Brisbane City Council v Windshuttel

[2011] QPEC 70

[2011] QPEC 70

PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 1635 of 2007

BRISBANE CITY COUNCIL	Applicant
And
LARRY JOHN WINDSHUTTEL	Respondent

BRISBANE
..DATE 10/5/2011
..DAY 1
CATCHWORDS

Sustainable Planning Act 2009 s 439
District Court of Queensland Act s 129
Uniform Civil Procedure Rules s 904, s 926, r 930, r 931

Hearing of adjourned application to have respondent punished for contempt of earlier court orders made by consent to cease an unlawful use provide a plan to remediate site and remove unlawful fill - respondent served as directed when hearing was fixed, but not appearing

- court proceeds to find contempt and order punishment

HIS HONOUR:  This is an application filed by the applicant
council in a pending proceeding as long ago as 30 June 2010
seeking that the respondent, Larry John Windshuttel, be dealt
with for contempt under section 599 (sic) of the Sustainable
Planning Act 2009 (SPA) or rule 926 of the Uniform Civil Procedure Rules in respect of non-compliance with orders made in the underlying proceeding by consent by Judge Searles on 8th of March 2010. The SPA reference should be to s 439.

On that occasion Mr Windshuttel was represented by solicitors
who had been in the matter for some time and - I am just checking. 

MR GODFREY:  If it assists, your Honour, they formally filed
their notice of representing in person in August.

HIS HONOUR:  Yes, yes, yes.

MR GODFREY:  He also was there on that day in March
personally.

HIS HONOUR:  Yes, the solicitors mentioned filed a notice of Mr Windshuttel thereafter acting in person on 17 August 2010 indicating an address for him of 39 Byng Road, Birkdale.  When was the first hearing date of the contempt application?

MR GODFREY:  The very first?

HIS HONOUR:  Yes.

MR GODFREY:  Your Honour, as per paragraph 15 of my affidavit,   the first mention after filing the application on 30 June, the first mention date, the first review date, was 22 July 2010, Judge Rackemann.

HIS HONOUR:  Had he been served by then?

MR GODFREY:  With the application?

HIS HONOUR:  Yes.

MR GODFREY:  No, because initial attempts were to serve him be way of personal service.

HIS HONOUR:  Did you ever get an order for substituted service?

MR GODFREY:  Well, there is no requirement for personal service.

HIS HONOUR:  I know.

MR GODFREY:  But, no, we did not.  Just given this defendant's - or -----

HIS HONOUR:  Yes, all right.

MR GODFREY:  The court took the view from my recollection, I think it might have been your own - your Honour took the view that when Mr Howles appeared in September, Mr Windshuttel was obviously aware of the application.

HIS HONOUR:  Right.   

I accept from Mr Godfrey's statement from the Bar table, if it

is not in evidence formally, that the solicitors, Wellners
Lawyers, continue to represent Mr Windshuttel in proceedings
in another court that are ongoing.  There has been no
appearance by or for Mr Windshuttel today when he was called
outside the court shortly after 10 a.m., the listed time for
the hearing.  The hearing was adjourned until today by Judge
Rackemann - when did that happen?

MR GODFREY:  21 April it was last in court, your Honour.

HIS HONOUR:  On the 21st of April 2011 when his Honour was unable to be satisfied there had been proper service of the
application and notice of the hearing by the respondent,
Mr Windshuttel, today was fixed as a new hearing date.  The hearing has taken place on the basis ordered by his Honour.  The Court is satisfied by Mr Godfrey's affidavit of 27 April 2011 that service has occurred by post addressed to the respondent at the address indicated in the notice that the party is acting in person filed 17 August 2010 of the application, the supporting material and notice of today’s hearing as ordered by Judge Rackemann.  The principal
affidavit is Mr Godfrey’s "dated 18 April 2011" which was filed the following date and an affidavit of Adam Mercep "dated 21 April 2011" which was filed on 27 April 2011.  That
Mr Windshuttel is aware of the application I am satisfied is
established by the appearance of his son who bears the same
name but on many occasions prefers to use the surname Howles
at a mention before me on 16 September 2010: see [2010] QPEC 106. On previous mentions after 8 Marhc 2010 there had been no appearance for or by Mr Windshuttel, there has been no appearance by or for him since.

My note for 16 September 2010 identified the application as
one for "civil concept" based on alleged non-compliance with
the orders of 8 March 2010.  I am satisfied that that was
understood on the respondent's side. The adjournment on that day was expressly for the purpose of effecting personal service (as required by Rule 926(3).)

