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Queensland Building & Construction Commission v van Uden[2021] QDC 103

Queensland Building & Construction Commission v van Uden[2021] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building & Construction Commission v van Uden [2021] QDC 103

PARTIES:

QUEENSLAND BUILDING & CONSTRUCTION COMMISSION

(Applicant)

v

MARINUS HENDRIKUS VAN UDEN

(Respondent)

FILE NO:

BD 1761 of 2020

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

11 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2021

JUDGE:

Dearden DCJ

ORDER:

The respondent, Marinus Hendrikus van Uden, is guilty of contempt in respect of each of charges 1 and 2.

CATCHWORDS:

CONTEMPT OF COURT – Failure to comply with court orders – Continued non-compliance – Defendant failed to attend trial – Defendants self-represented – Contempt proven – Deferred determination of penalty

LEGISLATION:

District Court of Queensland Act 1967 (Qld) s. 129.

Penalties & Sentences Act 1992 (Qld) ss. 44-51, 152-153A

Queensland Building & Construction Commission Act 1991 (Qld)

Uniform Civil Procedure Rules 1999 (Qld) rr 904(1)(b), 926, 930

CASES:

Australian Consolidated Press v Morgan (1965) 112 CLR 483

Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271

Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68, citing Blair v Curran (1939) 62 CLR 464

Lade v Lade & Co Pty Ltd v Black [2006] QCA 294

Polis v Zombor [2019] FCA 856

R v Bonacci [2015] VSC 121

Ronowska v Kus (No. 2) (2012) 221 A Crim R 261

Witham v Holloway (1995) 183 CLR 525

COUNSEL:

N J Derrington for the applicant

No appearance for the respondent

SOLICITORS:

Clayton Utz for the applicant

No appearance for the respondent

Introduction

  1. [1]
    The applicant/plaintiff, the Queensland Building & Construction Commission (‘QBCC’), filed an application on 29 January 2021 (an amended version of which was filed by leave at the hearing on 4 June 2021),[1] seeking that the defendant/respondent, Marinus Hendrikus van Uden be punished for contempt pursuant to Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r. 930.
  2. [2]
    The QBCC is a statutory corporation established under the Queensland Building & Construction Commission Act 1991 (Qld). On 19 June 2020, the QBCC instituted proceedings against the defendant seeking to restrain him from publishing “injurious falsehoods” concerning the QBCC and its employees on various social media accounts including Facebook, Instagram, Twitter and YouTube.[2] The proceedings related to “vituperative statements” about named employees of the QBCC, and variously alleged that the QBCC was corrupt, a liar, employed building inspectors who were committing criminal offences by working as unaccredited inspectors, and further asserts that all QBCC building inspectors should be imprisoned.[3]
  3. [3]
    On 26 August 2020, Barlow QC DCJ entered default judgment for the QBCC against the defendant and made orders including:

“2.The Defendant, within seven (7) days of this service of this order upon him in accordance with order 8, must take all reasonable steps within his power to cause the following social media accounts or pages to be disabled and deleted:

  1. (a)
    the Facebook page titled “QBCC Corruption”;
  2. (b)
    the Instagram account titled “QBCC CORRUPTION” (@qbcccorruption);
  3. (c)
    the Twitter account titled “Qbcc Corruption” (@CorruptionQbcc); and
  4. (d)
    the YouTube page titled “QBCC Corruption”.
  1. The defendant, within seven (7) days of service of this Order upon him in accordance with order 8, must take all reasonable steps within his power to cause the statements particularised in paragraph 10 of the Statement of Claim filed on 19 June 2020 in this proceeding;
  1. (a)
    on the Facebook page titled “QBCC Corruption”;
  1. (b)
    on the Instagram account titled “QBCC CORRUPTION” (@qbcccorruption);
  2. (c)
    on the Twitter account titled “Qbcc Corruption” (@CorruptionQbcc); and
  3. (d)
    on the YouTube page titled “QBCC Corruption”,

to be permanently removed from the World Wide Web.

  1. Subject to order 5, the Defendant be permanently restrained, from publishing, or causing, encouraging, requesting or enabling to be published, by any means whatsoever, any statements with respect to the Plaintiff and its officers, agents and employees including, but not limited to, statements to the effect that:
  1. (a)
    the Plaintiff or any of its officers, agents or employees are:
  1. (i)
    corrupt or complicit in corruption;
  1. (ii)
    criminals;
  1. (iii)
    liars;
  1. (iv)
    thieves;
  1. (v)
    a manipulator;
  1. (vi)
    a puppet for the Australian Labor Party and Mick de Brenni;
  1. (vii)
    engaged in a conspiracy; and/or
  1. (viii)
    complicit in the death of contractors;
  1. (b)
    any officer, agent or employee of the Plaintiff has committed a criminal act in the course of his or her duties as an officer, agent or employee of the Plaintiff and/or should be imprisoned for such conduct; and/or
  1. (c)
    any officer, agent or employee of the Plaintiff:
  1. (i)
    does not hold the appropriate licenses or qualifications for his or her role, including but not limited to conducting building inspections in the course of their duties; and/or
  1. (ii)
    is not entitled to enter premises in the course of performing that person’s duties.
  1. Order 4 does not prevent the Defendant from making any statements to the effects stated in order 4, provided that he first obtains the leave of this Court or of the Supreme Court of Queensland by application served on the Plaintiff no less than three (3) days before the application is listed to be heard.”
  1. [4]
    The applicant submits that the defendant is in contempt of these orders on the basis that the posts remain on these various social media accounts (“the QBCC Corruption Accounts”) on the internet, and that not only have there been no steps made to remove them, but further posts have been subsequently published.[4]
  2. [5]
    The QBCC applies for the defendant to be found in contempt of the orders of the court and be punished for contempt pursuant to UCPR r. 930.

