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Young v Smith (No 4)

Young v Smith (No 4)

Case [2017] NSWSC 1443 25 October 2017

Contempt of Court

Administration of Justice

Authority of the Court

Contempt of Court

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Young v Smith (No 4) [2017] NSWSC 1443
Hearing dates: 20 October 2016
Date of orders: 25 October 2017
Decision date: 25 October 2017
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The Court records a conviction for the offence of contempt committed by Josephine Aapa Smith (“the Contemnor”);

(2)   The Court sentences the Contemnor to a term of imprisonment of 6 months, fixed term. The Court suspends execution of the whole of the sentence for a period of 6 months and directs that the Contemnor be released from custody on condition that she enter into a good behaviour bond for the said period of 6 months. The sentence will commence on and from 25 October 2017;

(3)   The Court imposes a fine on the Contemnor of $50,000, in addition to the foregoing sentence of imprisonment;

(4)   The Contemnor shall pay the plaintiff’s costs of and incidental to these proceedings on an indemnity basis;
(5)   Any party who seeks a different or special order as to costs may apply within seven (7) days of the date of this Judgment by filing a submission with the Associate to his Honour Justice Rothman. Such submission shall be no more than three (3) pages in length. Any party affected by any such application may reply to said application by a submission of the same length within 7 days of receipt of the application.
Catchwords: CONTEMPT – dealing by way of mortgage with property that was subject to freezing orders – conduct designed to obtain benefit for contemnor and to deprive plaintiff of proceeds of earlier litigation – administration of justice and authority of the Court affected – sentence imposed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 3A
Supreme Court Rules 1970, Pt 55 r 13
Cases Cited: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Commissioner for Fair Trading v Rixon (No 3) [2014] NSWSC 1279
NCR Australia v Credit Connection [2005] NSWSC 1118
Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14
Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3
Young v Smith (No 2) [2015] NSWSC 1267
Young v Smith (No 3) [2016] NSWSC 1051
Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330
Category: Sentence
Parties: Joanne Elizabeth Young (Plaintiff)
Josephine Aapa Smith (Contemnor)
Representation:
Counsel:
D Campbell SC with J Sheller (Plaintiff)
Solicitors:
Greg Walsh & Co Solicitors (Plaintiff)
Levitt Robinson Solicitors (Contemnor)

File Number(s): 2015/262082

Judgment

On 2 August 2016, the Contemnor, Ms Josephine Aapa Smith was found guilty of contempt of Court. The Court, as presently constituted, held that on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Young v Smith (No 4)

Details

AGLC: Young v Smith (No 4) [2017] NSWSC 1443
Case: [2017] NSWSC 1443
Decision Date: 25 October 2017

CaseChat Overview and Summary

The case of Young v Smith (No 4) involved the plaintiff, Young, and the defendant, Smith, before the Federal Court of Australia. Young sought to enforce a judgment debt against Smith, which arose from earlier litigation between the parties. Smith, in an attempt to frustrate Young's efforts to recover the debt, executed a mortgage over property that was subject to freezing orders. This action was designed to obtain personal benefit for Smith and to deprive Young of the proceeds from the earlier litigation.

The primary legal issue before the court was whether Smith's actions amounted to contempt of court, specifically whether the mortgage transaction was a deliberate attempt to undermine the administration of justice and the authority of the court. The court also needed to determine the appropriate sentence to be imposed if Smith was found in contempt.

In delivering the judgment, the court found that Smith's conduct did indeed constitute contempt of court. The mortgage transaction was a clear attempt to circumvent the freezing orders and to deprive Young of the benefits of the earlier judgment. The court emphasised that such actions not only affect the administration of justice but also undermine the authority of the court. Consequently, the court imposed a sentence on Smith, which included a fine and a period of imprisonment. The sentence was designed to serve both as a punishment and a deterrent against similar conduct in the future.

Orders