Bundaberg Regional Council v Lammi & Anor

[2014] QPEC 52

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bundaberg Regional Council v Lammi & Anor [2014] QPEC 52

PARTIES:

BUNDABERG REGIONAL COUNCIL

(applicant)

v

KENNETH AARRE LAMMI

(first respondent)

and

SUE-ELLEN LAMMI

(second respondent)

FILE NO/S:

2350/14

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court at Brisbane

DELIVERED ON:

5 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2014

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The respondents are jointly fined $5,000 for contempt of the Order of his Honour Judge Andrews SC made 27 November 2013 in Planning and Environment Court proceedings No. 2879 of 2013.

2.   The fine is to be paid within three (3) months of this order being made.

3.   Paragraphs 2, 3, 4, 5 and 6 of the Order of his Honour Judge Andrews SC made 27 November 2013 in Planning and Environment Court proceedings No. 2879 of 2013 are vacated.

4.   In lieu of the vacated paragraphs;

The first respondent by himself, his servants or agents must:

undertake the relevant steps to refer the building development application to the applicant by 17 September 2014;a.   

use his best endeavours to:b.   

pursue the building development application expeditiously; andi.   

obtain an effective building development approval by 17 October 2014 (“development permit for building works”);ii.   

within three months of obtaining the development permit for building works, and by no later than 17 January 2015, complete the building works for the exterior of the relocated buildings approved by the development permit for building works; and c.   

within six months of obtaining the development permit for building works, and by no later than 30 April 2015 complete the balance of the building works for the relocated buildings and obtain the final certificate of completion.d.   

The respondents are to pay the applicant’s costs of the application on the standard basis.5.   

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – OTHER CASES – where an enforcement order was made by the his Honour Judge Andrews SC in the Planning & Environment Court on 17 November 2013 – where the order was made by consent – where the enforcement order required the respondents to take action regrading their property – where the action was not taken – whether the respondents are in contempt of the enforcement order

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – OTHER COURTS – OTHER CASES – where the respondents admit they are in contempt of a court order – where the respondents have taken steps in attempting to follow the enforcement order – where the applicant submits that a sentence ought be imposed – whether imprisonment is the appropriate remedy for the respondents’ contempt

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the applicant seeks a further enforcement order be made – where the applicant does not seek to vary or set aside the previous order – where the respondents would still be in contempt of the previous order – whether the previous order should be varied or set aside – where the second respondent is no longer an owner of the property – whether a further order can be made against the second respondent

District Court of Queensland Act 1967 (Qld), s 129(2)
Sustainable Planning Act 2009 (Qld), s 439(1), s 439(2), s 439(3), s 606
Uniform Civil Procedure Rules 1999 (Qld), r 926(4), r 930

AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Attorney General v Times News Papers Ltd [1974] AC 273
Booth v Frippery Pty Ltd & Ors [2008] QPEC 122
Booth v Yardley & Anor [2008] QPEC 100
Brisbane City Council v Bowman [2013] QPEC 62
Dubois v Rockhampton Regional Council [2014] QCA 215
Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339
Lade & Co Pty Ltd v Black [2006] 2 Qd R 531
Rockhampton Regional Council v Dubois [2014] QPEC 13
Sunshine Coast Regional Council v MC Property Investments Pty Ltd (No 3) [2012] QPEC 12

COUNSEL:

Mr M A Williamson for the applicant

Mr K A Lammi self representative for the first and second respondents

SOLICITORS:

Connor O’Meara for the applicant

The Proceedings

1. The respondents, Mr and Mrs Lammi, are in the business of relocating and demolishing homes.  In or about 2008 or early 2009 they relocated two quite historical buildings on to land situated at Bonna Road, Bundaberg with a view to developing them into their dream home.  The relocation of the buildings was authorised by a development approval which had been granted on 31 March 2008.  The approval lapsed.  An enforcement order was made.  It is said that the respondents are in contempt of the enforcement order.  The Council makes application for an order committing them, or otherwise dealing with them, for their contempt.

