Contempt

The UK Law Commission has released a consultation paper reviewing the law on contempt of court. It states 

 “Contempt of court” refers to a wide variety of conduct that may impede or interfere with the administration of justice. For example, taking photographs in a courtroom, making an audio recording of proceedings, assaulting court staff or witnesses, and refusing to answer a court’s questions if called as a witness. It may also be committed by conduct that occurs elsewhere – for instance, by journalists, bloggers or members of the public publishing material that risks prejudicing a trial or publishing in breach of reporting restrictions. 

Contempt is not a criminal offence – but the sanctions that may follow include imprisonment for up to two years and unlimited fines. On average, each year at least 100 people receive an immediate or suspended prison sentence.... 

The Law Commission proposes to do away with centuries-old distinctions between “criminal contempt” and “civil contempt” in favour of a modern, streamlined set of contempt laws. 

The Commission proposes that there should be three forms of contempt of court.

“General contempt”. Examples include abusing court staff or witnesses, disrupting a hearing, or making unauthorised recordings of proceedings. Proceedings may be commenced by the court itself or by the Attorney General, who has a constitutional role as guardian of the public interest in the administration of justice. 

“Contempt by breach of court order or undertaking”. Examples include litigants in high value commercial disputes taking assets out of the country in contravention of a “freezing order” requiring them not to do so, or protesters entering on land when an injunction prohibits it, or people subject to Anti-Social Behaviour Injunctions (ASBIs) breaching the terms of those injunctions. Proceedings may be commenced by, for instance, the litigant in a commercial dispute who obtained the freezing order, the landowner that took out an injunction to prevent protesters causing disruption, or a local authority who obtained the ASBI. Proceedings can only be commenced with permission of the court. 

“Contempt by publication when proceedings are active”. Examples include media reporting or social media posts that create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. For instance, when a publication reveals information that may not be admissible in evidence then it may carry a risk of influencing a jury in a criminal trial. Proceedings can only be commenced with the permission of the Attorney General or, more commonly, the Attorney General takes action by commencing proceedings. 

Among the specific proposals for reform are several relating to:

Community sentences: Currently, courts are very limited in the sanctions they can impose; mostly, prison or a fine are the only options. These are not always suitable. Where vulnerable people have breached the conditions of an ASBI then prison may not be appropriate, and they may have no money to pay a fine. The Law Commission proposes expanding sentencing options to include community orders, which may include unpaid work, drug or alcohol treatment, and restrictions on places that a person may go or where they must live. 

Imprisonment: The maximum sentence for contempt is two years imprisonment. The Law Commission proposes to retain that. However, as there is a strong public interest in knowing about proceedings that are before the courts, the Commission is seeking views on whether the option of imprisonment should be removed when freedom of expression is engaged and a defendant’s culpability is lower, for example because the defendant did not intend to interfere with the administration of justice. 

Tribunals: extending contempt protection and powers to tribunals. Currently, the law of contempt does not apply in many tribunals and that is a significant constraint on their ability to address conduct that disrupts proceedings or breaches orders made to protect the parties. Contempt powers will help tribunals to ensure proceedings are fair, effective and efficient. 

Criminal records: ensuring that a contempt finding is not entered on the Police National Computer and does not appear on a criminal records check, as contempt is not a criminal offence. There is evidence that contempt sometimes does appear on criminal records.

OPCA and Contempt

In R. v. Hardy 2023 BCPC 65 the Supreme Court of British Columbia states 

[1] On September 1, 2022, day one of a scheduled one-and-a-half day trial, I found 46-year-old Cameron Hardy guilty of in facie contempt of court, otherwise known as contempt in the face of the court. 

[2] He is a disciple of "Organized Pseudo-legal Commercial Arguments" (OPCA) theory. As explained by him, he is a freeman. He proclaims that he was created by the creative source. He claims to be a man of mankind, being something other than a human being. Simply put, he says that he is a man, a mankind, not some legal identity on a piece of paper that was created by man and owned by man. Accordingly, in his mind, he is not a person or an individual, and therefore the courts of British Columbia hold no jurisdiction over him. He rejects the name, Cameron Hardy. Instead, he self- identifies by various names, including “A Man Known As Cameron Hardy” and “A Man Commonly Called Cameron Hardy.” For my decision, I will refer to him simply as Hardy. 

[3] Even if I am wrong about Hardy’s legal name or his status as the defendant on the substantive matter, today, I am sentencing the person who was standing in front of the court on September 1, 2022, who committed contempt in the face of the court. 

I. INTRODUCTION 

[4] The courts of British Columbia are legitimate, or they are not. There is no middle ground. There are no shades of grey. Unfortunately for Hardy, the courts of British Columbia, including the Provincial Court of British Columbia, are legitimate. 

[5] British Columbia and Canadian laws apply to Hardy, no matter how he identifies, what words he uses to describe himself, or his political orientation. The criminal law, and the procedures that govern its implementation, are part of the law of British Columbia and Canada and apply to all. Opting out is not an option. 

[6] As a result of his refusal to recognize the legitimacy of the court, heed court orders and directions, and participate in the trial process, Hardy finds himself before the court for sentencing for contempt of court. 

[7] The superior courts and s. 9 of the Criminal Code recognize the authority of a Provincial Court judge to forego the formal trappings of a criminal trial and summarily punish for in facie contempt of court. 

[8] One leading in facie contempt of court case is R. v. B.K., 1995 CanLII 45 (SCC). As set out by Justice Major (in dissent) in B.K., xx 26 I agree with the caution expressed by Lord Denning in Balogh that the power of summary punishment is a great but necessary one that is to be used with scrupulous care. 

[9] In the present case, because of Hardy’s behaviour and flagrant disregard for the directions and order of the court, there existed an urgent and imperative need to utilize the summary contempt procedure on day one of his substantive trial. Specifically, Hardy’s refusal to follow the court's directions and order was deliberate and premeditated, as evidenced by the written script he had in his possession and read to the court. He undertook a calculated and intentional course of action, as he had on previous court occasions, specifically to thwart the court from proceeding with his trial. He maintained his behaviour despite being encouraged to engage legal counsel and being told of his actions' potential consequences. His conduct was contemptuous of the court and the administration of justice. 

II. OPCA ARGUMENTS 

[10] As stated on page 764 in 'Enjoy The Silence: Pseudolaw At The Supreme Court of Canada': Because pseudolaw has no actual validity, OPCA litigants by definition abuse court processes when they advance these ideas. Furthermore, Canadian case law on this subject is now highly developed. Post-Meads, an OPCA litigant is unlikely to enter court, let alone an appeal court, unaware that the ideas he or she intends to argue have been the target of strong court criticism. Nevertheless, some OPCA litigants’ belief in pseudolaw is apparently sincere...Social scientists who have investigated these populations confirm there are true believers in this community who are driven by a combination of conspiratorial and political beliefs, reinforced in a kind of social echo chamber. 

When viewed exclusively from a government and court perspective, pseudolaw is nothing but a waste of state and institutional resources. That perspective misses something important. Pseudolaw leads to self-inflicted injury by those who advance these toxic ideas, including increased litigation damages and costs, criminal sanctions, psychiatric detention, foreclosed homes, and broken families. In a very real sense, OPCA litigants are the victims of the conman gurus who sell supposed secrets to the real but concealed law. Worse, OPCA theories authorize unorthodox and illegal actions against government, police, and court workers, including violence. xx Pseudolaw is a form of legal quackery or snake oil. Much as doctors and scientists are the most effective critics of pseudomedical and pseudoscience frauds, courts are the expert bodies logically and functionally positioned to refute OPCA misconceptions with clear, substantive, and responsive court decisions. 

[11] Whether Hardy is a “true believer” or simply an “opportunist” using OPCA to delay and disrupt the court process, his reliance on the discredited OPCA theory clearly contributed to his contemptuous behaviour on September 1, 2022. And even though no OPCA defence has been successful on its merits – see R. v. Hardy, 2007 BCCA 523 and R. v. Hardy, 2007 BCSC 125, for examples of how an OPCA defendant was successful on appeal because the Crown did not prove identity beyond a reasonable doubt at the trial court stage – the courts are still having to deal on a regular and on- going basis with civil court litigants and criminal defendants who embrace OPCA theory. So, in light of the zero percent chance of success on the merits in the courts, why do people still espouse OPCA theory? 

[12] In 'Overcoming Knowledge Resistance: A Systematic Review of Experimental Studies', the authors state: A well-known fact is that people surprisingly often believe in things that are simply not true. For example, the public stance on climate change in the US has become increasingly contentious (Leshner, 2015; van der Linden, 2015), and many believe that vaccination has negative health effects (Larson et al., 2016). Such unfounded beliefs predict a range of maladaptive perceptions and behaviors, including poor health choices, climate change denial, and decreased civic virtue (Grebe & Narrrass, 2012; Jolley & Douglas, 20l4). 

