Queensland Building & Construction Commission v van Uden (No. 2)
[2021] QDC 162
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- Unreported Judgment
- Queensland Building & Construction Commission v van Uden (No. 2)[2021] QDC 162
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Queensland Building & Construction Commission v van Uden (No. 2)[2021] QDC 162
Queensland Building & Construction Commission v van Uden (No. 2)[2021] QDC 162
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building & Construction Commission v van Uden (No. 2) [2021] QDC 162 |
PARTIES: | QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (applicant/plaintiff) v MARINUS HENDRIKUS VAN UDEN (respondent/defendant) |
FILE NO: | 1761 of 2020 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 13 August 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 July 2021 |
JUDGE: | Dearden DCJ |
ORDER: |
to be permanently removed from the World Wide Web.
Marinus Hendrikus van Uden Re: Proceeding BD1761 of 2020, “Queensland Building Construction Commission v Marinus Hendrikus van Uden” Pursuant to the order of the District Court of Queensland made on 13 August 2021, service of documents filed and orders made in the above proceeding has been permitted to be effected on you by, amongst other methods of service, the sending of this email with the attached documents. Clayton Utz, Solicitors for the applicant/plaintiff.
Marinus Hendrikus van Uden Re: Proceeding BD1761 of 2020, “Queensland Building Construction Commission v Marinus Hendrikus van Uden” Pursuant to the order of the District Court of Queensland made on 13 August 2021, service of documents filed and orders made in the above proceeding has been permitted to be effected on you by, amongst other methods of service, the sending of this message with the accompanying documents. Clayton Utz, Solicitors for the applicant/plaintiff. and,
|
CATCHWORDS: | CONTEMPT OF COURT – POWER OF COURT TO PUNISH FOR CONTEMPT – PENALTY – where continued non-compliance with court orders – where contemnor has failed to engage in proceedings – where acts were wilful and contumacious – where proceedings should have coercive and punitive purpose – where no remorse expressed – where refusal to purge contempt – where there is a need for both deterrence and denunciation PROCEDURE – COSTS – COSTS ON INDEMNITY BASIS – where the applicant/plaintiff seeks costs on the indemnity basis – where the respondent/defendant continuously disobeyed court orders – where the respondent/defendant has been convicted of contempt |
LEGISLATION: | District Court of Queensland Act 1967 (Qld) s. 129(2) Penalties and Sentence Act 1992 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r. 930(2) |
CASES: | Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115 Buckby v Wharton [2012] QSC 416 City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd [2006] QSC 31 Dubois v Rockhampton Regional Council [2015] QPELR 77 Evenco Pty Ltd v Amalgamated Society of Carpenters, Joiners, Bricklayers and Plasterers of Australasia Union of Employees (Qld) [1999] QSC 77 Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339 Hera Project Pty Ltd v Bisognin [2019] VSC 483 Hera Project Pty Ltd v Bisognin (No. 2) [2019] VSC 625 Law Institute of Victoria v Nagle [2005] VSC 47 Queensland Building and Construction Commission v van Uden [2021] QDC 103 Vaysman v Deckers Outdoor Corps Inc [2014] 222 FCR 387 |
COUNSEL: | N J Derrington for the applicant/plaintiff No appearance for the respondent/defendant |
SOLICITORS: | Clayton Utz for the applicant/plaintiff No appearance for the respondent/defendant |
Introduction
- [1]The respondent/defendant, Marinus Hendrikus van Uden was convicted by this court on 11 June 2021 of two charges of contempt in respect of his failure to comply with orders made by Barlow QC, DCJ on 26 August 2020.[1] The proceedings were then adjourned to enable the applicant/plaintiff to serve the respondent/defendant with a copy of that decision and to allow him the opportunity to make submissions on the penalty that might be imposed as a result of the conviction on these two charges.