Background – The November Enforcement Order

1. The development application had been made by “Lammi Bros”.[1]  The approval, seemingly, was given to “Lammi Bros House Removals”.[2]  The only owner of the property identified in the development application was the second respondent, Mrs Lammi.[3]  Notwithstanding the identification of Mrs Lammi only as the owner of the property at the time of the development application, Mr Lammi deposes to the land having been owned at that time jointly by he and his wife.[4]  The land was transferred into Mr Lammi’s name solely in December 2008.[5] 

   [1]Development application, Part A, at p 15 of exhibit CJL-1 to the affidavit of Cara Jade Lacey filed 15 August 2014.

   [2]Development application decision notice approval, 31 March 2008 at pp 10-12 of exhibit CJL-1 to Ms Lacey’s affidavit. 

   [3]Development application, Part B, Table F at p 54 to exhibit CJL-1 to Ms Lacey’s affidavit.

   [4]Affidavit of Kenneth Aarre Lammi filed 4 August 2014, para 3.

   [5]Ibid at para 10.

1. The development approval lapsed.  The Council brought proceedings for an enforcement order against both Mr and Mrs Lammi.[6] On 27 November 2013 his Honour Judge Andrews SC, having been satisfied that a development offence had been committed, namely the carrying out of assessable development not authorised by any effective development approval, made an enforcement order pursuant to s 604 of the Sustainable Planning Act 2009 (Qld) (‘SPA’). The enforcement order was made by consent. Mr and Mrs Lammi had been represented by Lawyers in those proceedings. The order of his Honour Judge Andrews SC was:

   [6]Planning and Environment Court proceedings No. 2879/13.

“It is ordered pursuant to section 604 of the Sustainable Planning Act2009 that:

1.The First and Second Respondents by themselves, their servants or agents demolish all building works associated with the Relocated Buildings and remove from the Land all associated building materials, by 6 December 2013.

2.In the alternative to paragraph 1, the First and Second Respondents, by themselves, their servants or agents are to:

(a)lodge a properly made building development application to a private building certifier for the building works by 29 November 2013;

(b)undertake the relevant steps to refer the building development application to the applicant by 6 December 2013;

(c)use their best endeavours to pursue the building development application expeditiously; and

(d)obtain an effective building development approval by 10 January 2014 (‘Development Permit for Building Works’).

3.Within 3 months of obtaining the Development Permit for Building Works, and by no later than 10 April 2014, the First and Second Respondents are to complete the building works for the exterior of the Relocated Buildings approved by the Development Permit for Building Works.

4.Within 6 months of obtaining the Development Permit for Building Works, and by no later than 10 July 2014, the First and Second Respondents are to complete the building works for the interior of the Relocated Buildings approved by the Development Permit for Building Works. 

…

6.In the event that the Development Permit for Building Works is not obtained by 10 January 2014, the First and Second Respondents by themselves, their servants or agents demolish all building works associated with the Relocated Buildings and remove from the Land all associated building materials by 10 April 2014.”

The Contempt

1. The Council alleges that the respondents have wholly failed to comply with the November order.  This is not contested by the respondents.  In his affidavit, said to have been made on behalf of both himself and Mrs Lammi,[7] Mr Lammi deposes to having endeavoured to engage a private certifier.  He deposes to his difficulties in doing so.  In a letter to the Council’s solicitors from their, then, solicitors on 13 January 2014,[8] it had been stated that “our client has appointed an appropriately qualified building certifier to lodge a building development application and to advance the necessary building approval”.

   [7]Rule 926(4) of the UCPR provides that in an application for punishment for contempt an affidavit in support of or opposing the application must not contain evidence which the person making it could not give if giving evidence orally. However, the Council expressly waived the objection to any inadmissible evidence.

   [8]Exhibit ACP-3 to the affidavit of Andrew Charles Perry filed 23 July 2014.