An obvious question then is why people, in this era of information abundance, hold beliefs that contradict reason and rigorous observation. While there is little doubt that humans are capable of rational thinking, research has made clear that we often don't form our beliefs by a rational weighing of evidence and data. Rather, research shows that our perceptions, interpretations, and beliefs about the world are strongly influenced by our previous beliefs, feelings, and personal motives to view the world in one way rather than the other. Thus, people selectively attend to information consistent with their interests or previous beliefs, interpret neutral information or evidence that counter their attitudes in a belief confirming manner, and distort or selectively remember objective facts in a way that support their attitudes and decisions. Hence our reasoning is often motivated by desires to view the world as we expect or want it to be (for an overview, see Kunda, 1999). While modern people thus in principle have access to more knowledge than ever before, our inherent mode of thinking continues to make us susceptible to erroneous conclusions and false beliefs. This type of motivated reasoning is an important factor behind misconceptions that helps explain knowledge resistance. 

[13] I may never understand the true reason Hardy has acted in the manner he has. Nonetheless, he has relied upon OPCA theory misinformation to delay and disrupt his court proceedings. He relied upon and spread his OPCA disinformation intending to harm or deceive the court and the administration of justice. 

[14] As with the defendant in R. v. Kuleba, 2021 ONSC 1016, Hardy’s stubbornly wrong reliance on the OPCA theory he advanced caused him to reject opportunities provided to him by the court. 

[15] Concerning OPCA theory, I repeat what I said in paragraph 1 of Ruling Re: Organized Pseudo-legal Commercial Arguments, in R. v. Hardy, 2022 BCPC 189, ...I also had the opportunity to reflect upon what has become known in Canada -- and other parts of the world, too -- as pseudo-legal arguments. And one of the interesting things about pseudo-legal arguments, regardless of whether one is of the detaxer or freeman of the land or sovereign citizen ideology/philosophy, is that there has not been a single case in Canada supporting this particular theory. Judges are, by precedent, allowed to look at previous decisions of the court and decisions of a superior court are binding on me. What that means is that superior courts have said that I may and should summarily dismiss these kind of arguments, and by summarily dismiss, that means not waste the taxpayers’ money, the court's time, your time, the prosecutor's time, the court clerk's time, or anyone else’s time, with an argument that has zero chance of success. 

[16] As a Provincial Court judge, I am bound by precedent. I also pay heed to persuasive case law from outside of British Columbia. Cases such as R. v. Trifunski, 2022 BCSC 609, Parhar v. British Columbia (Attorney General), 2021 BCSC 700, R. v. Merrill, 2021 BCSC 1017, R. v. August-Sjodin, 2020 BCSC 826, R. v. Ciciarelli, 2019 ONSC 6719, R. v. Penner, 2018 MBQB 200, R. v. Jacobi, 2017 BCSC 1106, R. v. Petrie, 2012 BCSC 2110, and R. v. Lindsay, 2011 BCCA 99, have considered the issues already. OPCA litigants cannot succeed when relying upon their OPCA theory as legally sound in Canadian courts. The case law makes it clear that the arguments and philosophies being advanced by Hardy have no legal authority and are nonsensical. Accordingly, I refused to re-litigate OPCA claims and engage with Hardy concerning OPCA contentions. 

[17] In the leading case of Meads v. Meads, 2012 ABQB 571, Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench said the following about courts’ responses to OPCA cases:

  [586] Canadian courts have adopted a variety and range of responses to OPCA litigants and litigation. Any judge who faces OPCA litigation should consider deployment of all tools in this arsenal, and others that may be developed for this difficult litigant category. 

[18] I am aware of the debate over whether OPCA-type defendants and litigants are delusional and suffering from a type of mental illness versus being anti-government ideologists, expressing their political philosophies in an unorthodox manner. The temptation is to lean towards believing some OPCA-type defendants and litigants have a form of mental illness when one observes how people like Hardy, confronted with the reality that their position cannot win, still carry on with their OPCA-type contentions and behaviour. 

[19] On pages 1174-5 in 'After The Hammer: Six Years of Meads v. Meads', Donald J. Netolitzky, author and legal researcher, addresses the issue head-on: The Meads OPCA indicia serve another useful role not suggested in that decision. Psychiatric investigation of Freemen and Sovereign Citizens has concluded adherence to pseudolaw conspiracies is an expression of extreme political beliefs, reinforced in small introspective social communities. However, the peculiar formulaic expression of these ideas mimics delusion. That has resulted in misdiagnosis of these persons as mentally ill. OPCA ideas such as the “Strawman” duality have been misidentified as a mental health issue, rather than pseudolaw. Court- ordered psychiatric examinations and detentions may result. The Meads OPCA indicia are therefore a helpful resource to distinguish between persons who litigate because of mental illness versus anti-government ideology expressed in an unorthodox manner. 

[20] I have not ordered a psychiatric assessment for Hardy, finding him intelligent, albeit an anti-government ideologist. He understands the difference between right and wrong. He has merely selected wrong over right. 

[21] Having rejected mental health issues playing a role in Hardy’s disruptive behaviour and reliance on OPCA theory, I next consider how misinformation has contributed to Hardy’s contempt of court. 

[22] OPCA theory falls into the category of misinformation, defined on page 13 in 'The psychological drivers of misinformation belief and its resistance to correction', as “any information that turns out to be false.” Scholarly articles such as 'After The Hammer: Six Years of Meads v. Meads, The psychological drivers of misinformation belief and its resistance to correction and Beyond Misinformation: Understanding and Coping with the “Post-Truth" Era' provide context to the reality that individuals, despite all evidence to the contrary, continue to rely upon misinformation, leading to poor judgement and decision-making. It is the way for OPCA theory proponents. 

[23] It seems that phraseology such as “post-truth" and “fake news" has become increasingly prevalent in public discourse. As a court system, we need to recognize how the growing abundance of misinformation influences people in the political, technological, and societal context, including the courtroom. Regarding OPCA theory proponents, we need to develop a concrete methodology to deal with them once rationale thought and societal norms have been rejected by the OPCA theory proponent. After all, if left unchecked, OPCA theory can and will harm the court system, as evidenced by Hardy’s success at turning what should have been a one to two-day trial into a costly and time-consuming exercise that has morphed into two separate files: the substantive trial file and the contempt of court file. 

[24] In trying to understand Hardy’s rationale for his contempt of court, I appreciate the warning given on pages 13 and 14 in 'The psychological drivers of misinformation belief and its resistance to correction':

The psychology and history of misinformation cannot be fully grasped without taking into account contemporary technology. Misinformation helped bring Roman emperors to power, who used messages on coins as a form of mass communication, and Nazi propaganda heavily relied on the printed press, radio and cinema. Today, misinformation campaigns can leverage digital infrastructure that is unparalleled in its reach. The internet reaches billions of individuals and enables senders to tailor persuasive messages to the specific psychological profiles of individual users. Moreover, social media users’ exposure to information that challenges their worldviews can be limited when communication environments foster confirmation of previous beliefs — so-called echo chambers. Although there is some controversy about echo chambers and their impact on people’s beliefs and behaviours, the internet is an ideal medium for the fast spread of falsehoods at the expense of accurate information. However, the prevalence of misinformation cannot be attributed only to technology: conventional efforts to combat misinformation have also not been as successful as hoped — these include educational efforts that focus on merely conveying factual knowledge and corrective efforts that merely retract misinformation. 

For decades, science communication has relied on an information deficit model when responding to misinformation, focusing on people’s misunderstanding of, or lack of access to, facts. Thus, a thorough and accessible explanation of facts should overcome the impact of misinformation. However, the information deficit model ignores the cognitive, social and affective drivers of attitude formation and truth judgements. For example, some individuals deny the existence of climate change or reject vaccinations despite being aware of a scientific consensus to the contrary. This rejection of science is not the result of mere ignorance but is driven by factors such as conspiratorial mentality, fears, identity expression and motivated reasoning — reasoning driven more by personal or moral values than objective evidence. Thus, to understand the psychology of misinformation and how it might be countered, it is essential to consider the cognitive architecture and social context of individual decision makers. ..... 

Different types of misinformation exist — for example, misinformation that goes against scientific consensus or misinformation that contradicts simple, objectively true facts. Moreover, the term disinformation is often specifically used for the subset of misinformation that is spread intentionally. More research is needed on the extent to which different types of misinformation might be associated with differential psychological impacts and barriers for revision, and to establish the extent to which people infer intentionality and how this might affect their processing of the false information. 

[25] The observations of Justice Graesser in A.V.I. v. M.H.V.B., 2020 ABQB 790, a recent case dealing with a defendant named Robinson who espoused OPCA and "Magna Carta Lawful Rebellion" (MCLR) theory, hold in Hardy’s case:

52 The consequences of contempt are not trivial. In Fearn v Canada Customs, 2014 ABQB 114, and in particular paragraphs 215-256, the Court concluded that gurus who promote OPCA schemes that purportedly defeat legitimate court authority are engaged in criminal contempt of court. 

