The Owners of the Wills Building Strata Plan 38579 v Coleman

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THE OWNERS OF THE WILLS BUILDING STRATA PLAN 38579 -v- COLEMAN [2018] WASC 219
CORAM:   ARCHER J
HEARD:   12 APRIL & 29 JUNE 2018
DELIVERED          :   24 JULY 2018
FILE NO/S:   CIV 1788 of 2017
BETWEEN:   THE OWNERS OF THE WILLS BUILDING STRATA PLAN 38579
Plaintiff
AND
DENISE MAXINE COLEMAN
Defendant

Catchwords:

Contempt by breach of SAT orders - Whether contumacious - Appropriate penalty - Indemnity costs - Turns on its own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 98
State Administrative Tribunal Act 2004 (WA), s 86

Result:

Respondent found guilty of contempt and fined $10,000 with a daily penalty of $50 until the contempt is purged

Category: B

Representation:

Counsel:

Plaintiff	:	Dr P R MacMillan & Mr D K Barker
Defendant	:	Mr C L Hollett

Solicitors:

Plaintiff	:	Chalmers Legal Studio Pty Ltd
Defendant	:	Solomon Hollett Lawyers

Case(s) referred to in decision(s):

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Caratti v Boban Pty Ltd (Administrators Appointed) [No 2] [2015] WASC 139
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Dental Board of Australia v Traianou [2011] WASC 293
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Infa‑Secure Pty Ltd v Crocker (No 2) [2016] FCA 202
Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111
Kennedy v Lovell [2002] WASCA 226
Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258
Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386
Sheriff v The State of Western Australia [2017] WASCA 185
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188
The State of Western Australia v Galati [No 4] [2017] WASC 162
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

ARCHER J:

The defendant, Ms Coleman, is the proprietor of Lot 41 on a strata plan for the building at 82 King Street, Perth. The plaintiff in this matter is the strata company for the plan (Owners).
Sometime after 12 July 2015, renovation work was done on Lot 41. The work included the removal of a glazed wall that separated the courtyard portion of Lot 41 from the rest of the lot. The Owners had not been asked to approve the work.
On 23 July 2015, the Owners lodged an application in the State Administrative Tribunal alleging, among other things, that Ms Coleman had breached s 7(2) of the Strata Titles Act 1985 (WA). Section 7(2) prohibits a proprietor of a lot from causing or permitting any structural works being made on the lot without the strata company's prior approval.
On 2 December 2015, the Tribunal ordered Ms Coleman to restore the glazed wall and make good any damage that may have been caused to the building's common property by 15 February 2016 (final order). Ms Coleman did not comply with that order.
On 18 May 2017, the Owners filed a notice of originating motion in this court, seeking that Ms Coleman be found guilty of contempt of court under s 98 of the Civil Judgments Enforcement Act 2004 (WA). The Owners initially alleged Ms Coleman was guilty of contempt for disobeying two orders of the Tribunal - the final order and a 'stop work' order that the Tribunal had made earlier in the proceedings. However, shortly before the hearing, the Owners withdrew their application that a contempt be found for disobedience of the stop work order.
Ms Coleman admits that she did not comply with the Tribunal's final order. She admits she is guilty of contempt. However, she submits that her contempt was not contumacious and that there are numerous mitigating factors. She submits that the proper disposition of the matter is that no punishment be imposed and that she simply be ordered to pay the Owners' costs on a party and party basis, excluding the costs that relate to the withdrawn allegation of contempt in relation to the stop work order. In addition, Ms Coleman submitted that some adjustment should be made to reflect the fact that she was put to unnecessary expense by the withdrawn allegation.
The Owners submit that Ms Coleman's contempt was contumacious and criminal. They submit that Ms Coleman should be penalised for the contempt and that some ongoing penalty should be imposed to encourage Ms Coleman to comply with the Tribunal's final order. The Owners also submit that Ms Coleman should pay their costs on an indemnity basis so that the other owners of the building are not left out of pocket.
The matter was heard on 12 April 2017. At the conclusion of the hearing, I gave leave to Ms Coleman to adduce evidence as to matters of mitigation. I also gave leave to the Owners to file evidence and submissions in support of their application for indemnity costs and gave leave to Ms Coleman to file reply submissions. These have now been received.
I also gave Ms Coleman leave to advise the court after the hearing, but before I handed down my decision, if the wall was restored as required by the Tribunal's final order. As at the date of this decision, the order has still not been complied with.
I must determine the following issues:
1.Is it appropriate or useful to decide if Ms Coleman's contempt was a criminal or civil contempt?
2.Was Ms Coleman's contempt contumacious? In determining this, what did Ms Coleman know and when, and what did she do?
3.What is the appropriate disposition? Should a fine be imposed? If so, in what amount?
4.Should a daily fine be imposed until the contempt is purged? If so, in what amount?
5.Should costs be ordered to be paid on a party and party basis or on an indemnity basis? Should some allowance be made for the withdrawn allegation of contempt in relation to the stop work order?
I have concluded:
1.It is unnecessary to decide whether Ms Coleman's contempt was criminal or civil.
2.Ms Coleman's contempt was contumacious. Ms Coleman only decided to comply with the Tribunal's order after the Owners commenced contempt proceedings. Up to that point, she was not genuinely trying to comply. Instead, she was wilfully and obstinately resisting complying with the Tribunal's order.
3.Ms Coleman should be fined $10,000.
4.Ms Coleman should be fined $50 a day from the date of this decision until the contempt is purged. The parties should have liberty to apply if there is a material change in circumstances or substantial delay.
5.Ms Coleman should pay the Owners' costs on an indemnity basis. Some allowance should be made for the late withdrawal of the allegation of contempt in relation to the stop work order. This will be achieved by requiring Ms Coleman to pay 85% of the Owners' costs, instead of 100%, on an indemnity basis.
Before dealing with the issues, I will first explain why I am empowered to find Ms Coleman guilty of contempt. I will do this even though she admits her guilt, because contempt is a serious finding. I will also explain the approach that must be taken to the evidence in this case, and I will set out a chronology of relevant events.

Why I can find contempt

Background to Tribunal's order

As noted above, on 23 July 2015, the Owners lodged an application before the Tribunal alleging, among other things, that Ms Coleman had breached s 7(2) of the Strata Titles Act.
The Owners also sought an interim order to the effect that Ms Coleman cease all building works on Lot 41. The Tribunal made the interim order, being the stop work order, on 27 July 2015.[1]
[1] Trial Bundle (TB) 1 ‑ 2: Order dated 27 July 2015.
On 2 December 2015, after a hearing, the Tribunal found in favour of the Owners and made the final order, in these terms:
The respondent must at her cost by not later than 15 February 2016 restore the glazed wall structure to its original place and make good any damage that may have been caused to common property. In complying with this order the respondent shall use the material referred to in sections G and Y of the Specifications for the Wills Building contained in the By‑laws, to reinstate to its original condition and appearance the glazed wall that separated the courtyard part of lot 41 from the rest of lot 41.
It is common ground that Ms Coleman did not comply with the final order by the deadline of 15 February 2016, and she has still not complied.

