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Freeman v Montgomery[2021] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION:

Freeman v Montgomery [2021] QDC 210

PARTIES:

DAVID FREEMAN
(Plaintiff/Defendant by counterclaim)

v

MARIA JESSICA MONTGOMERY 
(Defendant/Plaintiff by counterclaim)

FILE NO:

3327/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25 August and 1 September 2021

JUDGE:

Porter QC DCJ

ORDER:

  1. For contempt of Order 4 made 1 April 2021 in breach of s. 129(1)(a) District Court of Queensland Act 1967 (Qld), David Freeman is sentenced to 4 weeks imprisonment;
  2. For contempt of Order 6 made on 1 April 2021, in breach of s. 129(1)(a) District Court of Queensland Act 1967 (Qld), David Freeman is sentenced to 6 weeks imprisonment; and
  3. For contempt of Order 7 made 1 April 2021, in breach of s. 129(1)(a) District Court of Queensland Act 1967 (Qld), David Freeman is sentenced to 6 weeks imprisonment.
  4. Those sentences of imprisonment are to be served concurrently. 
  5. David Freeman pay the defendant’s costs of the application filed 17 May 2021 and the amended application filed 29 June 2021 on an indemnity basis.

CATCHWORDS:

PROCEDURE – POWER OF COURT TO PUNISH FOR CONTEMPT – PENALTY – where an order was made, by consent, which required the plaintiff to deliver up vacant possession of property by a specified date, not to do anything which would impede the sale of the property and to withdraw a caveat he had lodged over the property – where defendant alleged contempt against plaintiff respondent in failing to comply with  each order – whether the plaintiff respondent knowingly and without lawful excuse failed to comply with the orders – whether distinct acts in breach of the order to give possession were one contempt or several contempts – whether the plaintiff knowingly and without lawful excuse failed to comply with the orders – where acts were contumacious, persistent and deliberate – whether rules of evidence apply to sentencing proceedings for civil contempt – where plaintiff expressed no remorse and make no apology – where the plaintiff did not take opportunities to comply with the orders after the application for contempt was filed – where there is a need for personal and general deterrence – whether a custodial sentence is appropriate in all the circumstances

LEGISLATION

Criminal Code 1899 (Qld) ss. 2, 3

District Court of Queensland Act 1967, ss. 105, 129

Evidence Act 1977 (Qld), s. 129A

Justices Act 1886 (Qld)

Land Title Act 1994 (Qld), ss. 126, 127, 130

Penalties and Sentences Act 1992 (Qld), ss. 14, 15

Powers of Attorney Act 1998 (Qld), s. 44

Uniform Civil Procedure Rules 1999 (Qld), Rules 93, 430, 930, 931, Chapter 20 Part 7

CASES

Agius v R (2011) 80 NSWLR 486

Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Baker v Smith (No 1) [2019] QDC 76

Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16

Brisbane City Council v Windshuttel [2011] QPEC 70

CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375

Dubois v Rockhampton Regional Council [2014] QCA 215

Exagym Pty Ltd v Professional Gymnasium Equipment Co Pty Ltd (No 2) [1994] 2 Qd R 129

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90

Lade & Co Pty Ltd v Black [2006] 2 Qd R 531

Macgroarty v Clauson (1989) 167 CLR 251

Re Colina; Ex parte Torney (1999) 200 CLR 386

R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615

R v Ogawa [2011] 2 Qd R 350

Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] Ch 422

Sloggett v Adams (1953) 70 WN (NSW) 206

Tax Practitioners Board v Hacker (No 4) [2021] FCA 940

Witham v Holloway (1995) 183 CLR 525

COUNSEL:

S. Couper QC for the Defendant/Applicant

C. Trace (solicitor) for the Plaintiff/Respondent

SOLICITORS:

Bransgroves Lawyers for the Defendant/Applicant

Heritage City Legal for the Plaintiff/Respondent  

Summary

  1. [1]
    I heard the trial of these proceedings over three days commencing 30 March 2021.  At the trial, the plaintiff and the defendant were both represented by counsel and solicitors.  On the third day, the proceedings were resolved, and I made orders by consent disposing of the plaintiff’s claims.  Those orders required the plaintiff, relevantly, to give up possession of a propery at Riordanvale by 1 May 2021 and required the plaintiff not to thereafter enter the property, not to do anything which impeded the sale of the property, and specifically to withdraw a caveat he had lodged over the property.
  2. [2]
    The defendant contends that the plaintiff is in contempt of each of those orders.
  3. [3]
    To understand those orders and the context in which this application arises, it is necessary to briefly outline the nature of the substantive proceedings.

The procedural history

  1. [4]
    The plaintiff (Mr Freeman) is the son of the defendant (Ms Montgomery).  He brought proceedings against his mother contending that his contributions to the value of the Riordanvale property gave rise to an equitable proprietary interest in the property.  The articulation of the contributions case was not simple.  Mr Freeman relied on financial and material contributions to various family homes purchased severally over a period reaching back to 1989, along with various alleged promises about interests in the property which Mr Freeman would receive and upon which he alleged he acted.[1]
  2. [5]
    Mr Freeman gave evidence and was cross-examined over the first two days of the trial.  He was given a warning in respect of self-incrimination privilege arising from questions about his taxation affairs on day two. On day three, the Court was informed that the matter had been settled.  There was then some legal argument and reconsideration of the form of orders to be made to give effect to the settlement.  Ultimately, orders were made by consent on 1 April 2021 in the following terms (the consent orders):[2]

BY CONSENT, THE COURT ORDERS THAT:

  1. The claim is dismissed.
  2. The counterclaim is dismissed.
  3. Each party shall bear their own costs of the claim and counterclaim including any reserved or undecided costs.
  4. The plaintiff shall deliver up vacant possession of the property at Lot 18 on RP 747991 with title reference 21405079 being the land situated at and known as 79 Black Road, Riordanvale QLD 4800 (the “Property”) on or before 5pm on 1 May 2021.
  5. After 5pm on 1 May 2021, the plaintiff by himself, his servants, or agents is restrained from entering the Property.
  6. The plaintiff by himself, his servants, or agents is restrained from doing anything which prevents, impedes or interferes with the sale of the Property by the defendant.
  7. The plaintiff shall forthwith take all steps necessary to withdraw registered caveat number 719461928 in respect of the Property.

BY CONSENT, THE COURT DECLARES THAT:

  1. Notwithstanding the terms of any will of the defendant to the contrary, if the defendant’s grandson Thor Freeman does not predecease her, upon her death the defendant’s property both real and personal vests in the Public Trustee of Queensland to be held on trust for Thor Freeman until he attains 18 years of age and thereafter vests in Thor Freeman absolutely.
  1. [6]
    Regrettably, the consent orders did not quell the disputes between Mr Freeman and his mother.  On 17 May 2021, some 16 days after the obligations imposed by orders 4 to 7 commenced, Ms Montgomery filed an application seeking the following relief (the 17 May application), relevantly:[3]

TAKE NOTICE that the Defendant is applying to the Court for the following orders:

  1. That pursuant to rule 915 of the Uniform Civil Procedure Rules 1999 (QLD) (“UCPR”) the Court issue an enforcement warrant for the land described in Title Reference 21405079 as Lot 18 on Registered Plan 747991 situated at and known as 79 Black Road, Riordanvale QLD 4800 (the “Property”).
  2. That pursuant to rule 926 UCPR the Plaintiff be punished for contempt for failing to comply with Orders 4, 5 and 7 made by His Honour Porter DCJ on 1 April 2021.
  3. That pursuant to section 69 of the District Court Act 1967 and section 127 Land Title Act 1994 that caveat number 719461928 (the “Caveat”) be removed from the title of the Property.
  4. That pursuant to section 130 Land Title Act 1994 the Plaintiff pay to the Defendant compensation, including exemplary damages, for failing to remove the Caveat from the Property in accordance with Order 7 made by His Honour Porter DCJ on 1 April 2021.
  5. That the Plaintiff pay the Defendant’s costs of this application on an indemnity basis.
  6. Other orders the Court thinks suitable.
  1. [7]
    The application was mentioned on 25 May 2021.  On that day, orders for the filing of material were made.  Those orders dealt with affidavit material in relation to the 17 May application, including the alleged contempts.  They also provided for Mr Freeman to file an application seeking to set aside the consent orders which he had foreshadowed at that mention. The hearing of the 17 May application was adjourned to 25 June 2021.  Relevantly for current purposes, order 1 made on 25 May provided:[4]

THE COURT ORDERS THAT:

