fraud meaning);
(v)that AICT does not or is not capable of providing proper schooling or educational services to its students;
(vi)that AICT acts, in relation to AICT's operations, contrary to the interests of the students (benefits meaning);
(vii)that AICT cheats students out of money;
(viii)that AICT intentionally does not comply with the applicable regulations that govern it;
(ix)that AICT promotes to students benefits that it does not, is incapable of and/or has no intention of providing to students;
(x)that AICT is involved in the provision of female workers as escorts or otherwise involved in the sex industry;
(xi)that, for its own greedy motives and financial gain, AICT seeks to enrol, at least as a matter of documentation and payment, students for AICT's courses with no intention or expectation that they will attend their courses; ·
(xii)that AICT is a disgrace to the education sector or industry within which it works or conducts business (disgrace meaning); and
(xiii)any statement posted on the first defendant's Facebook page by the fourth defendant.
The italicised descriptions in parenthesis are descriptions of the statements adopted by the plaintiffs for ease of identification. They are not part of the Injunction Orders.

The charges

The plaintiffs charge that Mr Cha breached the Injunction Orders by publishing upon the Winstar Facebook page the July 2016 statements. The July 2016 statements appear as annexure RAB2 to the affidavit of Mr Roger Blow sworn 3 August 2016 (Posts). Each of the Posts, except Posts E and F referred to below, is in Mandarin and an automated 'Bing' translation of the text into English appears below the Mandarin text. A translator and interpreter accredited by the National Accreditation Authority for Translators and Interpreters (accredited translator) has translated each of the Mandarin texts. In the next seven paragraphs I will set out the date and time of the Posts, the 'Bing' translation and the translation by the accredited translator of each Post where the text was in Mandarin:
Post A is time and date stamped 27 July 2016 at 15.52. The 'Bing' translation states:
"Aict on Western Australia headlines....
Head of aict, Hong Fu, false false false diploma courses … Tell students no class..The government has not let them accept new students...The government have been investigating them inside with students..
Things I used to get a degree. People need to review…Students will also be used to check their attendance rate..
Everyone please turn out, don't be no more victims... List of attendance rate has been transferred to the government..."
The translation by the accredited translator is:
AICT is now on WA's top news…
AICT's person-in-charge HONG FU forged curriculum and certificates … told students that they don't need to attend classes … the government has now forbidden them to accept new students … the government has investigated them and their students …
Many people who obtained certificates previously must all go under review … students will be checked with their previous attendance …
Please pass around, so there won't be more victims … attendance list has been passed to the government …
Post B is time and date stamped 27 July 2016 at 16.18. The 'Bing' translation is:
Aict on Western Australia headlines …
Head of aict, Hong Fu, false false false diploma courses … Tell students no class.. The government has not let them accept new students … The government have been investigating them inside with students..
Things I used to get a degree. People need to review … Students will also be used to check their attendance rate..
Everyone please turn out, don't be no more victims … List of attendance rate has been transferred to the government…
Please see translation of news on our facebook page…
Please put this po communications out … So there's another victim …
Stanley College in charge will be the next aict. They will also be like aict is to you.. Tell your visa no problem. But they said it was all lies…Don't trust them..They also checked by the government…
The translation by the accredited translator is:
AICT is now on WA's top news ...
AICT's person-in-charge HONG FU forged curriculum and certificates … told students that they don't need to attend classes ... the government has now forbidden them to accept new students ... the government has investigated them and their students ...
Many people who obtained certificates previously must all go under review ... students will be checked with their previous attendance ...
Please pass around, so there won't be more victims ... attendance list has been passed to the government ...
Please see translated news in our FACEBOOK page ...
Please pass around this post ... so there won't be more victims ...
Stanley College's person-in-charge will be the next AICT. They will deceive you just like AICT ... tell you that your visa is fine ... but all they said was lies ... don't trust them ... they have been investigated by the government ...
Post C is time and date stamped 27 July 2016 at 16.31. The 'Bing' translation is:
Stanley College Boss probably tell you that your visa will not be affected.. But please don't believe their lies.. They are a second aict.. There's one in Stanley students enrolled in Western Australia, class time, drug trafficking, has been in prison.. Immigration has full investigation Stanley...
Everyone don't be silly.,, Don't like aict victims... Don't be fooled Stanley....
The translation by the accredited translator is:
