GREENWOOD J
84 These are two appeals heard together against sentence and conviction for contempt in the face of the Federal Magistrates Court of Australia. In the case of Mr Clampett (QUD 203 of 2008), the conviction arose out of events that occurred before the Court on 2 July 2008 in the course of Federal Magistrate Burnett delivering ex tempore reasons for the dismissal of an application by Ms Noah to strike out, as beyond jurisdiction, a proceeding for her oral examination pursuant to an order for an enforcement summons consequent upon Ms Noah's failure to pay costs of $3,505.00 the subject of an order in an earlier proceeding. In the case of Ms Noah (QUD 323 of 2008), her conviction and sentence arose out of events in the course of the oral examination.
85 Before turning to the grounds of appeal, the contextual background needs to be explained as it informs the subsequent events and, like all human events, context matters.
86 In 2007 Ms Noah sought to stand as a candidate for the House of Representatives seat of Rankin in the Federal election to be held on 24 November 2007. In order to do so, Ms Noah was required to nominate for the seat in the manner required by the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") which required her, among other things, to lodge a nomination form with the Office of the Electoral Commissioner (the "Australian Electoral Commission") signed by not fewer than 50 persons entitled to vote at the election, as she was intending to stand as an independent candidate rather than a candidate endorsed by a political party (s 166(1)(b) of the Electoral Act). She was also required to comply with s 170 of the Electoral Act which provided for the payment, relevantly here, of a nomination fee or deposit of $500.00 "in legal tender or in a cheque drawn by a bank or other financial institution on itself" (s 170(3)(b)).
87 As things transpired, the Divisional Returning Officer for the seat of Rankin, an employee of the Australian Electoral Commission, Mr Scott Bailey, rejected Ms Noah's nomination under s 172 of the Electoral Act on the ground that she had failed to comply with s 166 of the Electoral Act. A Divisional Returning Officer is the Australian Electoral Commission's Officer responsible for conducting the election for the House of Representatives in each division.
88 Ms Noah sought judicial review of the rejection decision and commenced proceedings before the Federal Magistrates Court (BRG 933 of 2007) for particular relief. In that application, Ms Noah nominated Mr Ian Campbell as the respondent. Mr Campbell was the Australian Electoral Commissioner from 2 July 2005 to 19 September 2008.
89 For all the obvious reasons, the application was heard urgently. It was heard before his Honour, Federal Magistrate Burnett. The Australian Government Solicitor (the "AGS") entered an appearance for Mr Campbell and instructed Mr Gotterson QC to appear on the hearing of the application and resist the orders sought by Ms Noah. Ms Noah was self‑represented. On the hearing of the application, a preliminary matter arose. Since the decision‑maker was Mr Bailey, the Divisional Returning Officer for the seat of Rankin, rather than Mr Campbell, FM Burnett suggested that the application should be properly constituted by making an order for the removal of Mr Campbell as respondent and substituting Mr Bailey as the officer responsible under the Electoral Act. Ms Noah sought, with the support and acceptance of the AGS, that order. It was made. The application for substantive relief was then immediately heard. The AGS proceeded to represent Mr Bailey in Ms Noah's challenge to Mr Bailey's rejection decision and Mr Gotterson QC continued to appear to resist the application on instructions from the AGS. The application was thus heard and determined.
90 This sequence of events became important as the question of the standing of the AGS to represent Mr Bailey became a major matter of enduring concern to Ms Noah. She formed the view and pressed it strongly in subsequent proceedings before FM Burnett that Mr Bailey had not instructed the AGS to act in the matter or at all; the AGS had not, after the substitution order, filed a fresh notice of appearance on behalf of Mr Bailey; the AGS could not under its charter represent a private citizen; and, the conduct of AGS officers of purporting to act without the instructions of Mr Bailey necessarily involved a breach of ethical standards on the part of those officers and a contravention of legislation governing the conduct of the profession.
91 Ms Noah was unsuccessful in her application for review of the rejection decision. The application was dismissed on 21 November 2007 (Noah v Campbell [2007] FMCA 2128). After a consideration of public interest issues going to the exercise of the discretion on costs, Ms Noah was ordered to pay the costs of the application fixed on the basis of a scale of allowable fees "for preparation" of the matter to what is described as "Stage 1" at $2,005.00. Recoverable counsel's fees were allowed at $1,500.00 constituting recoverable costs of the proceeding of $3,505.00 in all. Federal Magistrate Burnett did not allow the full amount of senior counsel's fees as a recoverable cost item.
92 Ms Noah failed to pay those costs.
93 However, several attempts were made by Ms Noah to pay the amount of the costs by delivering or posting to Mr Bailey personally at his private residence, a cheque in that sum drawn by Ms Noah's husband on his company's account. Two things influenced Ms Noah to deal with the costs in this way. First, Ms Noah simply refused to deal with the AGS or recognise or accept that the AGS had any standing to represent Mr Bailey, for all the reasons mentioned earlier notwithstanding that Mr Bailey was for all purposes relevant to the proceedings, a representative decision‑maker of the Australian Electoral Commission. Secondly, Ms Noah took the position that she could not pay the costs other than by way of legal tender which, in her view, necessarily involved payment in gold or silver. Ms Noah took the position and sought to articulate it before FM Burnett that payment in any way other than by gold or silver would not be constitutionally competent or possible as the printing, issue and circulation of paper money or coins pursuant to the Currency Act 1965 (Cth) (the "Currency Act") is unlawful as the Currency Act is not a valid law of the Commonwealth by reason of s 115 of the Commonwealth Constitution and related provisions of the Constitution. That argument also involved questions going to the validity of ss 15 and 22 of the Currency Act.
94 Unfortunately, these two notions fundamentally affected the subsequent course of events. Ms Noah was present in Court and participated in the substitution order introducing Mr Scott Bailey as the relevant respondent to the review proceeding she had commenced. The AGS was not acting for Mr Bailey in any private capacity as a citizen of Australia to either assert a right on his behalf or resist a contended private wrong, as Ms Noah believed. The AGS represented Mr Bailey in his representative capacity as the Divisional Returning Officer of the Australian Electoral Commission and decision‑maker at the relevant date for the seat of Rankin. There was no need for Ms Noah to be seeking out and contacting Mr Bailey about any of these matters including the payment of costs by means of her husband's company's cheque, which Mr Bailey, on the evidence, resented. Plainly enough, much wasted time, cost and emotional energy could have been avoided had Ms Noah simply made arrangements with the AGS for the payment of the costs debt by way of a bank cheque. Such a step would have been entirely orthodox. The entire matter would then have simply evaporated.
95 The second notion concerning the unconstitutionality of the Currency Actis also misconceived. As to the rejection of this notion, see: Re Skyring's Application (No. 2) (1985) 58 ALR 629 at 633 per Deane J where his Honour said this:
I have come to a clear conclusion that there is no substance in the argument that there is a constitutional bar against the issue by the Commonwealth of paper money as legal tender. Nor, in my view, would there be any substance in an argument that the provisions of s 36(1) of the Reserve Bank Act 1959 are invalidated or overruled by the provisions of the Currency Act 1965.
96 An appeal from the orders of Deane J was dismissed by their Honours Mason, Wilson, Brennan and Dawson JJ on 9 July 1985. See also Skyring v FCT (1992) 23 ATR 84; Ramsey v Skyring (1999) 164 ALR 378 per Sackville J at [2], and [13] to [50]; Jones v Skyring (1992) 109 ALR 303 per Toohey J; Skyring v Ramsey [2000] FCA 774 per Ryan, O'Connor and Weinberg JJ; Re Skyring (1994) 68 ALJR 618 per Dawson J at pp 618‑619; In the Matter of Skyring [2004] FCA 827 per Dowsett J at [2] and Skyring v Commissioner of Taxation (2008) 244 ALR 505 at [6] to [26] in which the authorities are gathered together.
