Huang v Zhi
[2018] VCC 529
•2 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-17-00018
| WENFENG HUANG | Plaintiff |
| v | |
| DA CHENG ZHI | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February and 2 March 2018 | |
DATE OF JUDGMENT: | 2 May 2018 | |
CASE MAY BE CITED AS: | Huang v Zhi | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 529 | |
REASONS FOR JUDGMENT
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Subject:CONTEMPT
Catchwords: Whether defendant is in contempt of orders previously made by the Court – penalty
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic), Order 75
Cases Cited:Huang v Zhi & Anor [2017] VCC 1990; Hinch v Attorney-General (Vic) (No 2) (1987) 164 CLR 15; Morgan v State of Victoria (2008) 22 VR 237; Witham v Holloway (1995) 183 CLR 525; National Australia Bank Ltd (NAB) v Juric [2001] VSC 375; Australasian Meat Industry Employees Union & Ors v Mudginberri Station Pty Ltd& Ors (1986) 161 CLR 98; Chan & Ors v Chen & Ors (No 2) [2007] VSC 24; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; R v Herald & Weekly Times Pty Ltd [2008] VSC 251; Haritopoulos Pty Ltd & Anor v Scott [2007] VSCA 174; McKinnon v Adams (No 2) [2003] VSC 502
Judgment: Defendant guilty of contempt of court and fined the sum of $12,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Booth with Mr D Kim | United Associates Barristers & Solicitors |
| For the Defendant | Mr T Dowling | Mills Oakley, Solicitors |
HIS HONOUR:
1 On 4 January 2017, the plaintiff commenced a proceeding in this Court against the defendant (“Mr Zhi”) by way of writ. He claimed damages in respect of a number of defamatory articles published by Mr Zhi.
2 The proceeding was also commenced against a second defendant. The claim against that second defendant was resolved and the plaintiff’s claim against it was discontinued.
3 Mr Zhi did not file an appearance in the proceeding. On 7 July 2017, Interlocutory judgment was entered against him in favour of the plaintiff for damages to be assessed by the Court.
4 That assessment came on for hearing before me on 16 and 17 November 2017. Mr Zhi did not appear at that hearing. I am satisfied that he was aware of the dates upon which the assessment of damages hearing was to take place in this Court.
5 I delivered Judgment on 22 December 2017.[1] I ordered that Mr Zhi pay to the plaintiff damages in the sum of $220,000, which sum included $20,000 by way of aggravated damages.
[1]Huang v Zhi & Anor [2017] VCC 1990
6 The plaintiff’s claim also included an application for a permanent injunction restraining Mr Zhi from further distributing the publications sued upon and from publishing further material to the effect of the imputations alleged to arise from those publications. In my Judgment, I noted that, on the evidence before me, it appeared that unless restrained, Mr Zhi was likely to continue to publish similar imputations against the plaintiff. Accordingly, I made Orders restraining him from similar publications, to which I shall refer later in these reasons.
Orders made on 22 December 2017
7 On 22 December 2017, I made the following Orders:
“1.Judgment for the plaintiff against the first defendant in the sum of $220,000 inclusive of aggravated damages in the sum of $20,000.
2.Order that the first defendant be permanently restrained from publishing or causing to be published on the world wide web or otherwise any of the matters set out in paragraphs 10, 11 or 12 of the plaintiff’s Statement of Claim in this proceeding (including annexure ‘D’ to the Statement of Claim) and any information or material substantially to the same effect as those matters.
3. Order that the first defendant be permanently restrained from publishing or causing to be published, any of the following allegations:
(a)The plaintiff is dishonest;
(b)The plaintiff is a crook;
(c)The plaintiff is corrupt;
(d)The plaintiff is or has been involved in tax evasion;
(e)The plaintiff has deceived or is deceiving Australian butchers;
(f)The plaintiff is a criminal;
(g)The plaintiff has contravened the laws of Australia and any other country by smuggling.
4. Order that the first defendant pay the plaintiff’s costs of this proceeding save for costs solely relating to the proceeding against the second defendant. Such costs are to be assessed by the Costs Court on an indemnity basis in default of agreement between the parties.
