Bowman v Brisbane City Council

[2017] QCA 84

[2017] QCA 84

COURT OF APPEAL

SOFRONOFF P
GOTTERSON JA
MORRISON JA

Appeal No 5279 of 2015
DC No 1703 of 2013
DC No 4298 of 2014

JOHN ALEXANDER BOWMAN
JAG GRAVEL & EARTHWORKS PTY LTD
ACN 115 655 840
BOWIE’S INDUSTRIES PTY LTD
ACN 115 554 240  Applicants

v

BRISBANE CITY COUNCIL  Respondent

BRISBANE

TUESDAY, 9 MAY 2017

JUDGMENT

SOFRONOFF P: This is an application under s 498 of the Sustainable Planning Act 2009 for leave to appeal an order refusing an application to vary an enforcement order. Enforcement orders are made under s 604 of that Act; the kinds of orders that can be made are set out in s 605. In this case, Judge Searles of the District Court made certain orders on 10 December 2012 requiring the applicant to do certain things and to refrain from doing others. Orders 13, 14 and 15 provided as follows:

“13.By 1 February 2013, the Respondents, their heirs and successors in title, their tenants, their servants and agents submit a Rehabilitation Plan (‘the Rehabilitation Plan’) prepared by a duly qualified expert to Council for assessment and approval by Council for:

A.the removal of introduced fill back to natural ground level or other satisfactory level based on reports by qualified and relevant experts; and

B.rehabilitation of the premises following removal of the fill material.

14.If the Rehabilitation Plan is not approved or is rejected by Council, the Respondents are to make the required amendments and resubmit the amended Rehabilitation Plan to Council within fourteen (14) days of notification of the rejection of the Rehabilitation Plan.

15.The Respondents, their heirs and successors in title, their tenants, their servants and agents complete removal of the fill material from the premises in accordance with the Rehabilitation Plan within nine (9) months of approval of the Rehabilitation Plan, or such further time as agreed in writing as between the parties with reference to their relevant experts.”

These orders, and the others made by his Honour, arose out of the conduct by the applicant of activities on his land that the Council contended were not permitted under the Act or under the relevant planning instruments.  On 15 May 2013, the respondent applied to the Planning and Environment Court for an order for punishment of the applicant for his alleged contempt in failing to obey certain of the orders made by Judge Searles.  The matter came on for hearing before Judge Robin and on 16 September 2013, his Honour made two sets of orders.  First, his Honour found the applicant guilty of contempt on his own plea, convicted him and ordered that he be sentenced to a term of imprisonment for four months to be wholly suspended for a period of two years.  Second, his Honour made numerous orders to progress the intent behind the orders that had been made by Judge Searles and in substitution of them.

Relevantly, his Honour ordered that by 14 October 2013, the applicant had to submit a rehabilitation plan prepared by an expert for the removal of fill on his premises so as to return the land to its natural ground level, and also in other respects.  The plan was submitted.  It was approved on 5 November 2013.  Order 17 of Judge Robin’s orders required the applicant to complete removal of fill in accordance with the plan within 12 months of the Council’s approval of the plan.  On 29 October 2014, that is to say a week or so before the work should have been done, the applicant made an application to the Planning and Environment Court for an extension of time to comply with the order.  The application was made pursuant to section 606(3) of the Act, which empowers the Court to change an enforcement order.

The Court’s discretion to do so is not expressly fettered.  The applicant also applied for a stay of the order under UCPR r 895. Both applications were refused on 16 April 2015. On 28 May 2015, the last possible day for an application allowed by s 499 of the Sustainable Planning Act, the applicant applied for leave to appeal to this court.  There’s been no explanation for the failure to prosecute the appeal in the two years since the application was filed.  And although that might have been grounded, a refusal of the application, the respondent does not rely on the delay and nothing, therefore, turns upon it.

The applicant raises two issues of law.  First, he submits that the court below erred in concluding that the consent order made by Judge Robin on the invitation of the parties constituted also a contract between the parties.  There’s nothing in this point.  It is established that a consent order:

“[I]nvolves the proposition that the parties to whom the order refers have an underlying agreement which is reflected in whole or in part by the order made.”

See Spann v Starwell Pty Ltd [1984] 1 Qd R 29 at 35 per Macrossan J.

It is also said that the applicant was denied procedural fairness because this issue, whether the consent order constituted a contract, was not raised for the parties to consider upon which to make submissions before judgment.  It is acknowledged by the respondent that there was a denial of procedural fairness in that respect.  It is also established that a court may not decide a case on a point not raised by one of the parties.  However, non-compliance by a court with this duty to give a hearing on a question of law that must inevitably be answered unfavourably to the aggrieved party will not lead to a new trial; see International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at paragraph 146 per Heydon J. See also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ. The applicant’s written outline, which was settled by senior and junior counsel, states:

“It is, therefore, a nonsense for the primary Court to have found that Council agreed to forbear its right to litigate Bowman’s non-compliance with the orders.”

And that:

“‘In consideration of Council forbearing its right to litigate, Bowman agreed to the terms of the order and consented to the making of the order thus avoiding exposure to prosecution.’ Bowman was prosecuted and convicted at that time.”

