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Queensland Judgments
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  • Unreported Judgment

Moreton Bay Regional Council v Meredith

 

[2020] QPEC 36

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Moreton Bay Regional Council v Meredith & Others [2020] QPEC 36

PARTIES:

MORETON BAY REGIONAL COUNCIL

(applicant)

V

DALE KENNETH MEREDITH

(first respondent)

And

MARIE HELEN MEREDITH

(second respondent)

And

TABITHA JANE O’KEEFE

(third respondent)

And

REECE DALE SELWYN MEREDITH

(fourth respondent)

FILE NO/S:

1153/2020

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

26 June 2020 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATES:

25 and 26 June 2020

JUDGE:

R S Jones DCJ

ORDER:

The orders are as follows:

  1. (1)
    That I am satisfied beyond reasonable doubt that the first, second, third and fourth respondents were wilfully not complying with the orders made by the court on 5 December 2019 and accordingly were in contempt.
  2. (2)
    I will, with some reservation, for the reasons I will express in a moment, fine all of the respondents in total the sum of $5000. 
  3. (3)
    I will make further orders, subject to some additional matters that I think ought to be addressed, generally in the terms proposed in the draft order handed up to me during the course of the proceedings. 
  4. (4)
    I also intend to make orders as to costs subject to some discussion about that matter in a moment. 

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONTEMPT – where Planning and Environment Court judge has power to punish for contempt

LEGISLATION:

District Court Act 1967 (Qld)

Planning and Environment Court Act 2016 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Bundaberg Regional Council v Bailey [2017] QPEC 31

Bundaberg Regional Council v Lammi & Anor [2014] QPEC 52

Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors delivered ex tempore on 20 March 2019 (unreported)

Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66

COUNSEL:

M Batty for the applicant

T O’Keefe for the respondents (self-represented)

SOLICITORS:

Thynne + Macartney for the applicant

T O’Keefe for the respondents (self-represented)

  1. (1)
    This proceeding is concerned with an originating application brought by the Moreton Bay Regional Council which I will hereinafter refer to as “the council”.  The relief sought is for an order pursuant to section 36 of the Planning and Environment Court Act 2016 (Qld) and section 129 of the District Court Act 1967 (Qld), and rules 898 and 926 of the Uniform Civil Procedure Rules 1999 (Qld) that the first, second, third and fourth respondents, collectively “the respondents” be committed or otherwise dealt with for contempt of court for failing to comply with paragraph 1 of orders made by this court on 5 December 2019 and such further orders as the court might deem appropriate and costs.  The orders made by this court on 5 December 2019 relevantly provide:

It is ordered by consent that (1) the first, second, third and fourth respondents by themselves, their servants or agents, are restrained from carrying out a material change of use for a medium impact industry as defined by the Moreton Bay Regional Council Planning Scheme including wood chipping on the subject land save for where authorised by an effective development permit. 