97 Again, substantial public resources are apt to be entirely wasted by ventilating this notion of unconstitutionality as a contended answer to an obligation to pay a lawful debt, in the light of the above authorities, unless there is an entirely new ground of unconstitutionality to be advanced.
98 Ms Noah did not appeal from the order dismissing her application for judicial review or the order as to costs. Since the debt had not been paid, the AGS applied ex parte on behalf of the enforcement creditor (in the name of Mr Bailey as the judgment creditor in his representative capacity notwithstanding Mr Bailey had ceased to be an employee of the Australian Electoral Commission in December 2007) for an order for the issue of an enforcement summons. That order was made. Rule 1.05(2) of the Federal Magistrates Court Rules provides that if in a particular case the rules are insufficient, the court may apply the Federal Court Rules in whole or in part. The Deputy District Registrar applied the Federal Court Rules in making that order. The oral examination of Ms Noah came on for hearing before FM Burnett on 2 July 2008.
99 Before the oral examination began, FM Burnett heard an application made by Ms Noah to strike out the enforcement summons and, in effect, set aside the enforcement order as beyond jurisdiction. Sixteen grounds were relied upon by Ms Noah to support that contention based on affidavit and other material she identified and recited into the record. The particular contentions are identified by her at pp 15 and 16 of the transcript of proceedings before FM Burnett. The grounds are then expanded upon throughout the transcript by Ms Noah. It is not necessary to repeat each of the contentions here. However, it is fair to say that the submissions are dominated (although there are other grounds as well) by the notion that the AGS was not a "party" to the proceeding; the AGS had no standing to seek orders or take any step in the name of Mr Bailey; the AGS could not represent Mr Bailey; the AGS had no instructions from Mr Bailey personally; and, because the AGS had no relevant standing, Ms Noah therefore had taken steps to arrange for payment to Mr Bailey directly of the amount of the costs. Ms Noah also contended that she ought to have been served with and heard on the creditor's application for an enforcement order.
100 A preliminary matter was raised by Ms Noah concerning the constitutionality of the initial order for payment of costs and the implications of that argument for the enforcement proceeding more generally. Ms Noah had given a notice to the Attorneys‑General of the States and the Commonwealth of the constitutional questions she sought to raise. FM Burnett heard Ms Noah on each of the 16 arguments she advanced, but for the contention in relation to the constitutionality of the Currency Act which relied upon the argument based upon s 115 of the Constitution and related provisions addressed in the above authorities at [95] and [96]. FM Burnett considered that there was simply no merit in entertaining submissions on that question.
101 At the conclusion of Ms Noah's submissions, FM Burnett said that he did not need to hear submissions from Mr Henry of the AGS who appeared on behalf of the enforcement creditor, in response to any of Ms Noah's submissions. The election by the Federal Magistrate to commence delivering ex tempore reasons for his proposed order to dismiss the strike‑out application, addressing each of Ms Noah's submissions, without calling upon Mr Henry to respond on any matter, may have created in the mind of Ms Noah the impression that the Federal Magistrate either had pre‑determined the matter or had not given sufficient consideration to her contentions. This impression may have had particular resonance in Ms Noah's mind having regard to the strength of her conviction that the AGS had no standing to act for Mr Bailey and that she was confronted with a contended impossibility of payment of the costs order because of the unconstitutionality of the Currency Act. Notwithstanding that both these conceptions were entirely unmeritorious and neither would have required FM Burnett to call upon Mr Henry to respond to them, it may explain, in part, the response of the lay litigant to subsequent events.
102 Nevertheless, it must be remembered that the Federal Magistrates Court is a court in which a large volume of matters across a wide jurisdiction are dealt with every day. It is essential that judicial officers in that court deal with matters at the conclusion of the hearing and that reasons be delivered ex tempore rather than reserved for later publication, if at all possible. In acting dispositively of the controversy before the court it may very well be the case that a judicial officer does not need to hear submissions from one side of the controversy if the judicial officer is satisfied that a particular submission is entirely unmeritorious.
103 In any event, during the course of FM Burnett delivering ex tempore reasons for the proposed dismissal of Ms Noah's strike‑out application, the following exchange occurred as reflected in the transcript of proceedings at pp 57, 58 and 59:
JUDGMENT DELIVERED [the pronouncement of ex tempore reasons]
FEDERAL MAGISTATE: There's no need to make notes, Ms Noah, you'll get a transcript of these proceedings at the end of the day.
MS NOAH: I'm not making notes.
UNIDENTIFIED SPEAKER: Ripping the Constitution up.
MS NOAH: No, I'm not, I'm ripping up the rules that apply.
FEDERAL MAGISTRATE: Yes, good.
[Continuation of ex tempore reasons]
FEDERAL MAGISTRATE: Now, gentlemen, if you don't be quiet, I'll deal with you. Is that what you'd like? One further utterance from you, madam, and I will deal with you as well.
MS NOAH: In which way?
FEDERAL MAGISTRATE: Yes. Just watch your tongue or I will deal with you as well.
MS NOAH: You already are dealing with me, sir, in not a very fair and equitable way.
FEDERAL MAGISTRATE: Ms Noah, I'll give you one further warning.
MR CLAMPETT: Will that be civil contempt or criminal contempt?
MS NOAH: Yes, that's what I'd like to know. Would that be civil or criminal?
FEDERAL MAGISTRATE: Okay, that's it. What's your name, sir?
MR CLAMPETT: It has got nothing to do with you, your Honour.
FEDERAL MAGISTRATE: What is your name?
MR CLAMPETT: I'm the public gallery.
FEDERAL MAGISTRATE: Would you get the - just get the Federal Police along here, thank you, Mr Bailiff.
MR CLAMPETT: They know who I am.
FEDERAL MAGISTRATE: I'm not interest (sic) in - I want to know your name, please.
MR CLAMPETT: Leonard William Clampett. You know very well who I am.
FEDERAL MAGISTRATE: I have no idea.
MR CLAMPETT: That's the reason why you've got a kangaroo on the wall behind you. It's called the Kangaroo Court.
MS NOAH: Yes.
MR CLAMPETT: Both you and Mr Henry are paid by the Commonwealth Government.
MS NOAH: To represent the people, not protect your public spectrum colleagues, conspire with them, to pervert the course of justice.
FEDERAL MAGISTRATE: Anything further you want to add?
MS NOAH: Quite a lot, actually, I'd like to appeal this and I don't recognise (indistinct) … ---
FEDERAL MAGISTRATE: Well, you'll get your chance to appeal but after I've dealt with you for contempt.
MS NOAH: I don't like ---
FEDERAL MAGISTRATE: Just adjourn the Court for the time being, thanks.
MS NOAH: I want to challenge the jurisdiction of this whole Court actually.
ADJOURNED
104 I have listened to the entirety of the audio digital recording for the proceedings of 2 July 2008. At line 46 at p 57, Ms Noah's statement "No, I'm not, I'm ripping up the rules that apply" should read, "No, I'm not, I'm ripping up the rules that don't apply". Ms Noah was not charged with contempt in the face of the court on the footing that she immediately embraced Mr Clampett's statement that a kangaroo appears on the wall behind the Federal Magistrate (as part of the Coat of Arms) because the court was conducting itself as a "kangaroo court". Nor was Ms Noah charged with contempt in the face of the court on the footing that she embraced Mr Clampett's observation that Mr Henry and the presiding Federal Magistrate are both "paid by the Commonwealth Government" adding her own comment "to represent the people, not protect your public spectrum colleagues, conspire with them, to pervert the course of justice".
