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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rose v Cwalina (Contempt)

Details

AGLC: Rose v Cwalina (Contempt) [2024] VSC 719
Case: [2024] VSC 719
Decision Date: 22 November 2024

CaseChat Overview and Summary

The case of Rose v Cwalina (Contempt) before the Supreme Court of New South Wales involved a dispute between the parties regarding the breach of an injunction. The applicant, Rose, alleged that the respondent, Cwalina, had violated an injunction by posting defamatory material about Rose on social media. The matter was heard by the Supreme Court under the Supreme Court (General Civil Procedure) Rules 2015, rule 75, which governs proceedings for contempt.

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