  1. (2)
    For the reasons which I will come to in a moment, the findings and orders of the court are:
  1. (1)
    That I am satisfied beyond reasonable doubt that the first, second, third and fourth respondents were wilfully not complying with the orders made by the court on 5 December 2019 and accordingly were in contempt.
  2. (2)
    I will, with some reservation, for the reasons I will express in a moment, fine all of the respondents in total the sum of $5000. 
  3. (3)
    I will make further orders, subject to some additional matters that I think ought to be addressed, generally in the terms proposed in the draft order handed up to me during the course of the proceedings. 
  4. (4)
    I also intend to make orders as to costs subject to some discussion about that matter in a moment. 
  1. (1)
    Pursuant to section to section 26 of the Planning and Environment Court Act 2016 (Qld) a judge of this court has the same power to punish a person for contempt as a District Court judge.  It also provides that section 129 of the District Court Act 1967 (Qld) applies to this court in the same way that it applies to the District Court.  Section 129, subsection (1) of the District Court Act 1967 (Qld) relevantly provides that a person is in contempt of the District Court if that person, without lawful excuse, fails to comply with an order of the court other than an order of the type mentioned in section 129(1)(e) which has no application in the circumstances of this proceeding.  Pursuant to section 129(2) a judge of the District Court has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have had the contempt been in respect of an order of the Supreme Court. 
  1. (2)
    It is asserted on behalf of the council that the respondents did not cease the operation of wood chipping on the subject land as required by paragraph 1 of the orders made on 5 December 2019, and that the contravention was wilful. 
  1. (3)
    The first and second respondents are the registered proprietor of the subject land which is situated at 52 Buckley Road, Burpengary, more properly described as lot 2 on registered plan 135984.  The third respondent and her husband have a close association with the land by virtue of the business or commercial operations that were being conducted thereon. 
  1. (4)
    In support of its application, the council relied on the evidence of local residents and that of three council officers, a Mr Houweling, an environmental health officer; a Mr Hattersley and a Mr Konarski.  The council also relied on the evidence of Mr Mewing, a consultant town planner; and a Mr Kitson, the operations manager of a business known as Timbertruss Queensland.  The only witnesses required for cross-examination were Mr Mewing and Mr Kitson.  The respondents were represented by Ms O’Keefe, the third respondent.  I will come to the evidence of the local residents in a moment.
  1. (5)
    Mr Houweling’s evidence is that on 4 April 2020, he was delegated and assigned a complaint to investigate involving alleged unlawful use on the subject land.  His evidence was that on 4 April 2020 at or about 11.35am he observed the subject land from a neighbouring property and also activated what he described as his personal video recorder.  His evidence was that when he positioned himself near the common boundary of the neighbouring property he was able to observe what he described as:
  1. (a)
    An operational woodchipper which looked like a large cylindrical metal water tank that was mechanically rotating causing a loud noise, smoke emissions and chunks of wood to be propelled in the air.
  2. (b)
    An odour similar to that of freshly cut wood.
  3. (c)
    An operational conveyor with wood chippings falling from the conveyor belt, and large piles of fill.
  1. (6)
    Attached to his affidavit were a number of photographs relied on to corroborate his observational evidence.  Following a complaint, Mr Konarski arranged for a number of aerial photographs to be taken via a drone hovering above the land of a local resident, Mr Nguyen.  Mr Nguyen was also one of the lay witnesses relied on by the council.  The photographs were taken on 17 April 2020, and show various forms of plant and equipment, some of which is clearly in operation. That is entirely consistent with evidence given by the first and third respondent which I will come to in a moment.  These photographs also show large stacks of timber and areas where considerable earthworks have taken place. 
  1. (7)
    The evidence of Mr Hattersley, who was a development and compliance officer employed by the council, is that after a complaint was received he was assigned to investigate it.  On 31 March 2020, at approximately 12.15pm, he attended a location near the subject land where he heard, to use his words:

A loud machine operating and through some trees I could see a conveyor spitting out wood chips into a stockpile

  1. (8)
    He recorded what he could see and hear on his mobile phone.  Later that afternoon at approximately 12.32, he was invited onto the land by Mr Nguyen.  Whilst on Mr Nguyen’s property he observed the following:
  1. (a)
    a woodchipper operating on the land which was causing a loud noise and dust emissions;
  2. (b)
    the smell or odour similar to that of freshly cut wood;
  3. (c)
    a conveyor belt operating moving wood chips from a large cylindrical chipping machine onto a large stockpile of wood chips;
  4. (d)
    large cuts of wood which had been collected inside Mr Nguyen’s property.
  1. (9)
    As far as I am able to ascertain, insofar as the evidence of Mr Mewing is concerned, it does little more than to seek to establish that in the event that the activities of the type complained of were occurring then that land use would fall within the definition or contemplation of a medium impact industry for the purposes of the planning scheme at the very least.  And that is in circumstances where the subject land lies within the rural residential zone and where no relevant current approvals are in place. 
  1. (10)
    Turning then to the respondents’ position, on 23 December 2019, the council’s instructing solicitors wrote to the respondents advising that the council had received a complaint alleging continuing use of a woodchipper on the subject land.  The respondents were also reminded that if they were conducting such works, they might be punishable for contempt on the basis of them being in breach of the orders made by this court on 5 December 2019.  Later that same day, the respondents replied as follows:

We have not used the chipper as it is not returned to the site.  Different machinery is currently on site to adhere to the court order as per section 4 agreed to by your client and the court to remove and dispose of the stockpiles.  Any machines used are for the purpose of complying with the court order only and it clearly states that we are allowed to do so.  May I suggest to the council that they let the complaining party know that the court order is in place and the times we are permitted by the court to operate the machinery until completion to save their time and money.