1. That letter was inaccurate.  It is clear that no certifier had by then been appointed.

1. Mr Lammi acknowledges that he caused the letter to be written.  He says that he believed that he had, at that stage, engaged a firm of certifiers.  He says that he had emailed them the relevant documents.  After returning from a period of working outside Bundaberg he says he followed them up.  He says that they advised him that they had not received the emailed documents and, further, that they were not able to or interested in undertaking the certification process.  Mr Lammi does not depose to any times at which these various events were said to have occurred.  He has not placed into evidence any of the relevant email communications.[9]  Nonetheless, he was not cross-examined on any of his evidence.  The Council had accepted all of the factual matters deposed to by Mr Lammi, including the listed difficulties he and his wife face with compliance with the development approval in the past and, more recently, with the court’s order.

   [9]Although Mr Lammi appeared himself at the hearing of the contempt proceedings, his affidavit was prepared and filed by his solicitors.

1. Mr Lammi deposes to his and his wife’s great regret that they had “been unable to comply with the agreement reached with Council in November 2013 as to a timetable for the final approval of the relocated buildings and the necessity for an application by the Council generally”.[10]

   [10]Mr Lammi’s affidavit at para 27.

1. He concludes his affidavit by saying:

“The above being said, we indicate that with an appropriate extension of time to move the matter forward along the lines as originally agreed in November 2013 we will be in a position to obtain the necessary approval and final certification of the building works to bring this matter to a conclusion.  This will, we anticipate, take around 6 or 7 months from the uptake of the matter by the certifier and provision of all information to him.”[11]

[11]Ibid at para 29.

1. From these statements by Mr Lammi it is apparent, beyond reasonable doubt, that he and Mrs Lammi have contravened the enforcement order made on 27 November 2013. Section 439(3) of the SPA provides that if a person at any time contravenes an order of the court, the person is also taken to be in contempt of the court. Independently of the operation of s 439(3), the statements of Mr Lammi, together with the evidence of Mr Perry that apart from the solicitor’s letter of 13 January 2014 the Council has received nothing by way of correspondence or documents from which any intention to comply with the order could be inferred, also establishes beyond reasonable doubt that the respondents are in contempt of the court’s order; there have been deliberate omissions in disobedience of that order.[12]

   [12]AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113 per Gibbs CJ, Mason, Wilson and Deane JJ; Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 at [65] per Keane JA.

Appropriate Remedy for the Contempt

1. Contempt having been established, the court has the same powers to punish for that contempt as has the District Court for a contempt of that court.[13] Section 129 of the District Court of Queensland Act 1967 (Qld) applies.[14] Section 129(2) confers upon the District Court the same powers to punish for contempt as has the Supreme Court. By r 930(2) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) the court may punish an individual who is in contempt by making an order that may be made under the Penalties and Sentences Act 1992 (Qld). However, in punishing for contempt the court is exercising its inherent powers. The reference to the Penalties and Sentences Act 1992 (Qld) in r 930 of the UCPR does not confine the court’s powers to make only those orders contained in the Act.[15]

   [13]Section 439(1) SPA.

   [14]Section 439(2) SPA.

   [15]Dubois v Rockhampton Regional Council [2014] QCA 215 at [73] – [74] per Muir JA.

1. At the outset of the contempt hearing the Council put forward a draft order.  The draft order sought that for their contempt each of the respondents be sentenced to prison for a period of six weeks, but that those sentences be wholly suspended.  The draft order did not provide for any operational period for which the sentences would be suspended. In the absence of any operational period being state in the order, the reasonable construction would be that the suspension was to last until the expiration of the six week term of the sentence, not that it would be suspended indefinitely.[16] It was clearly not the intention of the Council that the sentence would only be suspended for six weeks.

   [16]Ibid at [87].

