Yap v Matic [No 4] - [2022] WASC 422

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   YAP -v- MATIC [No 4] [2022] WASC 422
CORAM:   SOLOMON J
HEARD:   25 NOVEMBER 2022
DELIVERED          :   7 DECEMBER 2022
PUBLISHED           :   8 DECEMBER 2022
FILE NO/S:   CIV 1106 of 2022
BETWEEN:   VIVIEN JIT SIEN YAP
First Plaintiff
EMPIRE SONS (AUSTRALIA) PTY LTD T/AS RAY WHITE (DALKEITH CLAREMONT)
Second Plaintiff
AND
SANDI MATIC
Defendant

Catchwords:

Contempt of court – Penalty – Whether contemnor intended to defy court's authority – Turns on own facts

Contempt in the face of the court – Breach of order that the defendant appear in person

Legislation:

Rules of the Supreme Court 1971 (WA), O 55 r 3, O 66 r 10

Result:

Contemnor to pay the plaintiffs' costs on an indemnity basis
Matter of contempt in the face of the court adjourned

Category: B

Representation:

Counsel:

First Plaintiff	:	M L Bennett
Second Plaintiff	:	M L Bennett
Defendant	:	In Person

Solicitors:

First Plaintiff	:	Bennett
Second Plaintiff	:	Bennett
Defendant	:	Not Applicable

Cases referred to in decision:

Brookvista Pty Ltd v Meloni [2009] WASCA 180
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2015] HCA 21; (2015) 256 CLR 375
The State of Western v Galati [No 4] [2017] WASC 162
Wood v Staunton (No 5) (1996) 86 A Crim R 183
Yap v Matic [2022] WASC 181
Yap v Matic [No 3] [2022] WASC 370

SOLOMON J:

(This judgment was delivered extemporaneously on 7 December 2022 and has been edited from the transcript).

On 27 October 2022, I found the defendant Sandi Matic guilty of contempt by reason of his breach of the court's orders dated 11 February 2022. My reasons were set out in Yap v Matic [No 3] [2022] WASC 370, which in turn are to be read with reasons I published in Yap v Matic [2022] WASC 181.
The circumstances of Mr Matic's contempt are explained in those reasons and need not be repeated.