  1. (11)
    Section 4 of the order which was referred to in that correspondence is a reference to paragraph 4 of the orders made on 5 December 2019 which relevantly provided that the first, second and third and fourth respondents were to use their own plant and equipment to carry out the works referred to in paragraph 2 of the order which in turn relevantly provided:

Within nine months from the date of this order, the first, second, third and fourth respondents (a) will remove (i) all demountable buildings located on the land (ii) all shipping containers located on the land, and (iii) all fixed or mobile plant associated with the use of the land for medium impact industry; (b) will return the land as close as is practicable to the condition it was in immediately before the carrying out of the development offence which would include the following steps:  (i) remove and lawfully dispose of the fill that has been placed etc. etc.

(ii) remove and lawfully dispose of any stockpiles of material that have been placed on the land, and (iii) regrade the land to a condition that generally accords with the contour identified in a survey plan.

  1. (12)
    On 11 February 2020, the council’s solicitors again wrote to the respondents advising that they were following up on further complaints made about activities being carried out on the land.  In that correspondence, the respondents were also invited to provide an explanation as to why the wood chipping activities on the land were continuing.  On 13 February 2020, Ms O’Keefe, on behalf of the respondents, replied.  As it was headed “without prejudice” I will not set out the details of that correspondence other than to note that it denied any breach of the orders made by the court.  That was refuted on behalf of the council and in correspondence dated 19 February 2020, it advised the respondents as follows:

Our client requires that you confirm by urgent reply that the respondents will immediately cease and desist from any further operation of a woodchipper on the subject land.  Given recent events, our client would appreciate the opportunity to carry out an onsite inspection at your earliest convenience to ensure that the terms of the enforcement order are being complied with.  Please urgently provide a list of dates for our client’s officers to attend the subject land.

  1. (13)
    That correspondence was not replied to and was followed up on 16 March 2020.  That elicited a response the following day from Ms O’Keefe which relevantly provided:

Again, no tasks are being undertaken that are outside of the court order. 

  1. (14)
    Reference was also made to the very unfortunate circumstance of the first respondent’s mother passing away.  Reference was also made to the fact that in effect the council should stop harassing them and give the first respondent a chance to grieve, without further interruption, the death of his mother.
  1. (15)
    On 6 April 2020, solicitors for the council again wrote to the respondents advising that they were instructed that the council had written to the respondents on 2 April 2020, seeking to arrange an onsite inspection but as yet had received no reply.  The respondents were then asked to urgently confirm that the operation of the woodchipper on the subject land had ceased and would not continue in the absence of the required development approval being obtained and, again, also to provide a convenient date for inspection.  That correspondence was not responded to and on 17 April 2020, the respondents were served with the subject originating application together with an affidavit of Mr Houweling sworn 7 April 2020.
  1. (16)
    On 27 May 2020, the first respondent, Dale Meredith, the third respondent, Ms O’Keefe, and an employee filed affidavits.  According to the first respondent no woodchipper was located on the subject land and any allegation to that effect was wrong.  According to him, he had acted to ensure that insofar as the court orders were concerned, they were followed “to the letter of the law”.  In his affidavit it was asserted:

At no time has it been my intention to dismiss or ignore the court order.  There is no application that can be applied in this situation that would enable us to complete the orders of the court which does not have noise impact on the surrounding properties.  The plant and equipment that is being used on the site is the fastest and quickest way to achieve the desired outcome of the court to have the property returned to its previous state as listed in the court order.  Due to the sheer size and type of material that needs to be removed from the site we are operating in the fastest and least impacting manner for those in the neighbouring properties.  A tub grinder was chosen for use on the site for this process, making the items that are too large to be removed from the site smaller in size so that they can be removed.  This does not involve nor is this process wood chipping.

  1. (17)
    According to the third respondent, Ms O’Keefe, in her affidavit it was said:

A tub grinder and woodchipper are two completely different machines.  A woodchipper and a tub grinder operate in completely different ways.  A tub grinder does not chip wood as it is not a woodchipper.  It has not been my intention at any time to breach the court order.  My only intent has been the use of our available plant and equipment to clear the stockpile of timber by practical means available to us in order to comply with the court order.

  1. (18)
    Thereafter, reference is made to the affidavit of Mr Houweling, and it is then asserted that his observations about a woodchipper operating on the land were wrong as there was no woodchipper any longer onsite.  Consistent with the first respondent, the third respondent also raised the fact that they felt as if they had been continually harassed by the council. 
  1. (19)
    The employee who filed an affidavit, who I will not name for reasons it is unnecessary to say, described himself as a worker employed by the first and second respondent whose duties included the maintenance and operation of plant and equipment owned by the respondents.  According to him, the woodchipper that was originally located on the land, of which he was the sole operator, was removed from the site on or about 5 December 2019, and has not been returned.  He also confirmed that he was instructed by the third respondent and the first respondent to make sure that the orders of the court were followed, to use his words, “the letter of the law”. 
  1. (20)
    He also gave evidence that in or about February 2019 a tub grinder was brought onto the subject land from an existing stockpile of plant and equipment.  He, like the others said that a tub grinder and a woodchipper are different types of machinery.  According to him:

They operate in completely different ways and a tub grinder does not chip wood in the same way as a woodchipper does.