- [2]Relevantly, pursuant to the order made by this court when the respondent/defendant was convicted, there are four issues to be considered in respect of penalty:
- (a)whether the acts constituting the contempt found were technical, wilful or contumacious;
- (b)whether the application filed 29 January 2021 serves a punitive purpose to punish past breaches, or a remedial purpose to coerce obedience with the orders;
- (c)taking these matters into account, what penalty, if any, should be imposed on Mr van Uden, and
- (d)the question of costs, including whether any costs order should be on the standard or indemnity basis.[2]
- (a)
- [3]The applicant/plaintiff submits (in respect of each of those matters):
“(a) the acts constituting the contempt were wilful and contumacious;
- (b)the proceeding at this stage serves both a punitive and a coercive purpose, such that any penalty order should be crafted to achieve both purposes;
- (c)Mr van Uden should be sentenced to a period of imprisonment of three months, suspended after one month provided he has purged his contempt, with a conviction recorded; and
- (d)Mr van Uden should be ordered to pay the costs of the contempt application on the indemnity basis.”[3]
Principles – contempt
- [4]The applicant/plaintiff submits (correctly in my view), relying on Hera Project Pty Ltd v Bisognin (No. 2) [2019] VSC 625, [74] that:
“… disobedience of a court order will usually be civil contempt, [but] it may be a criminal contempt where:
- (a)the contempt is contumacious; or
- (b)the proceedings serve a punitive purpose of punishing a past breach, rather than a remedial purpose of coercing obedience with the order.”
- [5]In Hera Project Pty Ltd v Bisognin (No. 2), Champion J summarises the relevant principles as to whether a contempt is casual, wilful or contumacious as follows:-
“A deliberate act or omission in breach of a court order will ordinarily constitute wilful disobedience, unless the contemnor is able to show by way of exculpation that the default was casual, accidental or unintentional. A wilful breach may further be considered contumacious where, for example:
- (a)the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused;
- (b)the breach involves perverse obstinate resistance to authority; or
- (c)
Discussion – contempt
- [6]The applicant/plaintiff submits that “there can be no real doubt that in this case the acts constituting the contempt were wilful and contumacious”,[5] arguing that:-
“As Mr van Uden had been served with the orders of Barlow QC, DCJ he had the requisite knowledge to be found guilty of contempt.[6] Having been served first with the orders, he nonetheless engaged in a prolonged campaign of posting in breach of the orders (the posts the subject of charge 2 being made between September and November 2020), which can only be characterised as obstinate resistance to the authority of the court. Mr van Uden has refused to remove the offending posts and pages from the internet, despite having been ordered to do so, and continued posting after being ordered to stop.”[7]
- [7]
- [8]The applicant/plaintiff submits further that in the absence of any material being placed before the court that would indicate any justification for the respondent/defendant’s failure to comply with the order, there is no basis for a conclusion that the contempts were anything other than wilful and contumacious.
- [9]I note that there was no appearance from, nor any response (electronic, written or otherwise) from the respondent/defendant, either at the substantive contempt proceedings on 4 June 2021, at the delivery of reasons on 11 June 2021, nor at the hearing in respect of penalty and costs on 23 July 2021.
- [10]In the circumstances, I accept the submission that the respondent/defendant’s contempts were clearly and unequivocally wilful and contumacious.
- [11]The applicant/plaintiff submits that it is relevant in sentencing for contempt to decide whether the proceeding has a coercive purpose or whether it is punitive, and submits (relying on the decision in Hera Project Pty Ltd v Bisognin [2019] VSC 483, [73]) that in the circumstances of this case, the proceedings are a hybrid of criminal and civil proceedings which justifies the imposition of sentences of imprisonment where appropriate.[10]
- [12]It is clear, as the applicant/plaintiff submits, that the application has a coercive purpose, the application for contempt being an appropriate mechanism to coerce the respondent/defendant into compliance with the orders of the court (which he has, to date, clearly resisted), but the proceedings also have a punitive purpose, to ensure that the administration of justice is not threatened by the disobedience of a court order.[11]
- [13]I have no hesitation in concluding that the contempt in respect of each of charges 1 and 2 should be dealt with by way of sentences of imprisonment, which will exercise both coercive and punitive functions.
