Noah v Bailey
[2008] FMCA 1426
•24 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NOAH v BAILEY | [2008] FMCA 1426 |
| PRACTICE & PROCEDURE – Contempt of court – intention – insulting and contemptuous of the Court – warned on a number of previous occasions – sentenced to time served. |
| Applicant: | LESLEY ALEXANDRA NOAH |
| Respondent: | SCOTT MATTHEW BAILEY |
| File Number: | BRG 933 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 24 September 2008 |
| Date of Last Submission: | 24 September 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 24 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Gorman |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the respondent, having been found guilty of contempt, she be sentenced to time already served.
That the respondent respond to submissions made by the Australian Government Solicitor dated 24 September 2008 by 4.00pm on 10 October 2008.
That the Australian Government Solicitor respond to the respondent’s submissions on or before 4.00pm on 17 October 2008.
That the application be listed for hearing at 10.00am on 22 October 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 933 of 2007
| LESLEY ALEXANDRA NOAH |
Applicant
And
| SCOTT MATTHEW BAILEY |
Respondent
REASONS FOR JUDGMENT
This matter was before me on 9 July 2008. At about 11.57 am the defendant spoke these words in the course of an exchange between herself and myself, she said:
“Yes, it's been mutual, your Honour.”
referring, as I say, to an exchange which I will not re-state for the record, but which is contained within the transcript of proceedings leading up to that statement and in the words immediately before it.
The history of the application was one which arose from Ms Noah's unsuccessful judicial review application which had been heard in December the preceding year and following which she suffered a costs order. She had not paid the costs and she cavilled with the solicitor appearing for the respondent about the payment of costs, ultimately resulting in the commencement of enforcement proceedings in this Court.
There had been over the preceding days lengthy debate about the validity of those proceedings and in the course of the debate proceedings have been interrupted by one of Ms Noah's supporters.
Ultimately, that proceeding was resolved earlier in the day. Ms Noah was orally examined and at this stage of the action the matter had almost been completed save for the issue of costs. The matter of costs had been foreshadowed earlier in the day and it was anticipated that there would be an application for indemnity costs made on behalf of the applicant in the proceeding.
The Court was about to rise at 11.57 for lunch and, as I have already noted, there had been this extensive dealing with Ms Noah. The proceedings have not been happy proceedings. There had been, as I say, this unfortunate event earlier in the preceding week resulting in the events earlier in the day and it was fair to say that Ms Noah was somewhat emotionally charged.
I am cognisant of the submission made on her behalf, that she was a self-represented litigant and to that end perhaps by reason of that fact she did not appreciate what she was doing.
It is said for Ms Noah that the words spoken did not constitute a contempt nor was there any intention on her part for words to be understood as constituting insulting or contemptuous words. I do not accept that.
As I have noted, this particular action had a lengthy history. There had been many exchanges between myself and Ms Noah, which the record will reveal. She had been warned on a number of previous occasions about the manner in which she addressed the Court. She was not happy with the Court and that is understandable, but her failure to appreciate her remedies was not one which I think was occasioned by any conduct on the part of this Court. She had been informed on a number of previous occasions that she had remedies and there were appropriate remedies for her.
She was, as I say, unhappy with the outcome, but rather than accept the umpire's decision, to employ the colloquialism, she vented her emotion to the Court in such a way from her intonation and her expression, to clearly and intentionally be contemptuous and insulting to the Court.
It is said for her that a number of matters suggest that it was not her intention. For instance, it is said that immediately after these events she expressed that very fact, that she did not intend to be insulting or contemptuous. But, as the record would note, those observations and statements were made outside my presence if they are the observations that were made at the end of the first section of transcript, the Court having adjourned at 11.57, the tape continued to run and statements were made which were not intended for my hearing or certainly not heard by me, but in any event would have been more a reflection of the fact that I had immediately before that matter made an order directing that she be remanded until 2.30 for the matter to be disposed of.
I do not accept that any apologies tendered at that time were indeed genuine and in fact, if anything, the record would suggest otherwise because the closing remarks of Ms Noah as identified in the transcript; That is, after the Court had adjourned, she stated:
“I don't recognise the jurisdiction of this Court and I will not stand in honour of that man, he's a disgrace.”
They may well have been her views, but of course they are views expressed to the institution which I represent, not to me, and I do not take comments like that personally. They were clearly a reflection of her views of the institution, which is the Court, and it is for that reason I am not satisfied that any remarks that she later made were not necessarily spoken with genuine intention.
Not only do I not accept that the words spoken were not intended to be contemptuous or insulting. I am satisfied that any reasonable observer not conversant with the history of this particular matter or, indeed, if anyone was conversant with the history of the matter would in any event have formed the same view, that is that it was the intention of Ms Noah in that exchange to be intentionally insulting and contemptuous to the Court.
I am satisfied beyond reasonable doubt that in fact Ms Noah did intend to insult and be contemptuous of the Court and in the circumstances I find her guilty.
I have earlier dealt with matters relevant to guilt. As I have indicated, in the event that Ms Noah took a certain course, which I accept as a genuine and heartfelt expression of contrition and remorse, my inclination was and is now to simply sentence her to time served.
They will be the orders of the Court.
I will direct the respondent respond to the submissions made by the Australian Government Solicitor dated 24 September 2008 by 4 pm on 10 October 2008.
I will direct the Australian Government Solicitor reply to the respondent's submissions by 4 pm on 17 October.
In the event that anyone needs time I will give you time on the 23rd at 9.30.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 15 October 2008
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