53 This may appear to be the use of a sledgehammer to crush an ant. I would instead use the analogy of an inoculation to stop a virus. OPCA and MCLR gurus harm people. Ms. Robinson has already harmed MHVB and her family. These gurus teach illusions that will predictably fail. They promise much, but their clientele gets less than nothing. 

54 These schemes are nothing more than cons, led by people who rely and feed on the oft-quoted statement attributed to P.T. Barnum (of circus fame): a sucker is born every minute. That is as true now as it was when spoken more than 150 years ago. The Courts are not suckers. And the Courts will not be intimidated.

[26] Despite having been ordered not to do so, Hardy’s use and reliance upon OPCA theory – combined with his refusal to recognize the court's legitimacy, heed court orders and directions, and participate in the trial process – resulted in Hardy finding himself before the court for sentencing for contempt of court. 

[27] The procedural steps customarily required by natural justice would not have been of any benefit in the situation faced by the court in the present case, as evidenced by Hardy’s refusal to speak to a lawyer or have a lawyer represent him, combined with his reliance on OPCA theory and his disruptive behaviour before, during and after the finding of contempt, until his removal by the sheriffs from the courtroom. With Lord Denning’s warning in mind, the court decided that Hardy’s behaviour on September 1, 2022, demanded immediate action from the court. The court could not allow it to continue. ...

[138] To believe that one is exempt from the law because of how they self-identify and because they espouse OPCA beliefs is not only outrageous but creates great harm to the community as others consider whether a magical “get out of jail free card” exists, and after that stop paying taxes, fail to abide by laws and public health orders, and waste valuable court resources with nonsensical OPCA arguments. ... 

[161] confirm the same principles hold true when sentencing a person for contempt of court related to OPCA misconduct: The words of Justice Tilleman in Fearn v Canada Customs, 2014 ABQB 114, 

[254] The test identified in the appellate case law is that a criminal contempt of court sanction is appropriate when an activity constitutes a "clear and present danger", "real and imminent harm or threat to justice". OPCA gurus sell and promote techniques that damage the court. The judiciary regularly encounters litigants who attempt to apply these techniques. Only a small fraction of those events are documented in reported case law. This is not merely a theoretical issue, but one that is a regular and unwelcome event. 

[255] Thus, though what Mr. Fearn says likely would be preposterous, absurd, and probably offensive to the average Canadian, he is one of a community of like-minded persons. In their eyes Mr. Fearn's "truths" are very real. To permit the business of interfering with court processes to go unchallenged only reinforces this community's misguided, dystopian world perspective. ..... 

[260] Contempt of court is a mechanism to curb OPCA misconduct that is directed to and interferes with court operation and function. This response should be broad and meaningful. That reflects this authority as an expression of the inherent jurisdiction of this Court. That means that while freedom of expression is a value respected and protected both under the common law and the Charter, that right does not extend to speech and communication which is criminal, or is intended to or injures the administration of justice and the rights of justice system participants.

[162] I stress wholeheartedly that Hardy's reliance on OPCA theory was wrong. He attempted to circumvent justice system procedures. His arguments were not merely legally false but often just plain stupid. Hardy’s defence was vexatious and frivolous. He had no hope of success; thus, logically, his only purpose was to frustrate the court and waste government resources.

Contempt

In Yap -v- Matic [No 7] [2023] WASC 55 the Court has dealt with  contempt by a sovereign citizen, stating 

[18] Contempt of court is a matter that lies both within the court's inherent jurisdiction and is provided for by the statutory regime relating to the court's powers. It is a tool that the court may employ to protect the due administration of justice. A finding of contempt may be dealt with summarily and may, if appropriate, result in the imprisonment of a contemnor without trial. 

[19] The ability of the court to charge a party with contempt, to determine the matter of guilt and to impose a penalty of its own volition is an immense power and must be exercised sparingly It is therefore important to distinguish between that conduct of which the court disapproves, and that which attracts the court's condemnation and punishment. 

[20] In John Fairfax & Sons Pty Ltd v McRae, their Honours Dixon CJ, Fullagar, Kitto and Taylor JJ quote from Cotton LJ in Hunt v Clarke as follows: 

A penalty will not be imposed in its exercise 'unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference'.

[21] Conduct which the court considers unusual, irritating, rude or even belligerent does not necessarily invoke the summary powers of the court. A party may express beliefs about the legitimacy of a court order, or the quality of a judgment, or may resist particular principles of law. It is not enough that the court is insulted, or that the beliefs expressed do not align with those of the judicial officer. The threshold requirement is that the court must find that the conduct interferes with the administration of justice or in some way demonstrates a contumelious disrespect for the authority of the court. 

[22] In matters such as this it is particularly important to emphasise that the court does not impose punitive measures in relation to people's beliefs. Mr Matic is quite entitled to his beliefs even if they are irrational, irritating or even offensive to others. In a tolerant and humane society people must be entitled to hold such beliefs without fear of sanction or punishment from the State. History is littered with the tragic consequences of intolerance and injustice perpetrated by state authorities for beliefs that do not meet with the approval of the governing or ruling elite. However, at the same time the court must be concerned with, and must remain vigilant to protect, the administration of justice from conduct, including on occasion the expression of views, that corrodes public confidence in and respect for the courts and the justice system. A just and tolerant society must zealously guard the instruments and institutions that preserve justice and tolerance. ...

[26] ... In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 - 314, Kirby P observed:

Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said: '... These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the proper administration of justice.' A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately [sic appropriately] emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. ...

[27] Recently, the Western Australian Court of Appeal considered the purpose of punishing contemnors in R v T. In that decision, Mazza, Mitchell and Vaughan JJA said:

Sentencing for a contempt of court constituted by a breach of the court's orders may serve two distinct purposes. These purposes may be described as coercive and punitive. A sentence for contempt may provide a coercive means by which the court orders can be enforced and future compliance with the order secured for the benefit of a party to the proceedings can be ensured. However, a sentence for contempt may also punish wilful disobedience of a court's order so as to vindicate judicial authority and maintain the integrity of the court's process in the public interest.

[28] Their Honours went on to observe that:

It is also clear that punishment of past intentional disobedience of court orders is a significant consideration in sentencing for contempt of court. As the Full Court of the Family Court of Australia recognised in Tate:

Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.

... 

[30] In relation to those factors, I make the following observations. (a) Sandi Matic's contempt was serious in the sense that it was a deliberate and defiant disregard of an order of this court. However, other than continuing to delay the proceedings, and the distraction and diversion of public resources caused thereby, the consequences of the contempt were limited. (b) The context of the contempt is unfavourable to Sandi Matic. At the time of the conduct that gave rise to the charge of contempt, that is 30 November 2022, Sandi Matic had already been convicted of contempt once before, on 27 October 2022. (c) The reason for the contempt, at least insofar as Mr Matic has submitted, was a lack of understanding of the significance of, or doubt in relation to the authenticity of, the relevant orders. In part for the reasons set out in Yap v Matic [No 4], and in part in relation to the oral submissions proffered by Mr Matic on 13 December 2022, I do not accept those reasons. (d) There is no evidence that Mr Matic gained any benefit from his contempt, other than to delay the proceedings by a week. (e) Mr Matic has expressed no remorse, nor contrition, for his contempt in any real sense. In fact, since being convicted for contempt in December 2022, Mr Matic has continued to fail to appear at hearings, including the hearing of 30 January 2023. (f) Other than matters I have canvassed in previous decisions in these proceedings, Sandi Matic has not put before the court any evidence of his character, personal circumstances, or antecedents. There is no evidence of any criminal record. However, I note again that at the time of the relevant contempt, Sandi Matic had already been convicted of contempt, and since that conviction, has been separately convicted of criminal contempt by her Honour Archer J. (g) General and personal deterrence, and denunciation of the contempt, are important factors in this case. I shall return to these issues. ... 

[39] The case of Sandi Matic raises important questions about the nature of contempt, and the metes and bounds of the court's authority. I shall emphasise again, that the function of this charge and penalty is not to punish Sandi Matic for his beliefs, or to necessarily seek to correct the beliefs that Sandi Matic holds in his private life. 

[40] However, Sandi Matic's behaviour has not been without a cost. That cost involves the court resources that are wasted in hosting repeated hearings when parties fail to appear. There is importantly, a social and reputational cost to the court when litigants are given wide berth to disregard or ignore court orders. There is a cost to other parties, who have the right to expect that court orders will be complied with. 

[41] Additionally, there is a clear need for personal and general deterrence. While Sandi Matic has previously been afforded by me the benefit of doubt in relation to his contemning, the circumstances of this contempt are different. That is most plainly illustrated by the origin of each of the charges. The first conviction for contempt was made out following an application from the plaintiffs in this matter. The second conviction, with which I am now dealing, arose of the court's own initiative. 