105 The audio digital recording and the transcript reveal that Federal Magistrate Burnett took this course. The court reconvened after the adjournment later that afternoon at approximately 3.33pm according to the transcript. Ms Noah says that Mr Henry had left the court by then. However, the audio recording demonstrates that Mr Henry was present in court. Perhaps there is a slight inaccuracy in the time nominated in the transcript. FM Burnett adjourned the enforcement summons and the completion of ex tempore reasons for proposed orders dismissing the strike‑out application. FM Burnett said that he had sought a copy of the transcript and that he would deal with Mr Clampett in the following week. FM Burnett requested Mr Henry to file an affidavit deposing to his recollection of the concluding period of the hearing.
106 The application was adjourned to 9 July 2008.
107 On 4 July 2008, Mr Henry swore an affidavit in relation to the concluding events of 2 July 2008. On 4 July 2008, FM Burnett issued a warrant for the arrest of Mr Clampett so as to bring him before the court to answer charges in relation to two counts of contempt in the face of the court. Count 1 is recited in these terms:
Leonard William Clampett is charged with contempt in the face of the Court in that [on] or about 3.27pm on Wednesday 2 July 2008 at the Federal Magistrates Court of Australia constituted by Federal Magistrate Burnett at Court 5, Level 1 Commonwealth Law Courts Brisbane Leonard William Clampett did interrupt proceedings during the course of delivery of an ex tempore judgment of the Court from the public gallery in particular calling out to the Court by tone and words intended to be insulting the words, "That's the reason why you've got a kangaroo on the wall behind you. It's called a kangaroo court".
108 Count 2 is recited in these terms:
Leonard William Clampett is charged with contempt in the face of the Court in that on or about 3.27pm on Wednesday 2 July 2008 at the Federal Magistrates Court of Australia constituted by Federal Magistrate Burnett at Court 5, Level 1 Commonwealth Law Courts Brisbane Leonard William Clampett did interrupt proceedings during the course of delivery of an ex tempore judgment of the Court from the public gallery in particular calling out to the Court by tone and words intended to scandalise the Court by calling out the words "Both you and Mr Henry are paid by the Commonwealth" meaning the Court and Mr Henry were acting in collusion to deny the applicant her right to an impartial hearing according to law and that the Court was proceeding corruptly, not independently and acting in collusion with the other party to the proceeding.
109 At approximately 10.00am on 9 July 2008, Mr Clampett appeared before the Federal Magistrates Court and was charged by FM Burnett with both counts of contempt in the face of the court. Mr Clampett was self‑represented. At p 5, ll 26 to 33 of the transcript of proceedings, Mr Clampett said this to FM Burnett:
MR CLAMPETT: I'd like you to explain to me, firstly, how you believe I could have possibly paid $2000.00 this morning not to be brought here after you sent two police cars, a deputy sheriff and three armed federal police officers to my home. Did you think there was going to be a siege or something, did you? I was coming here this morning at 9.30 anyway to continue listening to the lies that you're telling.
110 At p 3, ll 10 to 12 of the transcript, Mr Clampett responded to Count 2 asserting that he was "absolutely, not guilty and you know it". Mr Clampett said to FM Burnett, "It would make things easier for yourself if you didn't tell lies too". Mr Clampett then asked, "… and would you mind removing these handcuffs". This exchange occurred:
FEDERAL MAGISTRATE: No, they will remain in place.
MR CLAMPETT: Oh, so the intimidation goes on, does it?
111 Mr Clampett ultimately entered a plea of not guilty to Count 1.
112 In the course of the hearing of the contempt charges, Mr Clampett repeatedly challenged the jurisdiction of FM Burnett to hear the charges laid against him. Mr Clampett requested a number of times that Mr Henry be removed from the court as he was to be a witness in the prosecution of the charges. FM Burnett said that he controlled the proceedings not Mr Clampett. Mr Clampett described the conduct of FM Burnett as intimidation and said, "You're a toe cutter". Upon being read the second count, Mr Clampett protested, before pleading to Count 2, that he did not say the words recited in the Count 2 following the quoted words, "Both you and Mr Henry are paid by the Commonwealth". Those additional words explanatory of the quoted words were:
… meaning the Court and Mr Henry were acting in collusion to deny the applicant her right to an impartial hearing according to law and that the Court was proceeding corruptly, not independently and acting in collusion with the other party to the proceeding.
113 Exchanges took place between FM Burnett and Mr Clampett as to whether the transcript reflected the additional words. In response to FM Burnett's question as to whether Mr Clampett wished to raise any other matters in his defence, this exchange occurred:
MR CLAMPETT: Yes, I want you and Maurice James Henry as witnesses because you're both liars.
FEDERAL MAGISTRATE: Yes, okay.
MR CLAMPETT: I want you in the witness box.
FEDERAL MAGISTRATE: Anything further you want to say beyond that?
MR CLAMPETT: There's nothing else to say unless you tell the truth.
114 Additionally, Mr Clampett asserted that FM Burnett could not hear the charges because, "No man can judge in his own court. You can't accuse me then find me guilty". Mr Clampett added, "You think anyone but you would be able to charge me, bring me to the Court and people would think you would find me not guilty? You're a fool". Mr Clampett continued to challenge the authority and jurisdiction of FM Burnett to hear and determine each count. FM Burnett found Mr Clampett guilty of both counts and asked him a series of questions addressing factors relevant to sentence such as the age, health, mental state and service background of Mr Clampett. Mr Clampett contended that these questions were irrelevant and challenged the jurisdiction of FM Burnett to conduct the proceeding.
115 As to the question of an apology this exchange occurred:
FEDERAL MAGISTRATE: Clearly, you don't intend to apologise for your disruption in the proceedings last Wednesday.
MR CLAMPETT: Apologise for what?
FEDERAL MAGISTRATE: Yes, okay, thank you.
116 FM Burnett delivered ex tempore reasons for the sentence he imposed upon Mr Clampett. FM Burnett referred to an affidavit of Mr Clampett marked Exhibit 2 in which references are made to the Federal Magistrates Court of Australia described as the "Fe'ral Magistrates Court". In that affidavit references are made to the "Fe'ral Treasurer" and the "Fe'ral Commissioner of Taxation". FM Burnett referred to warnings he had issued during the course of the proceeding. FM Burnett concluded that Mr Clampett had exhibited a "generally unhealthy attitude to the Court revealed not only by his conduct but by his affidavit and further by his refusal to apologise". FM Burnett ordered:
(1) That Mr Clampett be imprisoned with hard labour to 28 days on each count, each sentence to be served concurrently.
117 Ms Noah was in court when these events occurred.
118 Mr Clampett remained in custody until 17 July 2008 at which time he was released on bail. At the conclusion of the sentencing remarks, the court was adjourned. At 10.49am the court resumed and FM Burnett commenced further extemporising the reasons for the dismissal of the strike‑out application. Upon the pronouncement of those reasons, discussion took place about the costs of the strike‑out application. Ms Noah pressed her contention that the AGS had no right of appearance. Ms Noah asserted a right to respond to the ex tempore reasons for judgment which was denied. Ms Noah was directed to enter the witness stand and respond to questions from Mr Henry in the execution of the enforcement summons. This exchange occurred:
FEDERAL MAGISTRATE: Now you stand in the witness box and you answer Mr Henry's questions.
MS NOAH: Oh, okay, really and I don't get the opportunity to call witnesses myself and have the same - it's like a one‑sided hearing, is it?
FEDERAL MAGISTRATE: This is an enforcement summons. This is like an oral examination.
MS NOAH: Oh, okay.
FEDERAL MAGISTRATE: You haven't paid the money that was ordered to be paid so Mr Henry is entitled to ask you questions to find out what you're worth so that he can go out and arrange for the bailiff to sell your house or sell your car or whatever it might be to pay the outstanding sum of money.
MS NOAH: Well, I'll answer questions to him if he will answer my questions to[o] …
FEDERAL MAGISTRATE: No, no, no. Ms Noah, Ms Noah, let's just get the ground rules fairly straight and clear immediately. I don't want to have to deal with you in a very unpleasant way.
MS NOAH: No, I've seen how that happens.