The boss from Stanley College is likely to tell you that your visa will not be effected … but please don't believe their lies … they are the second AICT … there is a student studying in Stanley in WA selling drugs during school time, locked up in the jail already … Immigration is now focusing on investigating Stanley … Everyone please don't be foolish … don't be like the victims of AICT … Don't be deceived by Stanley …
Post D is time and date stamped 27 July 2016 at 16.55. The 'Bing' translation is:
Do you still believe that India boss… Stanley College have a lot of Indian students, they all didn't come for my lesson.. Why do you want your visa in such dangerous school…And their teacher were not Australian teacher… Indian people to teach English…
Stanley College for money, can make anything… They won't care about your visa alive or dead. With Hong Fu (Aict Boss)… Money to put it in your pocket… Many of the people I know are also Stanley school visa application was refused.. Already in the Immigration office on the blacklist..
Because many students studying in Stanley, back to the states by customs check after after being deported back.. Stanley students with aict sign as not safe..
They will only say bad about other schools… 2 years ago the same aict…
Today only to end up like this…
2 years ago, our sentence is true, now we also tell you Stanley will be a second aict.
Dealing with (Hong FU) Aict Boss, we never give up… Now we won't give up Sue Stanley
They might want to say that we are threatening aict students…Will also create many lies… But their Indian students there have been many have visa issues. Please don't believe them…
2 years ago, I said, today it happened. No lie,, This is also the same..
My name is David Cha, Winstar boss..
The translation by the accredited translator is:
Do you still trust that Indian boss ... there are lots of Indian students in Stanley College. They all don't attend school ... Why do you want your visa to be with this kind of dangerous schools ... and they don't have any Australian teachers ... use Indians to teach English ...
For money, Stanley College can do anything ... they will not care about your visa status ... the same as Hong Fu (boss of AICT) ... once got money then put into their own pocket ... many people that I know of had their visa to study in Stanley refused ... already in the blacklist of Immigration
…
Many students because study in Stanley, after return back to their own country and been investigated by the customs, been deported ...
Stanley's student visa is the same as AICT, unsafe ...
They will only badmouth other schools ... AICT was the same two years ago ... look at what it is like today ...
What we said two years ago were all truth. Now we are telling you the same, Stanley will be the second AICT.
For (Hong FU) AICT's boss, we will never give up pursing ... now we will not give up suing Stanley
They probably want AICT to say that we threaten students … also fabricate lots of lies … but many of their Indian students already have visa issues … please don't trust them … Two years ago what I said happened today … no lies … this time is the same …
I am David CHA, boss of Winstar …
Post E is time and date stamped 27 July 2016 at 17.04. It appears in English and states:
"Dear Student,
Stanley College is in a lot of trouble now, one of the student in Stanley College, was caught drug trafficking during study hours, and now Stanley college is investigated by government and immigration and police, they will be the second "AICT case" would facing the problem with the government.
A lot of the student study there had a lot of visa problem, and some even was held by the immigration and was sent back due to non‑attendance because Stanley was being investigated by immigration and government
They might lie to you and telling you how bad about other school. however, their doggy behavior will be reveal soon.
Please Trust me, david Cha, Stanley will be eventually close down, I swear to myself, it will going to happen."
Post F is time and date stamped 28 July 2016 at 15.34. It appears in English and states:
"Stanley owe Winstar more than 400k commission and refuse to pay. April invoice $59k, Last year October: $60k, This coming July $100k.....
They don't pay and everything is about money. To make money, they don't care anything. How do you feel that you work for restaurant so many hours and it is time to get paid your salary and they never paid you. How do u feel?
This school already had financial problem, therefore what the point you pay them your tuition fee because you cannot…
Post G is time and date stamped 28 July 2016 at 16.17. It appears in English and Mandarin, the English text states:
"I am david cha..I will report every single doggy incident to department of immigration, ASQA until Stanley was closed.. The same way I had done with AICT last 2 years.
The translation by the accredited translator is:
I am david cha … I will report every single doggy incident to department of immigration, ASQA until Stanley was closed … The same way I had done with AICT last 2 years.
I am DAVID Cha … I will at all times report Stanley to the Immigration Department, the Government department until they close their doors … just as I reported AICT 2 years ago … never give up
The plaintiffs allege that the Posts contain statements similar to or to the same effect as those meanings set out in the Injunction Orders at sub-paras 1(a)(ii), (iii), (iv), (vi), (ix) and/or (xii) of those orders.

