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Key decisions

  • Guoao Holding Group Co Ltd v Xue (Sentencing) [2024] FCA 1503

CONTEMPT OF COURT

Imposition of sentence for contempt of court by breach of freezing orders

Guoao Holding Group Co Ltd v Xue (Sentencing) [2024] FCA 1503 (Stewart J) dealt with the penalty to be imposed on, or the sentencing of, the first respondent (‘Ms Xue’) for contempt of court for breaching freezing orders. The freezing orders were made in support of an anticipated judgement against Ms Xue enforcing an arbitral award made in China. Later, judgment was entered against Ms Xue in the Federal Court of Australia in favour of the plaintiff (‘Guoao’).

Prior to the penalty hearing, Ms Xue filed an affidavit which included statements of apology and remorse, and to the effect that should she receive a custodial sentence, there would be no one to look after her teenage son in Sydney. The statements regarding her son were later withdrawn with Ms Xue’s solicitor stating to the Court that she was instructed that Ms Xue’s son had left Australia in 2023. A settlement agreement had also been entered into between the parties pursuant to which the whole debt to Guoao was paid, the freezing orders were discharged by consent, and Guoao withdrew its submissions on penalty. Guoao did not participate in the proceedings thereafter and so, the Registrar of the Court was joined as the second applicant to take over the prosecution of the contempt charge. Ms Xue filed a further affidavit; however, none of her affidavits were read at the penalty hearing (though her first affidavit was tendered by the Registrar). Further, Ms Xue did not attend the hearing and did not explain why she could not do so.

Contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights.

The Court’s findings

Stewart J

In his reasons Stewart J noted the applicable principles governing penalty were not in dispute and that contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights. Contempt proceedings are therefore to be viewed as essential in facilitating the proper functioning of courts (citing Kazal v Thunder Studios Inc (California) [2017] FCAFC 111) (‘Kazal‘) (at [21]). His Honour continued to consider the list of non-exhaustive considerations in Kazal at [101]-[102] and noted it was essential to the due administration of justice that contempt of court remain relatively rare (at [23]).

In this case, Stewart J found the contempt was serious and done by Ms Xue with a specific intention to disobey court orders (at [25]), there was no meaningful expression of genuine contrition or apology (see [36]), and there were no personal circumstances that might mitigate any penalty (at [40]). Other factors taken into account included that Ms Xue had not previously been convicted of contempt or any other relevant offence, and she had repaid Guoao’s debt in full together with costs, withdrawn her appeal against the contempt convictions, and offered to pay the Registrar’s costs on an indemnity basis (at [39] and [43]).

In the end, Stewart J found the appropriate sentence was a custodial sentence of three months’ imprisonment wholly suspended on condition that Ms Xue pay the Registrar’s costs within 28 days of notification of their amount.



Vincci Chan
is a barrister at University Chambers.