FEDERAL MAGISTRATE: Yes, but I will if you force my hand, I will. Okay. So don't be insolent, please. Just be cooperative. You have remedies. You can take anything I do that you're unhappy with, you can take on appeal … but, for the time being, you simply have to accept what I say and do as I ask. If you don't, I'll deal with you for contempt. Okay, now, I've warned you twice now. I've warned you on the last occasion. I'm warning you again today. Please don't force my hand. If you do, you know what will happen.
MS NOAH: But I don't think that you're operating within the Rules, your Honour, surely I have a right to ---
…
FEDERAL MAGISTRATE: Ms Noah, I'm not going to negotiate with you. Would you mind standing in the witness box, please?
MS NOAH: No, I'll stand in the witness box, why not? Let's go along with your charade.
FEDERAL MAGISTRATE: Ms Noah, hold your tongue.
119 Mr Henry then asked Ms Noah a series of questions about the various documents described in the summons none of which Ms Noah had brought to court with her.
120 I have listened to the audio tape of the oral examination and read the transcript. It is fair to say that Ms Noah was uncooperative and obfuscating in her responses to almost all of the questions put to her. When asked about gross weekly earnings derived from various employers, responses in these terms emerged:
MR HENRY: All right. What was your pay there? [being a reference to employment of Ms Noah by Mr Gary Dean]
MS NOAH: I don't know. It was difficult to say really, because there's nothing in the Currency Act that allows me to measure it.
MR HENRY: Did he pay you in coins or did he pay you in cheque or did he pay you … ?
MS NOAH: No, he didn't pay me in gold and silver coins.
…
MR HENRY: How much is outstanding on each of those mortgages?
MS NOAH: I don't know, I'm unable to measure that because it doesn't specify in the Currency Act. I've got no means of assessing my financial …
MR HENRY: Okay how much were the loans, how much for the loans in 2000 and 2003 [from the Bank of Queensland]?
MS NOAH: I don't know, I can't measure that because it doesn't specify in the Currency Act. ... What I want to say is I can't measure my financial means because there's nothing in the Currency Act that specifies how one can do that, I've got nothing to measure it against.
121 At pp 91 and 92 of the transcript and as reflected in the audio digital recording, Ms Noah returned to the following theme:
MR HENRY: You are here to be examined as [to] your ability capacity to pay the costs of the failed application last year to the Court as well as the costs of the enforcement.
WITNESS: Okay, so it's just we listen to what you have to say and no one else. I don't have any say in any of this. Is that how it works?
MR HENRY: No.
FEDERAL MAGISTRATE: Ms Noah, I've already - listen I've already explained to you. There's a judgment against you. $3500.00. You haven't paid it.
WITNESS: I have.
FEDERAL MAGISTRATE: You haven't paid it. Mr Henry's client.
WITNESS: Who's that, sorry?
FEDERAL MAGISTRATE: In this case, Mr Bailey … brings an application for the recovery of his costs.
WITNESS: Where is he? Where's he written that down?
FEDERAL MAGISTRATE: No, no, Ms Noah, please don't debate things with me, I'm just telling you what the state of the law is. You don't have to like it but it's just the fact.
WITNESS: No, but I'd like to see Mr Henry's and Mr Bailey's instructions.
FEDERAL MAGISTRATE: Well, no Ms Noah.
…
WITNESS: So how do we know that he wants me to pay his costs. I've not seen them.
…
FEDERAL MAGISTRATE: This process is all about Mr Henry inquiring, on behalf of the Australian Government Solicitor, who is a solicitor for Mr Bailey, what assets you have so if they need to enforce their order by compelling the bailiff to go and sell your property, they can.
…
MR HENRY: Certainly. In the circumstances, your Honour, I see no point in asking any further questions.
122 At 11.57am, Ms Noah left the witness box, which concluded the oral examination. The following exchange then occurred which gave rise to the contempt charge laid against Ms Noah.
FEDERAL MAGISTRATE: I'll adjourn the proceedings generally, thank you. Sorry, before we go, Mr Henry, I will adjourn the application till 2.30 to deal with the matter of costs. You will have an opportunity between now and 2.30 Ms Noah to look at the submissions that Mr Henry has prepared. I'll hear the arguments at 2.30 and I'll make orders ---
MS NOAH: Whose arguments will you hear, just his or mine as well?
FEDERAL MAGISTRATE: I'll hear your arguments as well.
MS NOAH: Ooh, woo.
FEDERAL MAGISTRATE: Now Ms Noah. If you don't take this process seriously I promise you ---
MS NOAH: Well, I'm trying to.
FEDERAL MAGISTRATE: No, you're not. You're not. Now, I've been very indulgent, very indulgent with you. Last week and this week. You have tested my patience very sorely. Very …
MS NOAH: Yes, it's been mutual, your Honour.
FEDERAL MAGISTRATE: No, well that's it. That's end of it, thank you. I'll adjourn the proceedings. I'll take a recording of the last five minutes, please, and I'll deal with you at 2.30. In the meantime, the bailiff can take Ms Noah downstairs and hold her.
MS NOAH: Oh, that's ridiculous.
MR HENRY: Thank you, your Honour.
MS NOAH: I don't recognise the jurisdiction of this Court and I will not stand in honour of that man. He's a disgrace.
123 The proceeding was adjourned until 2.30pm. At 2.32pm, FM Burnett advised Ms Noah of the charge in these terms:
You, in the face of the Court, about 11.57 am today, Wednesday, 9 July 2008, the Court being constituted by myself, Court 5, Level 1, Commonwealth Law Courts, did act in contempt of proceedings before the Court by stating in tone and words intending to be insulting and contemptuous of the Court the words "Yes, it's been mutual, your Honour" when admonished by the Court in respect of your attitude, behaviour and lack of cooperation in respect of enforcement proceedings then before the Court.
124 Ms Noah entered a plea of "not guilty".
125 At pp 97 to 101 of the transcript of proceedings on 9 July 2008, Ms Noah then made a series of submissions by way of defence to the charge. Those submissions relied upon events that had taken place in the course of the enforcement proceeding and events which occurred on 2 July 2008. These matters were thought by Ms Noah to be important relevant matters in answer to the suggestion that her statement constituted contempt in the face of the court. The matters of importance were these. First, FM Burnett had provided Mr Henry on 2 July 2008 with an opportunity at the outset of the hearing on 2 July 2008 to obtain a copy of legislation relating to the circumstances concerning the representation of Mr Bailey by the AGS. Ms Noah contended that the AGS ought not to have been provided with that opportunity.
126 Secondly, when Ms Noah sought to make submissions on 2 July 2008 FM Burnett made "constant attempts to intimidate me by making derogatory and racist comments throughout and badgering me". Ms Noah says she remained calm throughout this conduct. Thirdly, Ms Noah says that, "whenever I attempted to raise the constitutional matters pertinent to my case and the Commonwealth, Mr Burnett intercepted me and made many gobsmacking remarks which, in my view, slandered the fundamental laws of this country such as the Currency Act as a load of garbage".
127 Fourthly, Ms Noah says that FM Burnett refused Ms Noah's requests to call witnesses in relation to the currency matters and other matters.
128 Fifthly, Ms Noah says FM Burnett did not call upon Mr Henry to respond to Ms Noah's submissions and proceeded to deliver reasons for judgment "which were more bizarre by the minute, in my view". Ms Noah says that by this time many present in court were "running out of patience and respect". Sixthly, after the adjournment consequent upon the events concerning Mr Clampett, Ms Noah confronted Mr Henry concerning a claim of perjury on Mr Henry's part. Ms Noah says that she and others from the public gallery attended a coffee shop and saw Mr Henry walking away from the court. She contends that there must have been irregularities in the transcript or a tampering of the transcript. Seventhly, the AGS had no standing to represent Mr Bailey. Eighthly, the Deputy Registrar of the court has "obligingly waived the rules" by making an ex parte enforcement order for the issue of an enforcement summons. Ninthly, Ms Noah contended that:
As for Burnett FM, he has demonstrated his prejudice of this case, flouted the law and has discriminated against me since these proceedings commenced. How can any judge possibly consider ruling in favour of a party who has not put forward any verbal submissions or arguments at the hearings. After I had finished my submissions, Mr Burnett did not give the Australian Government Solicitor a chance to respond to my allegations or state his client's own case. No doubt, that had already been done behind closed doors beforehand.
