Australia: 12/14 Rockhampton Regional Council V Dubois [2014] QPEC 13

P&E Court Updates – April 2014

(Searles DCJ - 3 April 2014)
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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 - penalty

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 (1999 Order).

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 Land.

The 1999 Order delineated the boundaries of the existing lawful non-conforming use of the Land by the Respondent and relevantly set out:

  1. Under Order 2, "...the Respondent remove the hoist and associated equipment located outside the south-western corner of the existing workshop...".
  2. Under Order 3, "That the Respondent do forthwith cease using the land for any purpose other than:
    1. the existing lawful non-conforming use as declared by the Court in this order; and
    2. a use permitted in the Residential zone A pursuant to the transitional Planning Scheme for the City of Rockhampton;
    3. 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 Orders.

On 19 September 2013, the Council filed an Application, particularising the breach of the 1999 Order as the following:

  1. the Respondent had failed to remove the Hoist over various dates from 22 October 2010 to 9 May 2013; and
  2. the Respondent had carried out mechanical repairs to vehicles in areas not permitted by the 1999 Order.

The issues for determination at trial were:

  1. 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;
  2. whether the Respondent was guilty of contempt as alleged;
  3. if so what was the appropriate penalty;
  4. whether the Court had power to award costs in the proceedings; and
  5. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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