The motion for contempt

The Owners seek, under s 98 of the Civil Judgments Enforcement Act, that Ms Coleman be found guilty of contempt of court for disobeying the Tribunal's final order.

SAT order taken to be a decision of this court

Under s 86 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), a decision of the Tribunal[2] is taken to be a decision of this court and may be enforced accordingly if certain documents are filed. A 'decision' of the Tribunal includes an order.[3]
[2] Other than monetary orders.
[3] SAT Act s 3 definition of 'decision'.
On 31 March 2017, the Owners filed the documents required by s 86 in relation to the Tribunal's final order.
Therefore, the Tribunal's final order is taken to be an order of this court.

The Civil Judgments Enforcement Act

The Tribunal's final order is a 'judgment' for the purposes of div 2 of pt 5 of the Civil Judgments Enforcement Act.[4]
[4] Civil Judgments Enforcement Act 2004 (WA) s 97, s 3 definition of 'judgment', and s 5(a).
Section 98(1) of the Civil Judgments Enforcement Act provides that, if a natural person disobeys a judgment to which this Division applies, the person is guilty of a contempt of court.
In order to establish contempt by disobedience of a court order, it is necessary to show that:[5]
1.an order was made by the court;
2.the terms of the order are clear, unambiguous and capable of being complied with;
3.the alleged contemnor had knowledge of the terms of the order, or at least its substance; and
4.the alleged contemnor 'disobeyed' the order.

Disobedience

[5] Caratti v Boban Pty Ltd (Administrators Appointed) [No 2] [2015] WASC 139 [19] ‑ [21], [84] ‑ [86] (Mitchell J, as his Honour then was); Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [26] ‑ [28] (Beech J, as his Honour then was); The State of Western Australia v Galati [No 4] [2017] WASC 162 [25] (Tottle J).

A person 'disobeys' an order when they 'deliberately' or 'voluntarily' breach its terms. Some judges have used the former adjective, others the latter. However, whichever adjective is used, 'disobedience' involves more than a mere failure to comply with an order. There cannot be 'disobedience' if the alleged contemnor does not know of the order. There cannot be 'disobedience' if the breach occurs due to circumstances outside the control of the alleged contemnor.[6]
[6] Caratti [80] ‑ [83], [86] ‑ [87].
It is not necessary that the person knew that their conduct was in breach of the order. It is sufficient if the person was aware of facts that made their conduct a breach of the order.[7]

Each of the requirements are met in this case

[7] Caratti [80] (read with [87]).

It was not in dispute that each of the requirements referred to above were met in this case. Ms Coleman is guilty of contempt.
The critical issue is the proper characterisation of her contempt. Before dealing with that issue, it is appropriate to set out the approach that must be taken to the evidence.

Approach to the evidence

Evidence adduced

The Owners tendered these affidavits:
1.Affidavit of Lauren Lynch‑Staunton sworn 17 May 2017;
2.Affidavit of Rodney Hodge sworn 31 March 2017;
3.Affidavit of Rodney Hodge sworn 17 May 2017 (second Hodge affidavit); and
4.Affidavit of Stephen Lawrance sworn 3 April 2017.
Ms Coleman tendered two affidavits, sworn by her on 2 August 2017 (first Coleman affidavit) and 5 April 2018 (second Coleman affidavit).
Most of the evidence as to the facts came from emails passing between the parties' representatives. For that reason, most of the facts are not in dispute.
Further, Ms Coleman's counsel confirmed that Ms Coleman was aware of all of the email exchanges and that she became aware of them reasonably proximately to when they were sent.[8] In addition, Ms Coleman's counsel confirmed that the correspondence sent by her lawyers was sent on Ms Coleman's instructions.[9]
[8] ts 27.
[9] ts 27.
Ms Coleman's affidavits also set out numerous statements as to her state of mind to explain, among other things, her actions. The Owners challenged the truthfulness of those statements. It was common ground that I would be required to make findings as to the truthfulness of those statements, among other things. Despite this, neither party sought to have Ms Coleman give oral evidence.[10]

Burden of proof

[10] ts 14 - 15, and subsequently.

Before a person can be found guilty of contempt, each of the necessary requirements must be proved beyond reasonable doubt. In this case, there is no dispute that the requirements have been met: Ms Coleman admits she is guilty of contempt.[11] However, Ms Coleman disputes that her contempt was contumacious. Irrespective of whether contumacy should be regarded as an 'element' of a contempt or an aggravating feature,[12] it must be proved beyond reasonable doubt.
[11] ts 26.
[12] See, for example, Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [101] ‑ [102].
This does not mean that I must be satisfied beyond reasonable doubt of every piece of the evidence before I can take that evidence into account. It is only if a matter is an indispensable intermediate step in the reasoning process towards an inference of contumacy that it must be proved beyond reasonable doubt.[13]
[13] Sheriff v The State of Western Australia [2017] WASCA 185 [127]. See also Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 [238] ‑ [244].
I also bear in mind that Ms Coleman has no obligation to prove anything (other than matters of mitigation). In particular, she has no obligation to prove her contempt was not contumacious. Rather, the Owners would need to prove beyond reasonable doubt that it was contumacious before I could make such a finding.
Ms Coleman elected to give evidence (by affidavit). Her evidence becomes part of the evidence that I must consider in deciding whether the Owners have discharged their burden of proving her contempt was contumacious. If her evidence causes me to have a reasonable doubt about that, I cannot make that finding. Even if I reject her evidence entirely, this does not mean that contumacy is proved. I would simply put it aside and consider whether, on the whole of the evidence, I am satisfied beyond reasonable doubt that her contempt was contumacious.

Relevance of silence

During the hearing, I raised with Ms Coleman's counsel a number of matters that were not covered in Ms Coleman's affidavits. I asked her counsel about a number of inferences that appeared to be open on the face of the documents. I invited Ms Coleman's counsel to consider whether Ms Coleman wished to adduce further evidence in relation to any of the issues I had raised. I granted a short adjournment to allow counsel to take instructions. After that adjournment, counsel indicated that Ms Coleman elected not to adduce further evidence.[14]
[14] ts 42 - 53, 56 - 57.
It should not be thought that I draw any inference from Ms Coleman's election not to adduce further evidence. Her election means only that the matters of evidence asserted from the bar table may be disregarded and that there is no evidence from her to suggest that I should not draw the inferences that appear to be open on the face of the documents.
For the avoidance of doubt, I add that, whenever I refer in these reasons to Ms Coleman's failure to address a matter in her affidavits or her election not to adduce further evidence, I do so solely to indicate the absence of evidence to contradict what the documentary evidence appears to show.
The final matter I will address before dealing with the issues is the chronology of relevant events.