[42] In my view, it is tolerably clear that Mr Matic has chosen to knowingly defy court orders. All of the surrounding circumstances, including Sandi Matic's communications with the court and his conduct at hearings relating to this conviction, lead in my view to an irresistible inference that Mr Matic's conduct is born from a lack of genuine acceptance of the authority of the court. 

[43] Mr Matic has at various points, been at pains to express that his failure to appear in accordance with court orders was not a rejection of the court's authority. Rather, he has asserted that his lack of compliance rests on his confusion about the proceedings and set of misguided beliefs about the justice system. ... 

[44] I have previously outlined that Mr Matic's beliefs appear to align with those of the self‑proclaimed ' sovereign citizen ' movement. This is a movement that has been gaining popularity and traction in Australia over the last few years but has also been prolific in other jurisdictions for longer. The growing prevalence of this class of beliefs and associated conduct is a matter of concern for the preservation of the authority of the court and the administration of justice. It reinforces the importance of general deterrence in the community. I reiterate again that Mr Matic is at liberty to hold his beliefs but that does not absolve him of the responsibility to adhere to the rule of law which includes acceptance of, and compliance with, court orders. 

[45] While Mr Matic has stressed in oral submissions and written communications that he is attempting to be 'honourable' and that he does 'respect the court authority', that is not a sentiment frankly, that can be taken seriously against the background of his actual conduct. By the time of the original hearing in relation to this penalty decision, that is the hearing on 30 January 2023, Mr Matic had twice been convicted of contempt by me. He had once been arrested and made to appear before the court. He had been instructed in no uncertain terms that 'if the court orders you to attend, it's not an invitation; it's an order'. On 13 December 2022, when listing the penalty hearing on 30 January 2023, Sandi Matic's family commitments were accommodated and his preferences were taken into account. Sandi Matic told the court that if the penalty was listed 'towards the later part of January...I can attend.' Sandi Matic also expressly confirmed that the date and time set by the court were convenient to him. I therefore did not consider it necessary to order that he appear at the penalty hearing. Nevertheless, Sandi Matic once again failed, without notice or explanation, to attend court on 30 January 2023. 

[46] Additionally, as part of Mr Matic's previous conviction for contempt of court, on 8 December 2022 I ordered that Mr Matic pay the plaintiffs' costs of their contempt application, fixed in the amount of $16,057 and payable forthwith. As at the time of this judgment, Sandi Matic remains in default of that order. This may be a further demonstration of Mr Matic's lack of respect for the authority of a court order. That ongoing default also casts doubt over the utility of making a costs order or imposing a fine on Sandi Matic. 

Contempt

In Yap v Matic [No 4] [2022] WASC 422 Solomon J in dealing with contempt refers to sovereign citizenship -

 On 27 October 2022, I found the defendant Sandi Matic guilty of contempt by reason of his breach of the court's orders dated 11 February 2022. My reasons were set out in Yap v Matic [No 3] [2022] WASC 370, which in turn are to be read with reasons I published in Yap v Matic [2022] WASC 181. 

The circumstances of Mr Matic's contempt are explained in those reasons and need not be repeated. 

Procedural background 

As Sandi Matic did not appear at the hearing of 27 October 2022, and also to give him further time to consider his position, I deferred the issue of the appropriate penalty to a hearing on 25 November 2022. Sandi Matic was given ample notice of that hearing. Sandi Matic did not attend on 25 November 2022. On that day I made an order that: The defendant, Sandi Matic, shall appear in person at the Supreme Court of Western Australia at 2.00pm on Wednesday, 30 November 2022, for delivery of the reserved decision. 

Those orders were sent to Mr Matic from the court via email on 25 November 2022. Additionally, the plaintiffs have filed an affidavit of service by Cheryl Lorraine Harrison sworn 28 November 2022 that deposes to the fact that Mr Matic was personally served with those orders, as well as a letter from the plaintiffs' solicitors and a copy of the plaintiffs' submissions in respect of the penalty to be imposed. 

I explained at the hearing on 30 November 2022 that there could be no doubt that Mr Matic had received and was aware of the order that he appear at that hearing, in person. That awareness was illustrated by Mr Matic's correspondence with the court, and with the plaintiffs' solicitors, up until and indeed during the hearing of 30 November 2022. In particular, less than an hour before Mr Matic was due to appear, he sent via email to my chambers a letter addressed to me. Relevantly, that letter included the following passage:

With no evidence to show that we are a named party to these proceedings we kindly decline your invitation to attend this meeting but we offer the Honourable Court to attend future appointments as a friend of the court, Amicus Curiae.

As I explained on 30 November 2022, Mr Matic's repeated failure to appear before the court has delayed these proceedings and interfered with the ability of the court to dispense with this matter. 

I was therefore satisfied that Mr Matic's failure to appear when he had been ordered to do so was, on its face, grounds for the court to charge Mr Matic with contempt of court pursuant to O 55 r 3 of the Rules of the Supreme Court 1971 (WA) (RSC). ...

Mr Matic emailed my chambers this morning, 7 December 2022, in the following terms:

i; private living and peaceful man, 'Sandi' accept your invitation to attend as special appointment to the Honourable Court today at 16:30 at Perth with intention to clarify the mistakes that we believe have been made. 

That email is important for two reasons. The first is that it once again highlights Mr Matic's difficulty accepting the authority of the court. That is illustrated by his characterisation of a court order, and indeed of an arrest warrant, as an 'invitation to attend'. Secondly, this email confirms that Mr Matic did receive the court's orders dated 30 November 2022 and was given notice of the court's allegation of contempt and the circumstances giving rise to that charge. 

At 12.45 pm today, Mr Matic was arrested and remanded in custody. Those are the circumstances that have led to Mr Matic's appearance today. 

Penalty for contempt of court 

I now return to the issue of the appropriate penalty to impose upon Mr Matic in relation to the conviction for contempt handed down on 27 October 2022. 

In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic), the High Court adopted the description of the cardinal feature of the power to punish for contempt as being that it is 'an exercise of judicial power by the courts to protect the due administration of justice'. 

Like that case, here the contempt proceedings arose in the course of a civil proceeding. The comments of the High Court reflect and embody a principle that is both fundamental and ubiquitous; that is that the rule of law and the administration of justice require that all persons in society accept that court orders manifest the application of the law by which all people are governed and that for civil society to be maintained, such orders must be obeyed. People are entitled to adopt and with limited qualifications to express, whatever beliefs they choose no matter how others may regard them. But compliance with court orders is a foundational feature of the rule of law. Many cases throughout the common law world have expressed that sentiment in one way or another. Relevantly, in a number of the cases in Australia, the offending conduct was undertaken brazenly in opposition to the court's authority for financial gain. In other cases, the conduct was part of an orchestrated campaign designed to achieve a purpose, such as a political or industrial outcome in which a deliberate decision was made to flout the court's authority in pursuit of the desired objective. 

In at least some of those cases, public disregard for the authority of the court appeared to be part of the strategy in the achievement of the offender's objective. An important feature was the conscious disregard of the court's authority for personal gain or in furtherance of some cause. 

An example is the High Court case of CFMEU v Boral Resources (Vic) itself. In that case, it was alleged that an industrial union had disobeyed orders made by the court by establishing a blockade of a construction site. As I have noted, in other cases, parties have disobeyed a court's order to make a financial gain or to agitate some political or social cause. 

Here, it is less clear that the defendant was quite as strategic in his disobedience of the court's orders. He appears to have been motivated by a deep sense of grievance arising from his complaints in relation to a commercial transaction, and the proceedings that have been brought against him. The conduct which I have found amounted to a contempt appears to have been undertaken out of a sense of self-righteous anger, in which disregard of the court order was a collateral consequence 

Put simply, it does not appear to me that disobedience of the court's orders or rejection of the court's authority was of itself the defendant's objective when he breached the injunction granted on 11 February 2022. 

At the same time, the defendant has expressed views that could be characterised as inconsistent with an unqualified acceptance of the court's authority. These views have been expressed in comments made by Mr Matic before the court, and in correspondence to my chambers, and correspondence to the plaintiffs' solicitors. Those comments include what appear to be challenges to the court's authority to control the defendant, including the apparent preconditions of his submission to the court's authority, such as whether the court or a judicial officer has entered into a 'contract' with him. Other comments reflect somewhat incoherent or at least unorthodox views about establishing the identity of certain people. The defendant has, for example, demanded that the court identify the defendant himself. These communications have included misguided and distracting debate about the meaning of words such as 'you', and whether the defendant's name when expressed in capitals, refers to him or to some other entity. Some of the views expressed by the defendant might be regarded as irrational, bizarre, or even offensive. 

The communications received by the court on 30 November 2022 referred to at [5], demonstrate the flavour of these comments. I have annexed a selection of that correspondence to this judgment at Annexure A and Annexure B. 