  1. The Plaintiff/Respondent (Mr Freeman) serve on the Defendant/Applicant (Ms Montgomery) any affidavit material on which he relies in response to the application filed 17 May 2021 by 5pm on 11 June 2021, such affidavits to be served by email to Ms Montgomery’s solicitor in sworn form but without requiring a sealed version to be served.
  1. [8]
    Mr Freeman served an application to set aside the consent orders as contemplated by the 25 May directions on 11 June 2021 (the cross application).  He also prepared a short affidavit in support of that application.  Neither document was filed until 25 June 2021.
  2. [9]
    The applications came before me on 25 June 2021 for hearing of the 17 May application and the cross application.  Mr Freeman appeared by Mr Polley of counsel.  Mr Freeman was attending by telephone.  Mr Couper QC appeared for Ms Montgomery (as he had done at the trial).  The events on that day are relevant context to the contempt proceedings.
  3. [10]
    The cross application by Mr Freeman to set aside the consent orders was filed by leave in Court, only to be dismissed by consent with no order as to costs.  The supporting affidavit referred to in paragraph [8] above appears to have been filed in the Registry on 25 June 2021, but it was not read. Mr Freeman had also sent a large affidavit by email to my associate before the hearing, which was never filed and not read on the cross application or the 17 May application.  As those affidavits were never relied upon by either party, I will say no more about them.  The notable point is that the contention that the consent orders were not binding was abandoned.  
  4. [11]
    That left Ms Montgomery’s 17 May application to be dealt with.  Apart from the application for possession (see paragraph [6] above), the 17 May application was dealt with by consent:
    1. (a)
      Paragraph 2, which sought punishment for contempt of the consent orders, was adjourned for later hearing (as explained in paragraph [14] below);
    2. (b)
      Paragraph 3 (seeking an order by the Court under s. 127 Land Title Act 1994 (Qld) (LTA) for removal of Mr Freeman’s caveat as ordered in paragraph 7 of the consent orders) was made by consent; and
    3. (c)
      Paragraph 4 (seeking compensation pursuant to s. 130 LTA in respect of that caveat) was abandoned by Ms Montgomery.
  5. [12]
    Only paragraph 1 of that application (seeking the issue of an enforcement warrant) was contentious at the 25 June hearing.  Mr Polley, for Mr Freeman, put no evidence before the Court on that matter.[5]  The evidence read by Ms Montgomery showed that Mr Freeman was still in possession on 5 May 2021, after the date required for him to give vacant possession.  Mr Freeman asked to be heard, despite being represented.  He asserted that his father was in possession of the property, though he was in Budapest, and that he had entrusted one of his friends to look after the property.  None of this was in evidence read on the application, despite the extensive opportunity given for material to be filed on the application and despite Mr Freeman being represented by counsel. 
  6. [13]
    I ordered the issue of an enforcement warrant to give effect to the order for possession contained in the consent orders.
  7. [14]
    I then adjourned the contempt application to 25 August 2021 and made an order allowing for any material Mr Freeman wished to file on that application.  The orders made on 25 June were:[6]
  1. That pursuant to rule 915 of the Uniform Civil Procedure Rules 1999 (QLD) (“UCPR”) the Court issue an enforcement warrant for the land described in Title Reference 21405079 as Lot 18 on Registered Plan 747991 situated at and known as 79 Black Road, Riordanvale QLD 4800 (the “Property”).

1A. The Defendant have leave to amend the application filed 17 May 2021 to allege contempt of Order 6.

THE COURT ORDERS BY CONSENT:

  1. That pursuant to section 69 of the District Court Act 1967 and section 127 Land Title Act 1994 that caveat number 719461928 (the “Caveat”) be removed from the title of the Property.
  1. Hearing of the application for contempt to be adjourned to 25 August 2021.
  1. The Plaintiff/Respondent to serve any material on which he intends to rely in relation to the application for contempt by 5pm 9 July 2021.
  1. Costs to be reserved.
  1. [15]
    The leave to amend the application in relation to contempt was sought, because the evidence disclosed that since the 17 May application was filed, Mr Freeman had filed another caveat as agent for his father Mr Demes.  Mr Couper made clear that that act would be the subject of the further contempt arising from the amendment.

The contempt hearing

  1. [16]
    There was further material filed by both parties in accordance with the 25 June orders.  Mr Freeman filed an affidavit which purported to deal with the substantive contempts.
  2. [17]
    At the hearing, Mr Couper appeared again for Ms Montgomery.  Mr Trace appeared for Mr Freeman, with Mr Freeman attending by video-link.  Each of Mr Couper and Mr Trace were acting pro bono.  I was very grateful to both practitioners for their decision to appear in those circumstances.   
  3. [18]
    At the start of the hearing, I raised with the parties the fact that Mr Freeman’s affidavit might, on one view of the matter, have contained statements against his interests, though seemingly perceived as exculpatory by Mr Freeman.  Given the penal nature of the proceedings and Mr Freeman’s apparently unrepresented status when he prepared his affidavit, I was concerned that Mr Freeman might not have been conscious of his privilege against self-incrimination when deciding whether to file that material or not and what to include in it. 
  4. [19]
    Other issues also arose.  It is well-established that proceedings for contempt are criminal in nature.[7]  This means that a contempt (whether “civil” or “criminal”, as to which see below) must be proved beyond reasonable doubt.  However, the extent to which the criminal nature of the proceedings attracts rules regulating a criminal proceeding brought by the State or a prosecuting authority is not definitively determined.  
  5. [20]
    In CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, the High Court concluded that discovery orders could be made against the CFMEU in proceedings for contempt arising out of an alleged breach of orders made by the Court in pending proceedings.  Relevant to that conclusion was the fact that the CFMEU did not have the right to self-incrimination privilege.  However, in addressing the issue, the Court held, after referring to observations in Witham v Holloway (1995) 183 CLR 525, that contempt proceedings are criminal in nature:

[43] Their Honours were at pains to make it clear that this statement did not include the proposition that proceedings on a charge of contempt are, or are to be regarded as the equivalent of, a criminal trial. As their Honours said:

“[T]o say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not.”

[44] There are other differences in addition to those referred to by their Honours, not the least important of which is that contempt proceedings are initiated, not by the executive government, but by private parties to an indisputably civil proceeding. A party to a civil proceeding who wishes to complain that the other party has breached an order of the court is not in the same position as a prosecuting authority, which can gather evidence by compulsory processes of search and seizure before making a decision to charge the defaulting party with contempt. Further, in the contempt proceeding, the spectre of oppression by the executive government in requiring the accused to assist it in the prosecution of a criminal charge against the accused, especially one launched without adequate investigation by the agents of the state, does not arise. In any case, where an application for discovery in contempt proceedings did give rise to such a concern, the more fundamental concern for the liberty of the subject would be a powerful consideration in the exercise of the discretion whether or not to make an order for discovery.

[45] In Witham v Holloway, the plurality expressly noted that the process whereby a contempt proceeding is resolved is a civil “hearing” not a criminal “trial”. McHugh J also expressed the view that proceedings for contempt of court to punish a respondent are “civil and not criminal proceedings”.

[46] These observations point to a significant deficit in the arguments advanced for the appellant: those arguments do not explain how the contempt proceeding has proceeded as a criminal proceeding without the engagement of any rules of criminal procedure. The progression of the matter through the various levels in the hierarchy of courts was at all times regulated by the laws relating to the civil jurisdiction including the Rules. The companion principle cannot be applied to usurp the authority of the Rules in this regard.

  1. [21]
    The manner in which the substantive rights, which arise in criminal proceedings, interact with the procedural rules, which apply to civil proceedings, depends in my view on the particular case.  However, at the least, in contempt proceedings against an individual, he or she cannot be compelled by Court order (or the UCPR) to incriminate him or herself.  The order for filing of affidavit material might have been considered in substance, if not in form, to compel Mr Freeman to give evidence in the contempt proceedings or at least to cause Mr Freeman to believe that to be the case.   
  2. [22]
    In those circumstances, I invited Mr Trace to consider whether his client wished to read Mr Freeman’s affidavit in the hearing insofar as it related to whether Mr Freeman should be convicted of contempt.  I pointed out that some or all of the material might be later relied upon by Mr Freeman on the sentence hearing, if the contempts were proved.  Mr Trace took instructions and then indicated that he would not be reading Mr Freeman’s affidavit on the trial of the contempt allegations.  
  3. [23]
    It might be contended that Mr Trace should have been given the opportunity to consider that matter after the close of the prosecution case, but in fact, that case was contained in affidavit evidence already filed and read in the application, and Mr Trace did not seek to cross-examine any deponent.  Accordingly, the prosecution case was clear and complete at the time Mr Trace took instructions.
  4. [24]
    Mr Couper abandoned those parts of his client’s evidence responsive to Mr Freeman’s affidavit and conducted the hearing of the contempt allegations solely on his own client’s material.  Mr Couper and Mr Trace then made submissions on the evidence, and having heard them, I found the alleged contempts proved.  I did not provide reasons at that time. 
  5. [25]
    I then invited Mr Trace to consider what, if any, material he wished to put before the Court on sentence.  He relied only on one subparagraph of the affidavit filed by Mr Freeman and the attached medical reports.  Mr Freeman was cross-examined briefly on that limited material.
  6. [26]
    The procedure adopted drew a distinction between the liability and sentence components of the contempt proceeding.  It is not necessary that that always be done in hearing contempt proceedings.[8]  However, to do so is permissible and it seemed the fairest course to Mr Freeman if he should wish to rely on his affidavit solely on questions of penalty.
  7. [27]
    At the conclusion of the hearing on 25 August, it was evident that Mr Demes’ caveat remained lodged (though not registered because it was the subject of requisitions).  I adjourned the penalty hearing to 1 September to give Mr Freeman time to purge that contempt.  At the further hearing, Mr Trace filed an affidavit which deposed to steps to withdraw Mr Demes’ caveat.  I heard further argument, then reserved the matter.  This judgment provides my reasons for concluding that the contempts alleged were proved.  It also imposes a sentence for those contempts.

The alleged contempts

  1. [28]
    Contempt of the District Court has a statutory basis.  Section 129 District Court of Queensland Act 1967 (the DCA) provides:

129 Contempt

  1. (1)
    A person is in contempt of the District Court if the person—
    1. without lawful excuse, fails to comply with an order of the court (other than an order mentioned in paragraph (e)), or an undertaking given to the court; or
    2. wilfully insults a judge or juror, or a registrar, bailiff, or other court officer during the person’s sitting or attendance in court, or in going to or returning from the court; or
    3. wilfully interrupts the proceedings of the court or otherwise misbehaves himself or herself in court; or
    4. unlawfully obstructs or assaults someone in attendance in court; or
    5. without lawful excuse, disobeys a lawful order or direction of the court at the hearing of any proceeding; or
    6. commits any other contempt of the court.
  1. (2)
    A District Court judge has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court.
  1. [29]
    Ms Montgomery ultimately alleged contempt by Mr Freeman in failing to comply with three orders:[9]
    1. (a)
      First, she alleged that Mr Freeman breached order 4 of the consent orders by:
      1. Failing to deliver vacant possession by 1 May 2021, but rather remained in actual possession until at least 5 May 2021; and
      2. Failing to deliver the keys to the property.
    2. (b)
      Second, she alleged Mr Freeman breached order 6 of the consent orders by lodging caveat number 720836868 over the property on behalf of his father, Henry Demes, personally and as litigation guardian of Mr Freeman’s son, Thor Freeman (the Demes caveat).
    3. (c)
      Third, she alleged Mr Freeman breached order 7 of the consent orders by failing to withdraw registered caveat number 719461928 (the Freeman caveat).
  2. [30]
    In my view, it is a moot point whether the above articulation of breaches of order 4 is properly characterised as two separate contempts, or particulars of a number of acts constituting a single contempt comprising a failure to comply with the single obligation in order 4 to give vacant possession by 1 May 2021.[10]  In my opinion, however, the better view is the latter, at least in respect of the obligation imposed by order 4.  In Agius v R (2011) 80 NSWLR 486 at [58], Johnson J, with whom Tobias AJA and Hall J agreed, adopted the following statement by Street CJ in Sloggett v Adams (1953) 70 WN (NSW) 206 at 208:

The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis, by Sir Francis Jeune, who said: ‘The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue

  1. [31]
    The contempt in respect of orders is articulated as occurring if a person, relevantly, fails to comply with an order of the Court.  In my view, where an order imposes a single obligation, being to give vacant possession by a certain date, there is a single offence arising from failing to comply with that order by the due date, which continues so long as Mr Freeman remained in breach of that obligation.  The different ways in which that failure occurred comprises particulars of how the single obligation was not met from time to time.   As I have said, however, I do not think anything of substance turns on this issue, but that is how I will deal with the case.
  2. [32]
    There is another matter to deal with.  Section 129(1)(a) also requires the failure to comply with the order to occur without reasonable excuse.  Fine points could be debated about whether this is an element to establishing liability for contempt under s. 129(1)(a) or a matter which must be raised by the respondent by way of defence.  Points could arise also as to whether the onus of proof of that matter lies on the presecutor or the respondent.[11]  Again, I consider those points to be moot in this particular case.  As to substance (as will be seen), the applicant establishes the contempts alleged on the material filed and no reasonable excuse arises on the evidence.  As to form, it seems to me that strict principles in relation to pleading criminal offences in criminal proceedings do not apply in civil proceedings under s. 129 DCA.[12]  So long as a respondent has proper notice of the contempts alleged, bearing in mind the serious potential consequences of a finding of contempt, the jurisdiction of the Court is properly invoked.

The law

  1. [33]
    Section 129(1)(a) probably excludes any residual formal distinction between so-called civil contempts (arising from failure to comply with inter partes Court orders and undertakings) and criminal contempts (other forms of contempt which do not have the inter partes character).  The distinction was explained by the majority in Witham v Holloway (1995) 183 CLR 525 at 530 to 531 as follows (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. As well, in the case of some orders, described in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd as involving “arbitrary classification”, disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt.

The distinction between civil and criminal contempt is longstanding. It is a distinction that has been recognised in this Court. However, it does seem that the term “civil contempt” has not always been used with enthusiasm. In Australian Consolidated Press Ltd v Morgan , Barwick CJ referred to “civil contempt” but also described it as “a contempt in procedure” and Windeyer J identified the complaint in that case as a “complaint … of a contempt in procedure, a ‘civil contempt’ as it is sometimes called”. The distinction was described as being of an “unsatisfactory nature” in Mudginberri. And it was said in that case that there is “much to be said for the view that all contempts should be punished as if they are quasi-criminal in character”. Later, in Hinch v Attorney-General (Vict) , Deane J referred to various anomalies associated with the distinction and expressed the view that proceedings which can result in a fine or imprisonment in “consequence of a finding of contempt … must realistically be seen as essentially criminal in nature”. And that was so, in his Honour's view, whether the proceedings were “brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order”.

The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.

  1. [34]
    Their Honours did not think that point of distinction to be of much practical utility.  They observed (again with footnotes omitted):[13]

At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. If that approach were to be adopted, it would follow that the contempt alleged in this case should have been classified as criminal, not civil, with the consequence the criminal standard of proof should have been applied. However, in our view, there are fundamental problems even with that approach.

One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.

Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.

Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a “penal or disciplinary jurisdiction” may also be called into play. It has been held that the “penal or disciplinary” jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury, Sidney Smith JA rejected the submission that settlement precluded further proceedings saying:

“Are we to be told that after a party has defied a court, the court can still do nothing because the other party is willing to swallow the contempt? Nothing short of the clearest authority would convince me that that is the law; and there is no such authority and no such law.”

And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown, their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri, that punitive and remedial objects are, in the words of Salmon LJ “inextricably intermixed”.

Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive”. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.

  1. [35]
    The Court did not go so far as to eliminate from the law the distinction between civil and criminal contempts,[14] though in concluding that all contempts must be seen as criminal, one might wonder what material legal consequence flows from the distinction.
  2. [36]
    One possible consequence was eliminated by Witham itself.  The standard of proof is beyond reasonable doubt for all contempts.  Further, in characterising all contempts as criminal in nature, any difference in procedure would seem to be otiose, though as I have already observed, contempts remain civil proceedings and do not attract all the incidents of criminal proceedings.   
  3. [37]
    One residual distinction might have survived Witham.  As is explained in the first passage from Witham above, disobedience of  a Court order would be a civil contempt if done contumaciously, but criminal if accompanied by such conduct. In the former case, the purpose of a sentence would be remedial or coercive seeking to compel compliance, and in the latter, punitive in the interests of vindicating judicial authority.  However, their Honours observed that the two concepts can overlap and further, that nothing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive”.  In my respectful view, the gravamen of the judgment is that the distinction between civil and criminal contempt is otiose.  However, despite describing the distinction between the two forms of contempt as illusory, their Honours did not, in my view, finally eliminate it from the common law.
  4. [38]
    Keane JA dealt with the issue in Lade & Co Pty Ltd v Black [2006] 2 Qd R 531:

[60]A central theme of the breakdown of the historical dichotomy between civil and criminal contempts has been the development of the view that a punitive order, such as a fine, might be imposed even when there was not contumacious or defiant disregard of orders or undertakings because, even in what have been regarded as cases of “civil contempt”, there is a public interest in vindicating the authority of the court. This appreciation of the pervasive public interest in the vindication of the authority of the court led Stamp J., in Steiner Products Ltd v. Willy Steiner Ltd, (in a passage specifically approved by Gibbs C.J., Mason, Wilson and Deane JJ. in A.M.I.E.U. v. Mudginberri Station Pty Ltd) to hold that any “disobedience which was worse than casual, accidental or unintentional must be regarded as wilful” so as to constitute a contempt punishable by fine.

[61]The source of the expression “casual, accidental or unintentional” is the obiter dictum of Lord Russell of Killowen in Fairclough & Sons v. The Manchester Ship Canal Co. where his Lordship said:

“The plaintiffs are here seeking to sequestrate the property and effects of the defendant company. The ground of that application is that the defendants have committed a contempt of court by wilful disobedience of an order of the court. The case is as if it were sought to commit a private individual to prison for contempt. We desire to make it clear that in such case no casual or accidental and unintentional disobedience of an order would justify either commitment or sequestration. Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not take the extreme course of issuing an order either of commitment or of sequestration. To justify so serious a proceeding the court must be satisfied that a contempt of court has been committed – in other words, that its order has been contumaciously disregarded.”

[62]It may be noted that the language in which this passage is cast may tend to confuse the issue of whether disobedience of a court order is a contempt with the issue of the appropriate remedy for a contempt. That Lord Russell speaks of the possibility of imposing an order for costs and ordering an inquiry as to damages is itself a recognition that a power of the court to make orders against a contemnor has arisen and that the balance of the passage is concerned with the strength of the relief which is appropriate. No basis for such orders other than as sanction for disobedience constituting a civil contempt was identified by his Lordship. Secondly, and more importantly, as is made clear in the reasons of A.M.I.E.U. v. Mudginberri Station Pty Ltd, a “contumacious disregard” of the undertaking is no longer necessary as a pre-requisite to punishment of the contempt by a fine. The relevant passage is as follows:

“Thus, it would suffice that the relevant act or omission was wilful even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was ‘through carelessness, neglect, or even in dereliction of his duty’: per Warrington J. in Stancomb. In Mileage Conference ([1966] 1 W.L.R. 1137) itself, substantial fines were imposed on companies for contempt by breach of undertaking which was not merely non-contumacious but was committed reasonably on legal advice.”

[63] In my respectful opinion, if a party can be guilty of contempt by reason of disobedience of an undertaking due to the carelessness or neglect of an employee, then, a fortiori, a party is guilty of contempt where the breach of the order has been brought about by the party’s own neglect of steps necessary to prevent the breach. There must, of course, be actual disobedience. There cannot be disobedience if the alleged contemnor does not know of the order which he or she is alleged to have breached. Nor could there be disobedience where the breach of the order occurs by reason of circumstances outside the control of the alleged contemnor. But if the facts of the case enable one fairly to conclude that the alleged contemnor has disobeyed the order or undertaking then that is sufficient to constitute a contempt. The question under the general law then was whether the circumstances of the disobedience were such as to warrant an order in the nature of a punishment as opposed to a vindication of the rights of the other party to the litigation.

  1. [39]
    The above authorities are concerned with contempt in the common law.  However, s. 129(1)(a) DCA defines contempt of the District Court insofar as it relates to failure to comply with orders of the Court.  It is to that provision that this Court must look in identifying those acts and omissions which comprise contempt of that kind.  The subsection imposes a strictly liability subject to the condition that the failure to comply must occur without reasonable excuse.  Reasonable excuse might be made out, in my view, where the failure to comply was accidental or unintentional or occurred in ignorance of the existence of the order.  As I have observed, no reliance on reasonable excuse was raised in this case nor does it arise on the evidence.