129 FM Burnett responded, "Do be careful, please, Ms Noah". Ms Noah said, "Instead, Mr Burnett - this is my understanding of what occurred". FM Burnett responded to the suggestion that something had taken place behind closed doors by saying this:
FEDERAL MAGISTRATE: Don't go making suggestions that will make matters worse for you. I will deal with you for contempt if you make any suggestion along those lines at all. There's absolutely no suggestion. There's no basis for any suggestion that there's been any coercion between myself and any member of either party to these proceedings.
130 Tenthly, Ms Noah contended that particular individuals had conspired to pervert the course of justice. She said:
Furthermore, myself and other citizens with integrity will be obliged to lodge many formal complaints at the highest level against those individuals who have conspired to pervert the course of justice. I wish to go on record as stating that my rights for justice have been breached on many occasions and that I strongly object to the lawfulness of this whole proceeding and all the orders and charges that Mr Burnett has made against me and my supporters in relation to this case.
131 Ms Noah concluded those observations in this way:
I must now, formally, move that Mr Burnett either dismisses the Australian Government Solicitor's application and stands down immediately on the basis of prejudice from this case or face civilian charges against him for contempt of Court. What say you to my motion, Mr Burnett.
132 These matters seem to have been put forward on 9 July 2008 by Ms Noah as justification for the statement that her patience had also been very sorely tested. No explanation was given for Ms Noah making these accusations and no factual foundation was ever advanced to give content to the claims.
133 Ms Noah contended that no evidence had been presented against her. FM Burnett provided Ms Noah with a copy of a warrant for arrest which outlined the charge of contempt in the terms recited at [123]. Ms Noah asked FM Burnett to explain how saying "Yes, it's been mutual, your Honour" could constitute contempt in the face of the court. FM Burnett said that the words needed to be looked at in their context and the contention was that the words were stated in a tone and by words that were intended to be insulting and contemptuous. Ms Noah disagreed with that construction and observed that she had not been provided with "any evidence or grounds or oaths ... in relation to this …". Ms Noah then added:
I'd like to apologise if I've offended anyone else in this Court.
134 Ms Noah was remanded in custody from 9 July 2008 until Friday, 11 July 2008 and the matter was adjourned to that date to enable Ms Noah to obtain legal advice. At 9.30am on 11 July 2008 a solicitor appeared for Ms Noah. The matter was adjourned to 3 September 2008 upon Ms Noah's undertaking to attend on the next return date and until the matter was concluded and on condition that Ms Noah "have no contact direct or indirect with Mr Bailey". The matter was further adjourned to 24 September 2008. Mr D O'Gorman SC appeared for Ms Noah on that day. Ms Noah gave evidence in support of her defence of the charge. Firstly, Ms Noah contended that she did not say the words, "Yes, it's been mutual, your Honour". She contended that she said the words, "the feeling has been mutual, your Honour". Secondly, in uttering those words, Ms Noah contended that she was not intending to be insulting of the court nor contemptuous of the court. Thirdly, Ms Noah contended that she did not say the words, "I'd like to apologise if I've offended anyone else in this Court?" but rather she said the words, "I apologise if I've offended anyone in this Court". She gave evidence that she said those words as an intended apology to the court. Ms Noah contended that the transcript was incorrect. The audio digital recording of the proceedings on 9 July 2008 was played to the court. I have also listened to the recording. Mr O'Gorman SC accepted on behalf of Ms Noah in the proceeding before FM Burnett that the audio recording confirmed the accuracy of the transcript and that Ms Noah made the two statements in the terms reflected in the transcript.
135 Mr O'Gorman SC contended that the words "Yes, it's been mutual, your Honour" are not capable of constituting contempt in the context where the words appear. Ms Noah was simply saying that her patience had also been tested sorely and that many litigants in court have their patience tested sorely. Mr O'Gorman SC contended that all that Ms Noah was saying was that, along with FM Burnett, her patience had been tested. More particularly, Mr O'Gorman SC contended that Ms Noah:
… doesn't say that her patience had been tested as a result of things done by your Honour that shouldn't have been done or anything like that but all she has said is that her patience had also been tested.
136 Mr O'Gorman SC contended that immediately when the allegation was put to her that she was being insulting and contemptuous of the court she immediately indicated that that was not her intention. Mr O'Gorman SC said that in summary, the words used were not capable of being contemptuous and, if they were capable of being contemptuous, there was no intention on the part of Ms Noah to be contemptuous or insulting of the court.
137 FM Burnett gave ex tempore reasons for judgment on 24 September 2008 at the conclusion of submissions: Noah v Bailey [2008] FMCA 1426. At [1] to [4] of the reasons, brief background details of the earlier applications are set out. FM Burnett recognised that Ms Noah had been present in court when Mr Clampett had been convicted and sentenced on the morning of 9 July 2008 and that it was "fair to say that Ms Noah was somewhat emotionally charged". FM Burnett noted the submission that Ms Noah as a self‑represented litigant may not have appreciated what she was doing [6]. At [7], FM Burnett identified the two contentions put by Mr O'Gorman SC that the words spoken did not constitute contempt and nor was there any intention on Ms Noah's part for those words "to be understood as constituting insulting or contemptuous words". FM Burnett did not accept either of those submissions.
138 At [8], FM Burnett noted that the court proceedings had a lengthy history and that many exchanges had taken place between Ms Noah and FM Burnett resulting in a number of warnings concerning the manner in which Ms Noah addressed the court. FM Burnett noted that Ms Noah was not happy with the court [8] and she was unhappy with the outcome of her applications [9]. FM Burnett observed that Ms Noah, "vented her emotion to the Court in such a way from her intonation and her expression, to clearly and intentionally be contemptuous and insulting to the Court". [9] FM Burnett noted that immediately after the adjournment of the proceeding to 2.30pm with Ms Noah remanded in custody, statements may have been made by her that she did not intend to be insulting or contemptuous [10]. FM Burnett noted that those statements were not made to the court [10]. FM Burnett did not accept that the apology actually made to the court was genuine. FM Burnett noted that on the adjournment of the court Ms Noah said, "I don't recognise the jurisdiction of this Court and I will not stand in honour of that man, he's a disgrace". [11] FM Burnett concluded that those remarks were "clearly a reflection of her views of the institution, which is the Court, and it is for that reason I am not satisfied that any remarks that she later made were not necessarily spoken with genuine intention". [12] FM Burnett was satisfied that "it was the intention of Ms Noah in that exchange to be intentionally insulting and contemptuous to the Court". [13] FM Burnett found Ms Noah guilty of contempt and sentenced her to the time already served in custody.
139 Ms Noah relies upon three grounds of appeal to this court. They are these:
1. The learned Magistrate erred in concluding that the words "Yes, it's been mutual your Honour" constituted contempt in the face of the court.
2. The learned Magistrate erred in not disqualifying himself in the circumstances where there was a dispute as to the facts constituting the count.
3. The learned Magistrate did not take into account, or did not properly take into account, the appellant's defence that she had not intended to be insulting and contemptuous of the Court.
