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
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
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- AGLC
- Freeman v Montgomery [2021] QDC 210
- Case
- [2021] QDC 210
- Decision Date
CaseChat Overview and Summary
The court had to determine whether Freeman's failure to comply with the orders was knowingly done and without lawful excuse. The court also needed to decide whether the multiple acts of non-compliance constituted one contempt or several contempts. Furthermore, the court had to consider whether the rules of evidence applied to sentencing proceedings for civil contempt, and whether a custodial sentence was appropriate given Freeman's persistent and deliberate disregard for the court's orders, his lack of remorse, and the need for both personal and general deterrence.
The court found that Freeman had knowingly and without lawful excuse failed to comply with the orders. It was determined that the acts of non-compliance were contumacious, persistent, and deliberate. The court ruled that the rules of evidence did not apply to sentencing proceedings for civil contempt. Freeman's lack of remorse and failure to take opportunities to comply with the orders after the application for contempt was filed were also considered. Ultimately, the court concluded that a custodial sentence was appropriate. Freeman was sentenced to 4 weeks imprisonment for contempt of Order 4, and 6 weeks imprisonment for contempt of Orders 6 and 7, with those sentences to be served concurrently. Freeman was also ordered to pay the defendant's costs on an indemnity basis.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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