Rose v Cwalina (Contempt)
[2024] VSC 719
•22 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2016 05260
| ALAN WESLEY ROSE | Plaintiff |
| v | |
| PIOTR MACIEJ CWALINA | Defendant |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 August 2024, 18 September 2024, 1 November 2024 |
DATE OF JUDGMENT: | 22 November 2024 |
CASE MAY BE CITED AS: | Rose v Cwalina (Contempt) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 719 |
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PRACTICE AND PROCEDURE – Proceedings for contempt – Breach of injunction – Effect of apology - Supreme Court (General Civil Procedure) Rules 2015, r 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Prothonotary | Ms G Rhodes | Victorian Government Solicitor’s Office |
| For Mr Cwalina | Self-represented |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The basis of the contempt charges.................................................................................................. 1
Principles as to contempt of court charges.................................................................................... 3
Elements of contempt of court.................................................................................................... 3
Relevance of an apology..................................................................................................... 3
Evidence relevant to the contempt charge..................................................................................... 4
Procedural history of the contempt proceeding and related proceeding............................. 7
Mr Cwalina’s apology................................................................................................................ 11
Reasons for my conclusions on the contempt charges............................................................. 12
Sentencing......................................................................................................................................... 14
Principles as to factors relevant to sentencing for contempt................................................ 14
Prothonotary’s submissions...................................................................................................... 15
Mr Cwalina’s submissions......................................................................................................... 16
Reasons for imposing no sentence............................................................................................ 16
The seriousness of the breach, and the reasons for the breach................................... 16
Absence of evidence of material harm to the plaintiff from the breach.................... 18
Mr Cwalina’s personal and financial circumstances.................................................... 20
Deterrence........................................................................................................................... 20
The apology........................................................................................................................ 21
Conclusion – sentence....................................................................................................... 22
Costs.............................................................................................................................................. 22
HER HONOUR:
Introduction
On 1 November 2024, at a mention of a summons in this proceeding by which the defendant Mr Piotr Cwalina was charged with contempt of court,[1] Mr Cwalina admitted a breach of orders of the Court and apologised for that breach. I found Mr Cwalina guilty of contempt of court. I decided to impose no sentence. The following are my reasons for that decision.
[1]Summons filed 12 March 2024, Amended Summons filed 8 August 2024, Further Amended Summons filed 25 September 2024.
The basis of the contempt charges
In 2023, in the course of this proceeding relating to a dispute over interests in Properties at 1 Geoffrey Street and 17 Helen Street in Frankston,[2] Tsalamandris J issued an injunction directed to Mr Cwalina, the plaintiff Mr Rose, and to Ms Zofia Majak who had been party to the proceeding at an earlier stage. The Injunction, granted on 31 August 2023, restrained Mr Rose, Mr Cwalina and Ms Majak from entering the Properties. It was extended on five occasions[3] including when judgment was given on 5 December 2023,[4] following which orders were made on 18 December 2023 for the partition and, if necessary, the judicial sale of the Properties.
[2] Rose v Cwalina S CI 2016 05260.
[3]Orders made on 6 September 2023, 13 September 2023, 5 December 2023, 18 December 2023 and 31 January 2024.
[4]Rose v Cwalina [2023] VSC 721 (Tsalamandris J).
At a mention on 31 January 2024, the solicitor for Mr Rose appeared and relied on an affidavit affirmed by him containing information to the effect that Ms Majak had entered and taken possession of one of the Properties, and asserting that Mr Cwalina had authorised her to do so.[5] The Court directed the Prothonotary to charge Mr Cwalina by summons with contempt of court for breach of the Injunction, and issued a warrant for Ms Majak to be brought before the Court to answer a charge of contempt of court. Ms Majak was brought before the Court on 20 February 2024, and released on condition that she attend a hearing of a contempt proceeding on 27 February 2024.[6]
[5]Affidavit of Russell C Byrnes affirmed and filed 25 January 2024 (First Byrnes Affidavit), [13], [47].
[6]That charge has been made in a separate proceeding commenced by originating motion: R v Majak S ECI 2024 00849.
The Prothonotary issued a summons to Mr Cwalina seeking a declaration[7] that he is guilty of contempt by entering, occupying or taking possession of one of the Properties (the property at 17 Helen Street) by directing Ms Majak to change the locks and to enter, occupy and take possession of that property. The summons was supported by the original affidavit of Mr Byrnes on which the direction to charge Mr Cwalina had been based,[8] and a further affidavit of Mr Byrnes dated 26 February 2024, which included evidence to the effect that Mr Cwalina had entered the Helen Street property on 20 February 2024 in breach of the orders of Tsalamandris J made on 31 January 2024. At a hearing of this matter on 8 August 2024, I granted leave to amend the summons to allege a further particular of contempt of court constituted by Mr Cwalina based on that entry. The summons was subsequently further amended, as discussed below, to remove the first allegation that Mr Cwalina had directed Ms Majak to take possession of the property, leaving the allegation of entry on 20 February 2024 as the remaining charge of contempt.[9]
[7]Summons filed 12 March 2024, Amended Summons filed 8 August 2024, Further Amended Summons filed on 25 September 2024.
[8]First Byrnes Affidavit.
[9]Further Amended Summons filed 25 September 2024, pursuant to the orders of Harris J made on 18 September 2024 (Further Amended Summons).
On 21 October 2024, Mr Cwalina sent an email to the Court including a statement that:
I would like to offer my sincere apology to the court for the unintended act of entering the property at 17 Helen Street on 20 February 2024 after receiving a notification that the property was left unlocked by Ms Majak who was arrested on that day.