Defendant’s conduct prior to commencement of the proceedings

  1. [6]
    The applicant’s written submissions[5] helpfully outline the defendant’s conduct leading up to the default judgment entered by Barlow QC DCJ on 26 August 2020, in the following terms:-

“6. Mr van Uden was, at least prior to the commencement of the proceeding, a licenced builder with the QBCC.[6]

  1. On 27 September 2019, the QBCC received a complaint about allegedly defective building work carried out by Mr van Uden.[7] On 21 October 2019, following an assessment of the complaint, Ms White, an Operations Team Leader at the QBCC allocated the complaint to Mr Ross Blumel, a QBCC Inspector.[8]
  2. On 15 January 2020, Mr Blumel conducted a site inspection of Mr van Uden’s building work, being a property at 10 Bonaparte Place, Palmwoods.[9] In attendance with Mr Blumel at the inspection were the owners of the property, a Mr and Mrs Atkinson, Mr van Uden, and Jack van Uden. Mr Blumel made a recording of the inspection, and a transcript of the recording is in evidence.[10] In the course of the inspection, Mr Blumel observed Mr van Uden to become aggressive towards him and Mr and Mrs Atkinson and recalled that the behaviour became more aggressive after Mr Blumel had stated that he intended to issue a notice to rectify.[11]
  3. Later that same day, Mr Blumel received an email from Mr van Uden, which contained what was said to be “evidence” that the alleged defective work was caused by Mr and Mrs Atkinson.[12] The email contained, inter alia, the following text:

Hello Ross,

I think it is very important to you, you read this letter very carefully. If you have any questions or you don't understand our writing please don't hesitate to contact us. What happened today during inspection is a completely disgrace to all contractors in Queensland because this is not happening to me only. I don't believe you are a man who will contact me back after reading this letter but it will be very wise to read this letter very carefully.

- I asked for your licensed number and you didn't like to provide me your licensed number. Can I have your building inspector license number now. Not needed to send you low rise builder license number 16868, by law you have me to provide me you inspector number.

- It's by law that both parties will leave the same time or that both parties will departure the building site included the building inspector.

You Failed. What happened when you went back inside without me illegal. Did you discussed something with this liar and very dishonest Atkinson when you went back in?. Very stupid act to do.

If you like to act by the law . Act as the law. And make sure you're licensed is able to act by law.

-You told me too many times I'm an angry man, No Ross, I'm very disappointed in you and the whole acting of the qbcc.

Final word:

  • I suggest you to read this letter very carefully and more than once.
  • I suggest you to study attachment with photos very carefully.
  • I expect that you will think twice before act and sending away qbcc reports to me.
  • You can't act as a judge or even as a building inspector because you have no qualifications for this profession.
  • You do realise if I'm correct and you have no building inspector license this is unlawful and completely illegal.
  • If I'm correct high sentence will be involved if I do more investigations and put this through court.
  • I didn't use this day to get my right during your inspection only, I put also evidence on tape and photo materials against your corrupt colleague Chris Coombe. I cannot let him go the corrupt way he acted against me.
  • The internet media is strong and so easy these days.!!
  • I have an appointment in a few weeks with Paul Richard. Not that anything helps talking to this person but I will put this case and that from Chris Coombe on the table next to my photo and video evidence I collected.
  • I expect that you will send me you inspector license number within 24 hours. If not provided I will make further actions.
  • Congratulations It was your turn today Hope you enjoyed it,
  • I expect even with all photo and video evidence I've sent to you today in this email (see attachment), you still will write a rectification report to me. Very unprofessional and shortcoming of a human being.
  • That's your choice you made. Than it’s my time to react. I can't let this go again and I won't let you get away with this corruption.
  • I been spitted out with no good reason and most corrupt manner too many times by employees from the qbcc
  • I'll make sure your face , your name and all corrupt fake ‘inspectors’ and employees will be shining viral on the 'internet' media.

Your Sincerely,

MH van Uden

Certified senior surveyor, Certified Engineer, Certified Architect. Certified business manager, certified builder. Queensland Licensed Carpenter and Builder low rise to $800000 like you.

And all mine certifications are diplomas from Europe not a cheap TAFE course certificate like you have.

(All typographic errors in original. Emphasis added).