I wish to denounce in the most emphatic manner the use of derisive and disrespectful language of this kind.  It’s contrary to the standards expected of the bar.  It is also poor advocacy, because it reveals that the tenor of a submission is wholly partisan, and requires the court therefore, having no faith in the substance of the submission, to sift each proposition made to determine its reliability.  Moreover, that submission is wrong.  Upon any ordinary reading of his Honour’s dictum in the context of this case, his Honour was referring the respondent’s willingness, in consideration of the applicant’s consent for the order, to forbear suing the applicant to judgment in this matter or to continue his prosecution of him for contempt of court, by which the applicant, having regard to his prior history, might well have been ordered to serve an actual term of imprisonment.

I should also add that the criticism I make of the written submissions has no bearing upon the merits of Mr Bowman’s case and is a technical professional matter that stands to one side.  The outcome of this application for leave depends not at all upon the form in which the submissions were written.  In any event, there is nothing in this ground.

The applicant would also seek to argue, on appeal, that his Honour erred in concluding that the Council must have assumed, in consenting to the order, that the applicant would have the capacity himself to perform the things which, by his consent, he promised to do.  The applicant points to what he says is evidence to the contrary.  This is an attack upon a finding of fact, and even if sound in material, would not justify a grant of leave.

The applicant also complains that the learned judge at first instance erred in considering that before he should exercise his discretion to vary the order, the applicant had to show a “good reason”.  It is impossible to see how the discretion could be exercised otherwise.  Section 606(3) does not grant a dissatisfied litigant a chance to re-litigate a matter.  Although the provision does not express any criterion that must be satisfied, it plainly must be the case that something must be shown by an applicant that would justify a change in an order, a fortiori if the order was made with the consent of such an applicant, the point is unarguable.  Next, the applicant argues that the order contemplated that the rehabilitation would be undertaken by the applicant’s own equipment.  This is plainly wrong as the order left it unstated whose equipment would be used.

The applicant was not precluded from using any equipment that he chose, including equipment belonging to others.  Finally, in the written submissions settled by lawyers, the applicant complains about the learned judge’s application of the rule in Jones v Dunkel (1959) 101 CLR 298 at 320 to 321. This ground arises in the context of the applicant’s argument before the learned trial judge that he had not been in a financial position to carry out the works. The learned trial judge dealt with this matter at paragraph 14 of his reasons for judgment. The argument was raised as a result of evidence given by a witness called by the applicant, one Moffitt, who said that the necessary work would require a financial commitment beyond the applicant’s capacity. That, of course, was a matter for him to prove and was a matter that the learned judge expressly raised with the applicant’s counsel, inviting submissions upon it.

There is nothing in this point which is, in any case, a matter of fact, not law.  Mr Bowman, who appeared for himself on the hearing of the appeal, also submitted two additional matters: first, that an expert called by the Council, one Thorne, was not an expert at all.  This cannot constitute a ground upon which to grant leave.  In addition, Mr Bowman argued orally that the Council itself was responsible for leaving fill on the land which it now sought an order, by order of the court, that the applicant should remove.  The learned trial judge was not only aware of this matter, but at the beginning of the hearing, indicated that he would require disclosure about it.  In due course, he dealt with it in his reasons.  It cannot constitute a factor in favour of the granting of leave.  For these reasons, no error of law as would justify leave to appeal being granted has been shown, nor has any issue of general importance been demonstrated, such as would justify leave being granted.  I would refuse the application.

GOTTERSON JA:  I agree.

MORRISON JA:  I also agree.

SOFRONOFF P:  What about costs, Mr Job?

MR JOB:  The Council seeks its costs of the application.

SOFRONOFF P:  Mr Bowman, the respondent is asking for an order that you should pay the costs of the application.  Do you have any submissions about that?

APPLICANT:  Well, what can I say, your Honour?  You – you’ve made your decisions and I’ve been a victim of circumstances here, which they’ve created.  I’ve relied on experts in all the fields that I could do and I have not ceased trying to remove that dirt as you were stating.  I’ve done what the court has asked.  I have not – every day for seven days a week, since that was told for me to do, I have been removing material.  And I have to even ask to bring my machines back to do that.  So, your Honour, I’ve done – I’ve not broken the law one bit.  They’ve got an order there that was blackmailed for me to commit.  Now, I never – I said to my solicitor, I don’t want to agree to this and he said, “It’s the best way out”.  Well, the Council were just going to do as they always do; keep going up to Courts, more charges, changing the goal post.  Your Honour, I’ve done nothing wrong.  I’ve got EPA permits here – the EPA, the State government.

SOFRONOFF P:  No.  We’re talking about costs now, Mr Bowman.

APPLICANT:  Well ‑ ‑ ‑

SOFRONOFF P:  Is there any reason you can raise why you shouldn’t pay the costs of this application having lost?

APPLICANT:  Your Honour, I’ve done everything that I thought I was legally right to do.

SOFRONOFF P:  Thank you, Mr Bowman.

APPLICANT:  I’ve not broke the law in my eyes, and I think that judge – if you could consider that, that is, in all fairness, I’ve got the right legal people to work it all out and they were astonished themselves.  They said, “You should not have been found guilty”.

SOFRONOFF P:  Thank you.

APPLICANT:  Well, your Honour, if I’ve got to foot costs, it should be minimum, because the Council are responsible too.  Who’s going to make them remove all the material they put there?

SOFRONOFF P:  Yes.  Anything else?

APPLICANT:  No, your Honour.

SOFRONOFF:  No.  Thank you, Mr Bowman.  The order of the court is that the application is dismissed.  Order that the applicant pay the respondent’s costs of and incidental to the application.  A transcript is required.  Adjourn the court please till tomorrow at 10.15.