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- Unreported Judgment
Sunshine Coast Regional Council v Dwyer (No. 2) QPEC 1
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Sunshine Coast Regional Council v Dwyer (No. 2)  QPEC 1
SUNSHINE COAST REGIONAL COUNCIL
WAYNE GEOFFREY DWYER
Application in pending proceeding
Orders made on 9 December 2021
Reasons published on 14 January 2022
9 December 2021
Cash QC DCJ
COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where the respondent is in contempt of court – what is the appropriate penalty – who should pay costs and on what basis
Uniform Civil Procedure Rules 1999 (Qld), r 371, r 430, r 702
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106
Bundaberg Regional Council v Lammi & Anor  QPEC 52;  QPELR 111, -
Colgate Palmolive v Cussons (1993) 46 FCR 225; 118 ALR 248;  FCA 801 at 
Dubois v Rockhampton Regional Council  QCA 215; (2014) 203 LGERA 117;  QPELR 77, -
Sunshine Coast Regional Council v Dwyer  QPEC 53
K Wylie for the applicant
J Dillon for the respondents
McInnes Wilson Lawyers for the applicant
Spire Law for the respondent
- On 15 October 2021 I published my reasons for concluding that the second respondent, Wayne John Dwyer, was in contempt of the enforcement order that had been made in the Planning and Environment Court on 10 November 2020 – see Sunshine Coast Regional Council v Dwyer  QPEC 53. At the time, I indicated I would hear the parties as to penalty and any further orders. On 9 December 2021 the parties made oral submissions and at the conclusion of the hearing I ordered:
- 1.The second respondent is fined in the amount of $5000 to be paid on or before 31 January 2022 in default of which the second respondent is to appear without further notice in the District Court at Maroochydore at 9.30 am on 7 February 2022 to show cause why he should not be dealt with according to law;
- 2.Vary order three (3) of the orders made on 10 November 2020 by deleting the words “10 February 2022” and substituting the words “31 March 2022”; and
- 3.The second respondent pay the applicant’s costs of:
- a.The applicant’s application in pending proceeding filed on 17 May 2021, and
- b.The second respondent’s application in pending proceeding filed on 24 September 2021,
on the standard basis.
- When I pronounced the orders, I indicated that I would publish reasons on a later date. These are my reasons. I note that they should be read with my decision and reasons on the contempt issue. I will assume familiarity with those reasons and as such will not set out the background and findings other than is necessary.
- At the final hearing three issues were to be decided. First, what was the appropriate penalty for Mr Dwyer’s contempt? Secondly, should there be an order aimed at ensuring compliance with the enforcement order? And finally what costs order should be made.
The nature of the contempt
- Order three of the enforcement order required Mr Dwyer to remove or demolish the rooftop work and restore the roof to a condition that complied with the February 2019 building approval. Compliance would have involved removing the perimeter fence and lighting, stairs to the roof and the lift overrun room. I was satisfied that the only real compliance with the order was the removal of stairs, and even that occurred months after the stipulated date for compliance with the enforcement order. Mr Dwyer admitted that he had not complied, or complied late, with the parts of the order requiring removal of the stairs and lift overrun room. I was satisfied that Mr Dwyer had no lawful excuse for the non-compliance. In doing so I rejected Mr Dwyer’s argument that he had complied with the requirement to remove of the perimeter fence by converting it to ‘accepted development’. While I was satisfied that Mr Dwyer had no lawful excuse for failing to comply with the enforcement order I was not prepared to conclude that he set out to deliberately frustrate or delay compliance.
- Having regard to these matters, Mr Dwyer’s contempt should be described as follows. He did practically nothing to comply with the order until several months after the date for compliance. Then his only action was to remove the stairs and convert the perimeter fence, but not remove it. He did nothing with the lift overrun room. Belatedly he took steps to seek development approval for some of the roof structures, despite his earlier application for approval being rejected. Almost a year after the enforcement order had been made, and ten months after the date for compliance, most of the roof structures remained. The applicant invited a finding that the contempt was contumelious. While an adjective like that may have its place in some cases, I do not find it helpful as a description of Mr Dwyer’s contempt.