Procedural background

As Sandi Matic did not appear at the hearing of 27 October 2022, and also to give him further time to consider his position, I deferred the issue of the appropriate penalty to a hearing on 25 November 2022. Sandi Matic was given ample notice of that hearing. Sandi Matic did not attend on 25 November 2022. On that day I made an order that:
The defendant, Sandi Matic, shall appear in person at the Supreme Court of Western Australia at 2.00pm on Wednesday, 30 November 2022, for delivery of the reserved decision.
Those orders were sent to Mr Matic from the court via email on 25 November 2022. Additionally, the plaintiffs have filed an affidavit of service by Cheryl Lorraine Harrison sworn 28 November 2022 that deposes to the fact that Mr Matic was personally served with those orders, as well as a letter from the plaintiffs' solicitors and a copy of the plaintiffs' submissions in respect of the penalty to be imposed.
I explained at the hearing on 30 November 2022 that there could be no doubt that Mr Matic had received and was aware of the order that he appear at that hearing, in person. That awareness was illustrated by Mr Matic's correspondence with the court, and with the plaintiffs' solicitors, up until and indeed during the hearing of 30 November 2022. In particular, less than an hour before Mr Matic was due to appear, he sent via email to my chambers a letter addressed to me. Relevantly, that letter included the following passage:
With no evidence to show that we are a named party to these proceedings we kindly decline your invitation to attend this meeting but we offer the Honourable Court to attend future appointments as a friend of the court, Amicus Curiae.
As I explained on 30 November 2022, Mr Matic's repeated failure to appear before the court has delayed these proceedings and interfered with the ability of the court to dispense with this matter.
I was therefore satisfied that Mr Matic's failure to appear when he had been ordered to do so was, on its face, grounds for the court to charge Mr Matic with contempt of court pursuant to O 55 r 3 of the Rules of the Supreme Court 1971 (WA) (RSC). That rule relevantly provides as follows:
Contempt in the face of Court
(1)When it is alleged or appears to the Court on its own view that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the presiding judge may, by oral order, direct that the contemnor be arrested and brought before the Court as soon as possible thereafter as the business of the Court permits, or may issue a warrant under his hand for the arrest of the contemnor.
(2)When the contemnor is brought before the Court, the Court shall –
(a)cause him to be informed orally of the contempt with which he is charged; and
(b)require him to make his defence to the charge; and
(c)after hearing him proceed, either forthwith or after adjournment, to determine the matter of the charge; and
(d)make an order for the punishment or discharge of the contemnor.
(3)The Court may, pending disposal of the charge –
(a)direct that the contemnor be detained in such custody as the Court directs; or
(b)direct that the contemnor be released on bail.
In the circumstances and pursuant to that rule, I made orders in the following terms:
1.The issue of the appropriate penalty to be imposed in respect of the defendant's conviction for contempt of court on 27 October 2022 is adjourned until 4.30 pm on 7 December 2022.
2.Warrant is issued for the arrest of Sandi Matic of [redacted].
3.The warrant is to lie until 4.00 pm on 6 December 2022 and shall be discharged in the event that Mr Matic surrenders himself to police custody before that time.
4.Mr Matic is to be remanded in custody and brought before the court at 4.30 pm on Wednesday 7 December 2022 to be formally charged with contempt of court by reason of his failure to appear, in breach of the court's orders dated 25 November 2022 that he appear in person at the Supreme Court on 30 November 2022.
5.The plaintiff is to cause a copy of these orders to be personally served on Sandi Matic by 1 December 2022.
6.Costs be reserved.
Mr Matic was provided with those orders via email from the court on 30 November 2022.
The plaintiffs have filed three affidavits of attempted service pursuant to order 5 of the orders above. The deponents of those affidavits make clear that on at least six occasions between 30 November 2022 and 5 December 2022, process servers attended at Mr Matic's home and attempted to serve him personally with the relevant orders. That service was ultimately unsuccessful. I am, however, satisfied that the plaintiffs took all reasonable steps to comply with my order that they personally serve the defendant.
By 4.00 pm on 6 December 2022, on the information available to the court, Mr Matic had not surrendered himself to custody. Warrant was therefore issued for his arrest.
Mr Matic emailed my chambers this morning, 7 December 2022, in the following terms:
i; private living and peaceful man, 'Sandi' accept your invitation to attend as special appointment to the Honourable Court today at 16:30 at Perth with intention to clarify the mistakes that we believe have been made.
That email is important for two reasons. The first is that it once again highlights Mr Matic's difficulty accepting the authority of the court. That is illustrated by his characterisation of a court order, and indeed of an arrest warrant, as an 'invitation to attend'. Secondly, this email confirms that Mr Matic did receive the court's orders dated 30 November 2022 and was given notice of the court's allegation of contempt and the circumstances giving rise to that charge.
At 12.45 pm today, Mr Matic was arrested and remanded in custody. Those are the circumstances that have led to Mr Matic's appearance today.