1. In the course of the hearing, when the absence of any operational period was raised, the Council proposed that “the sentence be wholly suspended for as long as… the first respondent complies with paragraph 3 of this order”. This would be an appropriate way in which to frame the operational period of the suspension. As was recently said by Muir JA in the Court of Appeal, “[w]here the Court imposes a suspended sentence for contempt, it should fashion the operational period by reference to the conduct or orders in respect of which the penalty is being imposed.”[17]

   [17]Ibid at [75].

1. The reference to paragraph 3 of the order is a reference to further orders which the Council seeks which would require future compliance with the steps set out in paragraphs 2 to 4 of the November order, but in extended time periods.

1. The Council submits that the court is able, in these proceedings, to make such orders as a new enforcement order pursuant to s 604 of the SPA. It submits that the court may do so to remedy the same development offence as was found by Judge Andrews SC to have been committed and which supported the November 2013 enforcement order. The Council submits that the court’s jurisdiction to make a further enforcement order is invoked by paragraph 3 of the relief sought by it in the originating application commencing these proceedings in which the Council sought “such further or other orders as the court deems appropriate”. In the alternative, and in the event that the court’s jurisdiction was not invoked by that part of the originating application, it made an instanter application for such relief.

1. Council expressly stated that it was not seeking a variation of the November order.  It intends that there would be two orders.  The first, so it seems, would be one in respect of which there would be a continuing breach, and thus contempt.  The second would be able to be observed in prospect.  A breach of the second order would activate the first respondent, Mr Lammi, serving the suspended sentence imposed for his contempt of the November order.  I say “Mr Lammi” because the Council now concedes that, subsequent to the making of the November order, there is no evidence to suggest that Mrs Lammi had or has any particular control of the business which was named as the applicant in the development application, and that her circumstances appear to be different to those of Mr Lammi as to the conduct and the ability to comply with the order.  The concession is well made.

1. In my view, if a further enforcement order is to be made, it should either be in variation of, or substitution for, the order made on 27 November 2013.  There should not, in my view, be two orders in place, the latter inconsistent with the former in its requirements for the performance of the same steps.  If the Council is willing to permit Mr Lammi to purge his contempt of the November order by taking those steps required, but according to a different timetable a failure to adhere to which may result in him being in contempt of the latter order, then, in my opinion, it would not be appropriate to maintain the November order such that Mr Lammi (and indeed Mrs Lammi) will remain in continued contempt of it. 

1. Learned counsel for the Council could not in the course of the hearing refer me to any decision of this court in which the course proposed, of their being two extant inconsistent enforcement orders, was followed.  After the hearing, and with the court’s leave, counsel referred me to the decision of his Honour Judge Brabazon QC in Booth v Frippery Pty Ltd & Ors.[18]  That case concerned an order of the court which had required the dismantling of a grid of electrical wires which had been erected by the respondents to protect their lychee farm from flying foxes.  The respondents had not dismantled the grid and were found to be in contempt of court.  The respondents were jointly fined $5,000.  Counsel for the respondents had sought an order suspending the operation of the order of which they had been found to be in contempt, effectively to allow them a period during which to purge their contempt by dismantling the grid and during which period they would not be in continued contempt.  That was opposed by the Council which contended that whilst the contempt would be continuing, if any further proceedings to punish for the contempt were brought it would be a matter of discretion whether the court would do so.  In the event, the court left the order as previously made. 

   [18][2008] QPEC 122.

1. Booth v Frippery Pty Ltd & Ors provides no support for the course proposed by the Council of the court now making a further enforcement order whilst leaving the original order in place.  Whilst in Booth v Frippery the court did leave the order in place, and thus the respondents in continuing contempt notwithstanding the expectation that they would act to comply and purge their contempt, no further order permitting them to take the same steps, but under a different timetable, was made.  The issue of there being inconsistent orders did not arise. 