  1. Notwithstanding the email, on 17 January 2020, Mr Blumel issued Mr van Uden with a formal Direction to Rectify, requiring him to rectify building work which he had conducted at the site.[13]
  2. Mr van Uden responded by sending a text message to Mr Blumel, in which he stated that Mr Blumel was “a liar and corrupt” and a “dirty bastard”.[14]
  3. On 20 January 2020, Mr van Uden met with another employee of the QBCC, Ms White, to discuss the Notice to Rectify. The outcome of that meeting was that Ms White agreed to arrange for Mr Blumel’s decision to be reviewed internally.[15]
  4. In correspondence between himself and Ms White following the meeting on 24 January 2020, Mr van Uden:
    1. a.
      again made statements to the effect that Mr Blumel was corrupt and that he held Ms White accountable for “corruption activities”;
    1. b.
      made particular mention of Mr Blumel’s wife, and the fact that she had worked for the government; and
    1. c.
      stated in an email to Ms White that he would send “this corruption matter”, with the names and photographs of Mr Blumel and Ms White, to newspapers and journalists.[16]
  5. On or around 18 January 2020, vituperative statements about the QBCC, Mr Blumel and Ms White began appearing on social media accounts across four different platforms – namely:
    1. a.
      a page entitled “QBCC Corruption” on the website www.facebook.com (the QBCC Corruption Facebook Account);[17]
    1. b.
      a page entitled “QBCC Corruption” on the website www.twitter.com (the QBCC Corruption Twitter Account);[18]
  1. c.
    a page entitled “QBCC Corruption” on the website www.instagram.com (the QBCC Corruption Instagram Account);[19] and
  1. d.
    a page entitled “QBCC Corruption” on the website www.youtube.com (the QBCC Corruption YouTube Account),[20]

(together, the QBCC Corruption Accounts).

  1. The posts were inflammatory and voluminous, with copies thereof spanning some 277 pages.[21]
  2. Against this background, there could never be any doubt that the posts were made by Mr van Uden:
    1. a.
      The social media pages first started to be created the day after Mr van Uden received the Notice of Improvement (18 January 2020). Posts on those pages then commenced in earnest after Mr van Uden’s meeting with Ms White on 20 January 2020.[22]
    1. b.
      The posts are primarily concerned with Mr Blumel, Ms White, and an allegation that inspectors of the QBCC (including Mr Blumel) are not entitled to inspect buildings without a licence and are corrupt.[23] This is the same allegation that Mr van Uden made:
    1. in his email to Mr Blumel on 15 January 2020;
    2. in his meeting to Ms White on 20 January 2020;[24] and
    3. in the email to Ms White on the same date.[25]
    1. c.
      In addition, the posts occasionally concern:
    1. the fact that Mr Blumel’s wife was a government employee,[26] a matter that Mr van Uden mentioned in his email of 20 January 2020; and
    2. Mr Chris Coombes,[27] who was also mentioned in Mr van Uden’s email of 15 January 2020.
    1. d.
      Most concerningly, the posts contain a photo of Ms White that was taken during Mr van Uden’s meeting with her, and that in a menacing way was sent by Mr van Uden to her on 24 January 2020.[28]
    1. e.
      Mr van Uden’s email on 24 January 2020 also contained the allegation that Mr Blumel was acting unlawfully because he was unaccredited, but also text which was either word for word identical to, or almost identical to, text contained in posts made on social media after the email was sent. Relevantly:
    1. In his email, Mr van Uden said:

An unaccredited licensed inspector can not undertake on his own building inspections for customers or companies, definitely not for government enterprises.

An unaccredited inspector can do this if he becomes an employee or hired by an accredited inspector/certifier. The unaccredited inspector is allowed to do inspections but will be supervised by a licensed accredited inspector/ certifier.

The unaccredited inspector will be supervised the whole time by the accredited inspector/certifier.

The reports will be written and signed with the name of the licensed accredited inspector /certifier included his licensed number. The accredited inspector/ certifier stays completely responsible over the inspection.

If the unaccredited inspector will do dodgy jobs or is failing in his performings, it is the good right of the licensed accredited inspector/ certifier to let him go.

  1. Almost identical language can be seen having been posted on 10 February 2019[29] (and many occasions thereafter).
  2. Mr van Uden also said in his email that:

Ross is not allowed to undertake any inspections in any form whatever and definitely not for a government enterprise.

Ross is doing this for the last 12 years.

2 inspections a day, 250 days a year, 12 years active for something he is not licensed for.

6000 inspections and putting honest contractors a penalty for $2500 each.

He is guilty and made damage of $15000000.00 (15Million) corrupt reports.

  1. Mr van Uden updated his calculation to $50 million in a further email sent on 4 February 2020.[30]
  2. Again, identical language, and other almost identical language can be seen as having been posted from as early as 16 February 2020 on Facebook[31] and 7 February 2020 on Instagram[32] (and many times thereafter). In particular, it is notable that the numbers used by Mr van Uden in his emails appeared in identical form on the QBCC Corruption pages.
  1. f.
    In the 4 February 2020 email, Mr van Uden also threatened to make Ms White “very famous.”[33]
  1. [7]
    It is submitted[34] (and I accept) that there is an issue estoppel as between QBCC and the defendant that he was the publisher of the posts made prior to the commencement of the proceedings, as identified in the statement of claim, arising out of the summary judgment, entered in default,[35] of Barlow QC DCJ dated 26 August 2020.