Penalty for contempt of court

I now return to the issue of the appropriate penalty to impose upon Mr Matic in relation to the conviction for contempt handed down on 27 October 2022.[1]
[1] Yap v Matic [No 3] [2022] WASC 370.
In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic), the High Court adopted the description of the cardinal feature of the power to punish for contempt as being that it is 'an exercise of judicial power by the courts to protect the due administration of justice'.[2] Like that case, here the contempt proceedings arose in the course of a civil proceeding. The comments of the High Court reflect and embody a principle that is both fundamental and ubiquitous; that is that the rule of law and the administration of justice require that all persons in society accept that court orders manifest the application of the law by which all people are governed and that for civil society to be maintained, such orders must be obeyed. People are entitled to adopt and with limited qualifications to express, whatever beliefs they choose no matter how others may regard them. But compliance with court orders is a foundational feature of the rule of law. Many cases throughout the common law world have expressed that sentiment in one way or another. Relevantly, in a number of the cases in Australia, the offending conduct was undertaken brazenly in opposition to the court's authority for financial gain. In other cases, the conduct was part of an orchestrated campaign designed to achieve a purpose, such as a political or industrial outcome in which a deliberate decision was made to flout the court's authority in pursuit of the desired objective.
[2] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2015] HCA 21; (2015) 256 CLR 375 [41] (CFMEU v Boral Resources (Vic)).
In at least some of those cases, public disregard for the authority of the court appeared to be part of the strategy in the achievement of the offender's objective. An important feature was the conscious disregard of the court's authority for personal gain or in furtherance of some cause.
An example is the High Court case of CFMEU v Boral Resources (Vic) itself. In that case, it was alleged that an industrial union had disobeyed orders made by the court by establishing a blockade of a construction site. As I have noted, in other cases, parties have disobeyed a court's order to make a financial gain or to agitate some political or social cause.
Here, it is less clear that the defendant was quite as strategic in his disobedience of the court's orders. He appears to have been motivated by a deep sense of grievance arising from his complaints in relation to a commercial transaction, and the proceedings that have been brought against him. The conduct which I have found amounted to a contempt appears to have been undertaken out of a sense of self-righteous anger, in which disregard of the court order was a collateral consequence.[3] Put simply, it does not appear to me that disobedience of the court's orders or rejection of the court's authority was of itself the defendant's objective when he breached the injunction granted on 11 February 2022.
[3] Yap v Matic [No 3] [2022] WASC 370 [11] - [16].
At the same time, the defendant has expressed views that could be characterised as inconsistent with an unqualified acceptance of the court's authority. These views have been expressed in comments made by Mr Matic before the court, and in correspondence to my chambers, and correspondence to the plaintiffs' solicitors. Those comments include what appear to be challenges to the court's authority to control the defendant, including the apparent preconditions of his submission to the court's authority, such as whether the court or a judicial officer has entered into a 'contract' with him. Other comments reflect somewhat incoherent or at least unorthodox views about establishing the identity of certain people. The defendant has, for example, demanded that the court identify the defendant himself. These communications have included misguided and distracting debate about the meaning of words such as 'you', and whether the defendant's name when expressed in capitals, refers to him or to some other entity. Some of the views expressed by the defendant might be regarded as irrational, bizarre, or even offensive.[4]
[4] Yap v Matic [2022] WASC 181 [66].
The communications received by the court on 30 November 2022 referred to at [5], demonstrate the flavour of these comments. I have annexed a selection of that correspondence to this judgment at Annexure A and Annexure B.
For present purposes, the mischief in the comments with which I am concerned relates not to whether these views are correct or sensible, but rather to the acceptance or rejection of the court's authority.
It appears that to one extent or another, the views expressed by the defendant are shared by a growing group within society that has loosely been referred to as the sovereign citizen movement and perhaps by other names or descriptions. There are aspects of the views of that movement that have come before this and other courts, including some of the views expressed by this defendant, which reflect a rejection to one degree or another of the court's authority. Those views, and their apparent increasing popularity, or acceptance, cannot be dismissed as harmless or bemusing nonsense. The promulgation of such views and beliefs represents a dangerous corrosion of some of our society's most fundamental values in the maintenance of the rule of law and the administration of justice. The events in the United States of America over recent years reinforce the vigilance required to protect those values and the danger inherent in taking them for granted.
But at the same time, I am not persuaded, and certainly not beyond reasonable doubt, that it is the holding of such views which inspired Mr Matic to engage in the particular conduct that I have found amounted to the contempt of which he was convicted on 27 October 2022.
I am therefore not persuaded that for the purposes of this judgment, I should proceed on the basis that views expressed by this defendant regarding the authority of the court, were the motivating force for the particular behaviour that amounted to the contempt.
In the circumstances, it seems to me that the most important consideration is personal deterrence; that is, imposing a penalty that makes clear to the defendant that he should be conscious of the requirement to obey the court's orders.
In Wood v Staunton (No 5), Dunford J summarised the relevant matters to consider in respect of the proper punishment to be imposed for contempt in refusing to answer a series of questions at a Royal Commission.[5] That summary has been adopted in the context of disobedience of a court's order at a civil proceeding by this court; see for example State of Western Australia v Galati [No 4].[6]
[5] Wood v Staunton (No 5) (1996) 86 A Crim R 183.
[6] The State of Western v Galati [No 4] [2017] WASC 162.
The relevant matters are as follows:
(i)the nature and seriousness of the contempt proved;
(ii)the consequences of the contempt;
(iii)the context in which the contempt was committed;
(iv)the reason for the contempt including whether the contemnor intended subjectively to commit the contempt;
(v)any benefit received by the contemnor;
(vi)whether there has been any apology or public expression of contrition;
(vii)the circumstances, character and antecedents of the contemnor;
(viii)general and personal deterrence; and
(ix)denunciation of the contempt.[7]
[7] The State of Western v Galati [No 4] [34].
In my decision of 27 October 2022, I described the nature of the contempt and the impact that it had upon the first plaintiff. The motivation for the disobedience and its impact upon the plaintiff are such that the disobedience was undoubtedly serious. At the same time, beyond the anxiety it has caused the plaintiff, the consequences of the contempt were not otherwise significant, and the defendant received no benefit from his conduct.
I acknowledge the publication of a public apology in 'The West Australian' to me by the defendant. However, the significance of the apology is limited. It is directed to the manner in which the defendant acted in court and in email correspondence. The apology fails to deal with the conduct that amounted to the contempt; that is, the breach of the court's orders. The apology was further undermined by the defendant's failure to appear at the hearing of 25 November 2022, and by his failure to appear on 30 November 2022, notwithstanding the indication in the apology that he would do so.
For the reasons I have set out above, I consider that the principal object of any punishment in these circumstances, is as I have said, to act as a personal deterrent against the defendant breaching the court's orders in future.
In the circumstances, I consider that the appropriate penalty is to order that the defendant pay the plaintiffs' costs of the contempt application on an indemnity basis. The plaintiff complains that on the basis of correspondence emanating from the defendant in respect of other court orders for costs, there is little or no prospect that the defendant will comply with such a cost order. At this stage, I am not aware that there is any outstanding cost order that has not been paid, but in any event, even if there were such a circumstance, there are means available to the plaintiffs to deal with that before any conclusion can be reached that such an order would be futile.
The discretion of the court to make orders as to costs is a wide one. Pursuant to RSC O 66 r 10(1), the court may order at any time that costs be paid forthwith. This includes an order that costs of a fixed amount be paid. The purpose of fixing costs is to avoid the expense and delay associated with taxation. The principles in relation to fixing costs were set out by the Court of Appeal in Brookvista Pty Ltd v Meloni and do not bear repeating, save for an observation that 'the power to award a fixed sum should only be exercised when the court considers that it can determine the amount of the costs fairly. That means the court must have available to it sufficient material that it is confident it can arrive at an appropriate sum'.[8]
[8] Brookvista Pty Ltd v Meloni [2009] WASCA 180 [27] (Buss & Newnes JJA).
The plaintiffs have provided to the court a draft bill of costs in these proceedings, as well as a schedule of further costs incurred by the ongoing delays filed on 6 December 2022. I accept that that is sufficient evidence to satisfy the threshold identified by the Court of Appeal. In that regard, I will order that the defendant pays the plaintiffs' costs of the contempt proceedings on an indemnity basis, fixed in the amount of $16,057.00. Those costs are to be paid forthwith.