5.Direct that a copy of this Judgment and these Orders be served on the first defendant this day under cover of correspondence that includes the following statement:
‘Orders 2 and 3 made by His Honour Judge Smith are injunctions permanently restraining you from publishing the matters identified in those Orders. The Court has directed us to inform you that any breach of those Orders could result in you being dealt with for contempt of Court.’
6.Service of the documents referred to in Order 5 of these Orders is to be made by attaching them to emails addressed to the first defendant at the email addresses:
(b)[email protected].”
(“the Orders”).
The Summons
8 By Amended Summons dated 19 February 2018, the plaintiff sought a declaration that Mr Zhi was in contempt of Court in that he had failed to comply with paragraphs 2 and 3 of the Orders. Particulars of each of the alleged contempts of Court were provided in 16 Charges which are referred to below.
9 In addition, the plaintiff sought further orders that:
(a)Mr Zhi must comply with the Orders by immediately ceasing any conduct that is in breach of them;
(b)Mr Zhi be fined and/or imprisoned for contempt for failing to comply with the Orders;
(c)Costs; and
(d)Any other orders that the Court deemed fit.
10 The Amended Summons contains 16 charges of contempt by failing to comply with paragraphs 2 and/or 3 of the Orders, which I shall address individually.
11 In short, the plaintiff has alleged that Mr Zhi has, since the date upon which the Orders were made, continued to publish defamatory information of a nature similar to the publications alleged in the Statement of Claim. He seeks a declaration that Mr Zhi has acted in contempt of paragraphs 2 and 3 of the Orders. Further, he seeks further restraining orders to restrain Mr Zhi from engaging in conduct which is, in substance, to the effect of the matters set out in Charges 1 to 16 in the Amended Summons.
12 Mr Zhi opposes the application on the basis that:
(a)The Orders are (in part) unclear, ambiguous and incapable of compliance to the effect asserted;
(b)The evidence is insufficient to establish a breach of the Orders;
(c)There has been no wilful breach of the Orders; and
(d)That, in any event, the putative contempt has been purged.
13 The plaintiff tendered affidavits sworn by Yuyuan Zhang on 22 January, 9 February and 23 February 2018; an affidavit sworn by Bingshen Zhou on 20 February 2018, and an affidavit sworn by Leo Lee on 25 February 2018.
14 Mr Zhi tendered an affidavit sworn by Edwin Adrian Fah on 26 February 2018.
Principles
15 The parties were largely in agreement as to the principles of law to be applied in such an application.
16 The application is brought by the plaintiff pursuant to Order 75 of the Rules of the Court.
17 Although the offence of contempt has been described as a criminal offence, the proceeding in respect of contempt proceeds in the civil jurisdiction of the Court.[2] A civil contempt usually applies in situations where there has been disobedience of a court’s orders.[3] However, disobedience of a court order amounts to a criminal contempt if it involves deliberate defiance or if it is contumacious.[4]
[2]Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89
[3]Morgan v State of Victoria (2008) 22 VR 237 at paragraph [110]
[4]Witham v Holloway (1995) 183 CLR 525 at 530-531
18 In National Australia Bank Ltd (NAB) v Juric,[5] the elements required to prove civil contempt were described by the Court as being that:
[5][2001] VSC 375 at paragraph [37]
(a) the court has made an order;
(b)the terms of the order are clear, unambiguous and capable of compliance;
(c)the order was served on the alleged contemnor unless service was dispensed with (not applicable here);
(d)the alleged contemnor has knowledge of the terms of the orders; and
(e)the alleged contemnor has breached the terms of the order.
19 I am satisfied that each of those five elements are satisfied in this matter with regard to the conduct referred to in Charges 5, 6, 13, 14, 15, and 16.
20 Further, in order to make a finding of contempt, the applicant must prove, beyond reasonable doubt, that the breach was wilful and not merely casual, accidental or unintentional.[6] I am satisfied that the contempt referred to in Charges 5, 6, 13, 14, 15, and 16 were committed wilfully.
