Whitsunday Regional Council v Branbid Pty Ltd
[2017] QPEC 66
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- Unreported Judgment
- Whitsunday Regional Council v Branbid Pty Ltd[2017] QPEC 66
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Whitsunday Regional Council v Branbid Pty Ltd[2017] QPEC 66
Whitsunday Regional Council v Branbid Pty Ltd[2017] QPEC 66
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66 |
PARTIES: | WHITSUNDAY REGIONAL COUNCIL (applicant) v BRANBID PTY LTD (ACN 166 857 441) (first respondent) AND BRETT GEORGE FALLON (second respondent) |
FILE NO/S: | 2549/17 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 7 November 2017 |
DELIVERED AT: | Townsville |
HEARING DATE: | 26 October 2017 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – CONTEMPT – non-compliance with enforcement order |
COUNSEL: | B.D. Job and D.D. Purcell for the applicant |
SOLICITORS: | McCullough Robertson for the applicant No appearance for the respondent |
Introduction
- [1]This is an originating application seeking that the respondents each be punished for contempt of court for failing to comply with orders of Her Honour Judge Bowskill QC made on 8 February 2017 which stated, inter alia:
“1. Pursuant to s 456 of the Sustainable Planning Act 2009, the Court declares that Branbid Pty Ltd’s use of the land located at Miowera Saleyards, Roma Peak Road, Bowen, more particularly described as lot 2 on RP738974 (the land) for the purpose of providing temporary accommodation of people in campervans and/or tents is a development offence in that it constitutes assessable development for which no effective development permit has been issued.
- Pursuant to s 606 of the Sustainable Planning Act 2009, the Court orders that Branbid Pty Ltd, by its servants or agents, including Mr Brett Fallon, cease providing, or permitting to be provided, temporary accommodation to people in campervans, tents and/or caravans on the land (save for a legitimate visitor to the land, in no more than one (1) campervan, tent or caravan at any one time) without first having obtained an effective development permit authorising the use of the land for that purpose.
- Order 2 takes effect from 15 February 2017.
…”
- [2]The respondents did not appear at the hearing of the originating application. The day before the hearing date, the second respondent requested leave to appear by telephone. Given the nature of the proceeding and the history of the matter, I declined this request.
The proceeding before Her Honour Judge Bowskill QC
- [3]Judge Bowskill QC permitted the second respondent to appear and give evidence by telephone. The substantive proceeding brought by the applicant resulted in the declaration and orders referred to above. Her Honour noted that the second respondent “was at pains to describe the seemingly hundreds” of tourists and travellers[1] who had unlawfully received temporary accommodation from the respondents at the property the subject of the declaration (“the land”).
- [4]The second respondent’s attitude to the efforts of the applicant to bring an end to the unlawful activities on the land are summarised by Her Honour in the following terms:
“[29] The Council have attempted to encourage Branbid to address this issue, prior to the hearing before me, by issuing a show cause notice on 7 June 2016 and an enforcement notice on 6 July 2016, both of which were ignored. Mr Fallon did not give the impression, at the hearing of this application, that he had any intention of voluntarily complying with any reasonable request by the Council, to cease the use of the land for provision of temporary accommodation, until an effective development permit can be obtained. On the contrary, he argued strongly against the relief sought by the Council, including on the basis that it represented an arbitrary and unreasonable attack on his / Branbid’s freedom to use its land in whatever way he sees fit.”[2]
- [5]A review of the transcript of the hearing and of previous interlocutory hearings reveals that these observations are entirely justified.[3]
The contempt of the respondents
- [6]There is an abundance of material before me which discloses that the concerns of Judge Bowskill QC expressed above were well-founded. The respondents have continued to conduct the unlawful use on the land referred to in the orders.[4] Further, there remains a commercial element to the continuing unlawful use of the land.[5] Moreover, the second respondent behaved in a threatening and insulting way towards a Council officer who was lawfully inspecting the land.[6]
- [7]I find the charges of contempt against each respondent proved to the requisite standard, that is beyond a reasonable doubt.[7]
The relevant legislative framework