For present purposes, the mischief in the comments with which I am concerned relates not to whether these views are correct or sensible, but rather to the acceptance or rejection of the court's authority. 

It appears that to one extent or another, the views expressed by the defendant are shared by a growing group within society that has loosely been referred to as the sovereign citizen movement and perhaps by other names or descriptions. There are aspects of the views of that movement that have come before this and other courts, including some of the views expressed by this defendant, which reflect a rejection to one degree or another of the court's authority. Those views, and their apparent increasing popularity, or acceptance, cannot be dismissed as harmless or bemusing nonsense. The promulgation of such views and beliefs represents a dangerous corrosion of some of our society's most fundamental values in the maintenance of the rule of law and the administration of justice. The events in the United States of America over recent years reinforce the vigilance required to protect those values and the danger inherent in taking them for granted. 

But at the same time, I am not persuaded, and certainly not beyond reasonable doubt, that it is the holding of such views which inspired Mr Matic to engage in the particular conduct that I have found amounted to the contempt of which he was convicted on 27 October 2022. 

I am therefore not persuaded that for the purposes of this judgment, I should proceed on the basis that views expressed by this defendant regarding the authority of the court, were the motivating force for the particular behaviour that amounted to the contempt. 

In the circumstances, it seems to me that the most important consideration is personal deterrence; that is, imposing a penalty that makes clear to the defendant that he should be conscious of the requirement to obey the court's orders. In Wood v Staunton (No 5), Dunford J summarised the relevant matters to consider in respect of the proper punishment to be imposed for contempt in refusing to answer a series of questions at a Royal Commission. That summary has been adopted in the context of disobedience of a court's order at a civil proceeding by this court; see for example State of Western Australia v Galati [No 4]. The relevant matters are as follows:

(i) the nature and seriousness of the contempt proved; (ii) the consequences of the contempt; (iii) the context in which the contempt was committed; (iv) the reason for the contempt including whether the contemnor intended subjectively to commit the contempt; (v) any benefit received by the contemnor; (vi) whether there has been any apology or public expression of contrition; (vii) the circumstances, character and antecedents of the contemnor; (viii) general and personal deterrence; and (ix) denunciation of the contempt.

Mooning, Rabelais and Contempt

Noted for an article on contempt, gesture and carnival ...

A Judge has demanded heightened security after he was "mooned at" in court. 

 

Last Friday Brian Joyce (21) slapped his exposed bare backside shouting "Up the Joyces! Up the Clare Joyces!" Mr Joyce of St Enda's, Beechpark, Ennis then turned around to expose his penis to a shocked Judge Patrick Durcan. 

 

Mr Joyce's actions came after Judge Durcan refused bail to his brother, John Joyce (18), of St Enda's, Beechpark, Ennis. 

 

Judge Durcan suspended court sittings and went to his chambers. 

 

Upon his return to court, he said what had occurred "was the worst outbreak of violence I have ever witnessed in a court either as a practitioner or as a judge". 

 

The judge said that behaviour in the courtroom had "sunk to a level of depravity that I've never encountered before". 

 

In the first court sitting since the incident at Ennis yesterday, Judge Durcan told the court that there was "an appalling breakdown in security" in court on Friday. 

 

He described the events as "shameful". 

 

He told Inspector Tom Kennedy: "As and from tomorrow and including family law days, convey to the Chief Superintendent that I will not sit in any court unless it is advised to me in chambers in advance who the court guard is." 

 

He added: "I have made no demands as you know in the four years in matters of this nature, but events that occurred here last Friday put the sitting court registrar at great risk and disrupted the business of the court". 

 

"That type of situation should not be allowed to occur again. It is something that should have been anticipated." 

 

Judge Durcan said: "I am making my position very clear. I am not going to hang around if the facility of the court guard is not available when the court sits." 

 

Gordon Deegan, 'Judge asks for tighter security after court 'mooning'', (Dublin) Irish Independent 28 October 2015, 7.

and in Australia last week in Vitale v The Queen [2020] VSCA 237 [32] - 

Upon the hearing on 10 September 2020, the appellant remained unrepresented. He appeared via audio-visual link from a room at Barwon Prison. When asked by the Court what he wanted to say in support of his appeal, the appellant asserted somewhat truculently that the Court did not ‘give a fuck about [his] circumstances’. Notwithstanding that his tone and attitude were aggressive and disrespectful, the Court asked the appellant on several occasions to stop and listen to what the Court was saying to him. It is fair to say, however, that he conducted himself in such a way as to challenge the Court’s authority, continued to interrupt and loudly talk over the Court, and proceeded to deliver a vituperative tirade, the central theme of which seemed to be that the Court was treating him unfairly. Having for a time tolerated the appellant’s invective, the Court indicated to the appellant that if he had nothing further to say in support of his case, the Court would hear from the respondent’s counsel. Regrettably, shortly after counsel commenced to address the Court, the appellant stood up from the table at which he had been seated, took down his trousers, bent over, exposed his buttocks to the camera and pulled his buttocks apart so as to expose his anus, saying: ‘You just copped a anus [sic], if you want to talk to him again, let me know’. As the respondent’s counsel remarked somewhat understatedly, this behaviour was ‘not very helpful’. Plainly, the appellant’s quite unattractive gesture was calculated to display his contempt for the proceeding. He further demonstrated that contempt shortly afterward by storming out of the room in which he had been situated. The Court then invited counsel for the respondent simply to rely on his written submissions. He did so.

In DPP v Johnson [2002] VSC 583 the Court states

[35] Shortly after the sixth incident at 2.28 p.m. Wenitong and Paisley stood up on the seat of the dock in Court 4 and bared their buttocks to the camera. This action was not a momentary one but consisted of an extended exposure dramatised by a swaying motion and a manual parting of the cheeks. Johnson and Sonnet emphasised the event by pointing and gesticulating. I find that the seventh incident constituted contempt of court by Wenitong, Paisley, Johnson and Sonnet. Like the sixth incident, the seventh incident was intended to indicate implacable opposition to the continuation of the trial and was a deliberate continuation of the "circus" intended to increase pressure on the learned trial Judge and ultimately achieve termination of the trial. 

[36] Despite the fact that the sixth and seventh incidents occurred in the absence of the jury and the witness, I regard them as severe contempts. In my view they went beyond simple insults. They were both calculated to and manifestly had the tendency to escalate the disruption of the effective running of the trial. They were intended to disrupt the hearing and place illegitimate and improper pressure on the trial Judge. Further they had the obvious tendency to create a situation where the continuation of a proper trial would become impossible.

In R v Ogawa [2009] QCA 307 - dealing with the sad case of the law academic who gained much attention for 'mooning' the Queensland District Court - the judgment states

The Court did everything in its power to persuade you or permit you to participate in the trial. In my view, you wilfully set out to obstruct the trial proceeding. In doing so you not only caused distress to everyone involved in the trial but created obvious security difficulties for the Corrective Services officers who are responsible for your safety and security. Your behaviour involved what I regard as derogatory statements about the Court and the system of justice, constant loud screaming in Court and physical struggle with the Corrective Services officers. You also attempted to disrobe in Court. I do not regard your conduct as being driven by a psychiatric condition or the effects of it, although your personality disorder may have been an influencing factor in your decision to behave as I have described. You had many opportunities to desist from your behaviour in Court but you ignored my requests that you do so and ignored the advice of friends and of Mr O'Gorman who intervened as a friend of the Court to try to persuade you to participate in a constructive way in the trial. You rejected those opportunities and in my view you did so wilfully. I note on some occasions when you were removed from the Court you stopped screaming after the door was closed before there was an opportunity to take you to the cells downstairs. 

I reject your apology. I do not believe it to be genuine. I doubt that any other Court has ever had to endure the level of disgraceful conduct that you are responsible for in the course of this trial. A charge of contempt could have been found before the verdicts were delivered. Indeed, I made at least one and possibly more statements about a charge of contempt being open for consideration in the course of the trial. However, I never gave up on the hope that your behaviour would improve and that you would participate in the trial. In those circumstances, the making of the charge of contempt in the course of the trial would have been contrary to that hope and it may have rendered what was a futile expectation on my part, nugatory." 

... Having reviewed the evidence with respect to the appellant's conduct, his Honour found the charge proved. His Honour said: "I am satisfied beyond reasonable doubt that the evidence of your conduct amounts to a contempt of Court in the terms that I have charged you. I am also satisfied that your conduct has in reality given rise to a real risk of undermining public confidence in the administration of justice. I find the charge of contempt proved. I find you guilty of the charge and I convict you of it."

Contempt, Bullying and Judicial Stress

In Attorney-General (Qld) v Mathews [2020] QSC 258 Jackson J has considered contempt (specifically scandalising the court) after Mathews displayed two signs at his house that stated a Court of Appeal judge and the Court of Appeal are corrupt and that a magistrate is likely corrupt. The case is of interest regarding the implied freedom of political communication, defamation and contempt.