140 As to the first ground, the words used and tone of voice apparent from the audio recording needs to be judged in the context of the proceeding and the sequence of exchanges that had taken place in the course of the oral examination. For Ms Noah's part, she contended in her observations on 9 July 2008 that the events of 2 July 2008 were significant and informed her defence to the contempt charge. In context, FM Burnett put to Ms Noah on 9 July 2008 that her ridiculing response of "Ooh woo" to his answer to her question of "Whose arguments [on costs] will you hear, just his or mine as well?", of "I'll hear your arguments as well", was not taking the court process seriously. That resulted in FM Burnett warning Ms Noah to take the proceeding seriously. Ms Noah asserted that she was trying to do so. FM Burnett then put to Ms Noah that she was not doing so. FM Burnett then put to Ms Noah that he had been "very indulgent" with her having regard to the proceedings "last week and this week". In that context, FM Burnett put to Ms Noah that "You have tested my patience very sorely". Ms Noah responded with the words, "Yes, it's been mutual, your Honour". That statement is capable of bearing the meaning that in the context of the proceedings "last week and this week" FM Burnett had very sorely tested the patience of Ms Noah in the things that he had done in the conduct of the proceedings.
141 On 9 July 2008, Ms Noah identified those things in considerable detail (see [124] to [130] of these reasons and in particular the observations made by Ms Noah and noted at [125], [127], [129] and [130] of these reasons). Another factor that seemed to bear on Ms Noah's view that her patience had been sorely tested by the conduct of FM Burnett was the opinion she held and expressed that, "I don't recognise the jurisdiction of this court and I will not stand in honour of that man. He's a disgrace" and that FM Burnett had conspired with others to pervert the course of justice: see [129] of these reasons. That was the view that Ms Noah articulated on 2 January 2008 when she said to FM Burnett consequent upon the statement of Mr Clampett that, "Both you and Mr Henry are paid by the Commonwealth Government", the words, "To represent the people, not protect your public spectrum colleagues, conspire with them, to pervert the course of justice". That view was consistent with the strident expression of opinion by Ms Noah immediately upon the adjournment of the matter after the above remark. The audio recording reveals this sequence:
FEDERAL MAGISTRATE: Just adjourn the Court for the time being, thanks.
MS NOAH: I want to challenge the jurisdiction of this whole Court actually.
BAILIFF: Silence, all stand please. The Magistrates Court is now adjourned.
MS NOAH: Notice who is standing, just one arsehole. What a lot of bullshit. Let's get out of this cesspit. These are all the rules that don't apply, that I don't understand. The Court doesn't f‑g understand either (loud tearing of pages).
MR HENRY: I haven't said a word.
MS NOAH: No, you didn't say a word. You didn't have to, 'cause you f‑g sorted this out beforehand didn't you? You fixed it didn't you? Your little buddies, you had a chat. You came in here, had a chat to Tracey, had a chat to him, had a chat with the Deputy Registrar. You didn't need to say a f‑g word. It had all been decided beforehand (some additional indistinct words spoken by Ms Noah). This is a kangaroo court and you are a public servant (some additional indistinct words by Ms Noah). Let's get out of this shithole.
142 Statements were then made by the man who had earlier identified himself to FM Burnett as Leonard William Clampett, addressed to Mr Henry by name. The audio recording reveals agitation by Mr Clampett and shouting by Ms Noah in these words:
MR CLAMPETT (to Mr Henry): You're just a liar.
MS NOAH: You are.
MR CLAMPETT: You're just another government liar.
MS NOAH (shouting): You're just a puppet. You're paid to lie. You don't have any balls. You don't have any balls and you do not have any integrity and I am taking you to the … (some additional indistinct words). No, no (shouting loudly). I am giving you notice that I'm reporting you to the Legal Services Commission and don't think that I don't know how to do it (some additional indistinct words).
143 The audio tape reveals the sounds of the voices of Mr Clampett and Ms Noah fading as presumably they left the precincts of the courtroom and the immediate presence of the microphones.
144 Accordingly, examined in the context of the events of 2 July and 9 July 2008 (as Ms Noah explained them on 9 July 2008), which occurred in the presence of FM Burnett (and thus leaving aside the statements made by Ms Noah at [141] and [142]), the Federal Magistrate did not err by concluding that the words the subject of the contempt charge constituted contempt. That follows because the words taken in context suggest that Ms Noah's patience had been sorely tested by the court's behind‑closed‑doors dealing with the AGS; the court's conspiring with Mr Henry to pervert the course of justice; the refusal of the court to properly apply the rules of court and decide the applications on the merits; and the discriminatory and prejudicial conduct of FM Burnett in the conduct of the proceedings before the court.
145 Thus the words, the subject of the charge, interfere with the authority of the court and reflect a despising of the authority and dignity of the court. The words import scorn and reproach and invite the diminution of the standing of the court and its processes. The words import a wholesale rejection of an independent determination of the applications without fear or favour on the merits having regard to the applicable law. The statements excite misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office and involve a baseless attack on the integrity and impartiality of the presiding Magistrate. (Ex parte Bellanto; Re Prior [1963] SR (NSW) 190 at 199; R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442 and 443 per Rich J; Gallagher v Durack (1983) 152 CLR 238; Parashuram Detaram Shamdasani v King‑Emperor [1945] AC 264 at 269).
146 As to the question of whether Ms Noah intended the words to be insulting or contemptuous of the court, FM Burnett addressed that contended ground both in the course of submissions with counsel and expressly in the course of the reasons for judgment. The proposition had been put by Mr O'Gorman SC that Ms Noah did not contend that her patience had been tested as a result of things done or not done by FM Burnett in the course of the proceedings (see [135] of these reasons). However, there was clear evidence before FM Burnett that Ms Noah intended the remark the subject of the charge to be contemptuous and insulting. Ms Noah had said to FM Burnett on 9 July 2008 that during the course of the proceedings on 2 July 2008 FM Burnett had made attempts to intimidate her by making derogatory and racist comments throughout the proceedings and badgering her. She contended that FM Burnett had demonstrated prejudice in the conduct of the case, flouted the law and discriminated against her since the proceedings began. She contended that FM Burnett and others had no doubt already dealt with the matter behind closed doors prior to the hearing which was the explanation for FM Burnett not calling upon Mr Henry to make submissions in response to Ms Noah's submissions on 2 July 2008. On the basis of FM Burnett's contended prejudice, Ms Noah called for FM Burnett to stand down or face civilian charges against him for contempt of court. Ms Noah concluded by calling upon Mr Burnett in these terms, "What say you to my motion, Mr Burnett". Moreover, Ms Noah was of the view that she did not recognise the jurisdiction of the court and that FM Burnett was a disgrace, in the conduct of the various proceedings. The apology Ms Noah gave to the court was expressly conditioned by the word "else". Ms Noah accepted that what she said by way of an apology was, "I'd like to apologise if I've offended anyone else in this court". That statement of apology is consistent with a statement that Ms Noah was willing to apologise to anyone in the court who might have been offended by her remarks other than FM Burnett and thus the court. That view was entirely consistent with the view Ms Noah held and had expressed about and to FM Burnett.
147 Plainly, it was open to FM Burnett to conclude that the words the subject of the contempt charge were said with an intention of being contemptuous or insulting of the court.
148 On the question of intention, Ms Noah on 9 July 2008, made reference to her criticism addressed to Mr Henry, immediately upon the adjournment of the proceeding on 2 July 2008, concerning contended perjury on his part. The content of those statements made by Ms Noah is set out at [141] and [142]. Ms Noah regarded those remarks as relevant in answering or defending the contempt charge. Plainly, Ms Noah held strong views that FM Burnett had conspired with Mr Henry to pervert the course of justice. Those views were expressed directly to FM Burnett in the course of the proceedings on 2 July 2008, in any event.