1. The purpose of a court imposing a sanction upon persons in contempt of its orders is twofold.  It is both to punish for the past failure to comply, and to coerce future compliance.[19]  It is apparent that, with the making of a further order, the Council would have no interest in punishing the respondents for the continuing breach of the November order.  Nor is it interested in enforcing that order as opposed to the further order.  Lord Diplock observed in the context of discussing the element of public policy in punishing contempt:

“… but no sufficient interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist upon its enforcement.”[20]

[19]AMIEU v Mudginberri Station Pty Ltd (1986) supra. 

[20]Attorney General v Times News Papers Ltd [1974] AC 273 at 308.

1. As there is apparently no longer any interest in enforcing the November order in its terms, I can see no point in it remaining extant with the consequence of the respondents continuing to be in contempt. 

1. Booth v Yardley & Anor[21] was another case concerning the erection of, and failure to dismantle, grids for the protection of fruit crops from flying foxes.  The court had ordered that the grids be dismantled within three months.  They had not been.  The power to the grids had been disconnected.  Contempt proceedings were brought.  The respondents were found to be in contempt, however, it was found that it may have been a product of a misunderstanding as to the meaning and effect of the order.  Such misunderstanding may have been due to advice the respondents had been given.[22]  A further order was made, in quite specific prescriptive terms, requiring the Yardleys to dismantle the three grids constructed on their land by pulling down and taking apart the horizontal wires and metal poles constituting the electric grids.  They were given a further period of about two moths within which to do that.  His Honour Judge Wilson SC, as his Honour then was, did not vary the earlier order.  He expressly noted that there had been no request to do so.[23]  Whilst that resulted in there being two orders in place, it is quite apparent that what was sought to be coerced was the enforcement of the earlier order.  The second order was made in the terms in which it was because his Honour considered that:

“The proper remedy in all the circumstances is to confirm, to the respondents, the meaning and effect of the order while minimising the likelihood of hardship by allowing the opportunity to affect dismantling in the least expensive way, over sufficient time.”[24]

[21][2008] QPEC 100.

[22]Booth v Yardley & Anor [2008] QPEC 5.

[23]Ibid at [16].

[24]Ibid at [21].

1. His Honour was of the view that the respondents “now understand, I am sure, the need for compliance and the way in which that is to be achieved”. 

1. Those matters distinguish Boothv Yardley from this case. 

1. Whilst Mr Lammi has not consented to a further order being made, it is apparent from the extract from his affidavit which I have set out above that a further period of time within which to obtain development approval and perform the work is what he desires.  In the hearing, the only aspect of the further order proposed by the Council to which Mr Lammi expressed any opposition was the requirement to complete the balance of the building work within six months of obtaining the development permit, and in any event by no later than 10 April 2015.  He would prefer a further two months to provide a “buffer” against such contingencies as the unavailability of tradesman.

1. In my opinion, if an accommodation is to be given to Mr Lammi to allow him to complete the work, then the time periods proposed by the Council are appropriate.  I note also that those time periods are consistent with those set out in Mr Lammi’s affidavit.

1. I am satisfied that the court has power, under s 606 of the SPA to vary the order previously made in November 2013. Whilst neither party has expressly sought such a variation, and in the case the Council it is expressly not sought, such a course is consistent with that which is sought by both parties; an extension of timeframes within which to take the steps necessary for completion of the work. The timeframes will essentially be those set out in the draft order proposed by the Council although some dates have been changed slightly.

Is a sentence of imprisonment or a fine appropriate?

1. In my opinion, this is not an appropriate case in which to impose a prison sentence as punishment for contempt.

1. In Rockhampton Regional Council v Dubois[25] his Honour Judge Searles sentenced a contemnor to three months imprisonment to be suspended after one month.  That matter had a considerably worse history than this matter.  There had been an order made in 1996.  In 1997 Mr Dubois was convicted of contempt for having contravened that order.  He was fined $1,000 and ordered to pay costs of $3,049.  Another order was made in 1999.  In 2001 Mr Dubois was convicted for contempt of the 1999 order.  He was fined $1,500.  Mr Dubois continued to use the land in contravention of the 1999 order.  In concluding that a sentence of imprisonment was appropriate, his Honour observed that the 1999 order had been made almost 15 years earlier and that prior to that Mr Dubois had known that there were restrictions on his rights to use the land under the 1996 order.[26] His Honour concluded that a further fine of $5,000 or more “would do little, to discourage the Respondent from continuing his anarchistic conduct in ignoring the 1999 Order”,[27] and that any monetary penalty would not deter him from future similar conduct.[28]

   [25][2014] QPEC 13. The sentence was upheld in Dubois v Rockhampton Regional Council [2014] QCA 215 (29 August 2014).