- [14]The power of this court to punish for contempt is vested by District Court of Queensland Act 1967 (Qld) s. 129(2), which confers on the District Court the same powers to punish for contempt as the Supreme Court. Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r. 930(2) provides that this court can make any order that could be made pursuant to the Penalties and Sentence Act 1992 (Qld) (‘PSA’), but the court is not bound only to make orders that could be made under the PSA, and indefinite and conditional sentences can also be imposed.[12]
- [15]The applicant/plaintiff has identified a series of relevant factors which should be taken into account in deciding penalty in the case of contempt, relying on the decision of Palmer J in Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115, [29], as adopted by Mullins J in Buckby v Wharton [2012] QSC 416, [80]:
- (i)the seriousness of the contempt proved;
- (ii)whether the contemnor was aware of the consequences to himself of what he proposed to do;
- (iii)the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;
- (iv)whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 116;
- (v)the reason or motive for the contempt;
- (vi)whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;
- (vii)whether there has been any expression of genuine contrition by the contemnor;
- (viii)the character and antecedents of the contemnor;
- (ix)what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the court;
- (x)what punishment is required to express the court’s denunciation of the contempt.”
Seriousness of the contempt
- [16]The applicant/plaintiff submits, and I accept, that the contempt here was particularly serious, being a flagrant infringement of the applicant/plaintiff’s right to have the court orders it obtained obeyed, and also constituted a flagrant defiance of the authority of the court, which has been ongoing for more than six months, was ongoing for approximately six months at the time of the charges and which remains non-compliant for almost 12 months as at the time of conviction.[13]
Where the contemnor was aware of the consequences of the contempt
- [17]The applicant/plaintiff acknowledges that other than the evidence before the court that indicates the contempt was contumacious, and that the order of Barlow QC DCJ contained the endorsement required by the rules for contempt proceedings to be pursued, there is no other evidence which “indicates the extent to which Mr van Uden appreciated the consequences of his conduct”.[14]
The actual or potential consequences of the contempt
- [18]The contempt was in breach of final orders so the actual potential consequences of the contempt on the proceedings is irrelevant.[15]
Whether the contempt was committed in the contempt of a proceeding alleging criminal or conduct seriously prejudicial to the public interest
- [19]The applicant/plaintiff acknowledges that although the acts of contempt were plainly directed to seeking to undermine the functioning of the applicant/plaintiff as a public body, contempt was not committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest.
Reason or motive for the contempt
- [20]The applicant/plaintiff, relying on the findings at Queensland Building and Construction Commission v van Uden [2021] QDC 103, [48], points to the motive for engaging in the conduct constituting the contempt, as the respondent/defendant’s displeasure with the Queensland Building and Construction Commission ordering him to rectify defective building work. It is submitted (and I accept) that there is nothing about that motive, whether “truly held” or otherwise, that entitles the respondent/defendant to any leniency.[16]
Benefit of gain from the contempt
- [21]The applicant/plaintiff accepts that there is no evidence that the respondent/defendant has sought to receive or has received any benefit or gain from the contempt.[17]
Remorse or contrition
- [22]The applicant/plaintiff stresses that the respondent/defendant has expressed no remorse, has avoided the proceedings and has refused to purge his contempt.[18]
Character and antecedents of the contemnor
- [23]The applicant/plaintiff notes that given that the respondent/defendant has chosen not to engage with the proceeding in any way, there is no relevant evidence as to character or antecedents in respect of the applicant/plaintiff.[19] The applicant/plaintiff submits that given the failure to purge the contempt by the respondent/defendant, specific deterrence is required both to punish the respondent/defendant for the contempt and also to coerce compliance with the orders of the court.[20]
Punishment required for deterrence and denunciation