The evidence

  1. [40]
    Mr Freeman did not dispute any of the evidence relied upon by Ms Montgomery, nor did he cross-examine any witness.  Unless I say to the contrary in this narrative, I accept that evidence.
  2. [41]
    The consent orders were made in Court on 1 April 2021 while Mr Freeman was present in Court.  He was represented by counsel at that trial, including on that day.  On the same day, Ms Montgomery’s solicitor, Ms Couper, sent an email to Mr Freeman’s solicitors at trial attaching a Form 14 Request to Withdraw Caveat completed so as to give effect to the order that Mr Freeman withdraw his caveat. 
  3. [42]
    On 7 April, those solicitors stated that they did not hold instructions any longer (though they remained on the record until 17 August 2021).  Ms Couper immediately sent the Form 14 and a copy of the sealed consent order to Mr Freeman’s email address.  Ms Couper’s email referred specifically to the obligation to remove the caveat (which was to be done forthwith) and warned that “failure to comply with this court order is serious and if you do not comply within 7 days we will need to seek instructions from our client in relation to bringing a contempt application against you”.  
  4. [43]
    While he was in possession of the sealed order and Ms Couper’s email, he was purportedly appointed as an attorney for his father, Henry Demes, pursuant to a Form 2 Enduring Power of Attorney (EPA) made under the Powers of Attorney Act 1998 (Qld).[15]  The EPA appoints Mr Freeman as attorney for financial matters.  It is dated 16 April 2016.  It seems to have been taken from Mr Demes in Hungary.  So much is evident from the fact that it is witnessed seemingly by a “notarysubstitute” in that country, a Dr David Lehel.  The EPA has not been executed by Mr Freeman.  The consequence is that the EPA is not effective.[16]
  5. [44]
    The preparation and execution of such a document in Hungary is not something done quickly.  However, it is extremely likely that it was prepared after the consent orders were made on 1 April 2021.  There is no evidence that Mr Freeman had possession of the EPA soon after 16 April 2021, though as will be seen, it is likely he knew it had been prepared and executed, and likely procured that to occur (see paragraph [104] to [110] below). 
  6. [45]
    In any event, Mr Freeman received and considered Ms Couper’s email of 7 April, and responded on 23 April 2021 by email to the Registry of the District Court:

Dear registrar

Re: errors in document titled ORDER requiring correction re: BD 3327/19

This communication comes to you in good faith regarding errors in document titled ORDER

  1. The document is not dated
  2. There is no name identifying the signature
  3. The plaintiff’s name is not correct
  4. The consent orders are not the same that were presented
  5. The original singed [sic] order by his honour has not been provided.
  6. copies of the singed [sic] consent orders by both parties have not been provided.
  7. Some words in the document are illegible.

I respectfully request the above be provided and that the errors be corrected as the document in its current form is a nullity and unable to be comprehended, accepted, actioned or processed.

Legal representatives are no longer acting and therefor please send reply communication directly to this email.

  1. [46]
    On 27 April 2021, a Deputy Registrar from the Court responded stating that the sealed order was an exact copy of the consent orders and in the correct format.  There was never any response from Mr Freeman to the Deputy Registrar to contradict those propositions.
  2. [47]
    As to the matters in Mr Freeman’s email:
    1. (a)
      The sealed order[17] is in the ordinary form so it contains a date (1 April 2021) and identifies me as the Judge making the order;
    2. (b)
      The signature to which he refers is clearly that of the Deputy Registrar;
    3. (c)
      His complaint about his name, if it has any meaning at all, appears to relate to his recent enthusiasm for writing his surname in all lower case;[18]
    4. (d)
      Mr Freeman does not say how the sealed order differs from the consent orders made on 1 April (they do not differ);
    5. (e)
      Any genuine belief that the order was defective because it was not signed by me was dispelled by the response from the Deputy Registrar (and see the previous comment as to the genuineness of that belief); and
    6. (f)
      The only illegible words are the signature of the Deputy Registrar and (perhaps) the Court seal.
  3. [48]
    Mr Couper urged me to infer that the concerns expressed in this email were not genuine, but were intended to create illusory reasons to excuse non-compliance with the orders.  I do draw that inference:
    1. (a)
      First, even allowing for his lack of legal advice at the time, the matters raised by Mr Freeman are trivial, contrived and/or of tangential relevance to the binding obligations in the consent orders.  There is no contention then, or since, by him that the content of the consent orders was ambiguous or wrong, or that he did not understand the orders;
    2. (b)
      Second, Mr Freeman was present in Court when the orders were made and represented in the negotiations which led to them.  Those events had occurred only three weeks before his email.  They would have been fresh in his mind at the time.  It is highly improbable that he was in any doubt that the content of the consent orders reflected what had been agreed and ordered on 1 April; and
    3. (c)
      Third, there is no evidence of any response from Mr Freeman challenging the explanations by the Registry, but still he did not comply with the orders.
  4. [49]
    Thereafter, Mr Freeman took no step to remove his caveat as required by consent order 7.  
  5. [50]
    The obligation to deliver vacant possession as required by order 4 arose on 1 May 2021.  Ms Montomery’s solicitor instructed an agent to attend at the property on 5 May to confirm whether Mr Freeman was still there.  The agent attended as directed and found Mr Freeman at the property.  He served another sealed copy of the consent orders.  He was told by Mr Freeman that:
    1. (a)
      He had been in contact with the Court and the “Notice” was defective;
    2. (b)
      There was no warrant for possession;
    3. (c)
      His father was in the process of taking legal proceedings; and
    4. (d)
      His father had possession at the Property and Mr Freeman lived at the address.
  6. [51]
    These statements were sworn to by the agent directly in these proceedings.  They are admissible except to the extent they are relied upon to prove the truth of the facts stated, subject to where they comprise admissions by Mr Freeman.  They are relevant as follows:
    1. (a)
      Mr Freeman’s statement about possession reflects someone with an appreciation of the legal processes required to enforce an order for possession;
    2. (b)
      His statement that he lived at the address is an admission that he remained in possession despite the order; and
    3. (c)
      His statement that the “Notice” was defective involved maintaining the invalidity of the consent orders despite the matters in paragraph [48] above.
  7. [52]
    The next step was the filing of the 17 May application.  That application was supported by an affidavit from Ms Couper detailing the above events (other than the execution of the EPA).  Mr Freeman attended on the mention of the 17 May application on 25 May 2021.  He was in possession of Ms Couper’s affidavit and the application.  He foreshadowed his application to set aside the consent orders. 
  8. [53]
    Also on 25 May 2021, Ms Couper wrote to the plaintiff informing him that a locksmith was to be sent to the property to change the locks, given Mr Freeman’s statement that he had vacated the property.  Mr Freeman wrote back, asserting that his father was in possession, his father’s lawyers would contact her and that his father’s friend was now in possession.  He did not explain how that friend came to be in possession, though until 5 May 2021 at least, Mr Freeman was in occupation of the property and would have had the keys.  The keys were never provided to Ms Montgomery.  Given Mr Freeman’s assertion, Ms Couper stated that no step would be taken to change the locks until after the 25 June hearing.
  9. [54]
    The next relevant event was the lodging of the Demes caveat by Mr Freeman over the property.  This caveat was lodged on 3 June 2021 and signed by Mr Freeman.   The caveator is identified as being Mr Demes “for himself and as litigation guardian of Thor Freeman”.  Mr Demes remained in Hungary.
  10. [55]
    The grounds of the claim are articulated as follows:[19]

Grounds of claim

The Caveator claims an equitable interest on behalf of himself and on behalf of Thor Freeman, in respect of whom the Caveator acts as litigation representative, in an estate in Fee Simple pursuant to a proprietary estoppel arising as a result of promises made by the Caveatee regarding future dealings with the Land, including but not limited to promises not to sell or encumber the Land, which promises were accepted and agreed to by the Caveator on behalf of himself and Thor Freeman and, further or alternatively, upon which promises the Caveator relied on his own behalf and on behalf of Thor Freeman over a period of several years and acted to his detriment on his own behalf and on behalf of Thor Freeman in carrying out work and improvements and expending money, and in respect of which such promises and agreements the Caveator is entitled to specific performance in his own right and as litigation representative for Thor Freeman.