- [8]A Planning and Environment Court judge has the same power to punish a person for contempt as a District Court judge and the District Court of Queensland Act 1967 (Qld) applies to the Planning and Environment Court in the same way as it applies to the District Court.[8]
- [9]Section 129 of the District Court of Queensland Act states that a person is in contempt of the District Court if the person “without lawful excuse, fails to comply with an order of the court…”[9] and that District Court judge has the same power to punish for such a contempt as a Supreme Court judge would have if it were a contempt of the Supreme Court.[10]
- [10]The Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) provide the procedural mechanism for this.[11] Rule 904 requires that a person against whom a non-monetary order is to be enforced must be notified of the terms of the order, inter alia, in an appropriate manner “a reasonable time before the end of the time for performance of the act or before the time when the prohibited act was to be performed as the case requires”.[12]
- [11]On the facts before me, the second respondent nominated both an email and a street address for receipt of documents in the enforcement proceeding and the respondents were notified of the terms of the orders by both email and by post to the nominated addresses.[13]
- [12]Pursuant to r 926 of the UCPR, the originating application and any affidavit in support of it must be served on the respondent personally. Although initially this did not occur, I am satisfied that any non-compliance in this regard was ultimately cured upon personal service being effected.[14]
- [13]Pursuant to r 930 of the UCPR, in the event the court decides that the respondent has committed a contempt, if the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (Qld) (“PSA”), and if the respondent is a corporation, the court may punish the respondent by, inter alia, a fine. Pursuant to s 45 of the PSA, an offender may be fined.
Appropriate punishment
- [14]The applicant submits that the respondents should be punished for contempt by way of fines.[15] In doing so, the applicant is also hoping to secure compliance with the orders of Her Honour Judge Bowskill QC. A much more expedient means of ensuring compliance would have been to have sought an order for substituted performance pursuant to r 899 of the UCPR. However, the respondents have clearly committed the contempt the subject of this application and the applicant is clearly entitled to the relief it seeks. Relevant considerations in arriving at appropriate punishments include: the characterisation of the conduct constituting the contempt and where the penalty imposed is a fine pursuant to the PSA, the financial circumstances of the offender and the burden imposed on the offender.[16]
- [15]On the facts before me, the flagrant refusal to cease carrying on the unlawful use of the land can only be described as contumacious. This has occurred in circumstances where the respondents have conducted the unlawful use for financial gain. However the evidence before me does not suggest that the unlawful use was particularly lucrative, it appears that the customers were charged only $5 per night to stay on the land.[17]
- [16]As to the capacity of the respondents to pay fines which may be imposed, I note that the land appears to be owned unencumbered by the first respondent.[18] So far as the second respondent is concerned, I note that he is the sole director of the first respondent[19] and that before Her Honour Judge Bowskill QC he claimed to be a disability pensioner.[20] In summary therefore, although the first respondent appears to have a notable unencumbered asset in the form of the land, the second respondent cannot be described as a man of substantial means.
- [17]As the applicant is also seeking a costs order, I need to have regard to what McMurdo P stated in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch):[21]
“[12] The costs order made by the learned primary judge in each action required the appellant to pay the respondent's costs on a solicitor and own client basis. Such an order was plainly within the proper exercise of discretion and in my view was entirely justifiable in this case.
[13] The effect of an order indemnifying the respondent by requiring costs to be paid by the contemnor as between solicitor and client is to impose a further sanction or punishment for the contempt and can be onerous. For that reason, it is unfortunate that consideration was given to the costs orders only after the determination of the penalties. The penalties imposed in each case, especially when combined with the costs order, were heavy in the circumstances but it cannot be said that any of the orders were unreasonable or clearly unjust.”