At a mention of this matter on 1 November 2024, Mr Cwalina admitted that he breached the orders by entering the Helen Street property on 20 February 2024, and repeated his apology in open court.
Principles as to contempt of court charges
Elements of contempt of court
The moving party must prove beyond a reasonable doubt the following elements of civil contempt for a breach of a court order:[10]
[10]National Australia Bank Ltd v Juric [2001] VSC 375, [37] (Gillard J); Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [31] (Gillard J); Witham v Holloway (1995) 183 CLR 525, 529 (Brennan, Deane, Toohey and Gaudron JJ); Liu v Gan [2024] VSC 566, [36]-[37] (Osborne J).
(a) the 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 dispensed with pursuant to the Rules of Court;
(d) the alleged contemnor has knowledge of the terms of the order; and
(e) the alleged contemnor has breached the terms of the order.
For charges to be established it is necessary to establish that the breach of the order was wilful. It may suffice for that purpose that the act did not involve a direct intention to disobey an order, but the order was breached through carelessness or neglect.[11] As observed by the High Court in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd:[12]
[L]ying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. … It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.
[11]Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107, 111 (Gibbs CJ, Mason, Wilson and Deane JJ).
[12]Mudginberri, 107, 112-113 (Gibbs CJ, Mason, Wilson and Deane JJ), cited in Liu v Gan, [38]-[39] (Osborne J).
Relevance of an apology
An apology by a person in breach of court orders may be relevant as:
(a) a purging of the contempt, which might lead to the discharge of the contemnor from any punishment;[13] and
(b) a factor in mitigation of sentence.[14]
[13]A person who seeks to purge their contempt must apologise unreservedly and, ordinarily, offer to pay compensation and indemnity costs: see Khoury v Kirwan(No. 4) [2021] VSC 333, [112] (John Dixon J); see also David Rolph, Contempt (The Federation Press, 2023), 812-814.
[14]Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 498-499 (Windeyer J); Superstar Australia Pty Ltd v Coonan & DenlayPty Ltd (1982) 65 FLR 432, 436 (McGregor, Morling and Ellicott JJ); Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494, 501 (Merkel J); Zhang v Shi (No 6) [2022] VSC 271, [31] (Delany J); The Queen v Hinch (No 2) [2013] VSC 554, [12], [28] (Kaye J).
There is authority that it is not possible to purge a contempt arising from the breach of an injunction which is in prohibitive terms, such that it cannot now be undone.[15] The apology in those circumstances will be relevant to the contemnor’s sentence.
[15]Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563, 574 [35]-[38] (Logan J); Armidale Local Aboriginal Lands Council v Moran [2020] NSWSC 442, [38] (Lonergan J).
In Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd,[16] the Full Court of the Federal Court of Australia held that a fine should not be imposed on a contemnor who sold cricket helmets in breach of an interlocutory injunction. In reaching that conclusion, the Court took into account, among other things, the fact that the contemnor had proffered a sincere apology to the Court.[17] In R v Witt (No 2),[18] J Forrest J held that the contemnor’s ‘insight, contrition (albeit late in the day), admission of the charge, and subsequent ‘sincere and unconditional apology’ to the Court…must mitigate the penalty to be imposed’.[19] His Honour observed that ‘there was a real utilitarian benefit in Mr Witt’s admission of this charge at an early point in time’ and that his apology showed ‘a real degree of remorse’,[20] despite the contemnor’s failure to attempt to correct his mistake or acknowledge an error until answering a charge of contempt.[21]
[16](1982) 65 FLR 432.
[17](1982) 65 FLR 432, 436.
[18][2016] VSC 142.
[19][2016] VSC 142, [129] (J Forrest J).
[20][2016] VSC 142, [130].
[21][2016] VSC 142, [130]-[131].
Evidence relevant to the contempt charge
On 20 December 2016, this proceeding was commenced by Ms Majak against Mr Cwalina and Mr Rose seeking declarations that she was a part owner of the Properties. Mr Rose issued a counterclaim against Mr Cwalina. In August 2017, Ms Majak’s claim against Mr Cwalina was dismissed and her claim against Mr Rose was transferred to the Family Court of Australia. The proceeding continued between Mr Rose and Mr Cwalina only, Mr Cwalina having also issued a counterclaim against Mr Rose.[22]
[22]Rose v Cwalina [2023] VSC 721, [1]-[2].
On 5 October 2017, Mr Rose and Mr Cwalina entered a settlement agreement with respect to their claims against each other. However, for reasons which remain unknown, consent orders provided to the Court to reflect that settlement were not made, and the proceeding remained on foot. In the trial before Tsalamandris J, at which Mr Cwalina appeared for himself, Mr Rose submitted that Mr Cwalina had not complied with the settlement agreement and sought an order for judicial sale of the Properties, or for specific performance of the settlement agreement.[23]
[23]Rose v Cwalina [2023] VSC 721, [3].
On 31 August 2023, there was a hearing of an application for an ex parte injunction made by Mr Rose. Mr Cwalina was not present at the hearing. Justice Tsalamandris issued the Injunction, which was in the following terms:[24]
[24]Orders of Tsalamandris J made on 31 August 2023.
1.By 5pm on 11 September 2023, the plaintiff, the defendant and Ms Zofia Majak are restrained from entering, occupying or taking possession of the property known as 17 Helen Street, Frankston or 1 Geofrey St, Frankston.