Mr Cha's response

Mr Cha filed an outline of submissions[1] in response to the charge of contempt. In his written submissions Mr Cha raises a number of matters. It is convenient to refer to those matters at this stage of these reasons.
[1] The submissions state the date of the document to be July 2016 and the date of filing to be 14 December 2017.
The first matter raised by Mr Cha is that the Injunction Orders were not made on the ground that the statements complained of by the plaintiffs were defamatory of Mr Fu and Ms Jeong, but on the ground that AICT had made out a prima facie case that it was entitled to damages for malicious falsehood.
Mr Cha is correct. I delivered written reasons for granting the Injunction Orders.[2] I said that I would not grant an injunction to restrain the defendants from publishing the statements made by Winstar, Mr Cha or Ms Ng on Winstar's Facebook page, the pamphlet or the letter on the ground that they are defamatory of Mr Fu and Ms Jeong for the following reasons:
First, the defendants assert that the statements are true and have offered some evidence in support of their contention … Secondly, Ms Ng submitted that the statements made by Winstar are, at least in part, in reply to an attack by AICT, Mr Fu and Ms Jeong and Winstar was attempting to defend itself … Thirdly, the public interest in the right of free speech is important notwithstanding that most of the statements complained of by Mr Fu and Ms Jeong are defamatory of Mr Fu and Ms Jeong in relation to the conduct of AICT's business. Fourthly, there is a public interest in the subject matter of the statements which relate to the treatment of students by Mr Fu and Ms Jeong in the conduct of AICT's business [13].
[2] Fu v Winstar Group Pty Ltd [2014] WASC 496.
I found at [36] and [37] that AICT had made out a prima facie case that at the trial of the action it would be entitled to relief on the ground of malicious falsehood and that the balance of convenience favoured the grant of an injunction. It was on that basis that I made the Injunction Orders.
Mr Cha's first point gives rise to no defence to the charge of contempt. A party to the action has standing to bring proceedings for disobedience contempt. The relevant questions are what are the terms of the Injunction Orders and what did they require the defendants to do or not to do. The reasons of the court for making the orders is not relevant except that, at least where an order is ambiguous, the court may have resort to the judgment which gave rise to it for the purpose of construing the order.[3]
[3] Athens v Randwick City Council (2005) 64 NSWLR 58.

The second matter raised by Mr Cha is that AICT had been suspended from enrolling students. Mr Cha contends that the Injunction Orders were made to restrain the defendants from making statements so as to prevent further monetary loss by AICT. However, Mr Cha submitted, on 1 August 2016 the Australian Skills Quality Authority (ASQA) cancelled AICT's registration and suspended AICT from enrolling students. The ASQA announcement encouraged international students to contact AICT and therefore, Mr Cha submits, any publication made by the defendants would not contribute any harm to AICT. That is not relevant. The Injunction Orders have not been discharged. They must be obeyed.
As part of the same contention, or some variant of it, Mr Cha referred to the requirement that the order must be clear and unambiguous in its terms before a person can be punished for disobeying it. That is correct. However, Mr Cha has not elaborated upon any alleged ambiguity in the Injunction Orders. I will consider whether the Injunction Orders are sufficient, clear and unambiguous later in these reasons.
The third matter raised by Mr Cha refers to elements of the tort of defamation, in particular the requirement that the publication must identify the plaintiff as the person defamed. That is not the relevant question in this case. The relevant question is whether the conduct allegedly engaged in by Mr Cha breached the Injunction Orders. That inquiry may require the court to decide whether the Posts refer to AICT.
The fourth matter raised by Mr Cha concerns the meaning of the words. Mr Cha refers to various authorities concerning the determination of the meaning of words for the purposes of the tort of defamation. That is not the question in this case. The relevant question in this case is whether the conduct allegedly engaged in by Mr Cha breached the Injunction Orders.
In his written submissions Mr Cha made reference to other matters. Mr Cha said that matters concerning Mr Fu and Ms Jeong were published by WA Today and a news release by ASQA and others. That is not relevant to the question of whether Mr Cha breached the Injunction Orders.

Burden of proof

The onus of proof that Mr Cha breached the Injunction Orders is on the plaintiffs. The plaintiffs must prove beyond reasonable doubt that Mr Cha breached the Injunction Orders.