[6]Australasian Meat Industry Employees Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113
21 I accept that, even where a person is found to be in contempt, the Court retains a discretion not to convict, and not to suspend any penalty imposed.[7]
[7]Chan & Ors v Chen & Ors (No 2) [2007] VSC 24 at paragraph [63]; See also Rule 75.11 of the Rules of the Court
22 I accept the submissions made on behalf of Mr Zhi, that the jurisdiction to punish for contempt should only be exercised with great caution.[8]
[8]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371
The Charges
23 Charge 1 is that, in breach of paragraph 2 of the Orders, on 25 December 2017, Mr Zhi sent an email to The Sydney Morning Herald copying in the second defendant, the plaintiff’s solicitors, and a client of the plaintiff, alleging a number of matters and attempting to have The Sydney Morning Herald contact him. The email was titled “The harmful impacts of overseas Chinese to Australian and Chinese relation [sic]”. In the email, Mr Zhi made various allegations which were alleged to refer to the plaintiff, and which concerned “false and harmful images” that were causing negative impacts on Australia/China business relations. Mr Zhi concluded the email by requesting that the recipient contact him “to obtain all factual details”. The indication from Mr Zhi was that he wished to discuss with the recipient and provide information about the plaintiff and the plaintiff’s dealings relevant to the matters he raised in the email.
24 On 24 December 2017, two days after the Orders were served upon Mr Zhi, a reply email was sent by Mr Zhi to William Zhang (the plaintiff’s solicitor) stating “This is exactly what I need to hear from you”.[9] Later on the same day, Mr Zhi sent a further email to Mr Zhang and to the plaintiff.[10] Those emails make it clear that Mr Zhi had received a copy of the Judgment. He said he was very happy to receive the Court Judgment and it was exactly what he had been looking for.
[9]Exhibit WZ-1 at page 18
[10]Exhibit WZ-1 at page 19
25 On 25 December 2017, Mr Zhi sent an email to Mr Zhang and a number of individuals connected with Murray Valley Meat Company Pty Ltd (“MVM”), which had been the second defendant in the proceeding until matters between the plaintiff and it were resolved.[11]
[11]Exhibit WZ-1 at page 20
26 The email of 25 December 2017 read as follows:
“Dear Sir/Madam
Australian and Chinese relation are at all time low due to Mr Turnbull’s complaint about Chinese influence upon Australia.
I have interesting story which helps readers to look the present strained the Australian and China relation from a different perspective: lots of bad images of China are created overseas Chinese who live in Australia.
Chinese nowadays does have impacts on Australian way of life both economically and politically. However some of the negative impacts are mistaken as Chinese government’s influence which in fact are generate by overseas Chinese who live in Australia, who have nothing to do with Chinese government, but they claimed they have deep connections with Chinese governments. By doing so, these overseas Chinese generate huge commercial benefits upon the fear from Australian business who want tap into the huge markets of China. Many Australian businesses which are completely made up the overseas Chinese living here in Australia.
This kind of false and harmful images are causing negative impacts onto the Australian and Chinese ever increasing interdependent relation.
Could you please contact me to obtain all factual details.
Kind regards
Eddie Zhi … .”
(sic)
27 The plaintiff submits that, having regard to the context, Mr Zhi was referring to the plaintiff and that an ordinary, reasonable reader with knowledge of relevant facts would have identified the plaintiff from the material. He submits that, although Mr Zhi did not directly identify the plaintiff by name:
(a)Mr Zhang was copied into the email and there was no other plausible reason for that other than the fact that Mr Zhi was referring to the plaintiff; and
(b)MVM personnel were copied into the email, some of whom were the same recipients of the email sent by Mr Zhi on 28 November 2016, the email referred to in paragraph 11 of the Statement of Claim.
28 It is submitted by the plaintiff that the email of 25 December 2017 breaches paragraphs 2 and 3 of the Orders in that it inferred that the plaintiff was dishonest, had falsified facts, and that he had damaged Australian/Chinese business relations. Further, it is submitted that the email concerns matters that the plaintiff alleged against Mr Zhi in paragraphs 10, 11 and 12 of the Statement of Claim, which the Court had previously found were defamatory.