  1. [56]
    These grounds are similar to the case pleaded in the amended statement of claim.
  2. [57]
    The EPA was lodged just prior to the Demes caveat and executed by Mr Freeman expressly pursuant to the EPA.  It is unclear when Ms Montgomery received notice of the lodging of the Demes caveat.
  3. [58]
    Mr Freeman ultimately served an application to set aside the consent orders dated 11 June 2021, though it was not filed until the hearing on 25 June 2021.  As explained above, it was abandoned at the 25 June hearing.  No explanation was given by Mr Polley as to why the application to set aside the orders was brought, nor as to why it was abandoned.
  4. [59]
    The events on 25 June are summarised in paragraphs [9] to [14] above.  Some additional comments need to be made.
  5. [60]
    First, the enforcement warrant was required to permit the order for possession, made as part of the consent orders, to be enforced.  Its very issue reflects and aggravates the failure by Mr Freeman to comply with the order for vacant possession.  The need to obtain that warrant to enforce an order Mr Freeman had breached is further aggravated by the fact that Mr Freeman opposed the order.  The basis seemed to be that Mr Demes was in possession.  However, no evidence was put before me that that was so and there is no suggestion Mr Demes was at the property at the time.  He seems to have remained in Hungary.  Mr Freeman’s conduct on 25 June aggravated his failure to give possession in accordance with the consent orders in a material way.
  6. [61]
    Second, the same is true of the order made for the removal of Mr Freeman’s caveat.  The need for that order reflects and aggravates the failure of Mr Freeman to comply with the consent orders.  It is further aggravated by the fact that Ms Montgomery’s solicitors had to rely on my 25 June order to have the caveat removed. Mr Freeman never took any step, even after 25 June, to comply with the consent order in this respect.  
  7. [62]
    On 1 July 2021, Ms Couper wrote to Mr Demes requiring him, pursuant to s. 126(2)(a) LTA, to commence proceedings to sustain the Demes caveat.  The letter was sent to the property, which was the address given for Mr Demes in the Demes caveat.  Despite Mr Demes living in Hungary, and even though the order for the issue of the enforcement warrant had been made, this letter seemingly came to the attention of someone on behalf of Mr Demes. The obvious person is Mr Freeman. 
  8. [63]
    On 9 July 2021, Mr Freeman’s caveat remained on the title of the property.  He had not taken the opportunity to remove it himself following the 25 June hearing.  Ms Couper, therefore, took steps to remove his caveat in reliance on my order.   That was ultimately successful.
  9. [64]
    On 20 July 2021, proceedings were commenced in the District Court at Mackay in the name of Mr Demes personally and as “litigation representative” for Thor Freeman (sic: litigation guardian) (the Mackay proceedings).  Those proceedings were commenced by Kelly Legal, a law firm in Mackay.  The allegations made are substantially the same as those made in Mr Freeman’s statement of claim in these proceedings, in many respects word for word.
  10. [65]
    On 22 July 2021, Ms Couper wrote to Kelly Legal, informing them of the enforcement warrant and informing them of its intended execution on 11 August 2021 by the bailiff.  They also queried the basis of Mr Demes’ claim to act as litigation guardian for Mr Thor Freeman, particularly querying whether either of Thor’s parents had authorised him to do so. Thor is only 8 years old.  On 3 August, Kelly Legal ceased to act for Mr Demes.  The consequence is that Mr Demes cannot maintain proceedings as Thor’s litigation guardian, at least not without leave: Rule 93(3) UCPR.  Mr Demes then filed a Notice of Acting in Person, apparently signed by him in Hungary.  That notice specifies the property as Mr Demes’ address and a PO Box in Cannonvale as the address for service. 
  11. [66]
    On 26 July 2021, it appears that Mr Demes executed a Notice of Discontinuance of the Mackay proceedings.[20]  Like all the Demes documents, it appears authentic, but there is no evidence as to how or why the document was produced and Mr Freeman’s solicitor has not ever spoken to Mr Demes.  Mr Trace said from the Bar table that Mr Freeman did not receive the document from Hungary until after the hearing on 25 August 2021.  That assertion could not be tested because it was not sworn to.
  12. [67]
    On 5 August, Ms Couper received an email under the name of Henry Demes.  She included it in the material relied upon in support of the contempt application.   It is important to note that all Ms Couper can say is that she received an email with those attachments.  Their source or authenticity is unconfirmed.  It included:
    1. (a)
      A copy of what seems to be an affidavit by Mr Demes certified by a Hungarian notary dated 26 July 2021, attaching exhibits including:
      1. A copy of an affidavit of Ms Montgomery relating to family law issues seemingly taken in Perth in July 2019;
      2. A copy of an email from Kelly Legal sent on 21 May 2021 in relation to the Mackay proceedings with attachments relating to another caveat lodged over the property;
      3. Various dated Hungarian documents seemingly of a formal legal nature relevant to the marriage and divorce of Mr Demes and Ms Montgomery; and
      4. Various documents which seem to go broadly to alleging Ms Montgomery’s bad character and misconduct; and
    2. (b)
      A copy of what seems to be an application in the Federal Circuit Court dated 26 July 2021.
  13. [68]
    It also included a complaint and summons under the Justices Act 1886 (Qld) issued by Mr Demes, but signed by Mr Freeman as his “appointed attorney”.  The document was witnessed by a Justice of the Peace on 3 August 2021 and was accompanied by a summons to appear at the Proserpine Magistrates Court on 1 November 2021.
  14. [69]
    The complaint alleges 15 perjury and fraud offences by Ms Montgomery in proceedings in the Federal Court of Australia, unparticularised perjury and fraud offences in the Federal Circuit Court, and an unparticularised offence of fabricating evidence seemingly in a Hungarian Court. It also alleges a fraud offence arising from an allegation contained in Ms Montgomery’s defence in the proceedings before me.  In my opinion, this complaint is so deficient in form and content that it fails to engage the jurisdiction of the Magistrates Court, not least because of its failure properly to allege the elements of any specific offence.[21] 
  15. [70]
    On 6 August 2021, Ms Couper was informed by an officer of the Titles Office that the Demes caveat remained an unverified dealing on the title of the property, because it was the subject of requisitions by the Titles Office which had not been addressed.  He subsequently informed her that the requisitions required an answer by 26 August 2021.
  16. [71]
    On 11 August 2021, the enforcement warrant was executed, and Ms Montgomery obtained possession of the property.  She was never provided with the keys to the property by Mr Freeman.  On 20 August 2021, Ms Montgomery entered into a contract for sale of the property for $565,000.  Settlement is scheduled for 12 October 2021.
  17. [72]
    Also on 11 August 2021, Ms Couper received an email apparently from Mr Demes seemingly demanding documents relating to the Mackay proceedings and containing a copy of an affidavit seemingly witnessed in Hungary in which he swears:
    1. (a)
      He engaged Kelly Legal and provided all instructions;
    2. (b)
      He appointed Mr Freeman his attorney under an Enduring Power of Attorney dated 8 March 2020;
    3. (c)
      At all times, Mr Freeman was acting on his instructions;
    4. (d)
      After he became aware of the Court orders for possession for the property, the property was vacated; and
    5. (e)
      Mr Freeman had no involvement in Mr Demes’ legal affairs other than as he instructed.
  18. [73]
    As I explained above, the sentencing hearing of the contempt application was adjourned part heard on 25 August 2021 and listed for further hearing on 1 September 2021.  The purpose of the adjournment was to give Mr Freeman an opportunity to attend to the withdrawal of the Demes caveat.  It is fair to say that from 25 August until the hearing on 1 September, Mr Trace (who primarily practices in property matters) did as much as he could to have the Demes caveat withdrawn.  Mr Couper was content to concede as much on behalf of Ms Montgomery.  The Demes caveat had not been withdrawn by the time of the hearing, but that was the result of its awkward status.  As I have noted, the Demes caveat was unregistered and the subject of requisitions.  The requisitions included a query as to the effectiveness of the EPA, because it had not been signed by Mr Freeman. 
  19. [74]
    Given Mr Trace’s efforts, it seemed likely at the end of the 1 September hearing that the Demes caveat would be withdrawn very soon.  That assumption was confirmed by Mr Trace after the hearing.  
  20. [75]
    Three other matters remain to be noted about events on 1 September 2021.
  21. [76]
    First, there was no evidence, as I have said, as to how or why the Notice of Discontinuance came into being, or what use is to be made of it.  In my view, in the absence of some explanation, when taken with the other circumstances of the steps seemingly taken by Mr Demes, it tends to show that the Mackay proceedings were not begun with any serious intent of pursuing them.  The only reason for those proceedings seems to be to cause maximum disruption to Ms Montgomery’s plans to sell the property.
  22. [77]
    Second, Mr Trace swore that Mr Freeman had told him in an email that his testicular cancer was reasserting itself.  It is not in dispute that Mr Freeman was treated for that illness around 2009.  Mr Trace exhibited a booking for an appointment with a urologist at Mackay Hospital on 20 September 2021, made on 19 July 2021.  Despite the date of the appointment, this is the first time any sworn material has been relied upon which raised this issue.  I do not recall it being raised from the Bar table in previous hearings either. The appointment document does not identify the reason for the appointment.
  23. [78]
    Third, Mr Trace had sworn that Mr Freeman is of limited means with only $1500 in the bank.  This evidence is inconsistent with other evidence referred to by Mr Couper in the transcript of day three of the trial.
  24. [79]
    None of the above matters was sworn to by Mr Freeman.  None of it was in strictly admissible form and Mr Couper objected to the health and financial evidence.   Section 15 Penalties and Sentences Act 1992 (Qld) (PSA) permits a Court to receive any information in imposing a sentence on an offender.  I permitted the material to be tendered on the sentence hearing against the possibility that that section applied.  Mr Couper asserted, in the alternative, that the evidence should be given little weight.
  25. [80]
    On reflection, I consider the better view is that Mr Couper’s objections were correctly taken.  As the High Court has confirmed, a contempt proceeding is criminal in nature, but it remains a civil proceeding. The rules of evidence apply in civil proceedings in Queensland.  There is no general discretion in a Judge hearing a civil proceeding to dispense with the rules of evidence.  Except for s. 129A Evidence Act 1977 (Qld), and some specific provisions designed to address quite confined issues of proof, there is no statutory power to dispense with the rules of evidence.  
  26. [81]
    Further, the better view is that s. 15 PSA does not apply to civil proceedings for contempt.  It is concerned with proceedings for sentencing “an offender”.  An offender is defined in s. 4 PSA as a person convicted of an offence.  Although an offence is not defined in the PSA, it is defined in the Code.  Section 2 provides:

An act or omission which renders the person doing the act or making the omission liable to punishment is called an "offence".

  1. [82]
    Although that might literally apply to a contempt, s. 3 of the Code firmly links the concept of an offence to criminal proceedings.  That section provides:
  1. (1)
    Offences are of 2 kinds, namely, criminal offences and regulatory offences.
  2. (2)
    Criminal offences comprise crimes, misdemeanours and simple offences.
  3. (3)
    Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.
  4. (4)
    A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
  5. (5)
    An offence not otherwise designated is a simple offence.
  1. [83]
    Although those provisions are not incorporated by reference expressly into the PSA, they are of such fundamental and longstanding importance in the criminal law of Queensland as to provide, in my view, a proper basis for construing the word ‘offence’ in the PSA. 
  2. [84]
    Further, s. 129 DCA does not purport to create one or more offences of contempt of Court.  That contrasts s. 129 with an earlier version of the statutory provision conferring power on the Court to punish for contempt: s. 105(1) District Courts Act 1967 (Qld).  That section expressly provided that if a person did one or more specified acts, “he shall be guilty of an offence…”.  Subsequent subsections in s. 105 referred to a person found guilty of contempt under s. 105(1) as an offender.  It cannot have been an accident that the change in the language moved contempt more firmly into the sphere of civil proceedings, especially when read with Chapter 20 Part 7 UCPR providing detailed rules for contempt proceedings, which was enacted as part of the UCPR in 1999.[22]
  3. [85]
    Finally, the UCPR (though delegated legislation), proceeds on the basis that the PSA does not apply to contempt of Court and is applied by Rule 930(2) only to the extent of identifying a non-exclusive range of punishments which may be made against individuals.  And the proposition that the PSA applies to contempt under s. 129 DCA is inconsistent with Dubois v Rockhampton Regional Council [2014] QCA 215 (see paragraph [118] below).
  4. [86]
    Subject to one matter, for these reasons, I consider that the rules of evidence apply to sentencing proceedings for contempts under s. 129 DCA.  That conclusion is mostly of academic interest, because the financial and health evidence objected to by Mr Couper is of little weight.
  5. [87]
    The one reservation relates to whether contempt proceedings generally may be conducted on affidavits including statements given on information and belief.  Rule 430 UCPR relevantly provides:

430   Contents of affidavit

  1. (1)
    Except if these rules provide otherwise, an affidavit must be confined to the evidence the person making it could give if giving evidence orally.
  2. (2)
    However, an affidavit for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief.