Elements of contempt charge

The plaintiffs submit, and I accept, that in order to prove a civil contempt of court involving a breach of an order of the court, a plaintiff has to prove that:
(a)an order was made by the court;
(b)the terms of the order are clear, unambiguous and capable of compliance;
(c)the order was served on the alleged contemnor, or excused in the circumstances, or service was dispensed with pursuant to the Rules of Court;
(d)the alleged contemnor has knowledge of the terms of the order;
(e)the alleged contemnor has breached the terms of the order and that the act or omission which constituted the breach of the order was deliberate and voluntary.
I will now consider whether the plaintiffs have proved, beyond reasonable doubt, each of these elements.

An order was made by the court

There is no doubt that the Injunction Orders were made by the court on 19 December 2014.

Terms of the order are clear, unambiguous and capable of compliance

The Injunction Orders inform the defendants clearly what they must not do - publish upon Winstar's Facebook page, or otherwise, any of the statements set out in the order or any similar statements to the same effect. The statements are straightforward statements about AICT, its conduct and its business.

Mr Cha was aware of the Injunction Orders

There is evidence that the Injunction Orders were served on Mr Cha. Mr Cha does not contest that. Indeed, by chamber summons of 22 July 2016, Mr Cha brought an application to vary the Injunction Orders and on 25 July 2016 swore an affidavit in support of his application.

Breach of the Injunction Orders

Whether or not Mr Cha breached the Injunction Orders is the real issue. The plaintiffs must prove two things. First, Mr Cha himself uploaded each of the Posts onto the Winstar Facebook page or he authorised, caused or procured someone else to do so. Secondly, the Posts contain any of the statements set out in par 1(a) of the Injunction Orders or any similar statements to the same effect.

Did Mr Cha make, or is he responsible for, the Posts?

The evidence that Mr Cha uploaded, authorised, caused or procured the Posts is circumstantial. Mr Cha gave oral evidence in his defence and was cross‑examined. Mr Cha denied that he made the Posts or caused them to be made. Mr Cha was an unsatisfactory witness and I place no weight on his denials.