Mr Godfrey indicated that on the date when Judge Searles’ orders were made by consent it had been expected that the council's underlying application would be contested.  That did not occur.  Judge Searles' order was as per the initialled draft "with the inclusion of the standard provision recording
contempt of court" according to the associate's endorsement on
the order sheet.  The draft initialled by his Honour does not
include that "standard provision" and one might not expect it
to in the circumstances.  However, the order when issued from
the court did contain the appropriate endorsement, "If you,
Larry John Windshuttel do not obey the requirements of this
order within the times specified you will be liable to court
proceedings to compel you to obey the requirements of this
order and punishment for contempt."

Whether or not the respondent expected that endorsement to
appear on the order, from his presence on 8 March 2010 he can
be taken to have known it was there.  (Mr Windshuttel’s presence is important under rule 904(2), to exclude rule 904(1).)  Copies of the Court's sealed order are shown by material to have been posted to him or to Mr Howles who, presumably with authority, effectively acted as his agent. 

On 27 September 2010 the Brisbane City Legal Practice sent correspondence to Mr Howles enclosing a copy of the court's formal order.  More recently another copy of it was sent as Exhibit 1 to Mr Godfrey's affidavit filed on 19 April 2011, service of which by posting on 27 April 2011 together with advice of today's hearing date has been referred to above.

What Mr Windshuttel may or may not have taken from the
communications was that punishment for contempt may extend to
imprisonment, to actual imprisonment, which is what Mr Godfrey
seeks in the circumstances.  It is a matter of speculation
what Mr Windshuttel or anyone else might think is possible as
"punishment for contempt" and whether that would extend, as it
does, to imprisonment.

The Sustainable Planning Act 2009 in section 439 confers on a
judge of this court the same power to punish for contempt of
court as a judge of the District Court has for punishment for
contempt in that court.  By subsection (3) contravention of an
order by this court results in the contemnor being "taken to
be in contempt of the court".

A District Court judge's power to punish for contempt is set
out in section 129 of the District Court of Queensland Act
1967 and by subsection (2) is "the same power" as applies in the Supreme Court.

Mr Godfrey has referred the court to some useful decisions
bearing on contempt of this court, beginning with Brisbane
City Council v Stapleton [2006] QPEC 073 which applied at a
time when section 4.1.5(3) of the Integrated Planning Act
served the function of the present section 439(3) of SPA. By
subsection (4) of the IPA section penalties indicated in section 129(4) of the District Court of Queensland Act 1967 were to apply as if the expression 12 months were two years and the expression 84 penalty units was 3,000 penalty units.

The SPA contains no indication of maximum penalties, as Judge
Rackemann noted in Stapleton.  Section 4.1.5(4) was obviously
drafted with a previous version of section 129 in mind. His
Honour referred to rule 930 of the Uniform Civil Procedure
Rules which in the case of contempt committed by an individual
now provides that the court may punish by making an order that
might be made under the Penalties and Sentences Act 1992.
Subrule 4 provides that, "The court may make an order for
punishment on conditions including, for example, a suspension
of punishment during good behaviour with or without the
respondent giving security satisfactory to the court for
good behaviour."  Imprisonment is expressly provided for in
rule 931.

The outcome in Stapleton was a community service order.  The
circumstances were different from the present in that work
that had to be done under the relevant court order had been
done, albeit by the Council.  It was noted that Mr Stapleton
had shown a degree of cooperation and indeed, contrition
acknowledging his non-compliance with court orders.  There was
no continuing undesirable circumstance persisting.

Next in this Court is Gold Coast City Council v Mountdene
and Dooney [2008] QPEC 112. In that case Judge Kingham found
Mr Dooney in contempt by non-compliance with an order he
provide an unconditional bank guarantee as security for the
carrying out of certain work.  The application was adjourned
for some months to provide Mr Dooney with an opportunity to
purge his contempt and for further submissions to be made
regarding penalty.  Mr Dooney was given that time to "purge
the contempt and remediate the site".  Her Honour having
observed that "given the history of this case a term of
imprisonment is certainly open" (see paragraph [21] of her
Honour's reasons).  As here, the orders that Mr Dooney
failed to comply with were made by consent."  As indicated in paragraph [22] of the reasons Mr Dooney was making efforts to realise assets to obtain funds that could be applied in remediation.

The other decision in this court that was drawn to my
attention was Booth v Yardley [2008] QPEC 100, a decision of
Judge Wilson which Mr Godfrey accepts precludes his applying
for costs today.  The penalty imposed on the Yardleys was a
fine of $5,000.  By the time the penalty was imposed the
contempt constituted by failure to remove electrical devices
calculated to deal with a flying fox nuisance had occurred.
By contrast, the unacceptable situation created by
Mr Windshuttel's past and continuing conduct continues
unameliorated.