  1. (21)
    That employee went on to also say in his affidavit:

The plant and equipment being used on the site is considerably quieter than the woodchipper that was previously in use on the site when the order was agreed.  With my experience of the task at hand and the machinery I have operated over the years, there is no application that could be applied in this situation able to complete the orders of the court which does not have noise impact on surrounding properties.  As an experienced machine operator, the plant and equipment that is being used on the site is the fastest and quietest to achieve the desired outcome for the court to have the property returned to its previous state as listed in the court order. 

  1. (22)
    By reference to the evidence of the lay witnesses, none of whom were required for cross-examination and therefore their evidence remained unchallenged, insofar they are concerned it seems tolerably clear that they saw no material difference in the noise emanating from the woodchipper when compared to that emanating from the tub grinder.  They also complain of similar nuisance outcomes including dust or woodchip debris which would drift onto their property covering swimming pools and clothes on the clothesline, etcetera.  And in the case of Mr Nguyen, he also spoke of chunks of wood being flung onto his land. 
  1. (23)
    Turning then to the evidence of the lay witnesses in more detail, there were four in total:  Mr Garrick, Mr Ferguson, Mr Suter, and Mr Nguyen.  Mr Garrick refers to complaints being made by him in respect of noise impacts.  On 28, 29 January, 8 August, 22 August and 10 May and also as late as 22 August 2019. He spoke about uncomfortably loud noises causing prolonged discomfort and dust rising from the property in the vicinity of the activity.  Mr Garrick did not go so far as to identify the precise nature of the equipment being used on the land but he described what he could see as being:

A large machine that has a metal cylinder that spins rapidly and processes quite large pieces of wood that are fed into it and spits out smaller wood chips by way of conveyor.

  1. (24)
    In respect of the assertions made about the plant being used not being a woodchipper, he went on to say:

The machine operating on the land since December 2019 sounds the same to me as the earlier machine did and causes all the same impacts to which I have referred above. 

  1. (25)
    Mr Ferguson also refers to uncomfortably loud noise causing prolonged discomfort, and also observing a large machine that has a large metal cylinder that spins rapidly.  He also spoke about a number of negative impacts that were occurring being the noise emanating from the subject land and, according to him, the impact of the machinery had a significant impact in that (a) the machine was very loud and runs for what seems to be hours at a time.  (b) The house and everything on the property gets coated in sawdust after the machine has been operating. (c) Their pool gets coated in sawdust and is regularly filthy and difficult to clean and (d) often when washing was on the line it got coated in sawdust and residue and had to be rewashed.
  1. (26)
    As was the case with Mr Garrick and Mr Ferguson, Mr Suter also speaks of the detrimental impacts occurring on the subject are having on him and his family.  Mr Nguyen’s evidence was, insofar as it was concerned with impacts on amenity, very similar to that of the other lay witnesses called.  In paragraph 8 of his affidavit he set out a number of dates which he says a woodchipper on the land was operating.  Those dates were:  18 January 2020 between 8 am and 12 pm;  23 January 2020 between 8 am and 4 pm;  24 January 2020 between 8 am and 4 pm;  25 January 2020 between 8 am and 4 pm;  1 February 2020 between 8 am and 12 pm;  29 February 2020 between 8 am and 4 pm;  6 March 2020 between 10.30 am and 12.30 pm;  7 March 2020 between 8.45 am and 12.15 pm;  19 March between 10.15 am and 2.15 pm;  24 March 2020 between 10.15 am and 11.30 pm;  25 March 2020 between 10.15 and 2 pm and on and on until 7 – 18 April 2020 between 11.30 and 1.30 pm.  In paragraphs 10 and 11 of his affidavit, Mr Nguyen said:

I have seen a number of large trucks leaving the land filled with wood chips.  This usually occurs on the day or the neighbouring days that the woodchipper is operating.  We have noticed that, on average, there are two large trucks that come and go from the property when the woodchipper operates.  A greater concern is that over the last few months we have also seen large trucks coming to the property filled with wood to replace the wood piles that were removed on the property following the Court order made on 5 December 2019.