29 I have again perused the allegations made in paragraphs 10, 11 and 12 of the plaintiff’s Statement of Claim. I do not consider that Mr Zhi’s email of 25 December 2017 is a publication of any of the matters set out in those paragraphs or of the matters set out in Annexure “D” to the Statement of Claim.
30 It follows that I am not satisfied that Charge 1 is made out.
31 Charge 2 relates to the same email dated 25 December 2017 which is alleged to be a breach of paragraph 3 of the Orders. Having perused that Order and the allegations set out in parts (a) to (g) of that Order, I am not satisfied that the email of 25 December 2017 constitutes a breach of that Order.
32 It follows that I am not satisfied that Charge 2 has been made out.
33 Charges 3 and 4 relate to an email sent by Mr Zhi on 29 December 2017.[12] The substance of this email is in essence the same as the email sent by Mr Zhi referred to in Charges 1 and 2. The difference is that it was sent to a Mr Sullivan of Sanger Australia, another beef export client of the plaintiff. Further, it was addressed to ‘60 Minutes’, a well-known television program. Further, it contained an additional sentence at the end of the penultimate paragraph which reads:
“It is time to expose these to the public so that better understanding about China is obtained.”
[12]Exhibit WZ-1 at page 21
34 Again, it is submitted by the plaintiff that the email refers to the plaintiff and that an ordinary, reasonable reader with knowledge of the facts would have identified the plaintiff from that material. This was said to be because Mr Zhang was copied into the email, as were MVM personnel as well as Mr Sullivan. They were all recipients of the email sent by Mr Zhi on 28 November 2016, which is referred to in paragraph 11 of the Statement of Claim and which has previously been found to be defamatory of Mr Zhi.
35 I am not satisfied that the recipients, albeit with knowledge of the earlier email of 28 November 2016, would have identified the plaintiff from the material. Further, I am not satisfied that the matters referred to in the email of 29 December relate in any way to the matters alleged in paragraphs 10, 11 or 12 of the Statement of Claim or to the matters set out in Annexure “D” to the Statement of Claim, or relate to matters which are substantially to the same effect.
36 Similarly, I am not satisfied that the email of 29 December 2017 contains any of the allegations set out in paragraph 3 of the Orders.
37 It follows that I am not satisfied that Charges 3 or 4 are made out.
38 Charges 5 and 6 relate to a second email sent by Mr Zhi on 29 December 2017 to the ‘60 Minutes’ television program. It, too, was copied to Mr Zhang and to personnel associated with the plaintiff’s beef exporting clients, including MVM.
39 The second email of 29 December 2017 reads as follows:
“Early 2017, Chinese premier, Mr Li, visited Australia with great news for the meat industry: another 15 Australian meatworks will be given access to the huge meat markets.
Behind scene, we see these happening:
A company owned by a Chinese back ground businessman who claimed they are part of huge Chinese state company: Joc China, reaped 100,000 usd dollars financial benefits from the above good China news by under table deals: this Melbourne based meat exports business owed huge amounts to an Australian 4 generation family business who work very very hard to achieve the biggest domestic meat distribution business employing hundreds of workers: Murray meats trading becoming the victim to a scam. Murray Valley is very hard working towards export meats to China. This Melbourne Chinese businessman claimed he has huge influence in the Chinese Quarantine Authorities and can arrange the export liscence Audit in exchange for forgiving the main part of its debt amount to 100,000 USD.
In reality, this Melbourne business has no influence in the decision making of the issuing the Chinese liscence by the Chinese Quarantine Authorities who meticulously did its Audit and all the so-called connections and influences are only based on fabrication and deception.
The result is: Not only the victim still not got its China liscence after loosing 100,000 USD but also another Australian Company lost their opportunity to be Audited: AACO spent lots of effort in preparation for the previously advised audit and was pull off the audit in the last minute due to the ‘influence’ of the Melbourne company own by an Australian Chinese.