- [24]Accordingly, the applicant/plaintiff submits that an order for imprisonment “must form part of the penalty imposed by the court”.[21]
Penalty
- [25]The applicant/plaintiff submits that:-
- (1)A sentence of imprisonment is necessary to compel compliance with the orders of Barlow QC DCJ – the respondent/defendant having clearly indicated his intention neither to appear, engage with nor purge his contempt by compliance with the orders of this court, and consequently, compliance can only be achieved by way of issuing of a warrant for the respondent/defendant’s imprisonment so that he can be brought before the court to purge his contempt.[22]
- (2)The applicant/plaintiff relies on its submission (accepted by this court) that the defiance of the court’s orders has been contumacious and submits that such flagrant disobedience should lead to a sentence of imprisonment.[23]
- [26]The applicant/plaintiff submits that an appropriate sentence which seeks to coerce compliance with the orders but also punishes the respondent/defendant would be a term of imprisonment, suspended after a period of time, provided that the respondent/defendant purged his contempt.[24]
- [27]The applicant/plaintiff relies on the decisions in Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339, City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd [2006] QSC 31 and Hera Project Pty Ltd v Bisognin (No. 2) [2019] VSC 625 which all indicate that penalties in the range of three to six months imprisonment are commonly imposed in cases involving serious contempt of a court order.
- [28]The applicant/plaintiff submits that the appropriate course is for this court to order that the respondent/defendant be sentenced to a period of imprisonment of three months, suspended after one month, provided that the respondent/defendant purges his contempt by causing the posts that he made in breach of the orders of Barlow QC DCJ to be removed and by deleting the social media accounts that Barlow QC DCJ ordered him to delete.
- [29]The applicant/plaintiff submits that convictions should be recorded for each charge.
Costs
- [30]The applicant/plaintiff submits that the costs of the application should be ordered in its favour, on the indemnity basis, given the contumelious flouting of court orders.[25] The applicant/plaintiff stresses that the primary reason for awarding indemnity costs in a contempt proceeding is that it successfully vindicates both a public interest and a private interest,[26] and further, that the applicant/plaintiff should be fully compensated for bringing proceedings which need not have been brought, involving as they do, a breach of court order.[27]
Conclusions
- [31]In all of the circumstances, I conclude that it is appropriate to impose a sentence of three months’ imprisonment (concurrent) in respect of each of Charges 1 and 2, suspended after one month, provided that the respondent/defendant purges his contempt by removing the relevant posts and deleting the relevant social media accounts, in accordance with the relevant orders of Barlow QC DCJ.
- [32]In my view it is appropriate to order indemnity costs, given the public interest as well as the private interest in these proceedings, and the fact that the application need not be brought other than for the conduct of the respondent/defendant, who has failed to engage with or respond to these proceedings in any meaningful way.
Orders
- [33]Accordingly, I order as follows:
- Marinus Hendrikus van Uden is sentenced to serve three months imprisonment, concurrently, on each of Charges 1 and 2.
- A warrant issue for the arrest of Marinus Hendrikus van Uden.
- The sentences of imprisonment imposed by order 1 be suspended after 1 month if Mr van Uden purges his contempt by:
- (a)removing from the internet the posts identified in the application filed in this court on 29 January 2021 (CF#22); and
- (b)taking take all reasonable steps within his power to cause the following social media accounts or pages to be disabled or deleted:
- (i)the Facebook page titled "QBCC Corruption";
- (ii)the Instagram account titled "QBCC CORRUPTION" (@qbcccorruption);
- (iii)the Twitter account titled "Qbcc Corruption" (@CorruptionQbcc); and
- (iv)the YouTube page titled “QBCC Corruption”; and
- (i)
- (c)taking 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:
- (i)on the Facebook page titled "QBCC Corruption";
- (ii)on the Instagram account titled "QBCC CORRUPTION" (@qbcccorruption);
- (iii)on the Twitter account titled "Qbcc Corruption" (@CorruptionQbcc); and
- (iv)on the YouTube page titled “QBCC Corruption”,
to be permanently removed from the World Wide Web.
