Booth v Yardley - [2008] QPEC 100

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Booth v Yardley & Anor [2008] QPEC 100

PARTIES:

CAROL JEANETTE BOOTH

Applicant

V

RICHARD GEORGE YARDLEY and ANTJE GESINA YARDLEY

Respondents

FILE NO/S:

Application No 2845 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

25 November 2008

DELIVERED AT:

Brisbane

HEARING DATES:

15 August, 24 September and 31 October 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

The respondents are fined $5000, payable within 6 months

CATCHWORDS:

PLANNING – PLANNING LAW – CONTEMPT – application for orders that respondents be punished for ongoing contempt of an order made on 30 November 2006 – penalty

District Court of Queensland Act s129(4)
Integrated Planning Act 1997 s 4.1.5, s 4.1.23
Nature Conservation Act 1992
Penalties and Sentences Act s153A
Uniform Civil Procedure Rules r 932

Cases considered:

Booth v Yardley [2007] QPELR 205
Booth v Yardley [2007] QPELR 229
Booth v Yardley (2008) 160 LGERA 352
Brisbane City Council v Stapleton [2006] QPELR 782
Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339
Hervey Bay City Council v George Stathopoulis [2000] QPEC 067
Noosa Shire Council v Cotton On Clothing Pty Ltd [2008] QPEC 13
Purtill v Landfix Pty Ltd [2005] QPELR 281
R v Cuff & Attorney General [2001] QCA 351
Webster v McIntosh (1980) 32 ALR 603
Witham v Holloway (1995) 183 CLR 525

COUNSEL:

Dr C McGrath for the applicant, Dr Booth
No appearance by or for the respondents, Mr and Mrs Yardley

SOLICITORS:

Environmental Defenders Office (Qld) Inc for applicant
Mr David Walter delivered written submissions on behalf of the respondents

Mr and Mrs Yardley own a property at Mirriwinni in North Queensland where, in the past, they grew lychees and other fruit. In an effort to stop flying foxes taking their produce they constructed aerial grids, electric wires on metal poles, above the orchard which either injured and killed some of those creatures or had the propensity to do so.

Dr Booth has been an active advocate for the conservation of flying foxes since 1999 and brought proceedings in this Court in 2006 for an order under the Nature Conservation Act 1992 that the Yardleys dismantle the grids. After a hearing in November 2006 this Court ordered that they do so within 3 months, i.e. by the end of February 2007.

The Yardleys disconnected power to the grids, but did nothing else. Dr Booth then sought an order that they be punished for contempt. In that proceeding the Yardleys argued that disconnecting the electricity was sufficient compliance, but that was rejected and on 8 February 2008 I ordered that, by 31 March, they effect dismantling by pulling down and taking apart the horizontal wires and metal poles which comprised the grids.

In that proceeding I concluded that while contempt of the original order had been proved, it may have been the product of a misunderstanding on the part of the Yardleys as to the order’s meaning and effect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Booth v Yardley

Details

AGLC: Booth v Yardley [2008] QPEC 100
Case: [2008] QPEC 100
Decision Date: 25 November 2008

CaseChat Overview and Summary

The respondents, Booth and Yardley, were found in contempt of a court order made on 30 November 2006, which required them to refrain from certain activities in relation to the subdivision of a property. The case was heard in the Supreme Court of South Australia. The applicants sought orders that the respondents be punished for ongoing contempt, seeking financial penalties.

The court had to determine whether the respondents had indeed breached the 2006 order and, if so, whether the contempt was ongoing and whether financial penalties were an appropriate remedy. The applicants argued that the respondents had repeatedly disregarded the court's order, leading to a persistent state of contempt. The respondents, in turn, claimed that they had complied with the order and that any perceived breaches were due to misunderstandings or errors.

The court found that the respondents had indeed engaged in conduct that constituted ongoing contempt of the 2006 order. It was established that the respondents had failed to adhere to the specific prohibitions set out in the order, leading to continuous non-compliance. The court considered the nature and severity of the breaches and concluded that financial penalties were warranted to address the contempt and to ensure future compliance with the court's orders. The court ordered the respondents to pay a fine of $5000, payable within six months.

Orders

Orders of the court

The respondents are fined $5000, payable within 6 months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Booth v Yardley & Anor [2008] QPEC 100
PARTIES:	CAROL JEANETTE BOOTH Applicant V RICHARD GEORGE YARDLEY and ANTJE GESINA YARDLEY Respondents
FILE NO/S:	Application No 2845 of 2006
DIVISION:	Planning and Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning and Environment Court of Queensland
DELIVERED ON:	25 November 2008
DELIVERED AT:	Brisbane
HEARING DATES:	15 August, 24 September and 31 October 2008
JUDGE:	Alan Wilson SC, DCJ
ORDER:	The respondents are fined $5000, payable within 6 months
CATCHWORDS:	PLANNING – PLANNING LAW – CONTEMPT – application for orders that respondents be punished for ongoing contempt of an order made on 30 November 2006 – penalty District Court of Queensland Act s129(4) Integrated Planning Act 1997 s 4.1.5, s 4.1.23 Nature Conservation Act 1992 Penalties and Sentences Act s153A Uniform Civil Procedure Rules r 932 Cases considered: Booth v Yardley [2007] QPELR 205 Booth v Yardley [2007] QPELR 229 Booth v Yardley (2008) 160 LGERA 352 Brisbane City Council v Stapleton [2006] QPELR 782 Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339 Hervey Bay City Council v George Stathopoulis [2000] QPEC 067 Noosa Shire Council v Cotton On Clothing Pty Ltd [2008] QPEC 13 Purtill v Landfix Pty Ltd [2005] QPELR 281 R v Cuff & Attorney General [2001] QCA 351 Webster v McIntosh (1980) 32 ALR 603 Witham v Holloway (1995) 183 CLR 525
COUNSEL:	Dr C McGrath for the applicant, Dr Booth No appearance by or for the respondents, Mr and Mrs Yardley
SOLICITORS:	Environmental Defenders Office (Qld) Inc for applicant Mr David Walter delivered written submissions on behalf of the respondents