The side effects of this story: a huge damage to the image of China and its government. In fact the Chinese government as any western governments have been trying to do a good job for its people by having strict audit standards and ensuring its country’s food safety. The under table dealings of this Melbourne Chinese back ground company has done no good to anyone except to itself. However it does generate a false fear among Australian meat works aspiring to obtain the valuable Chinese liscence: All think this Melbourne Chinese back ground business has huge influence in Chinese government. This kind of story poisons the economic relations between China and Australia and harm Australian National interests.
I will provide you all the factual details to you to produce an interesting story.
Eddie Zhi … .”
(sic)
40 The plaintiff submits that this email refers to the plaintiff and to his company, JOC Australia Pty Ltd, respectively. He submits that, even if ‘60 Minutes’ did not know their identity, the balance of the recipients of the email did.
41 I accept that this is likely to be the case, having referred to the material referred to in paragraphs 10, 11 and 12 of the Statement of Claim and to Exhibit “D” to the Statement of Claim. Those paragraphs relate specifically to the plaintiff and to his company, JOC China. The reference to the debt of $US100,000 is, in my view, likely to have been understood by those associated with MVM to be a reference to a debt allegedly owed by the plaintiff to MVM and which had been the subject of earlier court proceedings between them.
42 I am satisfied that the second email of 29 December 2017[13] is in breach of paragraphs 2 and 3 of the Orders. It follows that I am satisfied beyond reasonable doubt that Charges 5 and 6 are made out.
[13]Exhibit WZ-1 at page 22
43 Charges 7 and 8 relate to an email sent by Mr Zhi on 9 January 2018[14] to Mr Zhang (the plaintiff’s solicitor).
[14]Exhibit WZ-1 at page 39
44 This was a further email sent to Mr Zhang. Copied in were ‘60 Minutes’ and also persons associated with the management of MVM. This email appears to be a reply by Mr Zhi to an email sent by the plaintiff’s solicitors to ‘60 Minutes’ and to the directors of MVM advising the recipients of the Judgment of this Court in the defamation proceeding previously referred to and the Restraining Orders made on 22 December 2017.
45 The email sent by Mr Zhi on 9 January 2018 merely said:
“The truth is the truth!”
46 The plaintiff submits that, by making this statement, Mr Zhi was confirming that his prior comments, contained in his email of 29 December 2017, were indeed referring to the plaintiff, and that his allegations were true. By sending the email, it was submitted that Mr Zhi had breached paragraphs 2 and 3 of the Orders.
47 It is submitted that, as a consequence of the emails dated 9 January 2018 to ‘60 Minutes’ and to the directors of MVM, a reasonable reader would have known that his email of 29 December 2017 concerned the plaintiff and that he would not stop publishing, or cease attempting to publish, similar material concerning the plaintiff.
48 Whilst it is possible that some recipients may have read the short email sent by Mr Zhi dated 9 January 2018 in that way, I am not satisfied to the required standard that this is likely to have been the case.
49 It follows that Charges 7 and 8 are not made out.
50 Charges 9 and 10 relate to a similar short email, also sent on 9 January 2018, to ‘60 Minutes’ and personnel associated with MVM and Sanger, another beef exporter.[15]
[15]Exhibit WZ-1 at page 40
51 That email read as follows:
“It is childish even to think someone can silence me.”
52 Here, again, the plaintiff submits that by making this statement, Mr Zhi was confirming his prior comments contained in his email of 29 December 2017 concerning the plaintiff, and that he would not stop publishing, or cease attempting to publish, material concerning the plaintiff.
53 For the reasons set out in relation to Charges 7 and 8, I am not satisfied that Charges 9 and 10 are made out.
54 Charges 11 and 12 relate to an email sent by Mr Zhi on 13 January 2018 to Mr Zhang and copied to the plaintiff, board members of MVM and to others associated with the beef export industry. That email reads as follows:
“Dear William [a reference to the plaintiff’s solicitor] and Henry [a reference to the plaintiff]
Congratulations for your to win the first round legal battle which I chose to let you win by not appearing in order not to embarrass many innocent people and also giving Henry a chance to repent. Obviously you did not get the message.