Procedural history up to the entry of default judgment

  1. [8]
    QBCC commenced proceedings on 19 June 2020 seeking to restrain the defendant from continuing to publish the impugned statements. That proceeding, together with an application for an interlocutory injunction was served on the defendant personally on 24 June 2020 at 18 Amaroo Place, Cooroibah, which was the defendant’s principal place of business recorded with QBCC.[36]
  2. [9]
    The application for interlocutory relief was listed for hearing on 7 July 2020, and on 6 July 2020 the solicitors for QBCC forwarded a copy of the QBCC’s outline of argument to the associate for Richards DCJ,[37] which prompted a response from the defendant, sent to one of the QBCC solicitors, which contained similar statements to statements made in the social media posts (including statements to the effect that the QBCC were corrupt, that the QBCC were engaged in a conspiracy, and that there are corrupt unaccredited building inspectors working for the QBCC).[38]
  3. [10]
    The defendant failed to appear on 7 July 2020, and in his absence Richards DCJ granted an interlocutory injunction restraining the publication of certain social media posts by the defendant and requiring him to remove the posts.[39] Those orders were personally served on the defendant on 10 July 2020 at 18 Amaroo Place, Cooroibah.[40]
  4. [11]
    The defendant failed to comply with the orders made by Richards DCJ,[41] did not file a defence in the proceeding, and on 26 August 2020, Barlow QC DCJ entered judgment in default for QBCC and made orders, which in summary:-

“(a)required Mr van Uden to take all reasonable steps within his power to disable certain social media accounts or pages (the Accounts): Order 2

  1. (b)
    required Mr van Uden to remove certain statements about the QBCC and its employees published on them (the Posts): Order 3 and
  1. (c)
    permanently restrained Mr van Uden from publishing, or causing, encouraging, requesting or enabling to be published, by any means whatsoever, certain statements about the QBCC and its officers, agents and employees without prior leave of the court: Orders 4 and 5.”[42]
  1. [12]
    Enquiries made when attempting to serve the defendant with the QBCC’s application for default judgment prior to the date of hearing, identified that the defendant had sold the property at 18 Amaroo Place, Cooroibah on or about 17 July 2020, that he did not otherwise own property in Queensland,[43] and attempts to contact the defendant using the phone number he had provided to QBCC were also unsuccessful.[44]
  2. [13]
    As a result of these enquiries, Barlow QC DCJ permitted service of the orders that were made on 26 August 2020 by email and text message,[45] and the orders were served on the defendant later on 26 August 2020.[46] Pursuant to order 8(b) of the orders of 26 August 2020, service was taken to have occurred at the end of 28 August 2020 (two business days later) and, consistently with those orders, the defendant was required to take all reasonable steps within his power to remove the posts (“the QBCC Corruption Posts”) and disable and delete the accounts by 4 September 2020 (seven days after the service of the orders).

The contempt application

  1. [14]
    Despite the orders made by Barlow QC DCJ on 26 August 2020, the defendant did not remove the posts from the internet as ordered nor cease publishing statements about the QBCC on the QBCC Corruption Accounts.[47]
  2. [15]
    The QBCC filed an interlocutory application on 29 January 2021 seeking that the defendant be punished for contempt for his failure to comply with orders 2, 3 and 4 of Judge Barlow’s order made 26 August 2020.
  3. [16]
    Despite extensive attempts to locate the defendant to serve him personally with the application to be dealt with for contempt, he was unable to be located,[48] and on 6 April 2021 Burnett DCJ made orders for substituted service of the contempt application and supporting materials pursuant to UCPR r. 116 by means of email and Facebook.[49]
  4. [17]
    The applicant identified in that application:-

“(a)that Mr van Uden had recently been using the relevant Facebook accounts (being the QBCC Corruption Facebook account and his personal Facebook account);

  1. (b)
    that, as recently as last year, he had used the relevant email address in relation to the proceedings; and
  1. (c)
    that the email addresses identified in the orders of Burnett DCJ were linked to the Facebook accounts also identified therein.”[50]
  1. [18]
    The contempt application was served on the defendant in accordance with the orders for substituted service made by Burnett DCJ on 9 April 2021.[51]
  2. [19]
    On 12 April 2021, QBCC’s solicitor’s process server, Leon Thach, checked the status of the Facebook messages sent to the relevant accounts and confirmed that the message sent to the QBCC Corruption Facebook account had been “seen” on Friday 9 April 2021 at 5.51pm.[52]
  3. [20]
    On 16 April 2021, Kefford DCJ made orders[53] providing for the filing and service of written submissions and listing this contempt application for hearing on 3 June 2021 and the applicant has complied with the service requirements of those orders.[54]

The law – contempt

  1. [21]
    A District Court Judge has the same power to punish for contempt as a Supreme Court Judge would have if the contempt were a contempt of the Supreme Court.[55]
  2. [22]
    Unless the court orders otherwise, a non-money order may only be enforced by contempt proceedings if the procedural requirements under UCPR rr. 904 and 926 have been satisfied.
  3. [23]
    All allegations of contempt must be proved beyond reasonable doubt.[56]
  4. [24]
    In Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271, Clare SC DCJ identified the “five essential elements” which must be established to prove contempt by reason of disobeyance of a court order,[57] which are:-

