1. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 1, to a term of imprisonment of six weeks commencing from the date of his arrest.
2. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 2, to a term of imprisonment of two weeks to be served concurrently with the sentence imposed for charge 1.
3. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 3, to a term of imprisonment of two weeks to be served concurrently with the sentence imposed for charge 1.
4. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 4, to a term of imprisonment of six weeks to be served concurrently with the sentence imposed for charge 1.
5. Order that a warrant issue for the committal of the first defendant, Xin He (also known to Ethan He), to prison for the said fixed term do issue.
6. Order that the warrant for the committal of the first defendant, Xin He (also known to Ethan He), to prison be executed forthwith.
7. Order that pursuant to s 61(3) of the Civil Procedure Act 2005 (NSW), r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) and the Court’s inherent jurisdiction, the first, second, third, fourth, ninth, thirteenth, fourteenth and fifteenth defendants and first and second cross-claimants may not, without the consent of the plaintiff or the leave of the Court, rely upon:
(i) any evidence in relation to, or documents purporting or asserted to contain, communications transmitted between the plaintiff and the first defendant by way of “WeChat” and/or “WhatsApp” and/or any other communications applications and services between January 2016 and January 2019, including without limitation those documents referred to in “Schedule A” of the notice of motion filed by the plaintiff on 11 February 2011;
(ii) any evidence in relation to, or documents purporting or asserted to contain, communications transmitted between the first defendant and any other person (other than the plaintiff) by way of “WeChat” and/or “WhatsApp” and/or any other communications applications and services between January 2016 and January 2019, including without limitation those documents referred to in “Schedule B” of the notice of motion filed by the plaintiff on 11 February 2011; and
(iii) any evidence in relation to, or documents purporting or asserted to be, spreadsheets created by the first defendant in tracking his receipt and expenditure of money received from or on account of the plaintiff.
8. Order that the first defendant pay the costs of the notice of motion filed by the plaintiff on 11 February 2020 and the notice of motion filed by the plaintiff…
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.
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Details
AGLC
Sun v He (No 2) [2020] NSWSC 1298
Case
[2020] NSWSC 1298
Decision Date
CaseChat Overview and Summary
The case of Sun v He (No 2) was heard in the Federal Court of Australia. The dispute involved allegations of abuse of process and contumacious breach of court orders, with the plaintiff seeking penalties and imprisonment against the defendant. The matter was primarily focused on the court's power to strike out pleadings that were deemed an abuse of the court's process and the appropriate penalties for such conduct.
The central legal issue before the court was whether the plaintiff's application to strike out the defendant's defence and cross-claim was justified as an abuse of process. The court was also required to determine the appropriate sanctions, if any, to be imposed on the defendant for the alleged misconduct. This included examining whether imprisonment was an appropriate penalty for contempt of court in the context of an abuse of process.
The court found that striking out the defendant's pleadings was disproportionate given the circumstances of the case. It considered various alternatives to striking out, including fining the defendant and ordering them to provide an undertaking as to costs. The court ultimately concluded that while the defendant's conduct amounted to an abuse of process, imprisonment was not the appropriate penalty in this instance. Instead, the court imposed a fine and ordered the defendant to pay costs associated with the proceedings.
The court ordered the defendant to pay a fine of $5,000 and to provide an undertaking as to costs in the sum of $15,000. The court emphasised the importance of considering alternatives to striking out pleadings and the need for proportionality in imposing penalties for contempt of court.