2.On or before 12 noon on 1 September 2023, the plaintiff is to cause these orders to be served on:
(a)the defendant, by emailing a copy of the orders to [email protected];
(b)Zofia Majak, by emailing a copy of the orders to [email protected]; and
(c)Abode real estate agents, by emailing a copy of the orders to [email protected].
The evidence before me did not address the service of these orders in accordance with the requirement in the second order. However, the Injunction was extended by orders made on 6 September 2023, made in chambers, and on 13 September 2023 by orders made at a hearing. The evidence establishes that Mr Cwalina was present at the hearing on 13 September 2023 when the Injunction was extended on that day, in addition to establishing that Mr Byrnes, solicitor for Mr Rose, sent the orders to Mr Cwalina by email.[25]
[25]See orders of Tsalamandris J made 13 September 2023 and appearances; First Byrnes Affidavit, [4].
Reasons for judgment in the proceeding were delivered on 5 December 2023 at a hearing at which Mr Cwalina appeared. At that time orders were made extending the Injunction until 19 December 2023. On 18 December 2023, at a hearing at which Mr Byrnes and Mr Cwalina appeared, Tsalamandris J made orders to give effect to her Honour’s judgment, providing for the partition of the Properties and the resolution of the proceeding by judicial sale in the event that Mr Cwalina did not comply with the orders for and relating to the partition. Her Honour also made an order that:
The date by which Mr Rose, Mr Cwalina and Ms Zofia Majak are restrained from entering, occupying or taking possession of the property known as 17 Helen Street, Frankston, or 1 Geofrey St, Frankston, is extended to:
(a)the date on which the Land is partitioned such that the Geofrey Street Lot is registered solely in the name of Mr Rose and the Helen Street Lot is registered solely in the name of Mr Cwalina; alternatively
(b)in the event of judicial sale, the date of settlement; or
(c)any other date the Court may subsequently order.
On 31 January 2024, the proceeding was mentioned before Tsalamandris J, with Mr Cwalina and the solicitor for Mr Rose appearing, and the Court read the affidavit of Mr Byrnes dated 25 January 2024. Her Honour, having regard to the evidence in that affidavit that Mr Cwalina had not complied with certain of the orders intended to give effect to the partition process, made orders for the judicial sale of the Properties and for the continuance of the Injunction (31 January 2024 Orders). Having regard to the evidence in the affidavit to the effect that Mr Cwalina and Ms Majak had breached the Injunction, her Honour made orders requiring Ms Majak to be brought before the Court to answer a charge of contempt of court, and directing the Prothonotary, by way of summons, to charge Mr Cwalina with contempt of court.
Before the summons was issued to Mr Cwalina, Ms Majak was arrested on 20 February 2024 pursuant to the 31 January 2024 Orders, and brought before the Court. She was released on terms that she gave an undertaking that she would not enter, occupy or take possession of either of the Properties and would comply with the orders of the Court dated 31 August 2023, 13 September 2023, 5 December 2023 and 18 December 2023. Justice Tsalamandris directed the Prothonotary to commence proceedings for contempt against Ms Majak.
Procedural history of the contempt proceeding and related proceeding
On 27 February 2024, a directions hearing for the contempt proceeding was held before McCann JR. Mr Byrnes had made a further affidavit affirmed and filed on 26 February 2024 containing evidence to the effect that Mr Cwalina was in the Helen Street property on 20 February 2024. He also referred in the affidavit to an application made by Mr Cwalina for a stay of the orders made 31 January 2024, which was heard by Forbes J on 22 February 2024. A ruling dismissing the application was given the following day.
At the hearing on 23 February 2024 at which the ruling was delivered, Mr Byrnes for Mr Rose informed the Court that Mr Cwalina had sought to have the locks to the Helen Street property changed. Mr Cwalina told the Court that he had expected from what had transpired at the hearing on the previous day that the Injunction would be lifted and that he had made only tentative arrangements to change the locks in that expectation.[26] Justice Forbes stated that she had in the hearing the previous day made clear that she was only dealing with the stay application, and not the Injunction. Mr Cwalina stated that he had misunderstood and that he would cancel the arrangement. Justice Forbes advised that ‘whilst that injunction continues, the position is … that you are not to attend the property … unless you are given specific permission from the court to do so’. Mr Cwalina responded ‘Yes’, and asked for permission to collect some valuables and documents from the property. Justice Forbes stated that Mr Cwalina may need to deal with Mr Byrnes as to an appropriate time to collect items and it may be necessary to come back to the Court for an order so that he would not be in breach of the Injunction.[27]
[26]Transcript 23 February 24, T41.07-T42.13.
[27]Transcript 23 February 24, T42.19-T43.20.
The Prothonotary issued the summons against Mr Cwalina on 12 March 2024. As noted above, it charged Mr Cwalina with breach of the Injunction by entering, occupying or taking possession of the Helen Street property, by directing Ms Majak to change the locks and to enter, occupy and take possession of it.
Directions were made for the hearing of the summons and the originating motion charging Ms Majak with contempt, including for the filing of written submissions. The applications were listed for hearing on 8 August 2024. In the days prior to the hearing my chambers contacted Mr Cwalina and Ms Majak to inquire whether they would like to seek representation under the Victorian Bar’s pro bono scheme. Ms Majak confirmed that she did and Mr Cwalina did not respond. A referral was made seeking an amicus curiae but in the limited time available no response was received and the hearing proceeded with Mr Cwalina and Ms Majak representing themselves.