Mr Cha was an unsatisfactory witness

English is not Mr Cha's first language. Mr Cha gave his evidence through an interpreter. I permitted Mr Cha to give his evidence through an interpreter because he requested it, he speaks English as a second language, he was representing himself, the hearing was a stressful, complex and unfamiliar situation for Mr Cha and he wished to communicate in his preferred language of Korean. However, Mr Cha demonstrated both on the hearing of these charges and on other appearances in the court, that he has a sound grasp of, and ability to respond to, questions in English. Indeed, on more than one occasion in the course of cross‑examination, Mr Cha responded to questions in English before the interpreter had interpreted the question to him. I do not accept that any inconsistencies, evasions or other unsatisfactory aspects of Mr Cha's evidence was a result of any language difficulty.
Mr Cha's evidence was characterised from beginning to end by evasiveness. Mr Cha responded to many questions which I would expect him to have some recollection of by saying 'I don't remember'. At one time shortly after lunch counsel asked Mr Cha:
Do you remember before lunch … '
Without waiting for the question to be put Mr Cha interrupted to answer:
I don't remember.
At times Mr Cha was not only evasive but argumentatively so. For example, counsel asked Mr Cha about an appearance in the Magistrates Court earlier on the morning on which Mr Cha was giving his evidence in this court. The following exchange occurred:
MacLAURIN, MR: Just about that court appearance this morning, that was on behalf of World College? You were appearing for World College?
THE WITNESS: Why you ask my other personal issues?
MacLAURIN, MR: No, I'm asking you.
THE WITNESS: Well I'm not answering.
NG, MS: Your Honours, I have been saying that this is confidential before that - - -
LE MIERE J: Miss Ng, would you sit down, please.
NG, MS: I'm the one who making the request.
LE MIERE J: Miss Ng, sit down, please. Continue on, please.
MacLAURIN, MR: Thank you. This morning in court, in the Magistrates Court - - -
THE WITNESS: I don't want to talk about this morning. Why do I have to talk about this morning?
MacLAURIN, MR: Because I'm asking you.
THE WITNESS: No. Sometimes my mother ask me, I don't answer. Why I have to answer to you? Can you get the - - -
At times Mr Cha gave evidence that was inconsistent with and contradicted evidence he had given earlier. For example, before lunch on 22 March 2018 in the course of his cross‑examination, after first giving an evasive answer to the question whether he knew Mr Tassone, Mr Cha agreed that Mr Tassone was associated with Stanley College and Mr Cha had sued Mr Tassone and Stanley College for defamation. When Mr Cha was asked whether he had taken action against Stanley College in the Magistrates Court, he first refused to answer on the ground that it was not relevant. When he was compelled to answer he replied that he had sued Stanley College but he could not remember if it was in the Magistrates Court or the District Court. He agreed that he had sued over money that he said Stanley College owed to him or Winstar.
At the request of counsel for the plaintiffs I instructed my orderly to inform Mr Cha at the commencement of the luncheon break that he was not to discuss the case or his evidence with anyone until he had finished giving his evidence. After the luncheon interval when counsel referred to Mr Cha having been involved in Magistrates Court proceedings against Stanley College, Mr Cha said:
No. I think you probably have the wrong information. It's not involved with me.
When it was put to him that that evidence was contrary to what he had said in his evidence before lunch, he said that he had checked during lunch time and confirmed that he was not involved. He then said that he had called people who were involved in the company and his brother who is also involved in the company. After I reminded him that the orderly had told him during the luncheon break that he was not to discuss his evidence with anybody during the luncheon break, Mr Cha gave an unsatisfactory response about to whom and about what he had spoken during the luncheon interval. Mr Cha continued to give unsatisfactory evidence about whether and why he had changed his evidence. When counsel said to Mr Cha that Mr Cha had said he remembered because his brother told him and that he had called his brother, Mr Cha responded:
Why you say my brother? Why you say my brother? All your - you know, all what are you are saying is, you know, you just piece of paper (indistinct) me up (indistinct) this guy was fucking, you know --
The cross‑examination continued with unsatisfactory responses from Mr Cha.
In his written submissions Mr Cha said at par 7:
The defendant had not published any article regarding any of the plaintiffs from 19/12/2014 until 27/07/2016, and the publication was online for two weeks and it was being removed.
In cross‑examination, counsel drew Mr Cha's attention to that paragraph and asked if Mr Cha agreed with it. Mr Cha first answered evasively: 'now it's 2017 and thinking backwards is very difficult'. Counsel then put to Mr Cha that what Mr Cha had said in that paragraph of his submissions was that since the injunction, until 27 July 2016 he had not published anything on the Facebook page about AICT. Mr Cha answered evasively:
I don't even want to hear the name of AICT.
After more evasion the following exchange occurred:
MacLAURIN, MR: Mr Cha, you are saying that, 'I didn't publish anything on the Winstar site about AICT from the date of the injunction, until 27 July 2016.'
INTERPRETER: Yes, that's correct.
MacLAURIN, MR: And what you're saying by this submission is - by saying until 27 July 2016 that you did start publishing about AICT or Mr Fu on 27 July 2016.
THE WITNESS: I don't remember. Do you remember what happened in 2016?
Counsel persisted in trying to get an answer, but was unable to obtain any further meaningful response.