Costs
- [18]The applicant seeks costs in circumstances where there is no provision for them in the Planning and Environment Court Act 2016 (Qld). Costs may only be ordered pursuant to ss 60 and 61, and none of the scenarios provide for a costs order where a proceeding is brought to punish a person for contempt. It is noteworthy that pursuant to s 61(1) the Planning and Environment Court may award costs for an enforcement proceeding where it makes an enforcement order. It is the non-compliance with such an order which has brought about the proceeding before me but this is a different type of proceeding. In circumstances where the power to punish for contempt is to be found pursuant to the UCPR as a consequence of the chain of statutory provisions beginning at s 36 of the Planning and Environment Court Act referred to above, it is notable that r 932 expressly provides for the court having a discretion to award the costs of a proceeding for punishment for contempt.
- [19]
Conclusion
- [20]Having regard to all of the above factors, I am of the view that the conduct of the first respondent warrants a fine of $15,000 and that the conduct of the second respondent warrants a fine of $5,000. Accordingly, the first respondent is fined $15,000 and the second respondent is fined $5,000. I refer the fine of the second respondent to the State Penalties Enforcement Registry for recovery.
- [21]The applicant also seeks orders that any fines be paid into the applicant’s operating fund. It seeks these orders pursuant to s 246 of the Local Government Act 2009 (Qld). However this provision only applies to “proceedings brought by a local government for an offence against a Local Government Act” and it therefore has no application to this proceeding.[24]
- [22]I am of the view that there has been a degree of duplication of material before me and also a degree of over-representation of the applicant in this proceeding. For example, it did not warrant the engaging of two counsel by the solicitors for the applicant. In the circumstances, I am of the view that it is appropriate that each of the respondents pay costs of the applicant on the indemnity basis, however I am limiting that order to 60% of the applicant’s costs. I therefore order each respondent to pay 30% of the applicant’s costs of and incidental to this proceeding on the indemnity basis.
Footnotes
[1] Whitsunday Regional Council v Branbid Pty Ltd [2017] QPEC 3, 269 [14].
[2] Ibid 271 [29].
[3] Affidavit of William Bradbury McKenzie, filed 25.07.17; Exhibit “WBM-1”.
[4] Affidavit of David Orme Wilson, filed 06.09.17; Affidavit of Adam Folkers, filed 05.09.17.
[5] Affidavit of Mr Folkers [22].
[6] Affidavit of Milton Leonard Morsch, filed 05.09.17, [27].
[7] Witham v Holloway (1995) 183 CLR 525, 534.
[8] Planning and Environment Court Act 2016 (Qld) s 36.
[9] District Court of Queensland Act 1967 (Qld) s 129(1)(a).
[10] Ibid s 129(2).
[11] Supreme Court of Queensland Act 1991 (Qld) s 85.
[12] Uniform Civil Procedure Rules 1999 (Qld) r 904(2)(b).
[13] Affidavit of William Bradbury McKenzie filed 25.07.17; Exhibit “W3M-1”, 7 and 30, Affidavit of William Bradbury McKenzie, filed 26.10.17; Exhibit “WBM-2”, 1-2.
[14] Affidavits of Julie Ann Wright filed 07.09.17 and 03.10.17; Corporations Act 2001 (Cth) s 109X(1)(b).
[15] Applicant’s written outline [10(b)].
[16] Penalties and Sentences Act 1992 (Qld) s 48(1).
[17] Affidavit of Adam Folkers filed 5 September 2017, [22(e)].
[18] Affidavit of Alesia Jayne Shard filed 04.09.17; Exhibit “AJS-1”, 2-3.
[19] Affidavit of Patrick Alexander O'Brien, sworn 14.09.17; Exhibit “PAO.1”.
[20] Affidavit of William Bradbury McKenzie, sworn 25.07.17; Exhibit “WBM-1”, 25.
[21] [2001] 2 Qd R 118, 127.
[22] [2004] QPEC 67, [25].
[23] Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118, 127.
[24] Local Government Act 2009 (Qld) s 246.