Mathews has featured in several judgments, including Mathews v Cooper and Ors [2017] QCA 322, Mathews v Morgan [2005] QSC 222, Cooper v Mathews; Mathews v Corp of the Synod of the Diocese of Brisbane and Ors (No 2) [2018] QSC 64, Mathews v Commissioner of Police [2015] QCA 284, Mathews v State of Queensland [2015] FCA 1264, Mathews v University of Queensland [2002] FCA 414 and Brisbane City Council v Russell Gordon Haig Mathews [2006] QSC 25.

In GRC Crown Law v Mathews; Mathews v Corp of the Synod of the Diocese of Brisbane [2017] QSC 64 Jackson J characterised Mathews' litigation as vexatious, commenting 

the amount of the damages claimed is unjustifiable. The claim of $500,000 being for loss of use of the facilities of the house is not supported by any pleaded facts. The claim for $12,600,700 for compensatory damages is not supported by any pleaded facts. The claim for $100 million dollars for aggravated and exemplary damages is perhaps the high water mark in a sea of absurdity of unjustifiable claims. Second, the alleged conspiracy or conspiracies are unsupported by any allegation of facts as to making any agreement or acts from which any alleged agreement may be inferred.

In this instance the Supreme Court states

 [1] This is an application for contempt of court. The contempt alleged is of the variety known as scandalising the court. The conduct alleged is that the respondent published and displayed two signs at his house at 119 Brisbane Road, Booval. One sign (“CA and Morrison sign”) stated: “Court of Appeal and Judge Morrison are CORRUPT. HaigReport.com/CAM” 

[2] The other sign (“MacCallum sign”) stated: “Magistrate Donna MacCallum is likely CORRUPT" 

[3] The applicant alleges publication and display of each sign was an offence on the ground that the sign scandalises the relevant judicial officer or court and gives rise to a real risk of undermining public confidence in the administration of justice and lessening public confidence in the impartiality and honesty of the judicial officer and court concerned. 

[4] For each alleged offence the orders sought are that the respondent be (convicted and) ordered to pay a fine. 

[5] Further, the applicant applied for an injunction that the respondent remove both signs within seven days and, if he fails to do so, an order that the sheriff of the Supreme Court is authorised to enter his premises to remove and dispose of the signs as the sheriff sees fit. Further, the applicant applied for an injunction restraining the respondent from erecting any sign that asserts any court or judicial officer of the State of Queensland is or is likely to be corrupt. 

Facts 

[6] On 14 January 2019, a title search was conducted of the land located at 119 Brisbane Road, Booval. The search showed that the respondent was the registered owner of the land. 

[7] On 21 January 2019, a senior registrar of the Ipswich Magistrates and District Court Registry took a photograph of the two signs in question. Their content is accurately described above. They appeared among a number of signs erected inside and above the fence in front of the respondent’s house as well as on the house that were visible to passing road traffic. 

[8] Between 21 January 2019 and 13 March 2019, both signs were maintained in that position. After that, the MacCallum sign was taken down. 

[9] On 17 January 2019, the director of Courts Innovations Program, Magistrates Courts Service as acting principal registrar and executive director of the Magistrates Courts Service wrote to the respondent about the sign in respect of MacCallum SM. The letter requested the respondent to immediately remove that sign and advised that if he did not, it was possible the matter may be referred to the Attorney-General who had the authority to institute a proceeding against him for contempt of court. 

[10] On 2 February 2019, the respondent replied to the acting principal registrar by a long and rambling email denying, inter alia, that he had a case to answer because he “had not stated that [MacCallum SM] IS corrupt; just that there is a possibility, a mathematical probability or likelihood.” 

[11] On 31 January 2019, the executive director of the Supreme, District and Land Court service wrote to the respondent about the sign in respect of the Court of Appeal and Morrison JA. The letter requested the respondent to remove the sign forthwith and confirm that he had done so and advised that if the respondent failed promptly to remove the sign, consideration would be given to whether proceedings should be brought against him for contempt of court. 

[12] On 8 February 2019, the respondent replied to the executive director by email attempting to justify his allegations of corruption against the Court of Appeal and Morrison JA. 

[13] On 7 April 2019, the CA and Morrison sign was still displayed but the MacCallum sign was not displayed. [14] On 16 April 2019, this application was started by originating application. 

[15] As at the date of the hearing of this application neither of the signs was displayed. 

Applicant’s submissions 

[16] The applicant submits that the facts in evidence prove that: (a) the respondent published and displayed the signs; (b) the MacCallum sign was published and displayed from 21 January 2019 to 13 March 2019; and (c) the CA and Morrison sign was published and displayed from 21 January 2019 to 7 April 2019. 

[17] The applicant further submits that the responsibility of the respondent for the publication and display of the signs can be inferred from his ownership of the land and: (a) in respect of the CA and Morrison sign, the respondent’s statement in his email to the executive director that:

“The definitely amorphous manner in which Morrison [JA] dismissed my valid claims properly pleaded is a clear indication of possible corruption... the fact that two other judges [sic] of the Court of Appeal agreed with him indicates that the Court of Appeal is corrupt... All statements on my sheets of corflute are political statements about Queensland and Australian government and politics...I have political publications on my property... My political publications are exposing corruption in Qld.” (b) in respect of the MacCallum sign, the respondent’s statement in his email to the acting principal registrar that: “I have not stated that MacCallum [SM] IS corrupt; just that there is a possibility, a mathematical probability or likelihood.”

[18] The applicant submits that each of the corruption allegations made in the signs is a contempt of court because it was a direct attack on the integrity of the named judicial officer and, in respect of the CA and Morrison sign, the judges who constituted the Court of Appeal. 

[19] The applicant submits that the statements were contemptuous as: baseless attacks on the integrity or impartiality of the court or a judge; comments that tend to induce a lack of confidence in the ordered and fearless administration of justice; and unjustified allegations that a judge had acted in bad faith or had failed to act with the impartiality required of a judicial officer. The applicant submits that the statements were calculated to impair public confidence in the named judicial officers and the Court of Appeal and thereby diminish their authority and there was a real risk that the statements so publicly visible would undermine the public confidence in the administration of justice. 

[20] The applicant submits that the statements were not governmental or political speech which commented, in good faith, on matters of public importance, including the administration of justice that were merely mistaken or wrongheaded, even if outspoken. 

The offence of contempt by scandalising the court 

[21] Contempt of court by scandalising the court is a criminal contempt as it is not concerned with non-compliance with an order of the court but is directed against interfering with the administration of justice. It is necessary to further identify the legal basis. 

[22] Criminal contempt of court is a species of criminal offence, but it is unlike other offences in some ways. It is prosecuted in a summary way before this court under the rules of court, although it remains a criminal offence at common law in this jurisdiction. Its continuing operation as a criminal offence at common law follows from the fact that the authority of courts of record to punish a person summarily for an offence commonly known as “contempt of court” was excepted in 1899 from the exclusive operation of the Criminal Code and other statutes in respect of indictable offences. 

[23] The offence of contempt by scandalising the court is rarely prosecuted but it has been reconsidered in recent years. For example, following a recommendation of the Law Commission of England and Wales in 2012, the parliament of the United Kingdom of Great Britain repealed the common law offence of contempt by scandalising the court altogether. Other jurisdictions have moved to abolish the common law offence but replace it with a narrower statutory offence. In a recent speech, a member of this court considered the operation of the principles affecting contempt by scandalising the court in detail. 

[24] Although brought by way of summary procedure, and although accordingly the proceeding is a civil proceeding in structure, the application is nevertheless a proceeding that seeks relief by way of (conviction and) punishment for a criminal offence. The applicant submits that the punishment should be the imposition of a fine in respect of each offence. The rules of court specifically deal with the power to impose a punishment including, if the respondent is an individual, that the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (Qld). 

[25] However, the orders that may be made by way of conviction and punishment for an offence of contempt by scandalising the court, including the powers under the Penalties and Sentences Act, do not include a power to grant an injunction restraining a future offence or an order authorising the sheriff to enter the respondent’s land to remove and dispose of the signs. 

[26] Although there is no power to do so as an order upon conviction for an offence of contempt by scandalising the court, the court has power in its civil jurisdiction to grant an injunction to restrain a contempt and to prevent its continuation or threatened repetition, including a mandatory or prohibitory injunction. Gibbs CJ once expressed the point in this way: “A superior court which has power to punish contempts, and which also has power to issue injunctions, may grant an injunction to restrain a threatened contempt.” 

[27] But, an application for an injunction is a civil proceeding, properly so-called, not a hybrid proceeding for a criminal offence. The standard of proof on an application for an injunction is the civil standard, namely on the balance of probabilities. The standard of proof on the hybrid proceeding for the criminal offence of contempt by scandalising the court is the criminal standard, namely beyond reasonable doubt. 