“(a)that there is an order of this Court requiring the respondent to do or restrain from doing, the relevant acts;

  1. (b)
    that the terms of the order were sufficiently clear to identify what was required of the respondent;[58]
  1. (c)
    that the respondent knew of the terms of the order;[59]
  1. (d)
    that the respondent breached the terms of the order; and
  1. (e)
    that the respondent had no lawful excuse for doing so.”[60]
  1. [25]
    With respect to the requirement that “the respondent knew of the terms of the order”, although applications for punishment for contempt are ordinarily to be served personally, to enable the alleged contemptor to have a proper opportunity to respond, if that purpose can be fulfilled without personal service, there is no unfairness.[61] I am so satisfied given that, despite the applicant serving the respondent in accordance with court orders, at each step of these proceedings, the respondent has chosen not to engage in the proceedings in any way. The respondent has clearly waived his right to be present and participate in the proceedings. Given the nature and seriousness of the alleged contempt, the strength of the evidence, the lack of any possible justification, the consequences for the applicant and “the need to uphold and preserve the orderly administration of justice”, I consider it appropriate to proceed in the respondent’s absence.[62]
  2. [26]
    UCPR r. 930 provides that where the court has decided that an individual has committed a contempt, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (Qld). That order can include the imposition of a fine or imprisonment.[63]
Application
  1. [27]
    The applicant submits that the defendant should be convicted of contempt and makes the following submissions:-
  1. The applicant submits that the procedural requirements of UCPR rr. 904 and 926 have been satisfied, in that the orders made by Burnett DCJ on 6 April 2021 permitted the contempt application and supporting materials to be served on the defendant by email and Facebook rather than personally; and
  2. All other requirements of UCPR rr. 905 and 926 have been met, given that the order was served on the defendant within a reasonable time before the time specified for performance (seven days after the date of service);[64]
  3. The QBCC has filed an application in the proceeding in which the contempt was committed specifying the alleged contempts;[65] and
  4. The contempt application and supporting affidavits were served upon the defendant in accordance with the orders of Burnett DCJ.[66]
  1. [28]
    With respect, I am satisfied, as submitted, that these procedural requirements have been complied with.
  2. [29]
    The applicant summarises substantive aspects of the application as follows:

“(a)Charge 1 alleges that Mr van Uden failed to comply with [2] and [3] of the orders, by:

  1. (i)
    Failing, within seven days of the service of the order on him (which was deemed to have been affective from 3 September 2020), to take all reasonable steps within his power to cause the QBCC Corruption Accounts to be disabled and deleted; and
  2. (ii)
    Failing, within seven days of the service of the order, to take all reasonable steps within his power to cause the statements particularised in the statement of claim to be removed from the internet.
  1. (b)
    Charge 2 alleges that Mr van Uden failed to comply with [4] of the order, by causing further posts to be made on the QBCC Corruption Accounts, in contravention of the orders.”[67]
  1. [30]
    The applicant also submits that the court would be satisfied that there was sufficient evidence to prove the “five essential elements” identified by Clare SC DCJ in Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271, beyond reasonable doubt, in respect of each of the two charges. Dealing with the applicant’s submissions on those elements, it is appropriate then to deal in turn with the applicant’s submissions in respect of each of the five elements:
  1. That there is an order of this court requirement the respondent to do, or restrain from doing, the relevant acts
  1. [31]
    Barlow QC DCJ made orders on 26 August 2020 which required the defendant to disable the accounts and remove the posts and which also restrained him from publishing (or causing to be published) certain statements about the QBCC.[68] I am satisfied that there was an order of this court which satisfies that element.
  1. That the terms of the order were sufficiently clear to identify what was required of the respondent
  1. [32]
    The applicant submits that:
    1. (a)
      Order 2 identified the social media accounts and pages which Mr van Uden was required to disable and delete by both name and platform;
    2. (b)
      Order 3 identified specifically the Posts which were to be removed as “the statements particularised in paragraph 10 of the Statement of Claim filed on 19 June 2020 in this proceeding”, and also specified the platforms on which they were located;
    3. (c)
      Mr van Uden was served personally with the Statement of Claim filed on 19 June 2020, together with the 1st Dunphy affidavit,[69] which exhibited copies of the posts, on 24 June 2020;[70] and
    4. (d)
      Order 4 provided in unambiguous terms that Mr van Uden was permanently restrained from publishing, or causing, encouraging, requesting or enabling to be published, by any means whatsoever, statements of a kind described specifically in that order.[71]
  2. [33]
    I have no hesitation in being satisfied that the applicant has established this element.
  1. That the respondent knew of the terms of the order
  1. [34]
    The defendant was served with the orders, as outlined above, in accordance with the specified steps required for service pursuant to orders of this court. I am satisfied that service was sufficient to demonstrate that the defendant had knowledge of the orders, as required.[72]
  1. That the respondent breached the terms of the order
  1. [35]
    The applicant submits that this court should be satisfied beyond reasonable doubt that the respondent breached each of orders 2 and 3 (constituting charge 1) and order 4 (constituting charge 2).
  2. [36]
    In respect of charge 1, it is submitted (and I accept, beyond reasonable doubt) that the QBCC Corruption accounts and the posts contained on them, remained on the internet at the time the application for contempt was filed.[73]
  3. [37]
    The next issue is whether this court is satisfied, beyond reasonable doubt, that the respondent failed to take all reasonable steps within his power to cause the accounts to be deleted and for the posts to be deleted.
  4. [38]
    The applicant submits that there can be no doubt that the respondent failed to take such steps, for the following reasons:
    1. (a)
      For the reasons set out comprehensively in exhibit 1 (written submissions of the applicant) paragraph 16,[74] the respondent was the person posting on the QBCC Corruption Accounts prior to the commencement of the proceeding, and further there is an issue estoppel in respect of that fact.[75]
    2. (b)
      In these circumstances, it is submitted that there can be no doubt that the respondent at least had access to the accounts and the power to remove the posts and account from the internet on the accounts that were created and the posts the subject of the orders of Barlow QC DCJ.[76]
    3. (c)
      As the posts have remained, it is submitted that the prima facie position is that no such steps were taken and there is no evidence to indicate that that position has changed. In particular, it is submitted that the fact that the respondent has taken no steps is unsurprising given the evidence that he has refused to engage with the proceedings commenced against him to restrain his publication of those posts.
    4. (d)
      Further, it is submitted that even if the respondent had taken the steps to remove the posts and those steps had failed, the respondent would have ceased using the accounts using the accounts to post further material. The applicant relies on the posts the subject of charge 2 (addressed below) to demonstrate that the respondent has been maintaining the accounts and posting to them.
  5. [39]
    The applicant submits therefore that this court should be satisfied, beyond reasonable doubt, that the respondent breached orders 2 and 3. This court is so satisfied.
  6. [40]
    Charge 2 identifies 21 discreet posts made to the QBCC Corruption Accounts between September 2020 and November 2020.
  7. [41]
    The applicant submits that there is no doubt that the posts were “published”, the evidence of that publication and the fact that they made allegations about the QBCC in contravention of the orders is set out in the affidavit material of the applicant’s solicitor Mr Dunphy.[77]
  8. [42]
    The applicant relies on the fact that each post makes statements that the respondent was restrained from making, which is apparent on the face of each post.
  9. [43]
    The applicant points, in particular,[78] to:-

