Planning and Environment – Contempt of Court –
Application for orders that the Respondent be punished for ongoing
contempt of court of an order made on 11 June 1999 -
Facts: This was an application filed on 19
September 2013 (Application) by Council seeking
orders that the Respondent be punished for contempt of Court for
the contravention of orders made by Britton SC DCJ on 11 June 1999
The Application related to land located at 395 Rhodes Street,
Koongal (Land). The Land was located in a
predominately residential area and had always been zoned for
residential purposes. However, since the 1930's, the Land had
been used by the Respondent and his family as a motor garage
business to service trucks, buses, cars and other vehicles
(Business). Accordingly, existing use rights
permitted the ongoing operation of the Business over part of the
The 1999 Order delineated the boundaries of the existing lawful
non-conforming use of the Land by the Respondent and relevantly set
Under Order 2, "...the Respondent remove the hoist and
associated equipment located outside the south-western corner of
the existing workshop...".
Under Order 3, "That the Respondent do forthwith cease
using the land for any purpose other than:
the existing lawful non-conforming use as declared by the Court
in this order; and
a use permitted in the Residential zone A pursuant to the
transitional Planning Scheme for the City of Rockhampton;
and in Area C on Annexure 1 for gaining access to the existing
workshop as described herein".
The Respondent had been previously convicted for contempt of
Court for breaching the 1999 Order and other earlier Court
On 19 September 2013, the Council filed an Application,
particularising the breach of the 1999 Order as the following:
the Respondent had failed to remove the Hoist over various
dates from 22 October 2010 to 9 May 2013; and
the Respondent had carried out mechanical repairs to vehicles
in areas not permitted by the 1999 Order.
The issues for determination at trial were:
whether contempt should be considered a summary offence under
the Sustainable Planning Act 2009 (SPA),
which would have the effect of limiting the Council's
particulars to offences against the SPA that had occurred within
one year prior to the filing of the Application, pursuant to
section 610 of the SPA;
whether the Respondent was guilty of contempt as alleged;
if so what was the appropriate penalty;
whether the Court had power to award costs in the proceedings;
if costs were payable, whether the successful party should be
awarded all of its costs and whether those costs should be payable
on an indemnity or standard basis.
Decision: The Court held, in allowing the application:
Section 610 of the SPA was not relevant, given that contempt of
Court was not an offence against the SPA. More relevantly, section
439 of the SPA vested in the Court the usual power vested in the
District Court to deal with contempt and the District Court of
Queensland Act 1967 did not place any time limitation on
initiating contempt proceedings. Therefore, the Council was
entitled to rely upon all of its particulars.
The Court was satisfied, beyond a reasonable doubt, that the
Respondent was guilty of contempt of the 1999 Order. It was clear
from the evidence presented to the Court that the Respondent
knowingly, without lawful excuse, failed to comply with the 1999
Order on numerous occasions.
The Respondent's continued offending in the face of his
previous convictions supported the reasonable inference that any
monetary penalty would not deter him from any future similar
conduct, therefore, imprisonment was the appropriate penalty.
The Court had a statutory basis to award costs under section
457 of the SPA and it was appropriate that a costs order be made
against the Respondent.
It was appropriate to depart from the usual course and to award
indemnity costs, given that the Application would not have been
filed, nor the hearing required, if not for the Respondent's
repeated contempt of Court.
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