[28] It follows from the different natures of the two proceedings that in a proceeding for punishment for a criminal offence of contempt by scandalising the court it is inappropriate to join a civil claim for an injunction, as two intermediate appellate courts in other jurisdictions have decided. 

[29] Accordingly, at the commencement of the hearing, the court required the applicant to elect between the injunctive relief applied for and proceeding by way of punishment for the offence of contempt by scandalising the court. The applicant elected to proceed upon the application for punishment for the criminal offence. 

In part, the proceeding is brought in this court in relation to an alleged contempt by scandalising a magistrate. The Magistrates Court has statutory power to deal with all contempts, but has no power to grant an injunction in respect of a threatened contempt. However, this court has “all jurisdiction necessary for the administration of justice in Queensland”, is the “superior court of record in Queensland and the Supreme Court general jurisdiction in and for the State” and “has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity, and otherwise.”As such, it retains jurisdiction over contempts committed against inferior courts as an aspect of its “traditional general supervisory function”. 

[31] The primary question is whether the respondent’s statements, that a court and a judicial officer “are corrupt” and another judicial officer “is likely corrupt”, scandalise the court or the judicial officer in a way that amounts to the offence. Summarising, in my view, two relevant considerations arise: first, is there a real risk as a matter of practical reality that the impugned conduct has a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the court; second, is an element of mens rea required to constitute the offence and, if so, is it proved? 

[32] The respondent asserted that his publications are protected by the constitutional implied freedom of communications on governmental and political matters but it was decided at an interlocutory stage of this proceeding that the contention did not involve a matter under the Constitution or involving its interpretation because the question was foreclosed by binding or persuasive authority against it. Accordingly, I do not reconsider it.

In Adacot & Sowle [2020] FamCAFC 215 the Full Court has considered claims that excessive judicial intervention amounted to an unfair trial, judicial bullying involved an abuse of judicial position and that there was apprehended bias

The judgment states 

On 26 September 2019 Judge Andrew of the Federal Circuit Court made parenting and property settlement orders in proceedings between Ms Sowle (“the mother”) and Mr Adacot (“the father”). The parenting orders concern the parties’ child, B, who was born in 2013, and the primary issue for determination was the mother’s wish to relocate the child’s residence away from New South Wales to Brisbane. The primary judge ordered the parties to have equal shared parental responsibility for the child and that she live with the mother in Brisbane. His Honour also made orders providing for the child and the father to spend time together. The father appeals the primary judge’s orders and while the Notice of Appeal filed on 24 October 2019 contains a number of separate challenges to the orders, only one ground was pressed on appeal, namely that the primary judge’s conduct led to an apprehension of bias and denied the father of a fair trial. When fleshed out in the written and oral arguments, the father’s contention is that the primary judge’s conduct towards the father’s legal representatives in the trial, was such that it not only gave rise to an apprehension of bias but also robbed the proceedings of any semblance of fairness and, as a result the proceedings miscarried. 

A challenge to a primary judge’s impartiality goes to the heart of the trial process and even if other challenges to the primary judge’s orders failed and even if the judge is found to be correct “... this does not assuage the impression that there was an apprehension of bias” (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 per Kirby and Crennan JJ at [117]). It was contended for the father that almost from the outset of the hearing, which took place over three days, the primary judge was critical, dismissive, sarcastic and rude to the father’s Queen’s Counsel and attempted to humiliate him. Further, the father contends that the primary judge treated the father’s solicitor in the same way when that solicitor took over following the withdrawal of the father’s Queen’s Counsel. Counsel for the mother argued that while the primary judge’s comments may have been capable of perception as “forceful”, “dogmatic”, “ultra-formalist”, “interventionist”, “formal” and “abrupt”, they were directed at Queen’s Counsel for the father, and not at the father, and therefore his Honour’s comments do not demonstrate an apprehended bias against the father himself. It was further submitted that the primary judge’s comments, directed as they were to the father’s legal representatives, were separate from the facts and merits of the case. ... 

The conduct complained of here is not, as is perhaps more usually encountered, one of excessive intervention by a primary judge into the questioning of a witness. Here, the complaint refers to the primary judge’s treatment of the father’s legal representatives. Indeed, no complaint is made about his Honour’s conduct during the taking of evidence from the witnesses. 

We start with Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 67, where it was said: There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it. (see also Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145). In Galea v Galea (1990) 19 NSWLR 263 (“Galea”), Kirby A-CJ with whom Meagher JA agreed said at 281:

The test to be applied is whether the excessive judicial questioning or perjorative [sic] comments have created a real danger that the trial was unfair. If so, the judgment must be set aside. ... Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”... The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions... (Citations omitted) 

This was a hearing of property settlement and child-related proceedings. In respect of the latter there is a statutory mandate that the primary judge actively direct, control and manage them (s 69ZM(4) of the Family Law Act 1975 (Cth) (“the Act”)) and with as little formality and legal technicality and form as possible (s 69ZM(7) and s 97(3) of the Act). This active control, however, cannot be so intrusive that it jeopardises a fair trial. Whilst there is a wide latitude in how a primary judge conducts a case, particularly in child-related proceedings, there is no warrant to descend to what has been described as “palm tree justice” (R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 257). In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 (“Royal Guardian”), a case in which the challenge to the decision rested in the primary judge’s interventions in the trial process, Basten JA said:

[16] ... there are important institutional characteristics at stake, as helpfully identified by Lord Brown in Michel v R. In such a case, as Lord Brown explained by reference to the position of the appellant: “He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ... The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials. (Footnotes omitted)

Basten JA continued:

[18] These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court...

In R v T, WA (2014) 118 SASR 382, Kourakis CJ said: .

.. If an intervention gives an apprehension of bias it will also, of necessity, show that the capacity to objectively and dispassionately evaluate the evidence has been compromised. However, there will be some, probably fewer, interventions which, even though they do not suggest prejudgment, show that the judicial officer has lost the advantage of judicial detachment which he or she would otherwise have enjoyed as a judge adhering to the common law adversarial method of trial.

In Ellis v The Queen [2015] NSWCCA 262, the Court of Criminal Appeal said:

Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case...

It is against this legal background that we turn to consider the nature, quality and extent of the primary judge’s interventions. 

The Summary of Argument filed by the father on 27 March 2020 raised not only what the primary judge said but also his Honour’s tone of voice. In order to have a complete understanding of the appeal, the audio recording of the trial was obtained and with the consent of counsel, we have listened to the transcript and noted his Honour’s tone of voice while addressing comments to the father’s lawyers. 

For the reasons that follow, we are of the view that the nature, intensity, frequency and content of the primary judge’s interventions and remarks to the lawyers for the father gave rise to an apprehension of bias and had the effect of denying him a fair trial. ... 

The proceedings on the third day did not get off to a smooth start. There was much about the presentation and appearance of the father’s Queen’s Counsel with which his Honour took issue. After an adjournment, Queen’s Counsel announced that his instructions had been withdrawn and he sought leave to withdraw. Leave was granted. The father’s instructing solicitor took over. The primary judge’s treatment of and conduct towards the father’s solicitor was such that it could bear no description other than taking inappropriate advantage of the undoubted power imbalance that exists between the judge and the lawyer and, indeed, counsel for the mother conceded during oral argument on the appeal that it amounted to bullying by the judge. 

We propose to identify the primary judge’s behaviour in categories and given the sustained nature of the primary judge’s conduct, provide one or perhaps two examples to illustrate our findings. However, that we have included only some of his Honour’s comments should not be taken as indicating that those not included were any less worthy of denunciation.... 

The aspersions cast by the primary judge on the honesty of the father’s Queens Counsel were without justification and should not have been made. 

Impugning the professionalism of the father’s Queen’s Counsel 

His Honour’s criticism of Queen’s Counsel’s professionalism covered not only the preparation and presentation of the matter, but also Queen’s Counsel’s conduct in court, dress and demeanour. .... 

On a number of occasions, the primary judge was apparently affronted by the behaviour of the father’s Queen’s Counsel, although it is difficult to understand quite what the problem was and it is quite apparent from Queens’ Counsel’s responses that he too was unsure what transgression he had committed. The criticisms were couched in oblique terms “that’s a further amplification of your behaviour”, “you’re running very close” and “you know exactly what you just did”. On several occasions the primary judge told Queen’s Counsel not to be “presumptive [sic]” or “obtuse”.  ... The oblique way in which his Honour’s criticisms of Queen’s Counsel for the father were couched makes it very difficult to understand, as Queen’s Counsel clearly found, how his conduct was wanting. Equally so is his Honour’s use of the term “a fortiori”, however we see no point in attempting to delve further into that. 

There was no basis for the primary judge to impugn the professionalism of the father’s Queens Counsel in the manner he did or at all. 