“(a)The post made on Instagram on 13 September 2020 (particulars (c)(iii)) which alleges that Blumel did not hold appropriate qualifications, and in doing so, stated that Mr Blumel “shouldn’t be fired, he should be drawn and quartered”;[79]

  1. (b)
    The post made on Instagram on 23 November 2020 (particulars (c)(iii)) contains a photo of a QBCC commissioner standing over the grave of a QBCC contractor, bearing the contractor, and thereby implying that he is complicit in crime and murder.[80]
  1. [44]
    The applicant submits that this court should be satisfied beyond reasonable doubt that it is the respondent who made those posts on the QBCC Corruption Accounts, given that the respondent’s vendetta against MrBlumel and Ms White was clearly personal and continuing, for the following reasons:[81]

“(a)The post on Instagram on 13 September 2020[82] in part concerns Mr Blumel and duplicates pictures posted by Mr van Uden on, inter alia, 26 and 30 January 2020 and 10 February 2020 on Facebook;[83]

  1. (b)
    That same post also attacks Mr Blumel’s wife by associating her image with a statement about corrupt building inspectors[84] and does so using an imagine of Ms Blumel’s LinkedIn page, that also appears in posts which Mr van Uden made, inter alia, on Facebook on 16 February 2020;[85]
  1. (c)
    The post on Instagram on 23 November 2020 again uses images of Mr and Ms Blumel that were used by Mr van Uden in previous posts;[86]
  1. (d)
    But in addition, that post also alleges that Ms White was an accomplice to corruption within the QBCC,[87] using an image which was previously used by Mr van Uden on 10 February 2020 in a post on Facebook.”[88]
  1. [45]
    It is further submitted that the pursuit of Mr Blumel and Ms White, which started when each of them was involved in criticising the respondent’s work, together with the similarity of the allegations made by the respondent to Ms White which correspond directly to the allegations on the QBCC Corruption Accounts, leads inexorably to the conclusion that it was the respondent that started the QBCC Corruption Accounts and has used them to attack the QBCC and its staff, with the posts the subject of charge 2 a continuation of that behaviour.
  2. [46]
    It is therefore submitted that there can be no reasonable doubt that the respondent was also the author of the posts the subject of charge 2. By posting them, it is submitted, the respondent breached order 4, of the 26 August 2020, of Barlow QC DCJ.[89]
  3. [47]
    The case against the respondent is circumstantial. I direct myself that to find the respondent guilty, in these circumstances, it is necessary that guilt should not only be a rational inference, but the only rational inference that be drawn from the circumstances. Of course, if there is any reasonable hypothesis consistent with innocence, I should find the respondent not guilty.
  4. [48]
    In the light of the submissions by the applicant, and in particular the evidence relied upon, I conclude that there is no inference open that is consistent with the respondent’s innocence. The evidence referred to in the above points inexorably to the respondent being the person responsible for the 21 posts from September to November 2020, particularised in charge 2. It is clearly the respondent who has the motive, the animus, and the means to have made these posts. Accordingly, I am satisfied beyond reasonable doubt that the respondent was the person who continued to make posts on the QBCC Corruption Accounts.
  1. That the respondent had lawful excuse for doing so
  1. [49]
    Nothing on the material before me (and I have not had the benefit of any material from the respondent, given that he has not either appeared nor participated in the process in any way), raises any relevant lawful excuse or defence justifying the failure to comply with the orders.
  2. [50]
    It follows that the court is satisfied that each of charges 1 and 2 has been proved beyond reasonable doubt. I find the respondent guilty of contempt in respect of each charge 1 and 2.