Judge Wilson referred to a Court of Appeal decision of
Formal Wear Express Franchising Limited v Roach [2004] QCA
339.  That concerned a defendant who had acted in breach of a
restraint clause in an employment contract by running a
business of formal menswear hire.  For a first contempt
established to the court he was fined $3,000.  For each of
three subsequent acts of contempt he was ordered to serve six
months' imprisonment to be served concurrently.  The Court of
Appeal considered six months excessive but imposed concurrent
sentences of three months' imprisonment being considered
appropriate.  Roach had indicated he could and would not meet
a fine.  The element of repetition was a concerning feature in
his case.  The Court of Appeal noted the general public interest in having court orders complied with.  Here there are other punlic interest involved to do with amenity of surrounding residences and continuing inundation and attendant health risks attributable to unlawful filling on the site which ought to have been removed.

Mr Godfrey also referred to Lade and Co Pty Ltd v Black [2006]
QCA 294 which was the subject of consideration by Judge
Kingham.  In that case the contempt was constituted by the
appellant's failure to comply with his undertaking to the
court to prevent his cattle from trespassing on the
respondent's land.  The appellant's conduct had been found by
the trial Judge "not contumacious".  Although there was a
difference within the Court of Appeal as to what had to be shown to establish contempt by breach of a court order, the
appellant failed in the Court of Appeal.  The punishment there
was a fine.  The reason clearly established that there exists a general power under common law to deal with comptept independently of powers created by statutes and rules of court.  The legislation effectively gives the court the general powers enjoyed by the Supreme Court.

What Mr Windshuttel agreed and was obliged to do by the
court's consent order in this case included refraining from using three lots for the purpose of a warehouse as defined in
Brisbane City Plan 2000 unless authorised by an effective
development permit.  He was also restrained from bringing on or receiving at those premises trucks and shipping containers to be stored there without an effective development permit and
from bringing any fill on to those premises as defined in City
Plan 2000 until authorised.

The second respondent which is not concerned in today's
application was in the originating application as the
proprietor of one of the three lots which Mr Windshuttel or
his entities could be shown to be using.  He was ordered, in terms of the order of 8 March 2010, to return the other two lots which are his to a condition as prescribed by a report of
Mr Manners which can be found in his affidavit filed on 30 May
2008.  There was a further requirement to provide the council
by 8 April 2010, that is within a month, with a plan showing
how it was proposed to comply with the last mentioned order.

Times for compliance with orders were established, the first
time being immediately, the latest, 10 September 2010, by when all appropriate works were to be completed.

The material now available to the court shows that
Mr Windshuttel has done nothing whatever to comply with the
consent order or any part of it.  That comment is made with acknowledgment that at certain stages there have been communications between Mr Howles and Mr Godfrey, for example, to do with a copy of the Manners report being made available.  Nothing whatever has eventuated from those matters and the council has granted no relevant indulgences.
It is established that there is no development approval
obtained or even sought to regularise uses on the land or
filling.

In the circumstances, there is nothing whatever before the
court to indicate that Mr Windshuttel might have had genuine
difficulties in complying with the relevant order or that there are any mitigating circumstances whatsoever that might be relevant to the court's consideration of what might be an
appropriate penalty if contempt of court is established as, indeed, it is.

There is photographic evidence indicating that in recent weeks
huge trucks, equipment such as cranes are still being brought on to the site and that such items, as well as shipping containers and the like, continue to be stored there in considerable numbers.  The site is a large one, exceeding
10 hectares, and those uses of the site and streets leading to
it are hardly consistent with the residential amenity of the
locality.

Mr Godfrey read, as well as Mr Manners' affidavit and report,
affidavits of local residents, Ms Harders and Ms Pyke, which
confirm that the fill which has been conducted on the site
since 2006 (Mr Windshuttel having acquired his lots around
2003) interferes seriously with the movement of overland
water flows leading to inundation of neighbour's properties
which would not otherwise occur for weeks and perhaps months,
the stagnant water producing a foul odour and very likely
creating health problems as well as denying residents the
ordinary enjoyment of their homes.

The affidavits indicate that even at this time of the year
after the ordinary summer wet season the concerns still arise
in a serious way.  In my opinion the impacts of the
respondent's unexplained continuing contravention of the
consent order are unacceptable and serious.  The complete lack
of cooperation or contrition on Mr Windshuttel's part place
him in a category of bringing on himself greater condemnation and punishment than might have been appropriate in respect of the other contemnors dealt with in this court.

Mr Godfrey has persuaded me that it is appropriate to order
actual imprisonment in this case, as was ordered in
Formal Wear Express Franchising, notwithstanding the accepted
undesirability of short sentences of imprisonment.  I think
that a three month term is appropriate. 

Needless to say, I am uneasy at this outcome particularly as it occurs without Mr Windshuttel represented.  There may well be things that could be said on his behalf regarding the impossibility or difficulty of complying with the orders he consented to or by way of personal circumstances that would make the severe punishment the court imposes inappropriate.

As I understand the general approach of the courts, he will
have the ordinary right of a person in whose absence orders
are made, to approach the court and present a case that those
orders ought to be set aside or varied.  It is idle to
speculate regarding what might be sought or in the
circumstances proposed by Mr Windshuttel.