Chronology of events

The by‑law proposal to avoid compliance

Ms Coleman made no effort to comply with the final order prior to the 15 February 2016 deadline. Instead, on 29 January 2016, her then lawyer wrote to the Owners to propose a way in which Ms Coleman could avoid complying with the final order. Ms Coleman's lawyer proposed that an exclusive use by‑law be passed that would allow for the wall's removal. Her lawyer also asked that the deadline for compliance be extended.
Ms Coleman's lawyer sent a follow up email on 16 February 2016. This was the day after the deadline.
Various emails were then exchanged between the Owners' Strata Manager and Ms Coleman's lawyer. On 18 February 2016, Ms Coleman's lawyer confirmed that Ms Coleman was seeking to avoid complying with the Tribunal's final order. The Manager then told Ms Coleman's lawyer about a conversation the Manager had had with Ms Coleman.[15] The Manager said she had told Ms Coleman that the proposed by‑law would require a resolution without dissent and, as several owners had said they would not approve it, the proposed by‑law would fail. The Manager said that Ms Coleman had replied that, if the by‑law was not passed, she would challenge the failure to pass the by‑law in court.
[15] It was not suggested that the Manager's account of that conversation was inaccurate.
On 21 March 2016, the Manager emailed Ms Coleman's lawyer, noting that the final order had not been complied with and seeking an update on compliance. Ms Coleman's lawyer replied that, although Ms Coleman had been told that the proposed by‑law was unlikely to be passed, she wanted the Owners to consider calling an extraordinary general meeting (EGM) to consider it.
On 29 April 2016, members of the Council of Owners, including Mr Hodge, met with Ms Coleman and her lawyer. Mr Hodge told Ms Coleman that the by‑law would not be passed as he would vote against it.[16]
[16] First Coleman affidavit [50].
On 12 May 2016, the Manager emailed Ms Coleman's lawyer to inquire whether Ms Coleman still wanted an EGM be called to consider the proposed by‑law. On 19 May 2016, Ms Coleman's lawyer responded that Ms Coleman did not still want an EGM. Ms Coleman's lawyer advised that Ms Coleman was getting quotes for the replacement of the glazed wall.[17] The same day, the Manager replied that she would 'put this matter on hold' until further notice from Ms Coleman's lawyer.[18]

The quote and plan to put the wall back

[17] TB 261 ‑ 262.

[18] TB 263.

On 20 June 2016, the Manager emailed Ms Coleman's lawyer to ask for an update.[19]
[19] TB 263.
On 24 June 2016, Ms Coleman's lawyer advised the Manager that Ms Coleman had obtained a quote for the re‑installation of the wall and attached a design for that structure. He said it would be installed as soon as possible after the Owners confirmed the design. The design attached to his email was a single page diagram (Design).[20]
[20] TB 265
In her first affidavit, Ms Coleman deposed that the quote she had at that time was a verbal quote from Master Welder Services. She deposed that the Design had been created by her then tenant 'Mataki', who was an architect for 'NXT'.[21]
[21] First Coleman affidavit [60] ‑ [63].
On 1 August 2016, the Manager asked Ms Coleman's lawyer if a clearer design proposal could be provided so that what was being proposed could be compared with what was ordered to be done by the final order.[22] On 12 August 2016, Ms Coleman's lawyer asked if all that was sought was a clearer image.[23] On 26 August 2016, the Manager replied that the Owners wanted more details of the dimensions, design, product and materials and that a clearer image would be helpful.[24]
[22] TB 266.
[23] TB 267.
[24] TB 268.

As I have said, Ms Coleman was aware of the exchanges between her lawyers and the Owners' representatives reasonably proximately to when they were sent. On that basis, the documents suggest that, from August 2016, Ms Coleman knew the Owners wanted to compare her proposal with what was ordered to be done by the Tribunal and knew that the Owners would not approve the Design unless she provided the details they sought.[25]
[25] This was conceded by Ms Coleman's counsel - ts 40.
During the hearing, Ms Coleman's counsel admitted that Ms Coleman knew the Owners had asked for the details.[26] However, he submitted from the bar table that Ms Coleman thought the Owners already had the details. He said that Ms Coleman believed the details were included in the Owners' application to the Tribunal. He was unable to explain why, if that was the case, Ms Coleman did not tell the Owners that they already had the details.
[26] ts 40 ‑ 41.
In any event, the assertion that Ms Coleman thought the Owners had the details was not in her affidavits. I advised Ms Coleman's counsel that I was not willing to accept the assertion from the bar table. I invited him to take instructions as to whether she wished to adduce additional evidence.[27] She did not. There is therefore no evidence from Ms Coleman to suggest that I should not draw the inference that appears to be open on the face of the documents.
[27] ts 42.
On 9 October 2016, the Manager emailed Ms Coleman's lawyer repeating the request for details. The Manager wrote that the Council of Owners were meeting on 'Wednesday' (12 October 2016) and, if they were unable to sign off on the matter, they would then seek to enforce the final order.[28]
[28] TB 268.
An inference can be drawn from the documents, on their face, that, from this point on, Ms Coleman knew the Owners were not willing to give her further extensions of time, at least not unless and until she provided the details they sought. Ms Coleman elected not to adduce any evidence about this issue.[29]
[29] ts 43, 56 ‑ 57.
Neither Ms Coleman nor her lawyers responded to the 9 October 2016 email.[30] The details were never provided.

The Owners seek an undertaking

[30] Second Hodge affidavit [18].

On 16 January 2017, the Owners' lawyer, Ms Chalmers, sent a letter to Ms Coleman. The letter said that, unless within seven days Ms Coleman gave an undertaking that she would comply with the final order and would commence complying within one month of the date of that undertaking, Ms Chalmers was instructed to commence contempt proceedings (January Letter).[31]
[31] TB 270 - 271.
On 19 January 2017, Ms Coleman responded to this letter by asking for proof of Ms Chalmers' authority to act for the Owners and proof that her letter had been approved by the Council of Owners.[32] Ms Chalmers provided that proof the next day.[33]
[32] TB 272.
[33] TB 273.
In early February 2017, Ms Coleman engaged new lawyers (not her current lawyers).[34] Her lawyers sought an extension of time to reply to the January Letter. The Owners gave that extension.[35]
[34] First Coleman affidavit [71].
[35] TB 274 and 275.
On 6 February 2017, Ms Coleman's then lawyers wrote to Ms Chalmers, asking whether the Owners had approved or rejected 'the plans' submitted in June 2016 (February Letter). As noted earlier, 'the plans' were the single page Design provided on 24 June 2016. The letter also stated that, if Ms Coleman did not receive a response to 'those plans' by 13 February 2017, she will 'consider the plans approved' and 'will proceed with the works outlined in those plans'.[36]
[36] TB 276.
As I have said, Ms Coleman knew that the Owners had asked, six months before the February Letter was sent, for details of the Design. Ms Coleman knew that the Owners wanted to compare her proposal with what was ordered to be done by the Tribunal. Ms Coleman knew that the Owners had said, four months before this letter was sent, that if the details were not provided by 12 October 2016, they would seek to enforce the final order.
On its face, the February Letter appears to be disingenuous, to say the least. In the context of the history of the matter, it appears to have been written to falsely assert that Ms Coleman was waiting on the Owners to approve the Design. As said earlier, Ms Coleman accepted that each letter from her solicitors were sent on her instructions. Ms Coleman elected not to adduce any evidence about this issue.[37]
[37] ts 43, 56 ‑ 57.
On 14 February 2017, the Owners' lawyers replied to the February Letter. They observed, correctly, that the work ordered by the Tribunal did not require the submission of plans to the Owners. They further rejected the proposition in the February Letter that, if they did not respond to those plans by 13 February 2017, Ms Coleman could consider those plans approved. They wrote that the Owners' silence in relation to plans submitted could not be taken as acceptance of what was proposed in those plans.
Ms Coleman did not provide the requested undertaking.[38]

Ms Coleman's legal advice

[38] ts 56.