Penalty

  1. [51]
    I will hear the parties in respect of the process to be followed for submissions on penalty, and any further necessary procedural steps to finalise the matter.

Footnotes

[1] The amendments were minor and corrected factual details in respect of the particulars of contempt for failure to comply with Order 4 of his Honour Judge Barlow QC made on 26 August 2020 at paras 2(c)(vii)(E), 2(c)(xvii)(B) and 2(c)(xx)(E).

[2] See Claim and Statement of Claim, filed 19 June 2020.

[3] Exhibit 1 – Written submissions of the applicant [2]; Statement of Claim [10].

[4] Affidavit of Barry Thomas Dunphy filed 9 February 2021, [10] – [15] and Exhibits BTD-10 – 11, and BTD-14 –36, Affidavit of Barry Thomas Dunphy filed 6 April 2021, [5] – [6] and Exhibits BTD-38 – BTD-41.

[5] Exhibit 1 – Written submissions of the applicant, [6] – [16].

[6] Affidavit of Nicola Gay White filed 19 June 2020, Exhibit NGW-2, p. 18.

[7] Affidavit of Nicola Gay White filed 19 June 2020, [4], Exhibit NGW-1, p. 1.

[8] Affidavit of Nicola Gay White filed 19 June 2020, [8].

[9] Affidavit of Ross Blumel filed 1 July 2020, [5].

[10] Affidavit of Ross Blumel filed 1 July 2020, [5], Exhibit RB-2, p. 3.

[11] Affidavit of Ross Blumel filed 1 July 2020, [6].

[12] Affidavit of Ross Blumel filed 1 July 2020, [7], Exhibit RB-3, p. 23. The email was signed MH van Uden, and from the email address that the QBCC had on file for Mr van Uden (Affidavit of Nicola Gay White filed 19 June 2020, Exhibit NGW-3, p. 26), and which was used by him to correspond with Mr Blumel prior to his ceasing to engage with the QBCC: Affidavit of Ross Blumel filed 1 July 2020, [2], Exhibit RB-1, p. 1.

[13] Affidavit of Ross Blumel filed 1 July 2020, [10], Exhibit RB-5, pp 31-33.

[14] Affidavit of Ross Blumel filed 1 July 2020, [11], Exhibit RB-6, pp 34-35.

[15] Affidavit of Nicola Gay White filed 19 June 2020, [18], Exhibit NGW-10, pp 45-75.

[16] Affidavit of Nicola Gay White filed 19 June 2020, [21], Exhibit NGW-13, pp 79-81.

[17] Affidavit of Barry Thomas Dunphy filed 19 June 2020, [3(a)]; Exhibit BTD-1.

[18] Affidavit of Barry Thomas Dunphy filed 19 June 2020, [3(b)]; Exhibit BTD-2.

[19] Affidavit of Barry Thomas Dunphy filed 19 June 2020, [3(c)]; Exhibit BTD-3.

[20] Affidavit of Barry Thomas Dunphy filed 19 June 2020, [3(d)]; Exhibit BTD-4.

[21] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1 to BTD-4.

[22] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, pp 111-114.

[23] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, pp 85, 100, 110.

[24] Affidavit of Nicola Gay White filed 19 June 2020, Exhibit NGW-10, p. 55.

[25] Affidavit of Nicola Gay White filed 19 June 2020, Exhibit NGW-13, pp 79-81.

[26] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, pp 87, 89.

[27] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 96.

[28] Affidavit of Nicola Gay White filed 19 June 2020, [28], NGW-16 pp 95-99; c.f. NGW-17, p. 100; Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 17.

[29] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 98.

[30] Affidavit of Nicola Gay White filed 19 June 2020, Exhibit NGW-18, p. 101.

[31] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 93.

[32] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 240.

[33] Affidavit of Nicola Gay White filed 19 June 2020, Exhibit NGW-18, p. 101.

[34] Exhibit 1 – Written submissions of the applicant, [17].

[35] Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68, at [23], citing Blair v Curran (1939) 62 CLR 464 at 531-532.

[36] Affidavit of Darren Whelan filed 6 July 2020, [1] – [3]; Affidavit of Cameron David Byram filed 25 August 2020, [4].