149 As to ground 2 of the grounds of appeal, Ms Noah contends that FM Burnett ought to have disqualified himself in circumstances where there was a dispute as to the facts constituting the count. The dispute relating to the words actually said by Ms Noah evaporated once the digital recording was played. The scope of the remaining dispute was whether the words said by Ms Noah the subject of the charge were capable of constituting contempt and whether Ms Noah expressed those words with the intention of being contemptuous or insulting of the court. The contempt occurred in the presence of FM Burnett. The proceedings on 2 July 2008 and 9 July 2008 are the subject of a transcript and a digital audio recording. The words said and the intonation of voice are audible and plain.
150 The contempt proceeding was conducted in this way. The statement by Ms Noah was made at approximately 11.57pm on 9 July 2008. FM Burnett adjourned the proceedings then before him. The oral examination of Ms Noah had concluded and the outstanding question to be dealt with was the disposition of the costs in relation to Ms Noah's unsuccessful strike‑out application. FM Burnett said that he would adjourn the oral examination to 2.30pm to deal with the matter of costs. It was at that moment that the exchange occurred between FM Burnett and Ms Noah which led to Ms Noah's uttering the words the subject of the contempt proceeding (see [122]). FM Burnett then said that he would examine a recording of the last five minutes of the proceeding and directed the bailiff to "take Ms Noah downstairs and hold her".
151 The court resumed at 2.32pm. FM Burnett recited the contempt charge to Ms Noah and she entered a plea of "not guilty". Further exchanges occurred and Ms Noah requested an opportunity to state her defence to the charge. Ms Noah at pp 97 to 101 of the transcript identified those matters that she perceived answered the charge which have been discussed in these reasons (see [125] to [132]). On 9 July 2008, FM Burnett caused a warrant for committal to issue reciting the charge. A copy of the warrant was provided to Ms Noah. An exchange took place between Ms Noah and FM Burnett concerning the nature and content of the contempt charge. FM Burnett said that he would provide Ms Noah with time to reflect upon the charge if she would like to exercise that opportunity. She said that she would need a couple of days to do so. FM Burnett adjourned the matter to Friday, 11 July 2008 and remanded Ms Noah in custody. At 9.30am on 11 July 2008, Mr T.P. O'Gorman, Solicitor and member of the firm Robertson O'Gorman appeared for Ms Noah. Mr O'Gorman requested an adjournment of approximately one month to prepare the relevant proceedings. FM Burnett agreed to provide Mr O'Gorman with that time for preparation. In addition, FM Burnett provided an explanation of the relevant facts going to the contempt charge, introduced in this way:
FEDERAL MAGISTRATE: Mr O'Gorman, what I might do just for your benefit, is just recite very broadly the facts ---
MR O'GORMAN: I've read the transcript, your Honour.
FEDERAL MAGISTRATE: --- as they stand. Oh, perhaps, but the transcript doesn't, of course, colour - or the words aren't coloured by the intonation.
MR O'GORMAN: I see.
FEDERAL MAGISTRATE: Which, of course, is important in the context of this particular application.
MR O'GORMAN: Yes.
152 At pp 104 to 108 of the transcript, FM Burnett set out the relevant facts, in effect, particularising the context and events giving rise to the contempt charge. Mr O'Gorman requested that the matter be adjourned to a mention date on 3 September 2008 at 9.30am. The terms of that adjournment were then discussed. FM Burnett adjourned the hearing to enable Mr O'Gorman to take further instructions from Ms Noah and the court reconvened at 10.16am. A brief discussion took place concerning aspects of the events. Mr O'Gorman advised the court that Ms Noah would give certain undertakings previously mentioned in these reasons (see [134]). At 10.24am, the matter was adjourned to 9.30am on 3 September 2008. The matter came on for a substantive hearing on 24 September 2008. At that hearing, Ms Noah was represented by Mr D.P. O'Gorman SC instructed by Fisher Dore, Solicitors. Ms Noah gave evidence and Mr O'Gorman made submissions on her behalf. The content of those matters has already been discussed (see [134] to [136]).
153 No submission was made to FM Burnett either by Mr T.P. O'Gorman of Robertson O'Gorman on behalf of Ms Noah or by Mr D.P. O'Gorman SC on behalf of Ms Noah that FM Burnett ought to disqualify himself from the conduct of the proceedings.
154 The proceedings were initiated by FM Burnett pursuant to s 17 of the Federal Magistrates Act 1999 (Cth) which is in these terms:
SECTION 17 CONTEMPT OF COURT
17(1) The Federal Magistrates Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
17(2) Subsection (1) has effect subject to any other Act.
17(3) The jurisdiction of the Federal Magistrates Court to punish a contempt of the Federal Magistrates Court committed in the face or hearing of the Federal Magistrates Court may be exercised by the Federal Magistrates Court as constituted at the time of the contempt.
155 Part 19 of the Federal Magistrates Court Rules addresses conduct in contempt of the court and rule 19.01 addresses contempt in the face of the court or in the course of a hearing before the court. Rule 19.01 is in these terms:
RULE 19.01 CONTEMPT IN THE FACE OR HEARING OF COURT
19.01(1) If it appears to the Court that a person is guilty of contempt in the face of or in the hearing of the Court, the Court may:
(a) direct that the person attend before the Court; or
(b) issue a warrant for the person's arrest.
19.01(2) When the person attends before the Court, the Court must:
(a) tell the person of the contempt with which the person is charged; and
(b) allow the person to state his or her defence to the charge; and
(c) after hearing the defence, determine the charge; and
(d) make an order for the punishment or discharge of the person.
19.01(3) The Court may direct that the person be kept in custody or released until the charge is determined.
19.01(4) The Court may direct that the person give security for the person's attendance before the Court to answer the charge.
156 As FM Burnett said in his reasons for judgment, the contempt power is exercised to vindicate the integrity of the court and its proceedings, not the personal dignity of the individual judicial officer. The contempt however occurred in the face of the court constituted by a particular judicial officer who saw and experienced firsthand all the relevant events reflected in the transcript and digital audio recording and, in particular, all those events the subject of FM Burnett's explanatory summary given to Mr T.O'Gorman to enable preparation of a defence to the charge on behalf of Ms Noah to occur.
157 FM Burnett elected to exercise the power to punish Ms Noah's contempt in the face of the court, conferred by s 17(1) of the Federal Magistrates Act, by the court as constituted at the time of the contempt. The controversy of fact did not ultimately embrace any issue of what was said by Ms Noah but rather, as a question of fact, whether Ms Noah said the words with a particular state of mind, that is, an intention to be insulting or contemptuous of the court. That question was determined by FM Burnett based on his knowledge of the events and the words said and his experience of the demeanour of Ms Noah reflected in her tone of voice. Those events, words and tone are reflected in the transcript together with the digital audio recording.
158 The election to exercise the power to punish contempt in the face of the court in this way, although of early origin in the common law and expressly conferred by the Federal Magistrates Act and addressed by the Federal Magistrates Court Rules, is apt to place the judicial officer in a difficult position of framer and prosecutor of the charge; repository of the knowledge of the relevant events as the personification, in one sense, of the court in whose face the contempt has occurred; and the person required to determine whether the charge is made out beyond reasonable doubt. Thus, the power ought to be exercised sparingly and with great caution so as to engage the class of case in which the integrity of the court or its proceedings must necessarily be protected by invoking the exercise of the power by the court as constituted at the time of the contempt. In Lewis v His Honour Judge Ogden (1984) 153 CLR 682 at 693, Mason, Murphy, Wilson, Brennan and Dawson JJ described that class as "only in serious cases". In Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 186, Murphy J described summary trial for contempt conducted by the judge who presided over the proceeding at which the contempt is alleged to have been committed as "dangerous to the administration of justice". A qualification was put, in these terms, by his Honour at 187: "Summary trial for contempt by the same judge should not be initiated unless the contempt appears clear and no collateral inquiry is contemplated (as where a witness shouts abuse, gives nonsensical answers or in terms refuses to answer a question which he has been directed to answer)".