Ms Coleman deposed that her then lawyers advised her to take 'no further steps' to re‑instate the glazed wall while 'further enquiries' were being made. She deposed that these enquiries were made between February and May 2017.[39]
[39] First Coleman affidavit [75] ‑ [77].
Presumably, this was advanced to explain Ms Coleman's delay in complying with the final order, at least during the period of February to May 2017.
Two observations may be made.
First, her lawyers' advice cannot explain why Ms Coleman did not provide the requested undertaking, or some form of undertaking, while the enquiries were being made. Further, Ms Coleman's affidavit is silent as to why she did not provide an undertaking.
Second, as will be seen, it seems that Ms Coleman did take some steps during this period, despite the alleged advice from her lawyers. However, those steps do not appear to have been taken for the purpose of complying with the final order.

The NXT invoice

On or about 23 April 2017, Ms Coleman received an invoice from NXT for the supply, fabrication and installation of steel framework.[40] As will be seen, the work would not have complied with the requirements of the final order. In Ms Coleman's second affidavit, she said this framework was installed on or about September 2017 but that she had had to pay for it before then.[41]
[40] TB 320 and ts 25.
[41] Second Coleman affidavit [5].
The significance of the invoice date is that Ms Coleman must have done something prior to that date to prompt NXT to issue the invoice. If she did this in the period during which she said her lawyers were making enquiries, it would mean that she could not rely on those enquires to justify her delay during this period.

Ms Coleman contacts the owners to avoid compliance

On 9 May 2017, Ms Coleman wrote to each of the owners seeking their views as to whether they objected to the removal of the wall. In that letter, Ms Coleman wrote:[42]
I believe the wall should never have formed part of the common property as it is completely within my unit and cannot be accessed or used by any other. I further believe that an owner should be entitled to vary their unit as they choose, subject to local council building requirements and it not impacting adversely on the structure, aesthetics or amenity of the strata scheme.
[42] TB 292.
Later in the letter Ms Coleman wrote 'I will reinstate the glass wall if this is indeed the wish of the owners however wish to confirm this is correct'.
Ms Coleman deposed that the letter was written on the advice of her lawyers. She said that the intention was to see if 'there was any appetite by the other owners to retrospectively approve' the removal of the wall.[43]

The application for contempt

[43] First Coleman affidavit [78].

On 18 May 2017, the Owners filed the Notice of Motion seeking that Ms Coleman be found guilty of contempt.
Ms Coleman was served with the application on 13 June 2017.[44]

The new quotation

[44] ts 69.

On 30 June 2017, after receiving notice of the contempt proceedings, Ms Coleman obtained an updated quote for the replacement of the wall from Master Welder Services.[45]

The NXT work is done

[45] TB 312, ts 30.

After the quote from Master Welder Services, and despite that quote, work was done by NXT in about September 2017, in accordance with its invoice of 23 April 2017. NXT installed a metal framework containing bi‑fold doors where the glazed wall had been.[46]
[46] Second Coleman affidavit [5].
The Tribunal's final order required the wall to be re‑instated to its original condition and appearance.[47] The original wall did not have bi‑fold doors. Accordingly, this work could not have complied with the final order. Ms Coleman's counsel conceded that Ms Coleman should have known the work did not comply, 'but, for whatever reason, [she] didn't'.[48] I do not accept that Ms Coleman did not know. The final order was clear. Its most basic requirement was that the wall be re‑instated to its original appearance. No one could think that bi‑fold doors would achieve that.
[47] TB 3.
[48] ts 32.
During an inspection by a member of the Council of Owners on 8 March 2018, Ms Coleman was told that the metal framework would not satisfy the requirements of the final order. On 20 March 2018, the framework was removed.[49]

Events post hearing

[49] Second Coleman affidavit [12], [20].

As at the date of the hearing, Ms Coleman had still not complied with the final order.
At the conclusion of the hearing, I gave Ms Coleman leave to advise the court if the wall was restored as required by the final order before I handed down my decision.
At the request of the parties, the matter was relisted to be heard on 29 June 2018. On that date, the parties advised the court that the final order had still not been complied with, and would not be complied with in the near future. Some work had been done but the wall did not go down to the floor level. It seems Ms Coleman had raised the floor of the courtyard.[50]
[50] ts 94 ‑ 95.

Criminal versus civil contempt

The first issue to be determined in this case is whether it is appropriate or useful to decide if Ms Coleman's contempt was a criminal or civil contempt.
There is a distinction between civil and criminal contempt of court. However, the differences upon which the distinction is based have been described as illusory in significant respects.[51] In some circumstances, the distinction is important.[52] It is not important here. Further, there is little practical difference between the two - both require proof beyond a reasonable doubt,[53] but both are civil proceedings.[54]
[51] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 [42] (Boral), citing Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534. See also Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [61] ‑ [64].
[52] Dental Board of Australia v Traianou [2011] WASC 293 [36].
[53] Allbeury [64] (Buss JA, as his Honour then was). This applies also to contempt under s 98 of the Civil Judgments Enforcement Act: Caratti [85] (Mitchell J, as his Honour then was).
[54] Boral [40] ‑ [45], [66]; Allbeury [9], [182] and [204].
The distinction was summarised by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway[55] (footnotes omitted):
In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.
[55] Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 530. See also Nettle J in Boral [65].
Accordingly, the real question is whether Ms Coleman's conduct was contumacious.[56]
[56] See also Pang [103], [172] ‑ [173]; Dental Board of Australia [36] ‑ [37].

Was Ms Coleman's contempt contumacious?