Rudeness to the father’s Queen’s Counsel 

As ought to be apparent from the comments instanced above, much of his Honour’s discourse with Queen’s Counsel was couched using rude and intemperate language. 

On three occasions when attempting to make submissions, Queen’s Counsel took his Honour to a particular place in a document and read the commencing words aloud – and his Honour remarked “I can read English”. 

On another occasion his Honour referred to a paragraph in an affidavit, and in response Queen’s Counsel attempted to read out part of the paragraph to the primary judge and his Honour interrupted to instruct Queen’s Counsel not to read the passage to him. 

On a number of occasions his Honour asked Queen’s Counsel to “[a]ttend”. The first time it occurred his Honour explained that he meant “pay attention”.[37] His Honour felt the need to refresh Queen’s Counsel’s memory as to what he required when discussing the inspection of subpoenaed documents. ... The primary judge told Queen’s Counsel that he had been responsible for wasting time. In his defence, Queen’s Counsel said that he did not have control of the running of a particular matter, appearing as he did for the father, to which his Honour said: “[w]ell, you seem to have done a damn good job so far taking up in excess of half a day for effectively nothing”. 

Having listened to the audio version of the transcript, we are struck by the stark difference in the primary judge’s tone and terms of address between when his Honour addressed counsel for the mother and Queen’s Counsel for the father which is consistent with the nature of his Honour’s remarks to the father’s lawyers and aligns with the complaint made by the father in his Summary of Argument. 

Hectoring, bullying, insulting and demeaning 

As we have said, after approximately two hours or so of the third day of the hearing, Queen’s Counsel for the father sought his Honour’s leave to withdraw from the proceedings. In submissions on the appeal, counsel, who had also appeared before the primary judge, submitted that he considered that, given his Honour’s personal attacks on him, for him to withdraw would improve the atmosphere in the proceedings. It did not. If possible, his Honour’s conduct worsened, and rather than attempt to describe it, we propose to set out what he said. ... Nor was the father’s solicitor spared his Honour’s rudeness. 

At a point in the primary judge’s hounding of the solicitor to hand up a Case Outline, the solicitor, having already informed his Honour that he did not have one, told his Honour that he was having difficulty understanding what his Honour wanted of him ... 

Unfortunately, the solicitor’s attempts to explain the circumstances of the father’s non-attendance were thwarted by his Honour’s constant interruptions. ... 

At this point, as the primary judge observed, the solicitor was “left speechless” and left floundering to the point of admitting that he did not know what the primary judge wanted him to say. The primary judge’s conduct had resulted in the solicitor feeling unable to make any meaningful submission in the matter.

In considering apprehended bias and an unfair trial the Full Court states 

The father contends that the primary judge’s interventions, their content and frequency gave rise to an apprehension of bias that no matter what the father’s case was, it would not be accepted and his Honour’s interventions were such that they prevented the father’s case from being presented and denied him a fair trial. Whether conduct gives rise to an apprehension of bias is answered by considering whether a fair-minded and informed lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in the case, such that he or she was not open to persuasion, rather than whether he or she did so (see Johnson v Johnson (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]–[8]). 

It was argued for the mother that the primary judge’s comments did not raise an apprehension of bias because his Honour reserved his criticism for the father’s lawyers and directed it to preparation and presentation of the father’s case rather than it being directed to the father. We do not agree. 

While the lion’s share of two of the three days of the hearing were taken up by his Honour’s criticisms of the father’s legal team, his Honour made several references to the father “swanning around” the Gold Coast in a most dismissive way. Although counsel for the mother sought to characterise that comment as being merely part of his Honour’s use of the vernacular in discourse with the father’s solicitor, a consideration of those comments in the context of his Honour’s comments during the trial lead us to no other conclusion than he was dismissing the explanation for the father’s non-attendance in court, reducing his account of spending time with the parties’ child to “swanning around the Gold Coast”. However, that is not to the point. 

His Honour’s interventions and comments about the father’s legal representatives are sufficient to satisfy the test. It would introduce unacceptable artificiality if there was an attempt to minimise the effect of these interventions and comments because the primary judge did not behave in the same way when the evidence was being given. 

As we have said, the nature, content and number of his Honour’s interruptions, criticisms and ad hominem attacks on Queen’s Counsel for the father, of themselves, drive the conclusion that the fair-minded observer might apprehend that the primary judge might not bring an impartial mind to the determination of the issues as they impacted the father’s case. 

Indeed, such a fair-minded observer might well think that his Honour bore significant animus towards Queen’s Counsel. Equally the primary judge’s treatment of the father’s solicitor, when he took over the conduct of the hearing, was hectoring, insulting, belittling, sarcastic and rude and that conduct too would, in our opinion, lead the impartial observer to the relevant apprehension. 

The father contends that the primary judge’s conduct and interventions prevented him from receiving a fair trial. 

Returning to the legal construct to which we earlier referred, in Royal Guardian Ward JA said:

[169] In this Court, the issue of judicial intervention was considered in Ellis v R [2015] NSWCCA 262 (Ellis). There, the Court (Bathurst CJ; R A Hulme and Garling JJ) noted the dangers resulting from excessive intrusion by a trial judge in adversarial proceedings as including the inability of a judge who has “descended into the arena” properly to assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. The Court emphasised that the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice. 

In Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530, an appeal concerning excessive judicial intervention, Greenwood and Rangiah JJ said: ... It is a part of the judicial function of deciding cases to question and challenge the submissions being made. After all, a judge must be able to understand the competing arguments and their consequences in order to decide which is the correct or preferable argument. The questioning and testing of submissions may legitimately be vigorous and robust. However, it must be balanced by the requirements of procedural fairness. Procedural fairness requires that each party be allowed a reasonable opportunity to present their case... (Citations omitted)

In Galea at 281, Kirby AC-J referred to the principles relevant to excessive judicial intervention and said:

... The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside ... (Citations omitted)

As recently as this year, the Full Court in Finch & Finch [2020] FamCAFC 60; (2020) FLC 93-949 had cause to revisit these principles and at [16] said, inter alia: .

.. (c) The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness... ... (e) Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views”... (Citations omitted)

The primary judge’s interventions could not be regarded as justified even if some delay or inconvenience was caused by reason of the raising of the interlocutory applications late in the piece. The tone, nature and ferocity of his Honour’s comments could never be seen as justified, and in our view resulted in the father not receiving a fair trial and raised the identified apprehended bias, that no matter what the father’s case was as presented, it would be rejected.

In concluding the Court states

... as we have indicated, we find the ground made out and conclude that the primary judge, by his conduct, squarely raised an apprehension of bias and failed to afford the father a fair trial. 

We feel bound to add here that the primary judge’s interventions, his cruel, insulting, humiliating and rude interactions with the father’s Queen’s Counsel and his solicitor, amounted to an abuse of the power of his position and, in our view must be redressed by allowing the appeal lest the integrity of the judicial system be undermined. 

We conclude by referring to Toner v Attorney-General (NSW) [1991] NSWCA 267, in which the New South Wales Court of Appeal considered a contretemps between counsel and the presiding judge which resulted in the presiding judge finding that counsel was in contempt. In the course of dismissing the finding of contempt, the Court of Appeal (Kirby P, Clarke JA and Hope AJA) said at 15:

... It is the duty of counsel and judicial officers to conduct themselves in a temperate manner. It is the nature of court proceedings that they will often be charged with emotion. Only by observing restraint will the legal representatives of parties, and judicial officers be able to ensure the orderly, proper and expeditious disposition of the proceedings in which they take part... (Citations omitted)

Further, at 21 their Honours said:

... Whilst there are duties of courtesy imposed upon legal representatives as a coronary [sic] of the privileges they enjoy as advocates, there is a correlative duty in judicial officers to listen patiently and carefully and to retain self control at all times... (Citations omitted)

Clearly then the finding that the primary judge failed to afford the father a fair trial and the apprehension of bias dictates that the appeal be allowed. 

It was accepted that in the event of the appeal being successful, the matter must be remitted to the Federal Circuit Court to be heard by a judge other than the primary judge.

We might recall Michael Kirby's 'Judicial Stress and Judicial Bullying' in (2014) 14(1) QUT Law Review referring to the inherent features of the judicial function that are prone to occasion stress amongst office holders. 

The isolation and frequent loneliness of the work. The pressure of growing case-loads without commensurate increases in support, resources and salaries. The common lack of specific training, save for on-the-job observance of earlier appointees. The unavailability (available in most other senior positions) of delegation of the essential decision-making responsibility. The frequent lack of feelings, and expression, of appreciation for work conscientiously performed. The susceptibilities to mid-life pressures; emotional, sexual and physical crises. The added stress of frequent changes in the law and the need to adapt to new and unfamiliar legal doctrine and to technological innovations. The particular stresses of rural, appellate and leadership positions .... As well, I elsewhere described the media and political attacks on the judiciary, who were usually disabled from responding.