   [26]Ibid at [69].

   [27]Ibid at [71].

   [28]Ibid at [72].

1. The conduct of the respondents does not approach that of Mr Dubois.  Nor has the stage been reached where a monetary penalty would not be a deterrent against further non-compliance.

1. In Brisbane City Council v Bowman[29] the respondent was in contempt of several orders made by consent on 10 December 2012.  Because the parties jointly proposed a sanction to the court the circumstances which gave rise to the enforcement order do not appear in the court’s reasons in any detail.  It is apparent, however, that the respondent had been using premises and land at Bald Hills for industry which was not supported by development approval.  In observing that “the court ought to insist that its orders be respected and visit consequences that may need to be harsh on those who fail to comply” his Honour Judge Robin QC noted that it was not the first occasion on which the respondent had had difficulty, although not suggesting that he had ever been previously in contempt.  In earlier proceedings in 2006 Mr Bowman had been convicted of three offences against the Integrated Planning Act 1997 (Qld).[30]  It is apparent from the decision in those proceedings that Mr Bowman had been using the Bald Hills premises for the purposes of conducting extractive industry unlawfully and without development approval.  Again, I am of the view that the conduct of Mr Bowman was worse than that here.

   [29][2013] QPEC 62 (16 September 2013).

   [30]Bowman v Brown [2004] QDC 006.

1. In Sunshine Coast Regional Council v MC Property Investments Pty Ltd(No. 3)[31], the respondent was in contempt of an order made by the court in November 2011 requiring it to pay $71,959.65 to the Council within 28 days.  By the time the contempt proceedings were heard on 1 March 2012 the respondent had separately applied for a variation of the order.  That application had been compromised by a deed which provided for the future payment of the sum by instalments.  Thus, the contempt had been purged.  His Honour Judge Robertson formally varied the earlier order to reflect the compromise (a course consistent with that which I propose to take in this case) and fined the respondent $1,000.  The court allowed two months in which to pay the fine. 

   [31][2012] QPEC 12.

1. I have already referred to Booth v Yardley.  The benefit of the doubt given to Mr and Mrs Yardley that may they have misunderstood what was required to dismantle the electrical grid, and the opportunity to comply by doing the particular things spelled out in the second order of Judge Wilson SC were, in the end, not availed of by them.  They failed to dismantle the grid and came back before his Honour in November 2008 in further contempt proceedings.[32]  His Honour was of the view that the contempt did not require the court to contemplate a very large fine.[33]  He considered that the point had not been reached where imprisonment was appropriate because a fine would likely be futile.[34]  On that basis he distinguished Formal Wear ExpressFranchising Pty Ltd v Roach[35] in which the defendant had repeatedly breached an undertaking to the District Court, which had been incorporated into an order, not to conduct a formal menswear hire business.  The defendant had been fined $3,000 in one contempt proceedings and was sentenced to serve concurrent sentences of six months imprisonment for three separate acts of contempt in subsequent proceedings.  On appeal, the sentences were reduced to three months each to be served concurrently.  His Honour imposed a fine of $5,000 payable within six months. 

   [32][2008] QPEC 100.

   [33]Ibid at [17].

   [34]Ibid at [19] – [20].

   [35][2004] QCA 339.