Ms Coleman's state of mind

Ms Coleman deposed that it has always been her intention to comply with the final order.[57] I do not accept this.
[57] First Coleman affidavit [86].
First, it is inconsistent with the following facts:
1.Ms Coleman sought to have an exclusive use by‑law passed, for the admitted purpose of avoiding complying with the Tribunal's order.[58]
2.Ms Coleman stated in her letters to the owners that she 'will reinstate the glass wall if this is indeed the wish of the owners however wish to confirm this is correct'.[59] She wrote the letters to see if 'there was any appetite by the other owners to retrospectively approve' the works she had done.[60]
[58] Ms Coleman's counsel conceded it did appear to be inconsistent on its face - ts 45.
[59] TB 292.
[60] First Coleman affidavit [78].
Second, it does not sit well with the following facts:
1.Ms Coleman failed, over months, to provide details of the Design to enable the Owners to compare what she proposed with what was ordered by the Tribunal.[61]
2.Ms Coleman's lawyers stated in the February Letter that, if Ms Coleman did not receive a response to 'the plans' by 13 February 2017, she will 'consider the plans approved' and 'will proceed with the works outlined in those plans'.
3.Ms Coleman failed to provide the undertaking sought by the Owners, or any form of undertaking.
[61] Ms Coleman's counsel conceded it did appear to be inconsistent on its face - ts 45 - 46.
Third, as I will explain, there are aspects of Ms Coleman's first affidavit that are troubling.

Paragraph 73

In par 73, Ms Coleman referred to the letter from the Owners' lawyers dated 14 February 2017. She said that letter 'indicated that the Council of Owners was not required to approve the plans that I had submitted'. She said this 'was contrary to the correspondence that had been exchanged since June 2016' between her former lawyer and the Manager.
This did not reflect the full picture. The contents of the 14 February 2017 letter were set out earlier. In particular, the letter said, correctly, that the work ordered by the Tribunal did not require any plans to be submitted to the Owners. This was not inconsistent with any correspondence adduced in this case. Ms Coleman's counsel hypothesised that Ms Coleman believed that the Owners needed to approve the Design or, at least, believed that it would be a good idea if they approved it, to ensure there would not be a later dispute about whether the finished result was compliant.[62] However, if she did believe that, this again raises the question of why she did not provide the details that the Owners sought or tell them, if it was true, that they already had them.

Paragraphs 75 ‑ 78

[62] ts 47 ‑ 49.

In pars 75 to 78 of her first affidavit, Ms Coleman asserted that her then lawyers told her not to take further steps to reinstate the glazed wall while they were making enquiries. Ms Coleman said that those enquiries occurred between February and May 2017. If this evidence was offered to explain her failure to act during this period, it does not sit well with the NXT invoice dated 23 April 2017.

Paragraph 88

In par 88 of her first affidavit, Ms Coleman deposed that she had been 'extremely hesitant to carry out the work … without getting the approval of the Council of Owners, which after many months of seeking is now not going to be provided'.During the hearing, her counsel confirmed that this was a reference to approval of the Design.[63]
[63] ts 50.
I have difficulties with both parts of this assertion.
In relation to the first part of the assertion, I do not accept that Ms Coleman's failure to comply with the final order was because she was 'extremely hesitant to carry out the work … without getting the approval of the Council of Owners'. If she genuinely wanted their approval, she would have provided the details of the Design they sought in August 2016. She never did this.
The second part of the assertion, that approval is 'now not going to be provided' 'after many months of seeking', does not reflect the facts.
The Design was provided by email of 24 June 2016. Since 1 August 2016, Ms Coleman has been on notice that the Owners wanted more information so that they could compare what was proposed with what was ordered by the Tribunal. Since 12 August 2016, Ms Coleman has been on notice that the information sought was the details of the dimensions, design, product and materials.
As I have said, the documents suggest that, from August 2016, Ms Coleman knew that the Owners would not approve the Design unless she provided them with the details they sought. Having considered the whole of the evidence, I am satisfied that this is the only reasonable and rational inference open.
Further, despite a follow up request by the Manager on 9 October 2016, Ms Coleman did not provide those details. As I have said, the documents suggest that, from this point on, Ms Coleman knew that the Owners were not willing to give her further extensions of time, at least not unless and until she provided the details. Having considered the whole of the evidence, I am satisfied that this is the only reasonable and rational inference open.
Finally, as noted above, the February Letter appears to have been written to falsely assert that Ms Coleman was waiting on the Owners to approve the Design. Having considered the whole of the evidence, I am satisfied that this is the only reasonable and rational inference open.

Paragraph 89

In par 89 of her first affidavit, Ms Coleman deposed:
It was for this reason that I have considered alternatives such as the proposed new bylaw, and when it became obvious that I would never get that approved, I took steps to seek the approval of the Council for the reasons I have outlined above.
During the hearing, Ms Coleman's counsel explained that 'this reason' in par 89 was a reference to her hesitancy in acting without approval.[64]
[64] ts 52.
I do not accept Ms Coleman's assertion that she 'considered alternatives' because she was hesitant to act without approval. Again, if she genuinely wanted their approval, she would have provided the details of the Design. I am satisfied beyond reasonable doubt that she considered alternatives because she was trying to avoid complying with the final order.

Paragraphs 90 and 91

In par 90 of her first affidavit, Ms Coleman deposed as to her understanding prior to receiving the January Letter. As noted earlier, the January letter said that contempt proceedings would be commenced unless Ms Coleman gave an undertaking within seven days that she would comply with the final order and would commence complying within one month of the date of that undertaking. Ms Coleman deposed:
90.Prior to receiving the letter from the solicitors for the Applicant in January 2017, it was my understanding that the Council of Owners was still considering the plans I had provided to them and that I should await their approval of those plans before proceeding.
Given the history of the exchanges set out earlier, I do not accept that Ms Coleman could have thought that the Owners were still considering 'the plans' or that she should wait for their approval of 'those plans' before proceeding.
In par 91, Ms Coleman deposed as to her reaction to the January Letter. Ms Coleman said:
91.I was surprised and dismayed when the Council of Owners indicated after several months and after on‑site meetings with me, that they were not required to approve the plans and suddenly wanted me to comply with the orders of the State Administrative Tribunal with the threat of contempt proceedings being commenced if I did not immediately comply.
I do not accept this for the following reasons.
First, it is not accurate, on the evidence before me, to say that the January Letter was sent 'after several months and after on‑site meetings'.

As for the time period, it is true that the January Letter was sent several months after Ms Coleman sent the Design. Indeed, it was six months. However, in that six months, the Owners had twice sought the details of the Design, with no response from Ms Coleman.
Further, as at the date the January Letter was sent, there had only been one on‑site meeting. This was on 29 April 2016, well prior to the date upon which Ms Coleman sent the Design to the Owners. On the evidence before me, there was not a single meeting between the date Ms Coleman sent the Design to the Owners and the date of the January Letter.
Second, when the history of the matter is considered, Ms Coleman could not have been 'surprised and dismayed' for the reasons she asserted in par 91. She may well have been surprised and dismayed that the Owners were finally going to take action when she had successfully avoided complying with the order for so long.
I also do not accept she could have thought that the Owners' desire that she comply was sudden. Indeed, in the letter of 9 October 2016, the Manager repeated the request for details and advised that, if the Council of Owners could not sign off on the matter at their upcoming meeting, they would then seek to enforce the final order.