Mr Cha is responsible for the Posts

The plaintiffs have adduced circumstantial evidence that Mr Cha uploaded the Posts or authorised, caused or procured them to be uploaded. I find that the only reasonable inference which can be drawn from the circumstances established by the evidence is that Mr Cha uploaded the Posts or authorised, caused or procured them to be uploaded. The circumstances established by the evidence are as follows.
Mr Cha and Ms Ng are the directors of Winstar and operate the Winstar business. Post D on the Winstar Facebook page describes Mr Cha as the Winstar boss. On all the evidence that seems a reasonable description.
During the hearing of the plaintiffs' application for an injunction on 8 December 2014, Mr Cha agreed that he and Ms Ng set up the Winstar Facebook page and can control what goes on and what does not go on it.
In an affidavit sworn by Mr Cha on 25 July 2016, in support of his application to vary the Injunction Orders, Mr Cha said that he was the person who had published the defamatory materials on the Winstar Facebook page in 2014. He added that he does not know how to type Chinese, but can write and understand Chinese, and had hired someone to translate what he said and typed in English.
In par 7 of his written submissions Mr Cha wrote:
The defendant had not published any article regarding any of the plaintiffs from 19/12/2014 until 27/07/2016, and the publication was online for two weeks and it was being removed.
In cross‑examination Mr Cha first agreed that that statement was correct. It was then put to Mr Cha that by that submission he was saying that he did start publishing about AICT or Mr Fu on 27 July 2016. Mr Cha then responded 'I don't remember. Do you remember what happened in 2016?'. I find that Mr Cha's statement in his written submissions is an admission that he started publishing about AICT on 27 July 2016. Mr Cha sought to resile from that admission in the course of his evidence but provided no satisfactory explanation for that change of position.
In three of the Posts - D (27 July at 16.55), E (27 July at 17.04) and G (28 July at 16.17), the author of the Post identifies himself as David Cha. When Mr Cha was asked whether he had any explanation for why Post D ended with the statement 'My name is David Cha', Mr Cha said 'People can use my name as David Cha everywhere. That's my explanation'. However, Mr Cha provided no evidence of, or even referred to any other occasion, on which someone had used his name.
There is no evidence that at any time anyone other than Mr Cha uploaded Posts by Perth Z Winstar on the Winstar Facebook page without Mr Cha having instructed, requested or otherwise authorised, caused or procured the person to do so. In cross‑examination counsel put to Mr Cha that the red icon or symbol alongside Perth Z Winstar showed that it was the Winstar Facebook proprietor that was making the Posts. Mr Cha gave an evasive answer:
I say Winstar has (indistinct) from - what I remember is four, five different companies and (indistinct) for different Facebook, different website. I don't even know which Facebook site you are talking about, this one. Which Winstar? Which Winstar Facebook is this one? For me, it's very clear from the beginning until now. At 2014, I don't know anything about this Facebook.
The timing and content of the Posts points strongly to Mr Cha being their author. The Posts appeared over a period of two days commencing on 27 July 2016. On 22 July 2016, the defendants had filed a chamber summons for an order that the Injunction Orders be varied to remove the restraint upon the defendants from publishing the statements set out in order 1(a) of the Injunction Orders or any similar statements to the same effect. Mr Cha swore an affidavit on 25 July 2016 in which he swore that on 20 July 2016, an article entitled 'Students qualifications in doubt across WA due to bogus courses' had been published and the article mentioned that AICT was delivering unauthorised courses which affects 25 schools such that some cannot graduate. Mr Cha swore that Mr Fu had admitted those matters, apologised to ASQA and stated that he deeply regretted the 'oversight'.
The first Post on 27 July at 15.52 (Post A) states 'AICT is now on WA's top news', and 'AICT's person‑in‑charge, Hong Fu forged curriculum and certificates'. The second Post on 27 July 16.18 (Post B) repeated the same allegations. Perth Z Winstar posted on 28 July at 16.27 a link to an article on WA Today entitled 'Students' qualifications in doubt across WA due to bogus courses'. The Post included what appears to be an imperfect reproduction, or summary, including quotes from what was said in the article including:
West Australian State students of vocational education and training certificate may be cancelled due to the fact regulators found the school opening of unauthorised courses … The letter wrote, Australian Business and Technology College (AICT) will stop teaching business level 1-3 certificate and information digital media and technology level 1 certificate course because this home school unregistered offers these courses. It also means that students may not be able to reach the West Australian education diploma requirements … It has affected 25 schools. Kids still have a few months before graduation. However without this qualification some kids won't be able to graduate … AICT Dean Hong Fu through legal representative said in a statement released school of management for this 'oversight' any inconvenience caused. He said that the school is not deliberately set up outside the scope of the school curriculum, he has apologize, ASQA and these 'unusual' incident.
The third to seventh Posts (Posts C to G) commencing on 27 July at 16.31 and concluding on 28 July at 16.17 focused on Stanley College. The fifth Post (Post E), on 27 July 17.04, concluded with the words:
Please trust me, David Cha, Stanley will be eventually closed down. I swear to myself, it will going to happen.
The sixth Post (Post F), on 28 July at 15.34, said:
Stanley owe Winstar more than 400k commission and refuse to pay.
In the course of cross‑examination by counsel for the plaintiffs, Mr MacLaurin, Mr Cha conceded that he or Winstar had sued Stanley College for money claimed to be owing to Mr Cha or Winstar.
Mr Tassone is associated with Stanley College. Mr Cha admitted that he had sued Mr Tassone and Stanley College in this court for defamation. He agreed that he appeared in court and represented himself in the proceedings. The sixth Post (Post F), made on 28 July at 15.34, was followed by an exchange of posts between Perth Z Winstar and Alberto Tassone. A post on 28 July at 17.40 by Perth Z Winstar said:
Haha! Judge K Martin in WA said no money no justice … Everyone in Australia had freedom of speech. We are also just defend my business and protect my business. When someone puts you out of the street, lock your money away, you can still have manner, you idiot, fuck off.
The hypothesis that someone other than Mr Cha uploaded the Posts without Mr Cha having instructed, requested or otherwise caused or procured the person to do so is mere conjecture. There is no evidence to give rise to a reasonable hypothesis to that effect.
The evidence adduced by the plaintiffs is sufficient to support the inference that Mr Cha uploaded the Posts, or authorised, caused or procured someone to upload the Posts, beyond a reasonable doubt. There is no evidence, which I accept, from Mr Cha to explain, or contradict the evidence adduced by the plaintiffs. The inference available from the evidence adduced by the plaintiffs may more safely be drawn because Mr Cha has not supported any hypothesis which is consistent with innocence from facts which might lead to the inference that the Posts were made by someone, not authorised by Mr Cha, in the name of Perth Z Winstar referring to the matters concerning Stanley College and Mr Tassone at a time Mr Cha was in dispute with them, referring to news articles Mr Cha referred to about the same time and in the case of Posts D, E and G impersonating Mr Cha.