Events since 15 October 2021
- Mr Dwyer relied upon an affidavit filed by leave at the beginning of the final hearing. In it he set out the steps taken since my finding of 15 October 2021 that he was in contempt. Mr Dwyer deposed that he intended to comply with the enforcement order and that between October and December 2021 he had removed most of the perimeter fence. The lift and lift overrun room remain. Mr Dwyer deposed that he and his son had made enquiries about removing the lift. The effect of their inquiries is that the lift cannot be removed until the middle of March 2022. Mr Dwyer estimated that the rest of the roof structure will be removed one or two weeks after the lift is decommissioned.
The contemnor’s personal circumstances
- I was told that Mr Dwyer is 59 years old. He has lived in the house at Minyama for many years and had been a builder for 45 years before he retired. He was described as a man of good character who had no prior convictions of any kind.
The submissions of the parties
- The applicant emphasised the serious nature of an offence of contempt and the need for the penalty to denounce Mr Dwyer’s conduct and act as a deterrent. Reliance was placed upon statements found in several cases to the effect that the penalty for contempt must be effective in securing compliance with orders of the court. The applicant submitted that a fine of between $10,000 and $15,000 was necessary to achieve these purposes. In this regard the applicant asked the court to infer that Mr Dwyer was a person of means, such that a substantial penalty was appropriate.
- For Mr Dwyer it was said that the works were carried out in early 2019 and since mid-2019 he has been restrained from using any of the rooftop structures. As such he has derived no real benefit from the works. The respondent was said to have co-operated by consenting to the enforcement order in late 2020 and while he denied he was in contempt he contributed to the proceedings being dealt with efficiently. Since the finding that he was in contempt, Mr Dwyer has taken, and is taking, steps to ensure compliance with the enforcement orders. Mr Dwyer submitted that the money he has already spent on legal costs and removal of the rooftop structures should be considered as relevant to the amount of any fine. Finally, it was submitted on behalf of Mr Dwyer that there was not a sufficient basis for the court to infer he was in a very comfortable financial position. For these reasons it was submitted that a fine of $2,500 to $5,000 was appropriate.
- During the hearing the issue of whether there should be some further order made came into focus. Two competing possibilities were raised. One was for there to be an additional order requiring the removal of the balance of the roof structures by the end of March 2022. The other was to vary the enforcement order made in 2020 to, in effect, reset the timeline. In the end the position of the parties appeared to be that variation was appropriate and to this end the applicant applied instanter for such an order.
What is an appropriate penalty?
- As has been said, the powers of the court to punish for a contempt
are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis (Morris v. Crown Office (1970) 2 QB 114, at p 129). It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.
- While the punishment of contempt is not constrained by the Penalties and Sentences Act 1992 (Qld), it is helpful to have regard to this legislation and general sentencing principles. Each make clear that the purposes for penalising a contempt go beyond securing compliance with court orders. The purposes include to deter a contemnor or others from committing a similar offence in the future, to punish a contemnor in a manner that is just in the circumstances and to denounce the contempt – that is, to impose a penalty that is in keeping with the seriousness with which the courts regard contempt of court orders. A consideration of the penalties imposed in other cases of contempt can also be instructive. The decisions referred to the applicant were helpful to some extent. Two of the decisions concerned a breach of a restraint rather than a failure to comply with an order to remove static works. Each case, as is to be expected, involved somewhat different considerations. In none of the three cases did the fine levied against a natural person exceed $5,000.
- Of course, one matter relevant to the imposition of a fine is the capacity of the contemnor to pay. It was for this reason I was urged to conclude Mr Dwyer was a wealthy man. In the circumstances this is the only sensible conclusion that could be reached. Mr Dwyer was an apparently successful builder for many years. He lives in a large home in an expensive location on the Sunshine Coast. On his own account he has expended many tens of thousands of dollars connected to these proceedings. Any suggestion that he is not wealthy must be rejected.