Prior to the hearing the Prothonotary put the Court and Mr Cwalina on notice that it would seek to amend the summons to add a further particular of contempt based on Mr Cwalina having entered the Helen Street property on 20 February 2024. The basis for that amendment was identified in submissions filed prior to the hearing and in the affidavit of Mr Byrnes dated 26 February 2024.[28] Mr Cwalina’s response to the application to amend the summons was that he had only entered the Helen Street property on one occasion to secure it as Ms Majak had left the property unlocked when she was arrested on 20 February 2024.[29] I granted leave to amend that particular on the basis that it had been referred to in the affidavit and the written submissions as a breach of the Injunction.
[28]Transcript 08/08/24 T18.12-T21.12.
[29]Transcript 08/08/24 T21.25-T22.01.
At the hearing I also raised with counsel for the Prothonotary the manner in which the primary charge had been stated in the summons. I had put the Prothonotary on notice that I would be assisted by submissions as to the precise acts relied on to assert that Mr Cwalina had entered, occupied or taken possession of the Helen Street property by ‘directing’ Ms Majak to change the locks and to enter, occupy and take possession of the property, as the summons did not give particulars of when or how this direction was said to have been given. Counsel for the Prothonotary submitted that the charge relied on acts of Mr Cwalina ‘effectively aiding, abetting, counselling or procuring Ms Majak to commit the offence of contempt in breach of the orders and alternatively … that she was acting as agent for him’ pursuant to a power of attorney.[30] The power of attorney was referred to in the evidence but not in the summons nor in the submissions.
[30]Transcript 08/08/24 T24.02-07.
As the summons had not referred to aiding, abetting, counselling or procuring as modes of liability, nor to agency pursuant to a power of attorney or otherwise, I concluded that the summons had not been particularised to the high degree of specificity required for a charge of contempt of court.[31] I was also not satisfied that the case that would be put on behalf of the Prothonotary had been identified sufficiently clearly in the summons or submissions to fairly put Mr Cwalina on notice of the case against him. I adjourned the hearing and made directions providing for the Prothonotary to make any application to provide further particulars of the charges in the summons.
[31]Coward v Stapleton (1953) 90 CLR 573, 580; Doyle v Commonwealth (1985) 156 CLR 510, 516.
The Prothonotary applied to further amend the summons against Mr Cwalina to strike out the charge relating to directing Ms Majak to enter occupy and take possession of the Helen Street property. The Prothonotary also sought to amend the reference in the summons to Mr Cwalina being punished by ‘fine, imprisonment, or both’, to a punishment by a fine only. This had already been foreshadowed in the written submissions made on behalf of the Prothonotary which had accepted that only a fine by way of sentence was appropriate as the Injunction orders had not contained the penal notice referred to in rule 66.10(3) of the Supreme Court (General Civil Procedure) Rules 2015.[32]
[32]Rule 66.10(1) provides that a ‘judgment shall not be enforced by committal or sequestration’ unless a copy of the judgment is served personally on the person. It also provides by Rule 66.10(3) that the judgment be endorsed with a notice that the person is liable to imprisonment or sequestration of property in the event of non-compliance. The court will not readily dispense with that requirement of notice: Clifford v Middleton [1974] VR 737; Alpass v Hession [2017] VSC 748 [48].
I heard the application to amend and made orders on 18 September 2024 granting leave for the summons to be amended as sought by the Prothonotary, with the consequence that the summons made a single allegation of a breach of the Injunction by entering the Helen Street property on 20 February 2024.[33] Ms Majak sought to press a ‘no case to answer’ application on behalf of Mr Cwalina and herself at the mention on 18 September 2024. I accepted the submission made by counsel for the Prothonotary that it would be premature to hear such an application as the evidence in support of the charges had not yet been given. I adjourned the matter for a final hearing on 12 and 13 November 2024.
[33]I also allowed an application to amend the Originating Motion containing the contempt charges against Ms Majak to add further particulars of how Ms Majak was said to have breached the orders. It is not relevant for present purposes to further consider those orders.
On 23 September 2024, Richards J heard two applications on summons brought by Mr Cwalina against Mr Rose in the substantive proceeding. Relevantly Mr Cwalina contended that Mr Rose had breached the orders for judicial sale of the Properties made on 31 January 2024 by selling the Helen Street property by private sale rather than by auction, as provided by the orders. Justice Richards’ orders noted, in other matters:[34]
The plaintiff acknowledges that the 31 January orders did not provide for sale by private treaty, and retrospectively seeks the Court’s approval of the sale of the Helen Street Lot. Through his counsel, the plaintiff apologised to the Court for not seeking that approval at an earlier time, and his apology was accepted.
In circumstances where the Helen Street Lot was passed in at auction but later sold for the reserve price set in accordance with the 31 January orders, the Court is satisfied that the sale was consistent with the spirit of those orders, and should be approved.
[34]Orders of Richards J made on 23 September 2024, Other Matters at [M]-[N].
Justice Richards made orders varying the orders of 31 January 2024 to add words authorising sale of the Properties by private treaty in the event of being passed in at auction. Her Honour also made orders for Mr Cwalina to make arrangements with the real estate agent involved in managing the Properties to remove his personal property from the Helen Street property.[35]
[35]Orders of Richards J made on 23 September 2024, orders 4-7.
Mr Cwalina’s apology
On 21 October 2024, Mr Cwalina emailed my chambers, with a copy to the solicitor acting for the Prothonotary. In the email he referred to the hearing before Richards J. Mr Cwalina also provided a copy of an application by Ms Majak and himself for leave to appeal against certain orders made in the proceeding which had been filed with the Registry.[36]
[36]Application for Leave to Appeal filed on 18 October 2024, seeking leave to appeal ‘the interlocutory injunctions made on 23 September 2023, orders for costs made on 18 December 2023, orders for judicial sale made on 31 January 2024, orders directing the Prothonotary to initiate proceedings in relation to contempt of court made on 31 January 2024, order to issue a warrant for arrest of the Second Applicant made on 31 January 2024.’