Note

For an application because of default, see chapter 9 (Ending proceedings early), part 1 (Default).

  1. (3)
    On assessment, all or part of the costs of an affidavit not complying with these rules or unnecessarily including copies of or extracts from documents may be disallowed.
  1. [88]
    The question then arises as to whether contempt proceedings are brought by an application because of default or for other than final relief.  It has been held in the English Court of Appeal that civil contempt proceedings could be either final or interlocutory depending on the circumstances in which the application was made, and that proceedings for contempt brought in support of interlocutory orders made in an extant proceeding were interlocutory.  On the other hand, where the orders finalised a proceeding, contempt proceedings in respect of non-compliance with final orders would not be interlocutory orders.[23]  On that approach, these proceedings would be for final relief, even though brought formally in the existing proceedings, because the claims in the proceedings were resolved by, and merged in, the consent orders.  I find that distinction unsatisfactory.  Firstly, the focus in the decision on civil, as opposed to criminal, contempt as comprising an important distinction is not applicable any longer in the Australian context.  Secondly, it does not seem to me correct to characterise any proceeding for contempt of court orders as one incidental to those orders.  Contempt is sui generis with a life independent of the proceeding in which it might arise. The Court considers whether contempt is established and if so, imposes punishment.  The point was not argued, but my tentative view is that no contempt proceeding would be interlocutory in character so as to call up Rule 430(2) UCPR.

The contempts proved

  1. [89]
    As I found on 25 August 2021, each of the three alleged contempts are proved beyond reasonable doubt.
  2. [90]
    Mr Freeman breached order 4 by not giving possession of the property by 1 May 2021 in two ways:
    1. (a)
      By remaining in possession of the property until at least 5 May 2021; and 
    2. (b)
      By failing to give up the keys to the property at all. 
  3. [91]
    Giving possession necessarily requires handing over keys to enable a person to take actual possession.[24]  Bearing in mind the criminal sanctions which attend breaching the consent orders, it might have been argued that I ought not to construe it as including this obligation because a narrow construction is to be preferred.  I do not accept that proposition.  In my view, providing keys to give effect to an order to deliver possession is central to the obligation and would be understood by reasonable members of the community as being part of the process of giving possession.       
  4. [92]
    Mr Freeman breached order 7 by not removing the Freeman caveat in accordance with that order. That is established by the incontrovertible evidence of the several certificates of title.   
  5. [93]
    No reasonable excuse was raised by Mr Freeman on the hearing in relation to these contempts and none arises on the evidence filed in the contempt hearing.
  6. [94]
    Mr Freeman breached order 6 by signing and lodging the Demes caveat.  The lodging of the Demes caveat, even without immediate registration, has the effect immediately of impeding the sale of the property, because it creates a shadow over the capacity of the seller to give title on a sale. 
  7. [95]
    Mr Trace argued, on behalf of Mr Freeman, that he was acting pursuant to the EPA and in accordance with instructions from his father, Mr Demes, in lodging the Demes caveat.  However, even if true, this is no answer to the breach.  Regardless of the extent to which Mr Freeman was involved in procuring the lodging of the Demes caveat (dealt with below), it makes no difference to his liability in contempt that he did the act on behalf of, or even on the instructions of, his father.  His status as an attorney under the EPA (even if it was an effective EPA, which it was not) did not confer some higher duty to act on instructions of his principal even if it was in breach of the consent orders.  On the contrary, his primary duty was not to act unlawfully.
  8. [96]
    For the sake of completeness, I also reject the suggestion that the EPA provided a reasonable excuse for the breach arising from the lodging of the Demes caveat.  It is possible that Mr Freeman subjectively believed that the EPA permitted him to lodge the caveat.  It is also possible that Mr Freeman subjectively believed that lodging the Demes caveat would not impede the sale of the property.  Both possibilities seem very unlikely, given the content of the contempts and my findings in that regard below.  However, even if that was the case, it would not comprise a reasonable excuse as neither belief is one which could reasonably be held.  It is not reasonable to think that one can do an act which breaches an order just because another person asked you to do it.  

The context of the contempts

  1. [97]
    I have identified the acts which comprise the contempts.  The next question to consider is the nature of Mr Freeman’s conduct in breaching those orders.  While there is no longer a distinction between civil and criminal contempt arising from the way orders are breached, the way orders are breached remains relevant to sentence.  Where breaches of orders are deliberate, the contempt is more serious; all the more so where the context of the breaches demonstrates a deliberate course of conduct designed to frustrate orders.
  2. [98]
    Mr Couper submitted that I ought to find in this case that the context in which the orders were breached, alone and together, demonstrate just such a deliberate course of conduct.  I agree.  In my view, taken as a whole, the evidence strongly supports the conclusion that Mr Freeman never accepted that he was required to comply with the consent orders and took active steps directed at frustrating them.  
  3. [99]
    The following matters, taken together, make that conclusion compelling.
  4. [100]
    First, in relation to possession:
    1. (a)
      He was still at the property on 5 May, four days after the date for possession, but more importantly, more than a month after the order was made.  There is no explanation before the Court for his failure to vacate by the due date.  There is no suggestion he was making preparations to vacate in accordance with the consent orders.  The strong inference is that it was simply a case of ignoring the order for possession;
    2. (b)
      When challenged on the question of possession, he referred to the property being occupied by a “friend” of his father’s.  His father is in Hungary.  If there ever was a friend in possession (and there is no evidence other than the bare assertion in the email from Mr Freeman that there was), Mr Freeman must have assisted that person to occupy the property because Mr Freeman was in possession until at least 5 May, must have had the keys and must have facilitated the friend moving in.  However, I think it just as likely that there never was any such friend.  But if that is true, the situation is just as bad for Mr Freeman.  It shows Mr Freeman inventing a story about another occupant, the purpose for which could only be to try to frustrate the possession process; and
    3. (c)
      He remained recalcitrant as to possession.  He forced Ms Montgomery to obtain an enforcement warrant and resisted the issue of that warrant.  Further, he took no step, at any time until possession was retaken under the warrant on 11 August, to cooperate in delivering possession or to assure Ms Montgomery that she could take possession at any time.
  5. [101]
    Second, in relation to his caveat:
    1. (a)
      He ignored every opportunity to voluntarily attend to the removal of his caveat, despite Ms Couper providing the relevant form in early April and warning Mr Freeman of the seriousness of the obligation;
    2. (b)
      He persisted in defiance of this order and, as with the possession order, forced Ms Montgomery to seek an order from the Court to remove his caveat in substitution for his own obligation; and
    3. (c)
      Further, even after I made the order on 25 June for the caveat to be removed, Mr Freeman could, at any time, have done so.  He chose not to do so, forcing Ms Couper to arrange removal of the caveat in reliance on my order.
  6. [102]
    Third, in relation to both orders, it is relevant that Mr Freeman responded to the initial provision of the consent orders and warnings by Ms Couper of the importance of compliance with his email of 27 April 2021.  I refer to paragraphs [45] to [48] above.  I have accepted the submission that the concerns expressed in this email were not genuine but were intended to create illusory reasons to excuse non-compliance with the orders.  That flows not only from the matters identified in paragraph [48], but also from the fact that no submission was ever made in support of the application to set aside the order.  Rather, it was abandoned on 25 June 2021. 
  7. [103]
    Mr Freeman’s conduct, in relation to the orders relating to possession and to the removal of his caveat, shows a mulish determination not to comply with the consent orders.  It shows a sustained, wilful defiance of the Court’s authority, made more serious by the fact that the orders were consent orders.
  8. [104]
    However, matters go further than that.  In my view, Mr Demes’ late and enthusiastic agitation about matters relating to the consent orders, particularly his interest in the property, was the result of Mr Freeman procuring, encouraging, and facilitating Mr Demes’ involvement.  
  9. [105]
    First, it is evident, from the material seemingly provided by Mr Demes (if it is authentic), that he and Ms Montgomery have had outstanding marital and divorce issues since divorce proceedings were commenced in 2019.  Despite that, he has done nothing to pursue them or to assert an interest in the property in that Court seemingly until after the consent orders on 1 April 2021.
  10. [106]
    Further, Mr Freeman’s proceedings against his mother had been ongoing for 18 months at the time of the trial.  Despite that, Mr Demes had taken no part in the proceedings and had shown no interest in its outcome (so far as the evidence before me discloses).  Further, while it is impossible to make a definite finding as to how long he has been in Hungary, the evidence shows that he had been in Hungary for some time leading up to the trial.  
  11. [107]
    The question then is what prompted him suddenly to become active in agitating for his rights in relation to the property?  It is possible that he was prompted into action by someone other than Mr Freeman, but by far the most probable person to have done so was Mr Freeman.  There is no one else credibly suggested in the evidence and, of course, Mr Freeman had the motive to do so, the opportunity to do so and became the principal instrument of his father doing so. 
  12. [108]
    Second, there is the timing of the provision of the EPA.  As explained, that document appears to have been executed in Hungary on 16 April 2021.  That timing is suggestive of a process which began following the making of the consent orders on 1 April 2021.  Given the purposes to which the EPA was applied – the Demes caveat, the Mackay proceedings and the complaint and summons the inference that it was obtained to facilitate those steps (or something like them) arises.  Mr Freeman caused each of those formal steps to be taken and each of those steps involved creating difficulties for Ms Montgomery, and attacking her character and rights under the consent orders. That is unlikely to be a coincidence. It is strongly suggestive of Mr Freeman’s being involved in, if not the instigator of, those steps.
  13. [109]
    Third, Mr Demes retained solicitors in Mackay from about mid-May 2021 and caused them to take various steps to assert his rights in the property.  That is unlikely to have happened without active assistance from Mr Freeman.  Mr Demes was in Hungary at the time, and it can be difficult to find, retain and instruct solicitors from far away. It is highly likely that Mr Freeman assisted with those steps.  Further, Mr Demes’ pleadings in the Mackay proceedings are modelled closely on Mr Freeman’s pleadings in the proceedings before me.  Mr Freeman is the likely source of that document for Kelly Legal. 
  14. [110]
    Fourth, there are Mr Freeman’s acts as agent for Mr Demes.  Mr Trace submitted, on Mr Freeman’s behalf, that I could not be satisfied that Mr Freeman had any role in those acts apart from a formal role as agent.  I do not accept that is so for the reasons given above and despite Mr Demes’ apparent assertion to that effect.[25]  However, even if Mr Freeman was acting merely as agent, his role demonstrates a willingness to involve himself in acts directed not only at frustrating the sale of the property by the Demes caveat, but in acts designed to attack his mother in other ways.
  15. [111]
    Fifth, there is Mr Demes’ conduct in purporting to represent Thor. It is very difficult to see how this could have been done (especially by a person living in Europe) without the active support of Thor’s father, Mr Freeman.
  16. [112]
    Finally, I refer to paragraph [76] above relating to the odd circumstances of the Notice of Discontinuance seemingly sent by Mr Demes.  As I conclude there, the the bringing and abandonment of those proceedings so suddenly supports an inference they were brought to frustrate and harass Ms Montgomery, and that in the overall context, I infer this occurred with Mr Freeman’s encouragement.
  17. [113]
    This judgment should not be construed as criticism of Mr Demes or of any decision he actually made to seek to assert rights in respect of the property.  Claims as between Ms Montgomery and Mr Demes were not litigated in the proceedings leading to the consent orders.  Steps Mr Demes chose to take are not the issue.  What is in issue is Mr Freeman’s involvement in those steps.  Viewed overall, Mr Freeman’s conduct shows a person who, for whatever reason, never accepted the obligations on him arising from the consent orders and did whatever he could, almost from the beginning, to prevent his mother from obtaining possession and selling the property.  