- I do not think that Mr Dwyer will have any difficulty paying a fine of $5,000. It is possible that this amount is of no great significance to him. But the size of the fine is not the only punishment Mr Dwyer has suffered. He has faced these court proceedings during which he spent a substantial sum on legal representation. He also faces the expense of removing the unlawful works. While these matters fall short of amounting to ‘extra-curial punishment’ that might warrant a significant reduction in the otherwise appropriate penalty, it is a relevant consideration. In terms of securing compliance with the enforcement orders Mr Dwyer knows now, if he did not before, the gravity of his contempt and must understand that any future contempt will be viewed even more seriously.
- It was for these reasons that I concluded a fine of $5,000 was appropriate.
Should a further order be made to ensure compliance?
- The applicant initially proposed that some additional order should be made to require compliance with the enforcement order. In my view it was preferable for there to be a variation of the original enforcement order. The parties did not dissent from this approach. The reasons why this was the preferred course were set out by Hornemann-Wrenn SC DCJ in Bundaberg Regional Council v Lammi & Anor  QPEC 52;  QPELR 111, -. I agree with what his Honour there stated, and it is unnecessary for me to set out the passages here.
- I decided to make the variation order as I did as it provides a new deadline for compliance with the enforcement orders. The date I chose of the end of March 2022 accords with Mr Dwyer’s own evidence as to when he will have removed the balance of the roof structures. If Mr Dwyer has not complied with the orders by that time, he faces the prospect of a further allegation of contempt.
- Mr Dwyer accepted that he should pay the applicant’s costs of both the contempt proceeding and of his own unsuccessful application of 24 September 2021. The applicant pressed a claim for costs on the indemnity basis, though in fairness it must be said this was not vigorously pursued. It is well known that indemnity costs are the exception, and that some special or unusual feature is required before there should be a departure from the ordinary outcome of standard costs. There was nothing special or unusual about the conduct of these proceedings. Mr Dwyer defended the allegation of contempt, but he was entitled to do so. I did not accept the arguments he raised, but they were not entirely unarguable. He did not delay or frustrate the proceeding and there is nothing else in his conduct that might provide the basis for an order that he pay costs on the indemnity basis.
- For these reasons I ordered that he pay the applicant’s costs of both applications on the standard basis.
 Sunshine Coast Regional Council v Dwyer  QPEC 53, .
 I note that the affidavit material relied upon by both the applicant and Mr Dwyer in this final hearing contained hearsay assertions, contrary to rule 430 of the Uniform Civil Procedure Rules 1999 (Qld). When I raised with the parties at the hearing, they both agreed I should excuse this pursuant to rule 371 and that I could act on the hearsay assertions in the affidavits.
 The applicant relied upon Bundaberg Regional Council v Lammi & Anor  QPEC 52;  QPELR 111, . Similar statements can be found in Dubois v Rockhampton Regional Council  QCA 215; (2014) 203 LGERA 117;  QPELR 77,  and Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 114 .
 Sunshine Coast Regional Council v Dwyer & Others  QPEC 36.
 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 115 .
 They were Moreton Bay Regional Council v Meredith & Ors  QPEC 36; Bundaberg Regional Council v Muller  QPEC 31;  QPELR 97; and Whitsunday Regional Council v Branbid Pty Ltd  QPEC 66; (2018) QPELR 224.
 In a property registered to his wife, but common sense indicates he is likely to at least share the wealth that permitted his wife to become the registered owner of such a property.
 Colgate Palmolive v Cussons (1993) 46 FCR 225; 118 ALR 248;  FCA 801 at .
 It was probably unnecessary to stipulate that costs were to be assessed on the standard basis – see rule 702 of the Uniform Civil Procedure Rules 1999 (Qld) – but I saw no harm in making this clear in the orders.
- Published Case Name:
Sunshine Coast Regional Council v Dwyer (No. 2)
- Shortened Case Name:
Sunshine Coast Regional Council v Dwyer (No. 2)
 QPEC 1
Cash QC DCJ
14 Jan 2022