He stated in that 21 October 2024 email:
I would like to offer my sincere apology to the court for the unintended act of entering the property at 17 Helen Street on 20 February 2024 after receiving a notification that the property was left unlocked by Ms Majak who was arrested on that day.
Considering that [the] injunctions were made on the basis of uncontested evidence submitted in the ex parte hearing, which was unrelated to the issues to be determined in the trial before Tsalamandris J, there will be no damage to the interests of justice if my apology is accepted.
If it is not to your Honour’s grace to accept my apology, I am asking that the trial be stayed until the application for leave to appeal is determined.
On 1 November 2024, at a mention, I gave Mr Cwalina the opportunity to make the apology in open court. Mr Cwalina accepted that he had breached the Injunction on 20 February 2024, and apologised for doing so. He submitted that this breach was not contumacious, and explained that he only entered the Helen Street property to secure it.[37]
[37]Transcript 1/11/24 T2.13-T5.07, T14.23-T17.30.
I then heard submissions from the Prothonotary and Mr Cwalina as to the consequences of Mr Cwalina’s apology and as to the appropriate sentence.
Reasons for my conclusions on the contempt charges
I have found Mr Cwalina guilty of contempt of court in relation to his entry into the Helen Street property on 20 February 2024 in breach of the 31 January 2024 Orders.
I found that he entered the Helen Street property on that day to secure the property after he had been notified that Ms Majak had been arrested and had left the property unlocked, and also to collect personal possessions. I also found it the Prothonotary had established beyond reasonable doubt that Mr Cwalina knew that the orders prohibiting him from entering that property had been made, on the basis that the Injunction orders as extended on 13 September, 5 December and 18 December 2023 were made in hearings at which he appeared.
I based that finding on Mr Cwalina’s admission that he entered the Helen Street property on 20 February 2024 to secure it, which was made in open court on three occasions,[38] and which is implicit in his apology made by the 21 October 2024 email and in court on 1 November 2024. I also base my finding on:
[38]See Transcript 08/08/24 T21.25-30; Transcript 18/09/24 T16.12-T17.05; Transcript 01/11/24 T2.13-20.
(a) the affidavit of Mr Cwalina affirmed on 22 July 2024 in which he stated:[39]
[39]Affidavit of Piotr Cwalina affirmed on 22 July 2024 and filed on 24 July 2024 (Cwalina Affidavit), [91]-[92].
When Ms Majak was arrested, she contact me asking that I come to the property to lock the doors to the laundry which were left by her unlocked.
I attended to her request and handed over the keys to the agent.
(b) the affidavit of Ms Busby, the senior property manager of the managing real estate agent, in which she confirms that Mr Cwalina gave her the keys as he left the Helen Street property.[40] Ms Busby did state in the affidavit that this occurred on 21 February 2024. However, she also refers to having received an email from Russell Byrnes on 20 February 2024, which is exhibited to her affidavit. In the email, dated 20 February 2024 at 2.31pm, Mr Byrnes refers to the discussion Mr Cwalina has just had with Ms Busby ‘at the subject property’ and notes that Mr Cwalina gave her the keys to the front door on that day. I accept therefore that Ms Busby’s description of having seen Mr Cwalina leaving the Helen Street property and then giving her the keys in her affidavit was accurate as to the events which in fact occurred, but that she was in error in stating the date on which they occurred as 21 February.
[40]Affidavit of Sarah Busby affirmed on 29 April 2024 (Busby Affidavit), [12].
Mr Cwalina requested that his apology be regarded as purging the allegations of contempt.[41] I did not consider Mr Cwalina’s apology as a purging of the contempt, given that it involved a breach of an injunction prohibiting him from entering the Helen Street property which cannot now be undone.[42] Having entered the property in breach of the order, it is not possible in a meaningful sense to purge the contempt. I do, however, regard Mr Cwalina’s apology as relevant to sentence, as discussed below.
[41]Transcript 1/11/24 T2.13-14.
[42]Armidale Local Aboriginal Lands Council, [38]-[40] (Lonergan J), citing Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (2015) 235 FCR 563, [34]-[38] (Logan J) and CJ v Flintshire Borough Council [2020] EWCA Civ 393.
Although the act of contempt in breaching the orders on 20 February 2024 was not the basis of the Court’s direction on 31 January 2024 to the Prothonotary to charge Mr Cwalina with contempt by way of summons, and the charges originally made with respect to conduct prior to that time, it remained appropriate to charge Mr Cwalina with contempt of court. Mr Cwalina was clearly on notice by 20 February 2024 of the importance of complying with the Injunction orders, not least because of the direction given on 31 January 2024 that he be charged with contempt of court in relation to breach of the Injunction orders. The entry into the Helen Street property on 20 February 2024 was a breach of the same Injunction orders and it is entirely appropriate that he was charged with contempt in respect of that breach.
I also took into account that Mr Cwalina, with Ms Majak, had filed an application for leave to appeal certain orders made in the proceeding on 18 October 2024. These included the orders for judicial sale made on 31 January 2024 (but not clearly the Injunction extended that day, which was the order breached on 20 February 2024) and the orders directing the Prothonotary to initiate proceedings for contempt of court. I took the view that in subsequently, on 21 October 2024, apologising to the Court for his contempt of court in breaching the orders on 20 February 2024, he did not seek to prevent this Court from proceeding to determine the charges.