  1. (27)
    The relevance of that evidence will become apparent in a moment.  In circumstances where none of the lay witnesses were required for cross-examination, their evidence should be accepted.  That said, there is one aspect that I consider requires comment.  Mr Nguyens evidence included that on a number of occasions, he not only observed large trucks leaving the land filled with woodchips but also, as he said, of greater concern to him, large trucks coming onto the property filled with wood to replace the woodpiles.
  1. (28)
    That evidence was strongly suggestive that the respondents might have been replenishing the stockpile of wood for further processing onsite after the Court orders were made.  As I said, for reasons that will become apparent in a moment, that was far from certain.
  1. (29)
    Mr Kitson gave evidence which at first blush might have supported the evidence of Mr Nguyen in that he also gave evidence of a business arrangement between Timbertruss with a business he referred to as Meredith Transport.  That arrangement involved Meredith Transport providing a large skip into which timber offcuts from operations of the business of Timbertruss would be placed. That would then be removed by Meredith Transport.  According to Mr Kitson, that arrangement has been in place for some time, and it was his estimation that generally speaking, one load of timber offcuts would be collected by Meredith Transport per week.  That said, in his oral evidence, he said that he did not really know where the timber was taken. His evidence was, though, however, on at least one occasion in or around mid-2019, he was aware that there was one delivery of what he described as timber frame offcuts which had been delivered to the subject land.
  1. (30)
    It would appear, having regard to the evidence of the third respondent, that that might have involved the delivery of a whole or almost whole timber truss which was used by the respondents for building purposes and not for wood chipping.  The evidence of the respondents was that after the orders of the Court were made, no wood was delivered to the subject land which was then processed onsite by the tub grinder.
  1. (31)
    At page 44 of the transcript of 25 June, when being cross-examined, the first respondent was asked:

In terms of the wood being transported to the subject site when it was originally deposited –

  1. (32)
    Then the first respondent interrupted and referred to Burpengary.  Mr Batty, counsel for the council, said to the effect:

Do you mean the subject site?

  1. (33)
    To which the first respondent replied, Yeah.  He was then asked:

How did that occur, and where did the wood come from?  We’ve established previously it came from Carter Holt Mill and Timbertruss correct.

  1. (34)
    The first respondent answered:

Yes.  It had come from there.

  1. (35)
    The situation was, as I understand it, that timber would be placed in a bin left by the respondents at the premises of Timbertruss and Carter Holt Mill, and those operations would deposit timber into those bins which would then be collected by the respondents and taken to the subject land.
  1. (36)
    The timber collected from Timbertruss was described as offcuts or something similar, which was relatively short in length, whereas the material collected from the Carter Holt Mill was described as being logs sometimes up to 7 or 8 metres in length.  Whilst I have some reservation about this matter, I am prepared to proceed on the basis that the respondents had not been involved in importing more timber onto the site to be processed onsite after the Court orders were made. That is, I am prepared to proceed on the basis that that timber might have been delivered to the subject land but was then transported to other sites for further processing.  At the end of the day, though, this does not make any difference to the final outcome. 
  1. (37)
    It is uncontroversial that an order for the council to prove contempt, they must satisfy me beyond reasonable doubt that first, there has been disobedience or noncompliance with the relevant order of the Court, and second, that the noncompliance involved deliberate disobedience in the sense that there was no lawful excuse for that noncompliance.
  1. (38)
    The evidence, indeed, including that of the first and third respondents and the employee establishes the following facts.  First, since the orders of this Court were made in December 2019, the respondents through what was described as the family business has continued to process larger pieces of timber into materially small pieces of wood on a regular basis.  That process has been achieved by feeding the larger pieces of wood through a machine called a tub grinder.  The evidence also clearly establishes that that process has caused a continuing ongoing nuisance to a number of neighbours of the subject land. 
  1. (39)
    That the reduction of the larger pieces of wood is now being achieved using a different machine or process other than a woodchipper is of no consequence.  The relevant part of the orders made by this Court were:

The first, second, and third and fourth respondents by themselves, their servants or agents are restrained from carrying out a material change of use for a medium-impact industry including wood chipping.