Posts contravene the Injunction Orders

Post A (27 July 2016 at 15.52) contains similar statements to the same effect as one or more of the statements in par 1(a) of the Injunction Orders. The English translation of the Mandarin text includes that AICT's person in charge Hong Fu forged curriculum and certificates and told students that they did not need to attend classes. That is a statement similar to the statement in par 1(a)(ii) (sham meaning) and (iii) (false documents meaning).
Post B (27 July 2016 at 16.18) also includes statements that AICT's person in charge Hong Fu forged curriculum and certificates and told students that they did not need to attend classes. It further says, in effect, AICT 'deceived you, told you that your visa is fine but all they said was lies'. The Post contains similar statements to the same effect as par 1(a)(ii) (sham meaning), (iii) (false documents meaning) and (iv) (fraud meaning) of the Injunction Orders.
Post C (27 July at 16.31) contains statements or similar statements to the same effect as the statements in par 1(a)(iv) (fraud meaning) and (vi) (benefits meaning) of the Injunction Orders.

Post D (27 July 2016 at 16.55) contains statements or similar statements to the same effect as the statements in par 1(a)(iv) (fraud meaning) and (vi) (benefits meaning) of the Injunction Orders.
The plaintiffs say that Post E (27 July 2016 at 17.04) contains statements or similar statements to the same effect as statements in par 1(a)(vi) (benefits meaning) and (xii) (disgrace meaning) of the Injunction Orders. The Post contains allegations about Stanley College and a statement that it will be the second AICT case. The Post conveys the meaning that some, but not necessarily all, of the allegations against Stanley College apply to AICT. Those allegations include that students studying there have visa problems and were deported because of non‑attendance. The Post is defamatory of AICT but I am not satisfied that it conveys statements or similar statements to the same effect as par 1(a)(vi) (benefits meaning) or (xii) (disgrace meaning) of the Injunction Orders.
Post F (28 July 2016 at 15.34) is mainly about Stanley College's alleged parlous financial position. It contains the sentence 'look at AICT case, who was the victim, only students' and the sentence 'in this business, everyone know AICT and Stanley are the same, in trouble'. However, I am not satisfied beyond reasonable doubt that the Post contains any of the statements or any similar statements to the same effect as the statements in par 1(a) of the Injunction Orders.
Post G (28 July 2016 at 16.17) is a short publication. It conveys the meaning that AICT has been guilty of doggy incidents warranting reporting to the Department of Immigration and ASQA. However, I am not satisfied beyond reasonable doubt that it conveys any of the statements or any similar statements to the same effect as the statements in par 1(a) of the Injunction Orders.

Conclusion

I am satisfied beyond reasonable doubt that Mr Cha published statements or similar statements to the same effect as the statements in par 1(a) of the Injunction Orders by uploading or authorising, causing or procuring someone else to upload the Posts A, B, C and D on the Winstar Facebook page and thereby disobeyed the Injunction Orders. I am satisfied that, in that respect, Mr Cha is guilty of contempt.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere
17 JUNE 2020