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…

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.

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Details

Case: [2011] QPEC 70
Decision Date: 10/5/2011

CaseChat Overview and Summary

The Brisbane City Council sought to have Larry John Windshuttel punished for contempt for failing to comply with a court order that he cease an unlawful use of his property and remediate the site. The legal issues for the court to decide were whether Windshuttel had breached the court's order, whether this constituted contempt, and what penalty should be imposed if contempt was found. The court found that Windshuttel had indeed breached the order by continuing to use the property as a warehouse and bringing in trucks and shipping containers, contrary to the court's directions. The court also found that this constituted contempt of court. In imposing a penalty, the court considered previous cases where penalties for contempt had ranged from fines to imprisonment. Given Windshuttel's continued non-compliance and lack of cooperation, the court ordered that he be imprisoned for three months. The court granted Windshuttel liberty to apply to have the sentence suspended on the basis of good behaviour.

The final orders of the court were that Windshuttel be imprisoned for three months for contempt of the court's earlier order, that liberty be granted to apply to suspend the sentence on the basis of good behaviour, and that a conviction be recorded. The court noted that Windshuttel would have the right to approach the court to have the orders varied or set aside if he could show sufficient cause.

Orders