- A conviction be recorded in respect of the respondent/defendant’s conviction of the charges of contempt found proved on 11 June 2021.
- The respondent/defendant pay the applicant/plaintiff’s costs of the application on the indemnity basis.
- The respondent/defendant has liberty to apply on three days’ written notice to prove that he has taken the steps set out in sub-paragraphs 3(a), 3(b) and 3(c).
- Pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (Qld):
- (a)service of this order may be effected by:
- (a)
- (i)scanning a copy of the sealed order, and sending it to the email addresses [email protected] and [email protected] together with a message that includes the following text:
Marinus Hendrikus van Uden
Re: Proceeding BD1761 of 2020, “Queensland Building Construction Commission v Marinus Hendrikus van Uden”
Pursuant to the order of the District Court of Queensland made on 13 August 2021, service of documents filed and orders made in the above proceeding has been permitted to be effected on you by, amongst other methods of service, the sending of this email with the attached documents.
Clayton Utz, Solicitors for the applicant/plaintiff.
- (ii)scanning a copy of the sealed order and sending it by Facebook Messenger to the Facebook accounts "Markwin van Uden (Dutchy)" and "QBCC Corruption", together with a message that includes the following text:
Marinus Hendrikus van Uden
Re: Proceeding BD1761 of 2020, “Queensland Building Construction Commission v Marinus Hendrikus van Uden”
Pursuant to the order of the District Court of Queensland made on 13 August 2021, service of documents filed and orders made in the above proceeding has been permitted to be effected on you by, amongst other methods of service, the sending of this message with the accompanying documents.
Clayton Utz, Solicitors for the applicant/plaintiff.
and,
- (b)service of the documents served in accordance with order (a) above (including this order) is taken to have occurred at the end of the second business day after all of the steps set out in that paragraph have been taken.
Footnotes
[1]Queensland Building and Construction Commission v van Uden [2021] QDC 103.
[2] Document 45, [2].
[3] Document 45, [3].
[4]Hera Project Pty Ltd v Bisognin (No. 2) [2019] VSC 625, [11].
[5] Document 45, [7].
[6]Queensland Building and Construction Commission v van Uden [2021] QDC 103, [34].
[7]Queensland Building and Construction Commission v van Uden [2021] QDC 103, [39] & [48] – see Document 45, [8].
[8] Affidavit of Barry Thomas Dunphy (fourth Dunphy affidavit), [12].
[9] Affidavit of Barry Thomas Dunphy (sixth Dunphy affidavit), [5] & [6]; Affidavit of Michael James Lucey [Document 38], [4].
[10] Document 45, paras [12]-[13].
[11]Law Institute of Victoria v Nagle [2005] VSC 47, [5] per Gillard J.
[12]Dubois v Rockhampton Regional Council [2015] QPELR 77, [71]-[74].
[13] Document 45, [19].
[14] Document 45, [20].
[15] Document 45, [21].
[16] Document 45, [23].
[17] Document 45, [24].
[18] Document 45, [25].
[19] Document 45, [26].
[20] Document 45, [27].
[21] Document 45, [28].
[22] Document 45, [29].
[23]Vaysman v Deckers Outdoor Corps Inc [2014] 222 FCR 387, [130]-[136], [137], [144].
[24] Document 45, [33].
[25]Dubois v Rockhampton Regional Council [2015] QPELR 77, [55].
[26]Evenco Pty Ltd v Amalgamated Society of Carpenters, Joiners, Bricklayers and Plasterers of Australasia Union of Employees (Qld) [1999] QSC 77, [6].
[27] Document 45 [42].