| 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…
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- AGLC
- Rose v Cwalina (Contempt) [2024] VSC 719
- Case
- [2024] VSC 719
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was whether Cwalina's actions constituted a breach of the injunction and, if so, whether an apology offered by Cwalina could mitigate the contempt. The court had to determine whether the apology was genuine and whether it sufficiently addressed the breach to warrant a lenient outcome. The court also considered whether the public interest required a more severe penalty to uphold the integrity of the court and the injunction.
In its reasoning, the court examined the content of Cwalina's social media posts and assessed whether they were defamatory and in breach of the injunction. The court found that Cwalina's posts did indeed constitute a breach of the injunction, as they contained defamatory material that was harmful to Rose's reputation. The court then considered Cwalina's apology, noting its timeliness and the circumstances surrounding it. Ultimately, the court determined that the apology, while sincere, did not fully mitigate the breach, and it imposed a fine on Cwalina. The court also noted that the public interest in maintaining the integrity of the court's orders required a penalty to be imposed.
The court's final orders included a fine against Cwalina for the contempt committed and a requirement for Cwalina to issue a public apology to Rose. The court emphasised the importance of adhering to court orders and the potential consequences of breaching an injunction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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