If you have no objections, I have decided to publish both in China and Australia on major media the judgment of the court’s decision TOGETHER WITH YOUR EVIDENCES. THIS IS EXACTLY WHAT WE BOTH WANT: YOU MONEY AND I PUBLICITY.
I WISH YOU SPENT THE MONEY YOU GOT OV From Murray Valley meaningfully so that a bad thing can into a good result. You will find sometimes winner is in fact the looser. Only a looser will try to prove wrong is right and not to pay his debt.
Have fun!
Kindest regards
Eddie.”
(sic)
55 The plaintiff submits that a reasonable reader would draw an inference from the contents of that email that the plaintiff had committed an act that was unlawful, including not paying a debt when it was due. He submits that the email is in breach of paragraphs 2 and 3 of the Orders.
56 Having again perused the plaintiff’s Statement of Claim, I am not satisfied that the email dated 13 January 2018 concerns matters set out in paragraphs 10, 11 or 12 of the Statement of Claim or Annexure “D” to that Statement of Claim. Further, I am not satisfied that the email concerns any of the allegations referred to in paragraph 3 of the Orders. It follows that I am not satisfied that Charges 11 or 12 are made out.
57 Charge 13 relates to publications by way of a chat group known as “WeChat”.[16]
[16]Exhibit WZ-2 at pages 3, 8 and 11
58 The plaintiff submits, and I accept, that the words on page 3 of that exhibit indicate that the membership of that chat group is 439, although I consider it likely that those numbers might vary from time to time or even day to day. Nevertheless, I accept that there was likely to be a substantial number of members at the time of those chat group entries.
59 On 30 January 2018, it appears that Mr Zhi uploaded an image on the chat room site which read:
“According to the verification made with Jiangsu Overseas Group Co., Ltd., the Australia business below used its trademark and abbreviation without its permission. The purpose goes without saying, it uses a great banner as a tiger skin! To mislead the general public!”[17]
(sic)
[17]Exhibit WZ-2 at page 8
60 The reference to “the Australia business below” is plainly a reference to JOC Australia Pty Ltd and to the plaintiff.
61 These allegations are similar to that made in paragraph 10 of the plaintiff’s Statement of Claim, where it was alleged that Mr Zhi had published information that the plaintiff was “pretending he is JOC China” and misleading the general public. Similar allegations were made in paragraph 11 of the Statement of Claim and in Annexure “D” to the Statement of Claim.
62 I am satisfied that Mr Zhi’s chat group communication of 30 January 2018 is in breach of paragraph 2 of the Orders. I am satisfied beyond reasonable doubt that Charge 13 is made out.
63 Charge 14 concerns text messages and an image uploaded by Mr Zhi on 31 January 2018 onto the chat room.[18] That message read:
“I wish the Committee of Discipline Inspection could attach importance to this.
Thank you very much!
Eddie Zhi.”
[18]Exhibit WZ-2 at page 11
64 The images shown on that message amount, in my view, to an allegation that the plaintiff had committed unlawful acts for which he ought to be investigated.
65 In the written part of this entry the plaintiff relates to the two images shown below it, from which I can infer that Mr Zhi is again alleging that the plaintiff is posing as JOC China.
66 For the reasons set out in relation to the previous charge, I am satisfied beyond reasonable doubt that this publication is in breach of paragraph 2 of the Orders. It follows that Charge 14 is made out.
67 Charge 15 relates to a text message on the same chat room on 31 January 2018.[19] The message was addressed to Secretary Xing of the head office of Jiangsu Overseas Group Co Ltd. It reads:
[19]Exhibit WZ-2 at page 12
“Secretary Xing,
Hello! I would like to report an issue:
Without any authorisation, an Australian company has printed the registered trademark of Jiangsu Overseas Group on its employee name card. This is a serious act at tort, which has not only damaged the company’s interest, but also misled the general public; everyone would think that company is an overseas branch of the stated own enterprise, Jiangsu Overseas Company.
I have also reported to the board chairman, Mr Huang about this fact.