Sentencing
Principles as to factors relevant to sentencing for contempt
The factors that guide the Court’s discretion in imposing punishment for contempt include, relevantly:
(a) the seriousness and circumstances of the offence;
(b) the contemnor’s reasons for the contempt;
(c) the personal circumstances and financial means of the contemnor;
(d) whether any harm was caused by the contempt;
(e) specific and general deterrence;
(f) the need for denunciation of the contempt;
(g) the effect of the contempt on the administration of justice; and
(h) whether the contemnor has exhibited contrition and made an apology.[43]
[43]R v Herald & Weekly Times Pty Ltd [2021] VSC 253, [206] (John Dixon J) (citing R v The Age Company Ltd [2008] VSC 305, [22]-[23] (Kyrou J)); Deputy Commissioner of Taxation v Gashi & Anor (No 3) [2011] VSC 448, [5] (John Dixon J); R v Witt (No 2) [2016] VSC 142, [93] (J Forrest J).
In Mudginberri, the plurality stated that:
Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.[44]
[44]Mudginberri, 107 (Gibbs CJ, Mason, Wilson, and Deane JJ); see also Hinch (No 2), [12] (Kaye J).
While there is no general rule that the contemnor must pay the other party’s costs on an indemnity basis, the Court may order the contemnor to do so.[45]
[45]Liu v Gan, [74] (Osborne J).
Prothonotary’s submissions
The Prothonotary submitted that a fine would be an appropriate punishment for Mr Cwalina’s contempt,[46] in light of the following matters.
[46]Transcript 1/11/24 T20.19-20.
(a) Mr Cwalina’s contempt was wilful and intentional, but not contumacious.[47] The entry onto the property involved wilful disobedience,[48] and the presence of intention on the part of a contemnor may be an aggravating factor for sentencing.[49]
[47]Transcript 1/11/24 T18.13-27.
[48]Transcript 1/11/24 T22.21-22.
[49]Transcript 1/11/24 T20.05-08.
(b) Mr Cwalina’s apology is a factor that the Court may take into account and will need to be assessed along with the other factors arising in the case.[50] His apology may not be entirely genuine and may be made to receive a lesser penalty rather than because of his actual acceptance of any wrongdoing.[51] Further, there was some delay in Mr Cwalina making the apology.[52]
[50]Transcript 1/11/24 T20.23-28.
[51]Transcript 1/11/24 T22.30-T23.02, T25.27-30.
[52]Transcript 1/11/24 T25.25-27.
(c) The explanation Mr Cwalina proffered to the Court for his breach of the Injunction—that he was at the Helen Street property only to secure it—appears to conflict with his explanation to Mr Byrnes by email on 20 February 2024 that he attended that property to collect personal belongings.[53] While Mr Cwalina may have needed to secure that property or retrieve his possessions, he could have achieved this by other means without breaching the Injunction but did not attempt to do so.[54]
(d) Specific deterrence is a significant factor in this case because the proceeding is still on foot,[55] and general deterrence is also an important factor to ensure that the Court’s orders are obeyed.[56]
(e) The Prothonotary is not aware of any previous convictions of Mr Cwalina.[57]
[53]Transcript 1/11/24 T20.30-T21.22; Affidavit of Russel Byrnes affirmed and filed on 26 February 2024 (Second Byrnes Affidavit), Exhibit RB-1, 10 (CB 311).
[54]Transcript 1/11/24 T26.29-T27.01.
[55]Transcript 1/11/24 T24.17-19.
[56]Transcript 1/11/24 T24.19-21.
[57]Transcript 1/11/24 T26.01-02.
The Prothonotary also sought an order that Mr Cwalina pay his costs.[58]
[58]Transcript 1/11/24 T13.02-04.
Mr Cwalina’s submissions
Mr Cwalina submitted that no penalty should be imposed in circumstances where:[59]
[59]See Transcript 1/11/24 T3.29-T4-2; T6.28-T7.30.
(a) he only entered the Helen Steet property to secure it, which was a necessity, and did not wilfully intend to breach orders;
(b) he proffered an apology; and
(c) Mr Rose was not punished for contempt for selling the Helen Street property by private treaty despite the orders of Tsalamandris J providing for sale by public auction.
Reasons for imposing no sentence
Having found Mr Cwalina guilty of contempt by entry onto the Helen Street property in breach of the 31 January 2024 Orders, I proceeded on 1 November 2024 to find that Mr Cwalina understood that it was a serious matter to have breached an order of the Court,[60] and that it was appropriate not to impose any sentence. My reasons for not imposing a sentence are as follows.
[60]Transcript 01/11/24 T29.15-20.
The seriousness of the breach, and the reasons for the breach
First, as to the circumstances and seriousness of the breach, the entry onto the Helen Street property in breach of the 31 January 2024 orders, while a clear breach, was limited in scope.
The breach of the orders involved an entry into the house which was, on the evidence, confined in time. It ceased when the managing agent arrived at the house to see Mr Cwalina there, and Mr Cwalina immediately left and provided his key to the agent. No other entry or breach of the Injunction orders is alleged, and nor does the evidence establish any other entry onto the Helen Street property or other breach of the Injunction orders.