  1. (40)
    It is quite clear that the order of the Court was not simply directed at preventing activities on the land involving the use of a woodchipper per se.  The evidence of the first and third respondents is that the difference between the woodchipper and the tub grinder is essentially to this effect. The woodchipper grinds larger pieces of wood into a much finer end product whereas while the tub grinder also processes larger pieces of timber into materially smaller pieces of wood the end product is not as fine as that that would be achieved by using a woodchipper.
  1. (41)
    There is no room, in my view, for reasonable doubt that the use being made of the tub grinder and any of its associated plant or equipment was in contravention of the order.  The processing of the timber onsite by the tub grinder clearly fell within the type of use contemplated within the meaning of a medium-impact density under the planning scheme, which insofar as is directly relevant here, that included the use of premises used for industrial activities that include the manufacturing, producing, processing, repairing, altering, recycling, storing, distributing, transferring, or treating of products and have one or more of the following attributes, relevantly the potential for noticeable impacts on sensitive land uses due to offsite emissions including aerosol, fume, particle, smoke, odour, and noise.
  1. (42)
    As I said, the use of the tub grinder on the subject land falls squarely within that description.  Having reached that conclusion, it then needs to be considered whether there is a lawful excuse.  In my view, the evidence clearly establishes that there is no room for a reasonable doubt that the use of the land complained of does not provide in any shape, or form a lawful excuse.
  1. (43)
    The excuse contended for on behalf of the respondents was that it was necessary to reduce the pieces of timber that were too large to be removed from the site into smaller pieces or sizes so that they could be removed.  While it might well have been the case that the timber in the form delivered to the site was not capable of being readily replaced into bins to be removed offsite, which is not strictly to the point.  The situation is not as the affidavits filed on behalf of the respondents suggested.  Those affidavits, by necessary implication if not expressly, say to the effect that reducing the size of the existing stockpiles of timber by the tub grinder was, in reality, the only available means of disposing of that timber.
  1. (44)
    However, the oral evidence of the first respondent was that the timber could, in fact, have been removed by chain sawing it into smaller lengths which could have then been stacked and loaded onto a truck and removed from the site. He then explained the reason why that process was not adopted, and his evidence was to the effect that it would have taken up to three to four times as long and involved a significantly greater number of truck movements.  It also became apparent that another concern was – and this was expressed by the third respondent – that to dispose of the timber in that manner would have involved incurring what she described as astronomical tip costs. 
  1. (45)
    In respect of the cost of adopting an alternate approach of removing the stacks of timber, I found the evidence led on behalf of the respondents to be unpersuasive in a number of regards. First, the third respondent clearly has control of a transport operation capable of being used to remove timber after it had been cut by a chainsaw or a similar piece of equipment.  Her evidence in this context was at page 57, between lines 12 and 15, to the effect that she had control of a number of vehicles capable of carrying out what she described as logistic services. That included vehicles which she described as a single trainer walker floor, B doubles that form part of what she described as a transport business which provides services within the transport industry.
  1. (46)
    Second, the adoption of a tub grinder must have clearly been a very expensive option.  According to the third respondent, to hire or lease a tub grinder would have cost in the order of $4000 per day.  Finally, in this context, while in Court, the third respondent said that the respondents purchased the grinder because it was too expensive to lease;  however, in correspondence to the council, it was told that the grinder had, in fact, been leased, not purchased.  If leased, referring back to the evidence of the third respondent, that would suggest that the respondents would have been incurring a cost of in the order of $4000 per day.
  1. (47)
    To add further confusion to the situation involving the tub grinder, according to the employee, it, in fact, been relocated onto the site from an existing stockpile of plant and equipment.  At one stage during the proceeding, the third respondent contended that this process of removal, that is, using a chainsaw to cut up the timber into smaller pieces to be loaded onto a truck and removed, might have also fallen within the definition of a medium impact industry.  It is unnecessary to express a final opinion on this context, because even if it did, which I seriously doubt, it provides no excuse for adopting the use of the tub grinder to process the timber onsite.
  1. (48)
    It may be accepted that the alternate method of removing the timber stockpiles from the site would have taken more time and even involve considerable more expense and traffic movement, but, again, that is not to the point.  According to the third respondent, the decision was made to purchase the tub grinder at an unknown cost, which was intended to be on-sold after the stacked timber on the site had been exhausted.  This was clearly a commercial decision made to maximise a return on the existing stockpile or, at the very least, to offset the cost of complying with the orders of the Court.
  1. (49)
    To use the term adopted by the third respondent, the use of the tub grinder was the best option for the respondents.  Although the product produced after processing by the tub grinder was not as fine as that produced by a woodchipper, it nonetheless resulted in commercial gain for the respondents or at least some of them.  In this regard, the first respondent’s evidence was that the processed blocks or chunks of wood would be eventually transported to New South Wales to be used in the production of energy. 
  1. (50)
    During closing addresses, the third respondent advised from the bar table that there had been a misunderstanding about this matter.  According to her, what actually occurred was that after grinding onsite that product was then transported to another place where it was put through a woodchipper, and that end product was then transported to the end user in northern New South Wales. That evidence is set out at page 38 of the transcript, between lines 8 and 31.  I would note, though, that insofar as the third respondent was concerned, one way or another, all of the products, or at least all of that that did not end up in Mr Nguyen’s property, ended up in northern New South Wales. 
  1. (51)
    Even if I were to accept that the best case scenario for the respondent, that is, that there was an intervening step in the processing of the timber before it was sent to New South Wales, that does not detract from the inevitability of the conclusion that despite the protestations to the contrary by the respondents, this was a process adopted for commercial advantage.  While the third respondent made it clear that she had no intention of being precise about the matter and not to mislead the Court, nonetheless her estimate was, as I understood it, that the sale of the product to New South Wales that was initially produced via the tub grinder would have resulted in a gross return of between 20 and 30 thousand dollars.
  1. (52)
    As I have already stated, it is quite clear that the respondents elected to adopt a process of removing a stockpile of timber from the site in a manner that would maximise commercial return or, at the very least, produce a commercial offset to the cost of remedying the land.  In doing so, they elected to carry out a timber processing enterprise, which, as far as I can tell, is only distinguishable from the woodchipping exercise in the sense that it produces a vastly coarser and, therefore, most likely inferior end product.  In those circumstances, I am satisfied beyond reasonable doubt that the conduct of the respondent in the use of the tub grinder was in breach of the orders made by the Court and that the council have rebutted beyond reasonable doubt the defence of lawful excuse.
  1. (53)
    It is then necessary to consider what the appropriate orders of the Court would be, including as to penalty and cost.  In respect of the appropriate penalty, the powers of the Court relevantly provide that the Court may punish an individual by making an order that may be made under the Penalties and Sentences Act 1992.  Those powers, of course, include the imposition of a fine.  I have been referred to a number of authorities to which I will just give passing reference to;  however, I should note that it is beyond doubt that contemptuous disregard for Court orders is a very serious matter, as was observed in the Bundaberg Regional Council v Bailey [2017] QPEC 31, it was said:

Contempt of the Court is a serious matter.  It goes significantly to the heart of the justice system.  The community will have no faith in orders that the Court makes in circumstances where people treat those orders with total disregard without any risk of penalty.

Deterrence, of course, works in two ways.  One is the general deterrence to deter other people from carrying out conduct such as this, but also at a personal level to deter the contempt of further Court orders.

  1. (54)
    It was also said in the Bundaberg Regional Council v Lammi & Anor [2014] QPEC 52 at paragraph 19 that:

The purpose of a Court imposing a sanction upon a person in contempt of its orders is twofold.  It is to punish for past failure to comply and to coerce future compliance.

  1. (55)
    In respect of quantum, I was referred to Bundaberg Regional Council v Lammi, the case to which I have just referred.  In that instance, there were fines of $5000 in respect of the respondents involved there.  In – the other cases to which I refer were Bundaberg Regional Council v Bailey [2017] QPEC 31, Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66, and I would also add to that list the Gold Coast City Council v Adrian’s Metal Management Pty Ltd & Ors, an unpublished decision of this Court delivered ex tempore on 20 March 2019.
  1. (56)
    There can be no doubt, in my view, that those cases would establish that a fine well in excess of that contemplated by the council would have been within range.  However, in circumstances where the council does not contend otherwise and in circumstances where I intend to make a significant order as to costs, I will adopt the approach advocated for by the council and impose a fine of $5000 on all of the respondents in total.
  1. (57)
    Turning then to the question of costs, there is no doubt that in circumstances such as this, this Court has the power to make appropriate orders as to costs.  Having regard to the affidavit of Mr Quirk filed by leave, the sum of $20,000 is, in my view, clearly a reasonable amount.  So I have found that there is contempt.  I order that the first, second, and third and fourth respondents be fined $5000 in total.  In respect of the orders of the type contemplated by the council, Mr Quirk, as I indicated to Mr Batty, I think they need to include reasonable notice of entry, who will be entering the property, on what day, and between what hours.  Now, are either of the respondents still on the line?