I have enclosed evidence to this letter.
I wish the Committee of Discipline Inspection could attach importance to this.
Thank you very much.
Eddie Zhi.”
(sic)
68 Again, it is my view that this message amounts to an allegation that the plaintiff is pretending he is JOC China, as was alleged in the publications the subject of paragraphs 10, 11 and 12 of the plaintiff’s Statement of Claim. Accordingly, I am satisfied that that publication was in breach of paragraphs 2 and 3 of the Orders. It follows that Charge 15 is made out.
69 Charge 16 relates to a further chat room publication on 6 February 2018.[20]
[20]Exhibit WZ-2 at page 16
70 The message is to a person named Wang Zhigang, Head of Bureau. It reads:
“Bro this [person] is a real fraud: pretending to be a state-owned company, because he wants people to think he has got strong backing.
In order to avoid [paying for] the debt, [he] even fabricated a lie that would collapse by itself: the customs collected tax and refused to issue a value-added tax invoice!”
71 Counsel for Mr Zhi conceded that this publication was in breach of paragraphs 2 and 3 of the Orders. I am satisfied beyond reasonable doubt that Charge 16 is made out.
Summary of findings
72 In summary, I am satisfied that Charges 5, 6, 13, 14, 15 and 16 are made out beyond reasonable doubt.
73 I am satisfied that the breaches of the Orders were wilful. Mr Zhi was well aware of the Orders. Copies were served upon him very soon after they were made. As referred to above, he messaged the plaintiff, his solicitors and others on more than one occasion that he was pleased that the Orders had been made and that he was deliberately seeking publicity.
74 Although counsel for Mr Zhi submitted that the breaches were not wilful, there was no suggestion that the breaches were accidentally published. I accept the submission of the plaintiff that they were wilfully disobedient of the Orders and were part of a conscious and wide reaching campaign to discredit and harm the plaintiff and his company. I consider that the plaintiff’s fear that Mr Zhi will continue to cause further damage to the plaintiff is justified.
Penalty
75 The plaintiff concedes that, given the lack of the endorsement required under Rule 66.10(3), the Court is not empowered on this occasion to impose a term of imprisonment on Mr Zhi.
76 I do however consider that, given the nature of the breaches of the Orders, and the circumstances in which they were made, that it is appropriate that Mr Zhi be convicted of contempt and that a fine be imposed upon him.
77 I was referred to a number of cases where fines were similarly imposed.[21] I note the reference made by the Court of Appeal in Haritopoulos to the range of fines imposed for contempt being between $2,500 to $120,000.
[21]R v Herald & Weekly Times Pty Ltd [2008] VSC 251 at paragraph [57]; Haritopoulos Pty Ltd & Anor v Scott [2007] VSCA 174; McKinnon v Adams (No 2) [2003] VSC 502; Hinch v Attorney-General Vic (supra)
78 In assessing an appropriate penalty I have taken into account that:
· I consider that the breaches were wilful;
· The breaches were committed as part of an ongoing business conflict between Mr Zhi and the plaintiff;
· The breaches were committed in a manner that was calculated to result in loss of reputation over and above the loss of reputation referred to in my Judgment in the plaintiff’s damages claim against Mr Zhi[22] and financial losses for the plaintiff and his company;
[22]Huang v Zhi & Anor (supra)
· Mr Zhi may not have had a full appreciation of Australian law and the repercussions of continuing his campaign against the plaintiff and had not obtained legal advice until February 2018, shortly after I had urged him that it was in his interests to do so;
· Mr Zhi has not offered any genuine apology to the plaintiff and has not withdrawn publicly any of the allegations made to the plaintiff’s business contacts in Australia or China;
· There is a public interest in having Orders made by the Court complied with; and
· Specific and general deterrence are matters relevant to penalty in this matter.
79 Taking all of the circumstances into account, Mr Zhi is convicted of contempt in respect of Charges 5, 6, 13, 14, 15 and 16 and fined, on an aggregate basis, the sum of $12,000.
80 I shall hear the parties concerning the precise wording of Orders reflecting these findings and in relation to costs.
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