Conclusion

For these reasons, I do not accept Ms Coleman's evidence that it was always her intention to comply with the final order. I do not accept any of her evidence as to her thought processes or states of mind.

Ms Coleman's submissions

In the hearing before me, Ms Coleman's counsel submitted that Ms Coleman's contempt was not contumacious because:[65]
there wasn't a deliberate attempt … of non‑compliance with the order, but it was a wilful disobedience on the basis that my client was initially looking at some alternative options to see if this matter could be addressed in a different way. And then, subsequent to that, we would say that she has then proceeded, albeit slowly, to the point we are at now where she is nearing compliance with that order.
[65] ts 38.
Looking for alternative ways to address the matter, rather than complying with the final order, is deliberate defiance of the order.

The contempt was contumacious

The final order was made on 2 December 2015. It required compliance by 15 February 2016. As at the date of the hearing, Ms Coleman had still not complied with the order. This was more than two years after the deadline for compliance.
Ms Coleman fully understood the final order. Her failure to comply was not the product of panic or a spur of the moment decision. She tried numerous avenues, over a long period of time, in her effort to avoid complying with the order.
By August 2016, Ms Coleman knew the Owners would not approve the Design unless she provided them with the details they sought. At least by 9 October 2016, Ms Coleman also knew that the Owners were not willing to give her further extensions of time, at least not unless and until she provided the details they sought.
Ms Coleman did not provide those details.
In early 2017, Ms Coleman failed to provide an undertaking that she would commence complying with the final order within a month. Instead, her lawyers wrote the disingenuous February Letter, asking whether the Owners had approved the Design she had submitted on 24 June 2016.
On 9 May 2017, Ms Coleman wrote to the other owners, again seeking to avoid complying with the Tribunal's final order.
I am satisfied beyond reasonable doubt that, prior to the commencement of these proceedings, Ms Coleman did not take genuine steps to comply with the final order.[66] I am satisfied beyond reasonable doubt that, prior to that time, she was wilfully and obstinately resisting complying with the final order. Having considered the whole of the evidence, these conclusions are the only reasonable and rational conclusions open on the evidence.
[66] Even after the Owners commenced the contempt proceedings, I do not accept that Ms Coleman was genuinely trying to comply with the final order. As noted earlier, in September 2017, Ms Coleman allowed NXT to install the non-compliant framework. During the hearing, Ms Coleman's counsel submitted that Ms Coleman should have known it was non-compliant, but didn't. It is very difficult to understand how Ms Coleman could not have known. The final order was very clear. To the extent that her ignorance of the non‑compliance is asserted as a matter of mitigation, I am not satisfied on the balance of probabilities that she was ignorant.
For all of these reasons, I am satisfied beyond reasonable doubt that Ms Coleman's contempt was contumacious. Her conduct was deliberately defiant.

What is the appropriate disposition?

The cardinal feature of the power to punish for contempt is that it is an exercise of judicial power by the courts to protect the due administration of justice.[67] The importance of contempt cases transcend each individual case because they support and enhance the integrity of judicial proceedings in general.[68]
[67] Boral [41], endorsing Hayne J in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 [112].
[68] Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 [97].
A contempt may be punished by imprisonment or a fine or both.[69] There is no maximum penalty.[70] The range of circumstances giving rise to contempt means there is no tariff or sentencing range.[71] Neither counsel suggested there were any cases comparable to this case.
[69] Rules of the Supreme Court 1971 (WA) O 55 r 7(1).
[70] Dental Board of Australia [39].
[71] Allbeury [251].
The Sentencing Act 1995 (WA) does not apply to punishment for contempt.[72] However, it is appropriate to have regard to the general principles set out in s 6 of that Act.[73] In particular, the punishment should be commensurate with the seriousness of the conduct. Imprisonment should not be imposed unless the seriousness of the conduct is such that imprisonment is the only appropriate disposition.
[72] Sentencing Act s 3(3)(a).
[73] Kennedy v Lovell [2002] WASCA 226 [6]; Dental Board of Australia [40].
It is also appropriate to have regard to the factors that are ordinarily relevant to the punishment of criminal offences.[74]

Relevant considerations in general

[74] Allbeury [218]; Kennedy [7].

There is no closed list of factors that are relevant to the determination of the appropriate disposition.
The Full Court of the Federal Court in Kazal v Thunder Studios Inc (California)[75] helpfully endorsed a non‑exhaustive list of factors that may be relevant in any given case:
[75] Kazal [101] ‑ [102]. See also Allbeury [216] ‑ [218], [255].
1.the seriousness of the contempt proved;
2.the contemnor's culpability;
3.the reason or motive for the contempt;
4.whether the contemnor received, or tried to receive, a benefit from the contempt;
5.whether there has been any expression of genuine contrition by the contemnor;
6.the character and antecedents of the contemnor;
7.the contemnor's personal circumstances;
8.personal and general deterrence; and
9.the need for denunciation of contemptuous conduct.
The Full Court noted, however:[76]
The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.
[76] Kazal [103].
Each of the factors in the Full Court's list will involve consideration of numerous matters. In this case, it is appropriate to specifically identify two:
1.whether the contemnor admitted the contempt or facilitated the administration of justice in some other way; and
2.the extent of any attempts to purge the contempt.