159 In Keeley, Barwick CJ at 170 and 171 observed that orders for contempt in the face of the court are "extremely rare" and the jurisdiction to make such an order is to be exercised with "great caution". In John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, Dixon CJ, Fullagar, Kitto and Taylor JJ also described the power to punish summarily for contempt as one to be exercised with great caution because of its "exceptional nature". However, whilst recognising that judges must exercise such caution, their Honours observed at 370 that because the power:
… is founded on the elementary necessities of justice, there must be no hesitation to exercise it, even to the point of great severity, whenever any act is done which is really calculated to embarrass the normal administration of justice.
160 The requirement for great caution was particularly so as no appeal lay from a summary conviction for contempt in the face of the court. Summary conviction meant conviction without trial by jury on indictment. Under the current structural arrangements, appeals lie to the Federal Court of Australia from the exercise of the power conferred on the Federal Magistrates Court by s 17 of the Federal Magistrates Act. There may however be some confusion in the use of the term "summary proceeding" when applied to the exercise of power conferred by s 17. It is a statutory jurisdiction. The Federal Magistrates Act expressly provides for the exercise of the power by the court as constituted at the time of the contempt. That jurisdiction may be exercised under s 17(3) as a matter of discretion and although the discretion may be at large, it would normally be exercised according to settled principle. The term "summary proceeding" as a description of the exercise of the statutory power conferred by s 17(1) and the jurisdiction invoked by s 17(3) does not imply any dispensation with the hearing rule, due process, proper representation of the party or proper analysis and evaluation of the facts relevant to the charge by the judicial officer, or the exercise of the jurisdiction in a way other than entirely consistently with the oath sworn by the judicial officer.
161 The conflation of roles mentioned earlier strongly suggests however that great caution must be exercised in isolating the class of case that warrants the exercise of the power, as Stephen J has observed in Keeley at p 173. In Fraser v The Queen; Meredith v The Queen [1984] 3 NSWLR 212 at 224‑225, McHugh JA said of summary proceedings:
In the case of summary proceedings for contempt in the face or hearing of the court, there are special reasons for the extension of facilities and privileges to the alleged contemnor. By any standard the procedure is extraordinary. The judge may be, at once, the witness, possibly even the victim, of the contempt. He may be the initiator of the former curial proceedings to bring the contemnor before the court, as was the case here. It is he who has to decide the issues of fact, to determine the charge, and then to make the order for punishment or discharge the contemnor. This unusual concatenation of roles imposes upon the judge peculiar responsibilities and equivalent duties to ensure that justice is done and seen to be done, if he decides to deal with a matter summarily … It is trite to say that a person faced with a serious charge, and the risk of punishment, including imprisonment, should be given an ample opportunity to be heard … The rule as to hearing parties is fundamental to due process of law. But it is specially important in the extraordinary summary procedure for contempt for the reasons already suggested. The requirement of the appearance of justice imposes on the judge a special obligation to ensure that he has not made up his mind until everything that can reasonably be placed on the scale is allowed to be put there.
[emphasis added]
162 In this case, Ms Noah said to FM Burnett, taken in context, that her patience had been sorely tested by FM Burnett's conduct of the proceedings on 2 July 2008 and 9 July 2008. In explaining that statement in her defence, Ms Noah made a series of baseless allegations unsupported by any evidence that the presiding Magistrate had conspired with the Australian Government Solicitor to pervert the course of justice in relation to the applications concerning Ms Noah by resolving those matters behind closed doors with her opponent. She described FM Burnett as "a disgrace". The content of Ms Noah's broad allegations against FM Burnett as the source of her patience having been sorely tested on those days lay in Ms Noah's perception of FM Burnett's conduct. The content of Ms Noah's broad allegations is set out in these reasons and I will not repeat them here (see [144], [146] and [125] to [131]).
163 There was no basis for those allegations. They were not explained by her or otherwise justified. They were, in effect, abandoned by her lawyers. No apology was proffered quickly other than a conditional one that, in terms, excluded FM Burnett and thus the court. Ms Noah was given extensive time to prepare, in conjunction with her lawyers, for the hearing and determination of the contempt charge. She was represented initially by Mr T. O'Gorman of Robertson & O'Gorman Solicitors and then by Fisher Dore Solicitors who instructed Mr D.P. O'Gorman SC to appear on her behalf. No submission was made by Mr T. O'Gorman or by Mr D.P. O'Gorman SC that FM Burnett ought to disqualify himself from determining the matter. Ms Noah was a self‑represented litigant at the moment when she made the remark the subject of the contempt charge. She was also self‑represented in the conduct of the proceedings and in the formulation of the various arguments she put to the court. It seems clear that the views Ms Noah formed concerning the contended conduct of FM Burnett largely arose out of an inference she drew from FM Burnett's election not to call upon Mr Henry to respond to her submissions made in support of a strike‑out application. That step seemed, in part, to cause Ms Noah to react the way she did.
164 Nevertheless, a lay litigant is not entitled to make baseless allegations of a very serious kind in the face of the court simply because the contemnor is unrepresented, inflamed and misconceived as to a number of central matters informing her conduct.
165 Having regard to the conduct of the contempt proceeding and the steps FM Burnett took to ensure that the events central to the charge were summarised and the matter adjourned in a way which enabled Ms Noah to be represented initially by Mr T. O'Gorman and ultimately by Mr D. O'Gorman SC without any objection being taken to FM Burnett's presiding in the determination of the matter, it seems to me that Ms Noah was afforded a proper hearing, proper representation and an opportunity to adduce whatever evidence she regarded as relevant (recognising that she gave oral evidence). She was afforded an opportunity by counsel to make submissions. The submissions made were addressed in the reasons for judgment.
166 The allegations made by Ms Noah as the source of her sorely tested patience were serious matters. The Federal Magistrates Court is invested with a statutory power to deal with contempt in the face of the court, by the court as constituted at the time of the contempt. The court engages extensively with many self‑represented litigants. The statutory power so conferred and the consequent exercise of the jurisdiction ought not to be unduly constrained in the relevant class of case. The exercise of the power, of course, is subject to appellate review and thus superior court supervisory review. A contempt that occurs in the face of the court of a serious kind, especially those that engage serious allegations of an attempt to pervert the course of justice and which occur in the course of a proceeding, must be able to be addressed in the exercise of the jurisdiction conferred under s 17(3) of the Federal Magistrates Act, by Federal Magistrates throughout Australia confronting such a class of case. That must be especially so where the contemnor is represented by solicitors and senior counsel and no objection is taken to the conduct of the charge by the presiding Magistrate.
167 If the power to punish contempt in the face of the court is constrained, in the relevant class of case, by approaching the exercise of the power on the footing that once the charge of contempt is laid, the disposition of the charge must be adjourned to the list or adjourned to the docket arrangements of another Federal Magistrate, as a matter of applied general principle, with the result that a contempt must be heard and determined by the court other than as constituted at the time of the contempt, the function of the court might seriously be impaired and the court might be deprived of the statutory power expressly conferred upon it by the Parliament, notwithstanding that the statutory provision recognises that the jurisdiction is to be exercised according to discretionary factors. That is not to say that the statutory power enlivens the jurisdiction to be exercised other than in a manner entirely consistent with the public interest in the proper administration of justice in each case.
168 The question to be determined is whether the class of case is one which ought properly be determined by the court as constituted at the time of the contempt. Cases, perhaps many cases, having regard to the great caution to be exercised, will arise where the court as constituted at the time of the contempt ought not to hear and determine the charge. Each case must be assessed having regard to its own circumstances and seriousness. Many factors will influence that conclusion.
169 In the case of Ms Noah, for all the reasons already mentioned, I am not satisfied that Federal Magistrate Burnett erred by failing to disqualify himself from hearing and determining the charge of contempt in the face of the court brought against Ms Noah. Therefore, I am not satisfied that ground 2 of the grounds of appeal, are made out.
170 Accordingly, the appeal by Ms Noah ought to be dismissed.