Approach to imposing sentence

  1. [114]
    The cardinal feature of the power to punish for contempt is an exercise of judicial power by the Court to protect the due administration of justice.[26]  In Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90 at [97], the Court cited this statement and continued:

Viewed in that way, 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 view as essential in facilitating courts being able to function properly.  That includes being, and being seen to be, effectual in adjudicating upon and resolving disputes, and in particular making orders that will ordinarily be obeyed.  This means that individual contempt proceedings have an importance transcending the instate case by supporting and enhancing the integrity of the judicial proceedings, both in respect of orders made, and more generally.  That view of contempt proceedings can be seen to permeate lonstanding sentencing authority in this area.

  1. [115]
    That is not to say that other considerations ordinarily relevant in sentencing are irrelevant:[27]

Considerations relevant to determining an appropriate penalty for contempt of court have been identified, in a non-exhaustive manner, to include: the contemnor’s personal circumstances; the nature and circumstances of the contempt; the effect of the contempt on the administration of justice; the contemnor’s culpability; the need to deter the contemnor and others from repeating contempt; the absence or presence of a prior conviction for contempt; the contemnor’s financial means; and whether the contemnor has exhibited general contrition and made a full and ample apology.

  1. [116]
    In Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, the majority, after referring to the broad range of penalties which may be imposed for contempt, observed at 115:

These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v. Crown Office. It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

  1. [117]
    Rules 930 and 931 UCPR relevantly provide:

930 Punishment

  1. (1)
    This rule applies if the court decides that the respondent has committed a contempt.
  2. (2)
    If the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992.

  1. (4)
    The court may make an order for punishment on conditions, including, for example, a suspension of punishment during good behaviour, with or without the respondent giving security satisfactory to the court for good behaviour.

931 Imprisonment

  1. (1)
    An order for imprisonment of the respondent may specify the prison in which the respondent is to be imprisoned.
  2. (2)
    If a respondent is imprisoned for a term, the court may order the respondent’s discharge from prison before the end of the term.
  1. [118]
    However, the provisions of the PSA have no general application to contempt orders.  Rather, the Court has power to formulate an order to meet the particular character of the contempt in each case: Dubois v Rockhampton Regional Council [2014] QCA 215 at [71] to [74]. 

Other Sentencing Considerations

  1. [119]
    The context of Mr Freeman’s specific acts of contempt has already been analysed.  There are further matters to take into account on sentence.
  2. [120]
    Mr Freeman has shown no remorse for his contempts.  He has offered no apology nor shown any sign that he understands the wrongfulness of his conduct.  Personal deterrence looms large as a factor here, particularly during the executory period of the contract of sale for the property.  His lack of remorse or insight is highlighted by his cross-examination in the sentence hearing.  His assertions that he did not recall anything at all about the events since the consent orders were made were inconsistent with the detailed affidavits, emails and statements he had provided in the preceding weeks dealing with exactly those matters.  I consider that he used alleged lack of recollection to avoid answering difficult questions. 
  3. [121]
    Mr Trace tendered three psychological reports.  Initially, I thought they might be directed at supporting a submission that Mr Freeman had reduced moral culpability for his contempts because of his mental health issues.  However, Mr Trace disavowed any such suggestion.  His submission in relation to those reports was that the mental health issues disclosed by the reports would result in Mr Freeman finding a custodial sentence more difficult to serve than the ordinary run of prisoners.  The submission went so far as to suggest that Mr Freeman might be at risk of self-harm if imprisoned.
  4. [122]
    The difficulty with that submission is that the reports do not sustain it.  It can be accepted that Mr Freeman has a depressive mental health condition, and that the proceedings, and their outcome, might have had a part to play in that condition.  However, the reports do not describe a person with a severe depressive illness.  He has never been admitted to hospital nor is there evidence that he has been considered a suicide risk.  His mental health is no worse than many persons who serve custodial sentences.
  5. [123]
    Based on the letter of Ms Nicole dated 7 June 2021, who is a psychologist who has been seeing Mr Freeman since the end of April 2021, Mr Freeman reported that he was, at that time, continuing to suffer because of the Court proceedings.  It is unclear what he told Ms Nicole because, at that time, the proceedings were over.  The real problem seems to be that, despite consenting to orders resolving his proceedings against his mother, he has never accepted that outcome. 
  6. [124]
    Very little was put before me as to Mr Freeman’s antecedents.  He presents as a man of middle years.  I am aware from the trial proceedings that he has or had a partner and one son called Thor, who is about 8 years old.  He has had an irregular work history doing work with heavy machinery.  He had an unfortunate brush with cancer which resulted in the loss of his testicles.

Conclusion on sentence

  1. [125]
    This is a case of wilful and mulish refusal by Mr Freeman to take even the simplest steps to comply with the consent orders, combined with active efforts to frustrate the sale of the property by involvement in steps by his father to advance claims over the property.
  2. [126]
    Mr Freeman has persisted in this conduct, despite consenting to the orders while legally advised after two days of a trial.  He has made no apology for his contempts and has exhibited a disregard of the outcome of the trial.  He appears to see nothing but his sense of grievance.  His behaviour has only been prevented from rendering the consent orders ineffectual by the active steps taken by Ms Montgomery.
  3. [127]
    There is no doubt a complex history of conflict and tension between Mr Freeman and his mother.  However, to the extent that conflict manifested itself in issues taken to trial before me, they were resolved by the consent orders.  At that point, Mr Freeman was obliged to accept that outcome and comply with the orders.  His failure to do so is not just a matter between him and his mother.  It is a matter that engages the public interest in the final resolution of disputes by the Court.  Nothing is more likely to undermine that public interest and to render judgments of the Court ineffectual than an unwillingness of those involved in disputes to respect the orders made by the Court to resolve them.  That is of most acute importance in cases involving emotional family issues, where finality following Court orders is the only alternative to endless, destructive conflict.
  4. [128]
    Finally, I have not overlooked the fact that there is no evidence that Mr Freeman’s conduct impeded a specific sale.  Indeed the property is the subject of a contract to settle in October.  However, harm did flow from his conduct.  Most directly, it resulted in three further hearings in proceedings which had been resolved by the consent orders.  Even if Mr Freeman pays the costs order made in the application, his conduct had the effect of adding stress and anxiety to proceedings which should have been over five months ago.
  5. [129]
    Mr Couper submitted that I ought to impose a custodial sentence as punishment for Mr Freeman’s contempts.  He maintained that submission on the second day of the hearing.  I agree with that submission.  A custodial sentence is required:
    1. (a)
      To punish Mr Freeman for his contempts;
    2. (b)
      To deter him from further efforts to frustrate the consent orders; and
    3. (c)
      Most importantly, to signal to him and to the community that Court orders are to be obeyed. 
  6. [130]
    I considered imposing a fine.  There is some evidence that Mr Freeman has the capacity to pay a fine, though it is unclear what his true financial situation might be.  However, I am not satisfied, given Mr Freeman’s recalcitrant conduct, that a fine will deter him from further contempts, even if he has the resources to pay it and chooses to do so.  I also do not consider it sufficient punishment for his conduct and a proper assertion of the importance of respect for Court orders.
  7. [131]
    Initially I was not referred to any cases to guide me in determining an appropriate sentence.  Muir JA summarised two relevant cases in Dubois v Rockhampton Regional Council [2014] QCA 215 as follows:

[58]The contempt in Formal Wear was the breach, on three occasions, of an undertaking by the applicants for leave to appeal not to be concerned or interested in “any business for the mobile hire of formal menswear” for a particular period within a particular area. The male applicant, who was self-represented, informed the sentencing judge that a fine would be “a waste of time” as he had trouble paying the fine previously imposed for a similar breach. He said that his business had “folded”, his wife had a serious medical condition and he had three dependent children.