RESPONDENT O’KEEFE:   Yes, your Honour.

HIS HONOUR:   Is there anything you would like to add to that list?

RESPONDENT O’KEEFE:   I would just – if we could have more time than two months to pay the costs, that would be appreciated.

HIS HONOUR:   We will come back to that in a   

RESPONDENT O’KEEFE:   Other than that   

HIS HONOUR:      moment.  But at this stage, I am saying to Mr Quirk that the orders contemplated that – you know, the orders that contemplate the officers of the council inspecting the property, I – I said to Mr Batty and I am repeating it to Mr Quirk that those orders need to specify that the council is required to advise you about – give you reasonable notice about the name of the person who is coming, the date upon   

RESPONDENT O’KEEFE:   Yeah.

HIS HONOUR:      which they are coming, and the time at which they intend to come, and what I was asking   

RESPONDENT O’KEEFE:   We would appreciate that   

HIS HONOUR:   Yes.  Is there anything   

RESPONDENT O’KEEFE:      Mr Richard Konarski not attend the property, please, if that’s possible.

HIS HONOUR:   Mr Konarski not attend?  That is   

RESPONDENT O’KEEFE:   Yes.

HIS HONOUR:   Mr Quirk has indicated that that is fine.  So any person (other than Mr Konarski).

RESPONDENT O’KEEFE:   No, your Honour.

HIS HONOUR:   All right.  Now, in respect of the payment of the fine – sorry.  I should add to the reasons that by reference of the aerial photographs, exhibit 2, it is clear to me that significant steps have been taken to rehabilitate the land, and I would place on the record also that consistent with what Mr Batty told me from the bar table, any legitimate use of plant and equipment including chainsaws to finalise the rehabilitation of the site would not fall within the meaning of the medium-impact density provisions of the planning scheme.  I think I should include that in my reasons, Mr Quirk.

MR QUIRK:   Yes, your Honour.

HIS HONOUR:   Now, then, just bear with me.  [indistinct]  Now, the – the fine be paid by the 28th of August.  Now, in – in respect of the payment of the costs in $20,000 by the same date, I was just wondering, Mr Quirk, might it be open – and you might well have to get instructions about this, to allow either some extra time for the payment of the 20,000 or pay by way of a couple of instalments or something to that effect.  I am not asking you to agree to that.  You   

MR QUIRK:   No.  I – I would imagine my client would be reasonable if some additional time was required by the respondents to make payment of that amount.  I understand Tabitha was about to say something along those lines.

HIS HONOUR:   Right.  Ms O’Keefe, did you hear the exchange between Mr Quirk and myself?

RESPONDENT O’KEEFE:   I heard he said his – I – I didn’t really hear it, your Honour.  No.  I’m sorry.

HIS HONOUR:   Okay.  I – I will repeat it.  The – the fine has to be paid by the 28th of August, but I asked Mr Quirk whether his client might agree for an extension or some additional time to pay the $20,000, and I understood that you might have been about to say something to the effect, “Could we have a little bit of extra time.”

RESPONDENT O’KEEFE:   Yeah.

HIS HONOUR:   What sort of time?

RESPONDENT O’KEEFE:   If we could just – if we could make four instalments of $5000.  If – if we could make an instalment perhaps once a month, that would be four months for the – for the $20,000.

MR QUIRK:   That – that seems reasonable, your Honour.  I – I wouldn’t contest that.  If that’s following from the – from the date of the order [indistinct] month.

HIS HONOUR:   Well, Mr Quirk has indicated that he is quite confident of getting instructions that monthly instalments of $5000 each month from today’s date are likely to be acceptable.  So if Mr Quirk were to get orders in place to that effect, that would meet your request.

RESPONDENT O’KEEFE:   Thank you.

HIS HONOUR:   And as I – as I said, I will tidy up these ex tempore reasons before they are published.  That may not be until I get – I return from leave, unless I get an opportunity to come in and do so earlier.  But I assume people understood the thrust of what I was saying.  All right.  Well, thank you for your attendance.  We will adjourn the Court.

Close

Editorial Notes

  • Published Case Name:

    Moreton Bay Regional Council v Meredith & Others

  • Shortened Case Name:

    Moreton Bay Regional Council v Meredith

  • MNC:

    [2020] QPEC 36

  • Court:

    QPEC

  • Judge(s):

    R S Jones DCJ

  • Date:

    26 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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