Contempt in the face of the court

As I have outlined above, on 30 November 2022 I was satisfied that there was cause for the court to charge Mr Matic with contempt in the face of the court and, pursuant to RSC O 55 r 3, to give Mr Matic the opportunity to make a defence to that charge.
Having explained the circumstances of that charge to Mr Matic, I will give him the opportunity to seek advice before returning to the court to make his defence. Mr Matic has indicated to me at the hearing today that he now understands the seriousness of an order that he must appear before the court, and that he intends to appear at the next instance in order to put forward his defence and to conclude this matter. I only wish to make the following final comments.
Over the course of the last several months, as this matter has unfolded, it has been my sincere hope that these proceedings would impress upon the defendant the importance of his obedience to the court. It is unfortunate that the seriousness of the matter of contempt did not appear to be properly understood by the defendant before today, illustrated by the events set out at [3] ‑ [14]. The charge of contempt in the face of the court is to be dealt with on another occasion and as it stands, I cannot presently make an evaluation of that matter. I will take this opportunity, however, to urge Mr Matic to use this occasion to appreciate the gravity of what he has done. Mr Matic ought to realise that he must proceed in his affairs with an unqualified acceptance of the court's authority, and in particular the requirement that he obey the court's orders.

In relation to my decision on 27 October 2022, I have given Mr Matic the benefit of the doubt in concluding that his contempt was not motivated by a rejection of the court's authority. Mr Matic's subsequent failure to attend the court on 30 November 2022 in breach of the court's orders may make it more difficult to conclude that Mr Matic's conduct is not motivated by a rejection of the court's authority, which may mean that, if found guilty of the charge, a term of imprisonment may be necessary. I have not formed any conclusion about that, and will need to hear from Mr Matic on return of the matter on 13 December 2022.

Orders

1.The defendant pay the plaintiffs' costs of the proceedings the subject of the defendant's conviction for contempt reported in Yap v Matic [No 3] [2022] WASC 370 on an indemnity basis, fixed in the amount of $16,057.00, payable forthwith.
2.The matter of the defendant's charge of contempt in the face of the court by reason of his failure to appear on 30 November 2022, in breach of the court's orders, is adjourned until 3.00 pm on 13 December 2022.
3.The defendant, Sandi Matic, shall appear in person at the Supreme Court of Western Australia at 3.00 pm on Tuesday, 13 December 2022.
4.The warrant issued on 6 December 2022 for the arrest of Sandi Matic is discharged.

Annexure A

Annexure B

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
8 DECEMBER 2022