1. In my opinion, this is not a case in which the contempt of the respondents is such as to make sentencing them to any term of imprisonment appropriate.  In the case of Mrs Lammi, the Council no longer seeks her imprisonment because it now concedes, in respect of the period since the making of the order, that there is not any evidence to suggest that she had or has any particular ability to ensure compliance.  On that basis, the Council fairly places her in a different category to Mr Lammi.  Abandoning its case for her imprisonment was entirely appropriate.  It having been effectively conceded that she was not in a position to ensure compliance with the order, it would be entirely inappropriate that she be sentenced to imprisonment for failing to do that which she could not.  The suspension of any such sentence would also seem entirely illusory.  Whether she served the sentence would not be in her hands, but in those of Mr Lammi as the person who could ensure future compliance.

1. As for Mr Lammi, he did not seek to persuade me that a fine would be a more appropriate remedy than a sentence of imprisonment.  However, it was readily apparent that he did not do so because he would, as he said, prefer to have the money available to finish the project.[36]  It was only in the context of a discussion about the recording of a conviction if there were sentences imposed that Mr Lammi expressed any preference for a fine.  But then it was dependent upon the extent of the fine, although no evidence was placed before the court as to capacity, or incapacity, to pay any fine imposed, other than some generalised evidence about the difficult economic circumstances faced by the business in the past few years.

   [36]Transcript p 28, l 25.

1. It was tolerably clear that Mr Lammi, who represented himself and his wife, came to the proceedings without any real understanding of their serious nature.  It seems that Mr Lammi had little understanding of the true nature of the order made in November 2013.  He seems to have considered it to be little more than an agreement reached with the Council that events occur as specified, rather than an order of the court that those events did occur; and punishable for contempt if they did not.  The difficulties faced by self represented persons in contempt proceedings have been commented upon by others.[37]  The absence of any meaningful evidence about capacity to pay any fine is, no doubt, a product of those difficulties.

   [37]See Robin QC DCJ, Brisbane City Council v Bowman, supra and referring to Brisbane City Council v Windshuttel [2011] QPEC 70, [2010] QPEC 106 and [2011] QPEC 89.

1. It is to be borne in mind that in imposing a remedy for contempt what is required is that it be effective, no more but no less.[38]  In my view, a fine of $5,000 is appropriate in the circumstances.  It should be imposed upon both Mr and Mrs Lammi.  Whilst there is a concession as to Mrs Lammi’s lack of control, she consented to the order being made against her.  There is no evidence that she took any steps to have Mr Lammi as the person who could ensure compliance, do so.  In fact, the admissions made by Mr Lammi on her behalf establish the contrary. 

   [38]AMIEU v Mudginberri Station Pty Ltd (1986) supra at 115.

1. In the absence of any evidence about capacity, three months seems a reasonable period to allow for the payment of the fine.

Variation of the November Order

1. As indicated earlier in these reasons, there should be a variation of the November order.  Exhibit 1 establishes that on 25 August 2014 a private certifier was engaged as the building certifier for the project.  Compliance with the substantive requirement of paragraph 2(a) of the November order has thus been affected.

1. Paragraphs 2, 3, 4, 5 and 6 of the November order should be vacated.  In lieu of the vacated paragraph the following order should be substituted.

1. The first respondent by himself, his servants or agents must:

(a)        undertake the relevant steps to refer the building development application to the applicant by 17 September 2014;

(b)        use his best endeavours to:

(i)         pursue the building development application expeditiously; and

(ii)        obtain an effective building development approval by 17 October 2014 (“development permit for building works”);

(c)        within three months of obtaining the development permit for building works, and by no later than 17 January 2015, complete the building works for the exterior of the relocated buildings approved by the development permit for building works; and

(d)        within six months of obtaining the development permit for building works, and by no later than 30 April 2015 complete the balance of the building works for the relocated buildings and obtain the final certificate of completion.

1. The Council seeks its costs.  It has established contempt against the respondents.  The respondents have admitted their guilt and sought the indulgence of having a further period within which to complete the building works.  It is appropriate that the Council should have its costs on the standard basis.