Analysis of relevant considerations on the facts

The contempt was serious. The Tribunal made an order requiring the wall to be re‑instated by February 2016. By the time of the contempt hearing, over two years later, this had still not been done. In the interim, Ms Coleman sought to avoid complying in numerous ways. It was only after the Owners commenced contempt proceedings that she took genuine steps to comply. The contempt was contumacious. The Owners have been put to considerable effort to secure Ms Coleman's compliance. This would have inevitably involved substantial legal costs and time.
Ms Coleman's culpability was high. Her conduct was contumacious.
Ms Coleman's motive was simple. She did not want to comply. She wanted to be able to renovate Lot 41 as she saw fit.
Ms Coleman derived a short‑term benefit from the contempt as it delayed the cost of re‑instating the wall by over two years. It seems that the cost to re‑instate the wall will be approximately $40,000.[77] However, this benefit will be more than off‑set by the costs that she has incurred in these proceedings plus the Owners' costs that she will have to pay.
[77] Affidavit of Denise Maxine Coleman sworn 17 May 2018 (mitigation affidavit) [22].
Ms Coleman apologised for her conduct in her first affidavit.[78] Where there is genuine contrition, this would be a mitigating factor. For that reason, I consider it is for Ms Coleman to satisfy me on the balance of probabilities that she is genuinely contrite. In view of the history of the matter, I am not satisfied of this. Ms Coleman's apology comes after all of her efforts to avoid compliance and after contempt proceedings were commenced, and it is made in the context of her contumacious breach. Finally, her apology was made in the same affidavit in which she made a number of statements about her state of mind which were not credible.
[78] First Coleman affidavit [93].
I have some information about Ms Coleman's character, antecedents and personal circumstances from affidavits she has sworn. Having found that many of the statements in her first affidavit were not credible, I am hesitant to accept her evidence as to these matters. Nevertheless, I am willing to do so for present purposes.
Ms Coleman deposed that her relationship with her de facto partner broke down in 2016. As a result of this, she had to live in a friend's spare room for three or four months and is still engaged in property proceedings.[79] Ms Coleman also deposed as to the costs she incurred in relation to the NXT work (which had to be removed). She deposed that her personal funds were depleted by these costs, and the costs of the Family Court proceedings, the Tribunal proceedings and the contempt proceedings.[80] Ms Coleman deposed that the work to properly comply with the order will exceed $23,000 and that she will have to borrow money to complete the work.[81]
[79] First Coleman affidavit [59].
[80] Second Coleman affidavit [5] ‑ [9], [22(b)].
[81] Second Coleman affidavit [19].
Prior to the hearing, Ms Coleman did not provide any information about her actual financial circumstances or other matters of mitigation. For that reason, I gave Ms Coleman leave to file an affidavit as to those matters. I received that affidavit on 17 May 2018 (mitigation affidavit).
In the mitigation affidavit, Ms Coleman said she was 54 years old and was due to finish an interior design course at the end of this year. She has started a small interior design business.
Ms Coleman estimated that Lot 41 is valued at $650,000.[82]
[82] Mitigation affidavit [14].
The mitigation affidavit addressed Ms Coleman's financial position. In particular:
1.Ms Coleman's legal fees in the Family Court proceedings have been substantial and future costs are estimated at $480,000.
2.Ms Coleman's weekly income does not greatly exceed her expenses.[83]
3.Ms Coleman is owed $150,000 by NXT.
4.Ms Coleman also owns two properties with a net value of about $1.3 million. There is a caveat over each property.
[83] In the Supplementary Affidavit of Denise Maxine Coleman sworn 11 June 2018 (supplementary mitigation affidavit) [4], Ms Coleman deposed that the tenant of Lot 41 would leave on 13 June 2018, and so she will lose income unless another tenant can be found. However, there is no evidence to suggest she will have any difficulty in finding a new tenant.
Ms Coleman deposed that she made the loan to NXT in approximately June 2016, and it was to be repaid in full within 12 months. The repayment date was later extended to July 2018. She provided no other explanation about this loan.[84]
[84] Mitigation affidavit [19].
Each caveat has been lodged by a company claiming to have loaned Ms Coleman money. Her former de facto partner is the sole director of each company. He is the sole shareholder of one company and owns 99% of the shares in the other. The total amount said to have been loaned is $1,280,483.[85] However, Ms Coleman disputes the loans.[86] Accordingly, Ms Coleman does not assert that I should conclude that she has little equity in the properties she owns.
[85] Annexures LLS‑1 and LLS‑2 to the affidavit of Lauren Lynch‑Stanton sworn 7 June 2018.
[86] Supplementary mitigation affidavit [6] ‑ [17].
The mitigation affidavit also annexed three character references. Two of them expressly referred to her having committed the contempt. One of those was from a man who has been a good friend of Ms Coleman for 12 years. He described her in very positive terms and noted the personal pressures she suffered following her failed relationship.
The need for general deterrence will ordinarily be important in cases of contempt. It is in this case. It is important to send a message that orders must be complied with even if the subject of the order disagrees with it, or thinks there might be other ways of resolving a dispute. There is nothing about this case that would make general deterrence of less weight than would ordinarily be the case.
The need for personal deterrence is also important in this case.
Initially, it seemed that the need for personal deterrence may have been reduced, for three reasons:
1.Ms Coleman incurred legal fees in relation to the Tribunal proceedings, these proceedings and in dealing with the Owners. In particular, Ms Coleman's refusal to comply with the final order will come at considerable financial cost to her.
2.Ms Coleman apologised in her first affidavit and in the mitigation affidavit.[87] While I do not accept she is remorseful, the apologies suggested that she may have come to understand the seriousness of her conduct. This was despite the fact that, as counsel for the Owners pointed out, the non‑compliant bi‑fold doors were installed after she swore her first affidavit.
3.Ms Coleman admitted she was guilty of contempt. While the case against her was overwhelming, her admission suggested that she may have come to accept her conduct was wrong and understood its seriousness.
[87] First Coleman affidavit [93], mitigation affidavit [25].
However, the order has still not been complied with, three months after the hearing date. In my view, personal deterrence remains an important consideration.
There will ordinarily be a need to denounce contempt. There is a need in this case. It is important to reinforce that orders must be complied with, and that the subject of an order cannot try to avoid having to do so, no matter how strongly they feel that they should not have to.
In written submissions filed on her behalf on 28 August 2017, Ms Coleman admitted all of the elements required to be proved to establish contempt except for the requirement that the conduct was deliberate or voluntary.[88] Although those submissions left open the possible argument that her disobedience was casual, accidental or unintentional,[89] this was not strongly argued in the written submissions. In the hearing, Ms Coleman admitted the remaining requirement.[90] In my view, Ms Coleman is entitled to credit for her admissions, particularly those made in the written submissions in August 2017. Those admissions shortened the amount of time required to deal with the matter. While the case against her was overwhelming, her admissions facilitated the administration of justice.
[88] Respondent's Outline of Submissions filed 28 August 2017 [20] ‑ [21], [61] ‑ [63].
[89] Respondent's Outline of Submissions filed 28 August 2017 [21], [61] ‑ [71].
[90] See ts 26.
Ms Coleman deposed in her second affidavit that she has now taken steps to re‑install the wall and that she had been told it would be completed around 12 April 2018. As at the date of the hearing, the work had not been completed. I was told that, barring some unusual complication, it was expected to be completed by the end of April. As noted earlier, I gave Ms Coleman leave to advise the court after the hearing, but before I handed down my decision, if the wall was restored as required by the Tribunal's order. Unfortunately, the order has still not been complied with.

Is imprisonment appropriate?

I am not satisfied that imprisonment is the only appropriate option, and therefore will not order it.

Quantum of fine

In determining the quantum of a fine, it is appropriate to take into account Ms Coleman's means and the extent to which a fine will burden her.[91] Ms Coleman has substantial assets.
[91] Section 53(1) Sentencing Act and Kennedy [40].
I take into account that Ms Coleman will be required to pay the Owners' costs. For the reasons explained later, she will have to pay 85% of the Owners' costs on an indemnity basis. This is likely to be a substantial amount. This contributes to deterrence. However, the contempt was serious. If too much weight is given to costs, the object of imposing a penalty could be undermined. In view of the seriousness of the contempt, I consider that the costs she will have to pay is of limited weight.
I have concluded that the appropriate fine is $10,000. This is not an insignificant sum, but it is not oppressive. It is commensurate with the seriousness of her conduct, taking into account all of the relevant factors.