[37] Affidavit of Barry Thomas Dunphy filed 25 August 2020, Exhibit BTD-10, p.24.

[38] Affidavit of Barry Thomas Dunphy filed 25 August 2020, Exhibit BTD-11, p.27; Statement of Claim, [10].

[39] Document 10.

[40] Affidavit of Darren Whelan filed 22 July 2020, [2] – [3].

[41] Affidavit of Barry Thomas Dunphy filed 7 August 2020, [3] – [4].

[42] Exhibit 1 – Written submissions of the applicant, [3(a) – 3(c)].

[43] Affidavit of Barry Thomas Dunphy filed 6 April 2021, [8]; Affidavit of Darren Whelan filed 24 August 2020, [2(b)]; Affidavit of Barry Thomas Dunphy filed 25 August 2020, [3] – [16]; Exhibit BTD-7, p.16.

[44] Affidavit of Darren Whelan filed 24 August 2020, [2(c)].

[45] Document 21.

[46] Affidavit of Barry Thomas Dunphy filed 9 February 2021, [4] – [9].

[47] Affidavit of Barry Thomas Dunphy filed 9 February 2021 [10] – [15]; Affidavit of Barry Thomas Dunphy filed 6 April 2021, [5] – [6].

[48] Affidavit of Barry Thomas Dunphy filed 29 March 2021, [2] – [5].

[49] Document 31.

[50] Exhibit 1 – Written submissions of the applicant, [35(a) – (c)]; Affidavit of Gary Burke filed 29 March 2021, [10] – [11]; Affidavit of Barry Thomas Dunphy filed 25 August 2020, Exhibit BTD-11, p.27.

[51] Affidavit of Leon Thach filed 14 April 2021, [3] – [9].

[52] Affidavit of Leon Thach filed 14 April 2021, [10] – [11], Exhibit LT-4.

[53] Document 36.

[54] Affidavit of Barry Thomas Dunphy filed 28 May 2021, [4] – [11]; Exhibit BTD-50 – BTD-52.

[55] District Court of Queensland Act 1967 (Qld) s. 129.

[56] Witham v Holloway (1995) 183 CLR 525, 534.

[57] Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271, [17].

[58] Australian Consolidated Press v Morgan (1965) 112 CLR 483.

[59] Lade v Lade & Co Pty Ltd v Black [2006] QCA 294, [63] per Keane JA.

[60] District Court Act 1967 (Qld) s.129.

[61] Ronowska v Kus (No. 2) (2012) 221 A Crim R 261, [31]; R v Bonacci [2015] VSC 121, [51] – [53] and see Polis v Zombor [2019] FCA 856, [8], [15]; Hera Project Pty Ltd v Bisognin [2019] VSC 283, [51] – [53], [69].

[62] Hera Project Pty Ltd v Bisognin [2019] VSC 283, [65].

[63] Penalties & Sentences Act 1992 (Qld) ss. 44-51, 152-153A.

[64] UCPR r. 904(1)(b).

[65] UCPR r. 926(1) & (2).

[66] UCPR r. 926(3).

[67] Exhibit 1 – Written submissions of the applicant, [48].

[68] Document 21.

[69] Affidavit of Barry Thomas Dunphy filed 19 June 2020.

[70] Affidavit of Darren Whelan filed 6 July 2021, [1].

[71] Exhibit 1 – Written submissions of the applicant, [51].

[72] Affidavit of Barry Thomas Dunphy filed 9 February 2021, [4] – [9].

[73] Affidavit of Barry Thomas Dunphy filed 9 February 2021, [10] – [15]; Affidavit of Barry Thomas Dunphy filed 6 April 2021, [5] – [6].

[74] See [16] of this judgement.

[75] Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68 at [23], citing Blair v Curran (1939) 62 CLR 464 at 531-532.

[76] 26 August 2020.

[77] Affidavit of Barry Thomas Dunphy filed 9 February 2021, Exhibits BTD-14 – BTD-36, pp 24-81.

[78] Exhibit 1 – Written submissions of the applicant, [60].

[79] Affidavit of Barry Thomas Dunphy filed 9 February 2021, p.39.

[80] Affidavit of Barry Thomas Dunphy filed 9 February 2021, p.70.

[81] Exhibit 1 – Written submissions of the Applicant) p. 6, [63(a) – (d)].

[82] Affidavit of Barry Thomas Dunphy filed 9 February 2021, pp 39, 42, 43.

[83] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, pp 62, 70 – 71.

[84] Affidavit of Barry Thomas Dunphy filed 9 February 2021, p. 41.

[85] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 89.

[86] Affidavit of Barry Thomas Dunphy filed 9 February 2021, pp 73, 79.

[87] Affidavit of Barry Thomas Dunphy filed 9 February 2021, p. 74.

[88] Affidavit of Barry Thomas Dunphy filed 19 June 2020, Exhibit BTD-1, p. 62.

[89] 26 August 2020.

Close

Editorial Notes

  • Published Case Name:

    Queensland Building & Construction Commission v van Uden

  • Shortened Case Name:

    Queensland Building & Construction Commission v van Uden

  • MNC:

    [2021] QDC 103

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    11 Jun 2021

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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