[59] The applicant’s sentence of six months imprisonment was set aside and concurrent three month terms of imprisonment were substituted. This Court concluded that a custodial sentence was appropriate as the breaches of the order were committed after the applicant had been fined for a similar offence, imposing a fine would be futile and there was no acknowledgement of wrongdoing.

[60] The applicant in Formal Wear committed three breaches of an order over a period of no more than four months. This applicant, against a more extensive history of prior contempts, breached the 1999 Order on many occasions and, in the case of order 2, for protracted periods. The decision in Formal Wear does not suggest that the subject sentence was excessive.

[61]In Chicago Investments, the male and female defendants, who were found to have committed a number of serious and deliberate breaches of undertakings given to the Court, were ordered to serve four months and two months imprisonment respectively. The defendants had no criminal record and had not previously been in contempt of court. The elderly parents of the female defendant were dependent for their full time care on the defendants. The defendants were ordered to pay costs on the indemnity basis. The penalty imposed on the male defendant was substantially more severe than the applicant’s sentence. The case also offers little assistance for present purposes.

  1. [132]
    In Dubois itself, the contempts involved breaches of a 1999 Order, over a protracted period, by failing to remove a hoist from an area of the land and by carrying out mechanical repairs to vehicles in areas not permitted by the order. The applicant’s apology to the Planning and Environment Court was not accepted as credible. The primary judge considered that a monetary penalty would be insufficient, and imposed a period of imprisonment for three months, to be suspended after serving one month.
  2. [133]
    On appeal, it was submitted that the primary judge erred in failing to record a conviction, and state an operational period for the suspended sentence as required by the PSA.  It was further submitted that the primary judge erred in failing to take into account a number of relevant considerations, such as the applicant’s remorse, and that the sentence was manifestly excessive.
  3. [134]
    The Court of Appeal concluded that a custodial sentence was open to the primary judge. The Court also held that the machinery in the PSA has no application to contempt orders (notwithstanding Rule 930(2)). The Court held that recording a conviction, particularly in cases of civil contempt, would be inappropriate, and rectified the primary judge’s omission to state an operational period for the suspended sentence by amending the order at first instance. The appeal was otherwise dismissed with costs. 
  4. [135]
    Mr Trace also referred to Brisbane City Council v Windshuttel,[28] where the contempt was constituted by the respondent’s non-compliance with consent orders restraining him from using three lots for the purpose of a warehouse unless authorised by an effective development permit, from bringing on or receiving at those premises trucks and shipping containers to be stored there without an effective development permit, and from bringing fill on to those premises until authorised. The respondent was also ordered to remediate two of the three lots. The filling led to inundation of neighbouring properties for long periods, with the stagnant water producing a foul odour and causing health problems, as well as depriving the neighbours of the use of their lands. Such conduct was contumacious. The respondent showed a complete lack of cooperation or remorse, and was an egregious contemnor, deserving of more significant condemnation and punishment. Judge Robin QC recorded a conviction and imposed a period of imprisonment of three months.
  5. [136]
    Despite some aspects of the conduct in Dubois and Windshuttel being more serious than this case, each contempt must be dealt with in a manner which addressed the issues it raises.  Further, I think the cases referred to above do not exclude a sentence of up to three months’ imprisonment in the circumstances of this case. 
  6. [137]
    Mr Trace submitted that I ought not to impose a custodial sentence, but that I should instead impose a fine.  Inconsistently, Mr Trace at the same time submitted that Mr Freeman could not afford to pay a substantial fine, however, the evidence that that was true was not compelling and was inadmissiable in form and content.[29]  Ironically, the applicant contended, based on evidence of statements from Mr Freeman during the proceedings, that Mr Freeman did have such capacity.
  7. [138]
    Mr Trace also submitted that a fine should be imposed rather than imprisonment, because Mr Freeman had not previously committed a contempt this was his first offence to use the language of criminal sentencing.  He submitted that the authorities supported the conclusion that custody should only be imposed if there had been previous contempts.
  8. [139]
    I do not accept that the cases support that proposition.  Further, although Mr Freeman might not have been convicted of previous contempts, he has been in contempt of these orders through a series of hearings without ever taking any steps to address his contempts until Mr Trace’s diligent efforts, on his behalf, after the hearing on 25 August.  I refer to the passage from Australasian Meat Industry Employee’s Union in paragraph [116] above.  In my view, for the reasons I have given, the sustained, deliberate, and unapologetic conduct in contempt of the consent orders calls for a custodial sentence.
  9. [140]
    Taking everything into account, therefore, I impose the following sentences:
    1. (a)
      For contempt of Order 4 made by consent on 1 April 2021, I impose a sentence of 4 weeks imprisonment;
    2. (b)
      For contempt of Order 6 made by consent on 1 April 2021, I impose a sentence of 6 weeks imprisonment; and
    3. (c)
      For contempt of Order 7 made by consent on 1 April 2021, I impose a sentence of 6 weeks imprisonment.
  10. [141]
    Those sentences are to be served concurrently. 
  11. [142]
    Although the PSA machinery provisions do not apply to sentences for contempt, Rule 931(2) UCPR provides that if a respondent is imprisoned, the Court may order the discharge of the respondent before the end of the term. For the avoidance of doubt, I make clear that I make no order for discharge before the end of the concurrent terms imposed.  Mr Freeman is to serve the 6 weeks imposed.
  12. [143]
    Mr Trace submitted that I ought to make orders which permit Mr Freeman to attend his urology appointment on 22 September.  I decline to do so.  The evidence that this appointment relates to testicular cancer is of the most insubstantial kind.  The document relied upon makes no mention of the purpose for the urology appointment and contemplates it being shifted to another day if necessary.  Further, if there is a proper basis of urgency for urology review, it is a matter which can be raised with the correctional centre. 
  13. [144]
    Finally, because this is a civil proceeding, this Court may award costs. The applicant seeks costs of the contempt proceedings and does so on an indemnity basis.  That order is justified in the circumstances of this case.  While such an order can be characterised as having a punishing effect, that matter cannot be pressed too far.  An order for costs is not punitive, it is compensatory.  For that reason, while it has some relevance to the total punishment for the contempt, and I have taken it into account, it is a modest consideration.  A further reason for that conclusion is that Mr Couper has appeared pro bono for Ms Montgomery on terms which would not engage any entitlement to payment even if a costs order was made. 
  14. [145]
    Further, while only one paragraph of the 17 May application was specifically concerned with relief for contempt, the balance of the application was concerned with orders required to ensure the outcome contemplated by the consent orders.  For those reasons, I order that the respondent pay the applicant’s costs of the application filed 17 May 2021 and the amended application filed 29 June 2021 on an indemnity basis.  This should be effective to include the costs of the enforcement warrant, to the extent they are recoverable as legal costs.

Footnotes

[1] See Amended Statement of Claim filed 18 March 2021 (court document 29).

[2] See Order of Judge Porter QC dated 1 April 2021 (court document 33).

[3] See Application filed on behalf of the Defendant on 17 May 2021 (court document 34).

[4] See Order of Judge Porter QC dated 25 May 2021 (court document 36).

[5] TS1-20.45.

[6] See Order of Judge Porter QC dated 25 June 2021 (court document 46).

[7] Exagym Pty Ltd v Professional Gymnasium Equipment Co Pty Ltd (No 2) [1994] 2 Qd R 129; Witham v Holloway (1995) 183 CLR 525.

[8] Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 at 557.

[9] Paragraph 2 of the Amended Application filed 29 June 2021 (court document 45). The applicant did not press the alleged contempt of order 5 of the consent orders.

[10] See R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 at 620.

[11] See the cases cited in Baker v Smith (No 1) [2019] QDC 76at [233] and [525].

[12] See the analysis in parargraphs [83] and [85] below.

[13] Witham v Holloway (1995) 183 CLR 525 at pages 532 to 534.

[14] Justice Keane went no further than to say the case cast doubt on the recognition of civil contempt as a species of contempt: see Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 at [74].

[15] See Affidavit of Erin Jane Couper CD 35 at exhibits, pages 28 to 43.

[16] Powers of Attorney Act 1998 (Qld) s. 44(8). 

[17] See Affidavit of Erin Jane Couper CD 35 at exhibits, page 14.

[18] Ibid at exhibits, page 15.

[19] Affidavit of Erin Jane Couper affirmed on 19 August 2021 at page 26.

[20] Affidavit of Christopher Trace sworn 31 August 2021 at paragraph 20.

[21] Baker v Smith (No 1) [2019] QDC 76 [203] to [215].

[22] The Explanatory Memorandum at page 9 is unenlightening on the issue.  The change in language might have the consequence that Macgroarty v Clauson (1989) 167 CLR 251 might not apply to s. 129 DCA, at least with the strictness with which it applied to s. 105(1).   Macgroarty was considered by the Court of Appeal in relation to proceedings under s. 129 DCA, but in circumstances where this issue was not considered and did not affect the outcome of the appeal: see R v Ogawa [2011] 2 Qd R 350 at 394.

[23] Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] Ch 422.

[24] S Christensen, B Duncan & S Jones, Land Contracts in Queensland (The Federation Press, 4th ed, 2016) at 7.4.2.

[25] As I have observed, there is no reliable evidence before the Court at all which unequivocally is sourced from Mr Demes, much less evidence that the acts done in his name are entirely his.

[26] Re Colina; Ex parte Torney (1999) 200 CLR 386 at [12] per Hayne J.

[27] Tax Practitioners Board v Hacker (No 4) [2021] FCA 940 at [31].

[28] Brisbane City Council v Windshuttel [2011] QPEC 70.

[29] It was sought to be proved by inadmissible hearsay in an affidavit which was not, in any event, in a form which permitted hearsay statements to be made, even if such were permitted, because no proper statement identifying the source or swearing to the belief was included: see Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16 at [15] to [17].

Close

Editorial Notes

  • Published Case Name:

    Freeman v Montgomery

  • Shortened Case Name:

    Freeman v Montgomery

  • MNC:

    [2021] QDC 210

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    09 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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