It is perhaps unfortunate that, as I understand them, the
arrangements under the Penalties and Sentences Act regarding
suspended sentences require that imprisonment that has been
pronounced be suspended either forthwith or from an identified
date following which there is no question of the offender
being returned to custody unless another offence punishable by
imprisonment is established.  There is no reason for the court
to think that Mr Windshuttel would commit any criminal offence
that might require suspended imprisonment to be served.  The
fear is that he might commit further contempts of Judge
Searles' order.  That could only be established on a new
application by the Council.  If that were done, it seems to me
that would likely place Mr Windshuttel in the category of a
recidivist contemnor and make condign punishment appropriate.

There has been no exploration today on the interesting
question whether if the UCPR provisions are used, and in my
view there may be no necessity for them to be, the suspension of punishment during good behaviour referred to in rule 930(4)
would permit an order that imprisonment be suspended on the
basis of "good behaviour" requiring compliance with a court
order like that of 8 March 2010 in all respects.  “Good behaviour” probably bears the general meaning it has in respect of good behaviour bonds, etcetera.

I may say that I have considered whether the evidence
establishes use of the premises as a warehouse and I am
satisfied that it does.  The relevant definition in City Plan
is, "a use of premises for the storage of goods, whether or
not in a building, in large stocks pending distribution, or a
self-storage facility."  While the refinements of the way in
which Mr Windshuttel and his entities conduct activities on
the site are unknown, it seems clear that "self-storage" is
going on.  Further, I am satisfied that the containers,
equipment and the like that have been stored on the site and
continue to be as established by the photographs amounts to
storage of goods in "large" stocks pending distribution in the
sense of removal of them from the site.

Now, is there anything else I should order?

I find the respondent in contempt of the Court's order of the 8th of March 2010 and order that he be imprisoned for three
months.  I suppose I should order liberty to apply.  Perhaps I should be specific that the contempt is established in respect of paragraphs 1, 2 - you can't prove that filling continues, can you?

MR GODFREY:  No.

HIS HONOUR:  1, 2, 6, 7, 9, 10 and 11 of the order.   That is right, isn't it?  Could you just check that?  1, 2, 6, 7, 9, 10 and 11.  Are you happy with that?

MR GODFREY:  Yes, thank you, your Honour.  I am

HIS HONOUR:  I am granting liberty to apply.  Order that the respondent be imprisoned for three months.

MR GODFREY: The only other issue is, your Honour, on me reading of the Penalties and Sentences Act, section 152 states that "a Court may make an order for imprisonment only if it records a conviction." So, it follows that your Honour needs to record a conviction in this matter.

HIS HONOUR:  Well, I will record a conviction but I think it is inherent in ordering imprisonment.

MR GODFREY:  Thank you, your Honour.

HIS HONOUR:  I don't know, this is a bit radical, isn't it?  Are you around for the rest of the week and next week, because we are likely to see Mr Windshuttel.

MR GODFREY:  Well, yes, your Honour.  If anything comes of it, yes, I intend to be.  I am around.

HIS HONOUR:  I will be around and if you're not then I think you had better make sure someone else is.

MR GODFREY:  Yes.

HIS HONOUR:  Someone with enough familiarity to represent the council.

MR GODFREY:  Yes, just as a matter of practicality, your Honour, I am just not sure how Mr Windshuttel will actually be physically apprehended, for want of a better word.

HIS HONOUR:  I am not going to do anything about it.

MR GODFREY:  No, I appreciate that.  The orders have been made.

HIS HONOUR:  So you might have to do some talking to the Sheriff or something.

MR GODFREY:  Yes.

HIS HONOUR:  I'm not sure if she takes any interest in Planning Court matters.

MR GODFREY:  Yes, those are difficulties for my client to overcome.  The fact the order has been made and it takes effect -----

HIS HONOUR:  Look, that's right and the best resolution might be to let him know what has happened before the police or whoever it is come along -----

MR GODFREY:  Yes.

HIS HONOUR:  ----- seizing him to give him a chance to devise some proposal that might suit the court.  So, you are not intending to go out and have the police -----

MR GODFREY:  Not at 1.30 today.

HIS HONOUR:  ----hauling him in within so minutes or anything?

MR GODFREY:  No.  No, we have waited this long - my client has waited this long, your Honour.

HIS HONOUR:  Your client has made it's point.

MR GODFREY:  It has.  Thank you, your Honour.

HIS HONOUR:  I ought to have said one further thing and that is that the correspondence in the material that has been read indicates that Mr Windshuttel, in some cases via Mr Howles, has been reminded of his contempt periodically in the time that has elapsed since Judge Searles' order.  It can't be said to be a matter that has been put on the back burner or gone to sleep.

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