Daily fine

It is appropriate to order that Ms Coleman pay a daily fine until the order is complied with.[92] It is now nearly two and a half years since the deadline for compliance passed.
[92] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 113 ‑ 115. See also Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188 [47].
The quantum of the appropriate penalty should be sufficient to act as an inducement to Ms Coleman to comply and to set an appropriate punishment for the further delay. However, I must also take into account the fact that this is not a contempt that can be purged instantly and cannot be purged without the assistance of the relevant tradespeople. For that reason, I will set the appropriate daily penalty at $50.
The small amount should not be seen to suggest that the need to comply is not pressing. It is. In order to ensure that is understood, I will give the Owners leave to apply if, after a further period of time, Ms Coleman has still not complied. The length of time before such an application should be made will depend upon the events that have occurred. However, I would expect that the Owners would not need to make such an application within four weeks of this decision.
I will also give Ms Coleman leave to apply to the court if there is a material change in circumstances. I contemplate that this would allow Ms Coleman to apply if she was unable to comply due to unusual events outside of her control. This would not include the usual delays associated with construction work.

Costs

It was not in dispute that Ms Coleman should pay the Owners' costs. However, the parties disputed what type of costs order should be made. The Owners sought indemnity costs. Ms Coleman submitted that the costs should be on a party and party basis and that she should not have to pay the costs that relate to the withdrawn allegation in relation to the stop work order.
In addition, Ms Coleman submitted that some adjustment should be made to reflect the fact that she was put to unnecessary expense by the withdrawn allegation.[93]

Indemnity costs

[93] ts 63.

The relevant principles to be applied were not in dispute. They were summarised in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
In particular, I should not make an order for indemnity costs unless there is some special or unusual feature in the case. If the justice of the case requires an order for indemnity costs, I have a discretion as to whether to make such an order.[94]
[94] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [8] ‑ [9], endorsed in various Court of Appeal decisions, including Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] and Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200 [112].
An indemnity costs order may not be appropriate if the costs would be recoverable by a properly formulated special costs order.
There is no general principle or rule of law that indemnity costs should be ordered in contempt cases. However, in some jurisdictions at least, it is common for such orders to be made.[95] One reason for this is that the applicant is performing both a private and public service in prosecuting the contempt.[96]
[95] See the discussion in Kazal [192] ‑ [195].
[96] Infa‑Secure Pty Ltd v Crocker (No 2) [2016] FCA 202 [44].
In my view, it is also relevant that Ms Coleman's conduct was contumacious. While the contumacious conduct was not conduct in the litigation, I consider it is a special feature of this case that could warrant an order for indemnity costs.
Ms Coleman raised a number of issues that she submitted were relevant to the exercise of my discretion. They included that the Owners' actual costs were significantly more than the costs estimates and that the last costs estimate was provided in November 2017. Ms Coleman also submitted that some claims were not reasonable because, for example, the rates charged exceeded the scale rates. In addition, Ms Coleman submitted that some claims were not recoverable.
However, I consider that an indemnity costs order should be made. Ms Coleman's contumacious conduct, over a long period of time, forced the Owners to bring these proceedings to make her comply with the final order. The matters raised by Ms Coleman do not, individually and cumulatively, have great weight in the context of her conduct. Further, if some of the costs were unreasonably incurred or unreasonable in amount, the Owners will not be entitled to recover those costs.[97]
[97] Swansdale Pty Ltd [17].
In the hearing on 29 June 2018, Ms Coleman's counsel also drew to my attention that the Owners had power under a by‑law to require Ms Coleman to pay unrecovered costs. In my view, this is not a reason to not make the appropriate order. This by‑law was not the subject of submissions and I have not been provided with any information as to the process, limitations, or any rights Ms Coleman may have to challenge such a requirement. However, at the very least, it seems that Ms Coleman would have the right to apply to the Tribunal under s 99A of the Strata Titles Act if the Owners exercised that power. As I am satisfied that Ms Coleman should pay indemnity costs, I should make that order.

The withdrawn allegation

As indicated above, under s 86 of the SAT Act, a decision of the Tribunal is taken to be a decision of this court and may be enforced accordingly if certain documents are filed.
It appears that the Owners did not file the necessary documents in relation to the stop work order.[98] Accordingly, the stop work order could not be taken to be a decision of this court.
[98] This was implicitly conceded by the applicant - see ts 85.
I raised this issue with then counsel for the Owners (not the counsel who appeared in the final hearing) on 12 June 2017.[99] On 25 August 2017, Ms Coleman filed her written submissions, which fully argued this point. Despite this, the Owners did not communicate that they conceded the point until about a week before the final hearing. This resulted in unnecessary costs to Ms Coleman. The unnecessary costs were the costs of preparing those parts of Ms Coleman's submissions that dealt with the stop work order. The failure to comply with s 86 of the SAT Act was a very simple issue and I do not consider it would have involved much work at all. However, the submissions also dealt with the merits of the application for contempt of the stop work order,[100] and this would have involved some work.
[99] ts 3 of 12 June 2017.
[100] Respondent's Outline of Submissions filed 28 August 2017 [45] ‑ [60].
For completeness, I note that the first Coleman affidavit also dealt with the stop work order at pars 21 to 26. This was primarily a narrative of events, and those events were still relevant to the overall history of the matter. I do not consider that the Owners' failure to more promptly abandon the stop work order application caused any significant costs in relation to Ms Coleman's evidence.
Overall, the unnecessary costs incurred by Ms Coleman in dealing with this issue would have been a very small proportion of the overall costs and were, to some extent, bound up in the narrative of events. Nevertheless, in my view, due to the lateness of the withdrawal of the allegation, I should make some small allowance for the unnecessary costs.
I also consider that I should make some allowance for the fact that some of the Owners' costs would have been incurred solely in relation to the withdrawn allegation. However, those costs would not be significant. In order to present the full context of Ms Coleman's conduct, it was necessary for the Owners to explore the complete history of the matter. It would be impractical to attempt to determine at a taxation the costs that were incurred solely because of the withdrawn allegation. Accordingly, I propose to simply make allowance for the costs incurred by both parties in relation to the withdrawn allegation in a global way.
In my view, a proper allowance will be achieved by ordering Ms Coleman to pay 85% of the Owners' costs, instead of 100%.

Orders

I order that:
1.Ms Coleman pay a fine in the amount of $10,000;
2.Ms Coleman pay a daily penalty of $50 from the date of this decision until she complies with the final order;
3.Ms Coleman pay 85% of the Owners' costs on an indemnity basis (other than costs of an unreasonable amount or unreasonably incurred); and
4.the parties have liberty to apply in relation to order 2.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
ASSOCIATE TO THE HONOURABLE JUSTICE ARCHER
24 JULY 2018

[2018] WASC 219

24 JULY 2018

Key Legal Topics

Areas of Law

Civil Litigation & Procedure

Legal Concepts

Contempt of Court

Abuse of Process

Costs

Indemnity Costs