In considering the circumstances of the breach it was relevant to consider the reasons Mr Cwalina gave for entering the Helen Street property. Mr Cwalina stated in his affidavit and his submissions that he attended the property to secure it by locking the doors to the laundry, which Ms Majak had left unlocked when she was arrested. In an email in response to Mr Byrnes on 20 February 2024, Mr Cwalina also stated ‘I wasn’t staying in the property as I just arrived recently from Ireland. I was today only to collect some personal belongings’.[61]
[61]Second Byrnes Affidavit, Exhibit RB-1, 10 (CB 311).
I have taken into account the submission on behalf of the Prothonotary that Mr Cwalina gave inconsistent explanations for the reason for his entry into the Helen Street house. I accept that Mr Cwalina advised Mr Byrnes that he was collecting personal belongings and later told the Court in his affidavit and in submissions that he was securing the property. I find that when he entered the house on 20 February 2024 he intended to collect possessions and to lock the house. Neither purpose was a valid reason to breach the orders which injuncted Mr Cwalina (and Mr Rose and Ms Majak) from entering the house for any purpose. However, I do not regard the two purposes as inconsistent and I accept that this is why Mr Cwalina entered the Helen Street property.
The Prothonotary submits that Mr Cwalina’s entry onto the Helen Street property involved wilful disobedience of the Court’s orders. Mr Cwalina has given evidence of and made submissions as to his view that the Injunction was made without legal reasons, and also that he was not given any opportunity to oppose the Injunction which was first made ex parte.[62] Those complaints have no relevance to the contempt of court charges. Any such complaint could only properly be made on an appeal from the relevant orders. Mr Cwalina did not seek to appeal the orders at the relevant time, and has delayed for many months in more recently seeking leave to appeal. To the extent that he has put these matters forward as an excuse for his breach, it is unacceptable.
[62]Cwalina Affidavit, [4], [5], [96].
The evidence clearly establishes Mr Cwalina’s intention to go into the Helen Street house to remove his possessions and lock the door, so that there was a deliberate commission of an act in breach of the Injunction.[63] However the available evidence did not establish beyond reasonable doubt that the act involved any obstinate disregard of the terms of the Injunction sufficient to attract any aggravation of sentence. Mr Cwalina submitted that he did not intend to breach the orders, just to secure the house,[64] and I regard his state of mind as involving a state of carelessness or neglect[65] in properly considering the terms of the Injunction order, rather than of an intention to act in contravention of the Court’s orders. I did not, therefore, regard his state of mind with respect to entering the property as sufficient to constitute any aggravating factor in sentencing him.
[63]Mudginberri, 113 (Gibbs CJ, Mason, Wilson, Deane JJ).
[64]Transcript 01/11/24 T3.29-T4.02.
[65]Mudginberri, 12, citing Stancomb v Trowbridge Urban District Council [1901] 2 Ch, 190, 194 (Warrington J).
Absence of evidence of material harm to the plaintiff from the breach
As to the harm caused by the breach, neither the evidence of Mr Byrnes nor other evidence establishes any material harm to Mr Rose arising from Mr Cwalina’s entry onto the property on 20 February 2024. The harm to the administration of justice is a real and separate matter, which I come to below.
As to the damage or harm to the other party to the litigation, it was relevant to take into account the position that was being taken by Mr Byrnes on behalf of Mr Rose at the relevant time. He had been actively seeking that Mr Cwalina remove his property from the Helen Street house in order to facilitate its sale.
The affidavit of Ms Busby, the managing agent, exhibits an email from Mr Byrnes dated 20 February 2024 addressed to Mr Cwalina and copied to Ms Busby, another representative of the real estate agency, Mr Rose and counsel for Mr Rose. The email was also exhibited to Mr Byrnes’ 26 February 2024 affidavit. In the email Mr Byrnes refers to ‘the discussion you have just had with Sarah Busby (the managing agent) at the subject property whilst I was listening in on her mobile phone’ and states:[66]
[66]Busby Affidavit, Exhibit SB-1, 9; Second Byrnes Affidavit, Exhibit RB-1, 8-9.
1.Unbeknown to me, the managing agent and the Court, you have arrived from Poland and have been living in the property with Zofia Majak who was arrested in this morning (in further [breach] of the injunction).
2On behalf of Alan Rose I arranged for Sarah to attend the property with a locksmith to change the locks and secure the property so that Alan Rose can comply with the Court orders. When she arrived at 1.30pm you were there.
3 You have given Sarah a key to the front door.
4You appear to be in the process of moving out of the house and removing items from the house in your car.
5There are still items in the property belonging to you and Zofia Majak and I understand that will require far more than just a car to remove.
6Sarah asked you when you will have everything out of the house and you replied that there is a stay of the orders. I told Sarah who told you that there is no stay and the orders are current.
7You then said you have filed an application for a stay which is listed for Thursday morning. I have received your email about this application. I note that there is no evidence in support of such Summons served as yet.
…
13.Please urgently advise me as to what arrangements you are making to remove all your and Ms Majak’s personal property from 17 Helen Street.
14.On behalf of Alan Rose I hereby advise you that he requests that you remove all such personal property by 4pm this Friday, 23 February, 2024 and advise Sarah Busby (managing agent) when everything is out so that she can come and inspect.
Although the entry was in breach of the orders, and Mr Cwalina had made no attempt to seek the permission of Mr Rose, nor, more importantly the Court, to enter the Helen Street house or to attend to ensure it was secured, his entry on that date to secure the property and remove personal possessions did not cause any apparent harm to Mr Rose. Mr Cwalina returned the keys on request to the managing agent. It is also relevant that Mr Byrnes, on Mr Rose’s behalf, was urging Mr Cwalina to remove his personal property from the house, so that although Mr Cwalina’s entry was entirely unauthorised, it was for at least one purpose which was consistent with Mr Rose’s instructions and Mr Byrnes’ requests to Mr Cwalina, and the ultimate objective of enabling the Properties to be sold. It is apparent from the email correspondence from Mr Byrnes on behalf of Mr Rose on 20 February 2024 that Mr Byrnes was urging Mr Cwalina to remove his possessions from the property, as it was necessary that they be removed in order for the Properties to be sold.
The seriousness of the breach of the Injunction orders, and the impact of that breach, lies not in any damage to Mr Rose, but in the disregard of clear court orders of which Mr Cwalina was on notice. This is a serious matter and an unacceptable neglect of his responsibility to respect the Court’s authority.
Mr Cwalina’s personal and financial circumstances
Mr Cwalina gave evidence that he was a self-funded retiree and had no property other than the Helen Street house that he could use as a residence in Australia.[67] I assume this to be one of the reasons that he has been self-represented. It is relevant in my view to sentencing that had Mr Cwalina been represented, he may have been made aware that the proper approach to securing the house and removing his possessions would have been to approach the Court to seek a variation of the orders which prohibited entry onto the Properties.[68]
[67]Cwalina Affidavit, [101].
[68]It was not clear from the evidence whether Mr Byrnes had, in the context of his requests to Mr Cwalina to remove his possessions, suggested that this would necessitate a variation of the Injunction orders, or whether Mr Cwalina had been given any other legal advice to that effect prior to the hearing on 23 February 2024.
Deterrence
I have also taken into account the Prothonotary’s submissions that the Court should give weight to the need for specific and general deterrence. With respect to specific deterrence, I note that Mr Cwalina immediately returned the keys to the property, and when he appeared in Court on 23 February 2024, he accepted, when his entry onto the property in breach of the Injunction was raised, that he was not permitted to enter the property while the Injunction was in force.[69] He did not breach the Injunction orders again while they remained in force until the property was sold, before the sentencing hearing, nor is there any indication that he regards it as open to breach other orders. However the proceeding is continuing (including by way of an application for an extension of time to appeal against the orders made in the proceeding),[70] so there is some, albeit limited relevance of specific deterrence.
[69]See [20] above.
[70]Application for leave to Appeal filed 18 October 2024.
General deterrence is a significantly more important sentencing factor in this case. I have given weight to the need to deter all persons before this Court from breaching the Court’s orders, and the damage that may be done to the administration of justice by breaches of court orders.
The apology
The terms of the apology by Mr Cwalina was not unreserved and did not exhibit unqualified contrition. I understood from his concurrent apology and his explanation as to the reason for it being a limited breach on a single occasion, was that he wanted the Court to understand that his entry was not intended as a wilful disobedience of the Court’s orders.
I accept the Prothonotary’s submission that there was delay in making the apology. I accept that this may have been in part because Mr Cwalina has been unrepresented throughout, and may not have understood the significance of an apology until the hearing before Richards J at which an apology was made by Mr Rose through his counsel for the separate actions in selling the Helen Street property by private treaty. I also note that the delay between the charges having been amended on 25 September (to add the charge relating to the 20 February 2024 contempt and to withdraw the original charge)[71] and the apology on 21 October was relatively confined and that there had not been further court hearings relating to the contempt proceeding in that period.
[71]Further Amended Summons.
It is the case that even a late apology may be relevant as a mitigating factor.[72]
[72] R v Witt (No 2) [2016] VSC 142, [93], [129]-[131] (J Forrest J).
Taking all these matters into account, I considered it appropriate to give material weight to the apology as a mitigating factor.
Conclusion – sentence
Taking into account the apology, the limited scope of the breach of the orders and his reasons for entering the property, the lack of evidence of harm to the other party arising from the breach, and the absence of any further contravention of orders in the proceeding, I determined that it was appropriate not to impose any sentence for his contempt. I accepted that Mr Cwalina had been made aware of the seriousness and unacceptable nature of his disrespect of orders of the Court and had, through having to respond to these charges, involved a public denunciation of his contempt. At the time of his sentencing I informed him again that it was a very serious matter.[73] In the context of the long history of this proceeding and the fact that there remain ongoing applications, it would be hoped that Mr Cwalina and the other parties would make all appropriate attempts to resolve the matters in dispute between them. To the extent that the proceedings continue, it is expected that Mr Cwalina will in future comply scrupulously with any further Court orders and respect the processes of the Court.
[73] Transcript 01/11/24 T29.15-19.
Costs
I determined that it was not appropriate to require Mr Cwalina to pay the costs of the proceedings for contempt. The hearings relating to the summons against Mr Cwalina were all held concurrently with the hearings relating to the charges against Ms Majak, which are ongoing, so not all costs which have been incurred can be attributed to the charges against him. The original charge in the summons, which had been the subject of the first hearing, was withdrawn; the remaining charge was limited in scope and required limited evidence to establish it.[74] It was entirely appropriate for the Prothonotary to bring that new charge, but I did not regard it as appropriate for Mr Cwalina to be required to pay costs in these circumstances, and where it was resolved on the basis of his admission of a breach and his apology.
[74]It is also relevant that a Notice to Admit served on Mr Cwalina was also not pursued, which was appropriate given the nature of a contempt proceeding, and the principle that an accused should not be required to incriminate themselves: see CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 396, [66]-[67] (Nettle J); Vajda v Nine Network Australia Ltd [2001] NSWSC 620, [4]-[9] (Brownie AJ).
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