Dubois v Rockhampton Regional Council - [2014] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

Dubois v Rockhampton Regional Council [2014] QCA 215

PARTIES:

JOHN WILLIAM DEMPSTER DUBOIS
(applicant)
v
ROCKHAMPTON REGIONAL COUNCIL
(respondent)

FILE NO/S:

Appeal No 3277 of 2014
P & E Appeal No 87 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Sustainable Planning Act

ORIGINATING COURT:

Planning and Environment Court at Rockhampton

DELIVERED ON:

29 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2014

JUDGES:

Muir and Gotterson JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Amend the order at first instance by inserting the following paragraph 2A:

“If the Planning and Environment Court is satisfied that any of the terms of the order of 11 June 1999 were breached by the Respondent after 3 April 2014 and prior to the expiration of the three months term of the sentence the Planning and Environment Court may order the Respondent to serve the whole or part of the suspended imprisonment.”

Vary paragraph 3 of such order by deleting “7 April 2014” and inserting in lieu thereof “29 August 2014”.

Otherwise order that:

1.    The application for leave to appeal be allowed.

2.    The appeal be dismissed.

3.    The applicant pay the respondent’s costs of and incidental to the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the applicant seeks leave to appeal under s 498 of the Sustainable Planning Act 2009 (Qld) against his conviction for contempt of court – where the applicant carried on a motor garage business on the subject land servicing a variety of vehicles from a workshop – where in 1999 an order was made that delineated the boundaries of the existing lawful non conforming use – where the 1999 order required the applicant to move a vehicle hoist and associated equipment from an area of the land to inside the workshop within seven days – where the primary judge held that the applicant knowingly and without lawful excuse failed to comply with the 1999 order – whether the primary judge erred in holding that the certain activities done to the applicant’s own utility vehicle, trucks and tractors in a prescribed area of the land were not permitted as a residential use of the land

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – IN RESPECT OF CONTEMPT OF INFERIOR COURT OR TRIBUNAL – where it was submitted by the applicant that the primary judge erred in that the sentence was manifestly excessive – where the applicant submitted the primary judge failed to take into account a number of relevant considerations when sentencing – where the sentence imposed on the applicant was three months imprisonment suspended after one month – whether the primary judge failed to adequately take the applicant’s apology into account –…

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.

Keep reading for free

Create a free CaseChat account to read Dubois v Rockhampton Regional Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] QCA 215
Decision Date: 29 August 2014

CaseChat Overview and Summary

The case of Dubois v Rockhampton Regional Council involved the applicant, Dubois, appealing against his conviction for contempt of court and the sentence imposed by the primary judge. The applicant had been running a motor garage business on his land, which was subject to a lawful non-conforming use. In 1999, an order was made requiring Dubois to move a vehicle hoist and equipment within seven days. The primary judge found that Dubois had knowingly and without lawful excuse failed to comply with the 1999 order and was convicted of contempt of court, receiving a three-month suspended sentence. Dubois sought leave to appeal the conviction and sentence, arguing that the primary judge erred in various respects.

The central legal issues before the court were whether the primary judge was correct in holding that certain activities on the applicant's land were not permitted as a residential use, and if the sentence imposed was manifestly excessive. The applicant argued that the primary judge failed to take into account relevant considerations when sentencing, including the applicant's apology and period of compliance before the breach of the 1999 order. The court had to determine whether the Penalties and Sentences Act 1992 (Qld) applied to contempt orders and if the sentence was indeed excessive.

The court found that the primary judge did not err in holding that certain activities on the land were not permitted as a residential use. The court also determined that the primary judge did not fail to adequately consider the applicant's apology or period of compliance before the breach. The court held that the Penalties and Sentences Act 1992 (Qld) did apply to contempt orders and that the sentence was not manifestly excessive. The application for leave to appeal was allowed, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs of and incidental to the appeal. The court amended the order at first instance to provide that if the Planning and Environment Court was satisfied that any of the terms of the order of 11 June 1999 were breached by the respondent after 3 April 2014 and prior to the expiration of the three months term of the sentence, the court could order the respondent to serve the whole or part of the suspended imprisonment. The court also varied the date in paragraph 3 of the order.

Orders

Orders of the court

Amend the order at first instance by inserting the following paragraph 2A:

“If the Planning and Environment Court is satisfied that any of the terms of the order of 11 June 1999 were breached by the Respondent after 3 April 2014 and prior to the expiration of the three months term of the sentence the Planning and Environment Court may order the Respondent to serve the whole or part of the suspended imprisonment.”

Vary paragraph 3 of such order by deleting “7 April 2014” and inserting in lieu thereof “29 August 2014”.

Otherwise order that:

1. The application for leave to appeal be allowed.

2. The appeal be dismissed.

3. The applicant pay the respondent’s costs of and incidental to the appeal.

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:	Dubois v Rockhampton Regional Council [2014] QCA 215
PARTIES:	JOHN WILLIAM DEMPSTER DUBOIS (applicant) v ROCKHAMPTON REGIONAL COUNCIL (respondent)
FILE NO/S:	Appeal No 3277 of 2014 P & E Appeal No 87 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Sustainable Planning Act
ORIGINATING COURT:	Planning and Environment Court at Rockhampton
DELIVERED ON:	29 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2014
JUDGES:	Muir and Gotterson JJA and Ann Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Amend the order at first instance by inserting the following paragraph 2A: “If the Planning and Environment Court is satisfied that any of the terms of the order of 11 June 1999 were breached by the Respondent after 3 April 2014 and prior to the expiration of the three months term of the sentence the Planning and Environment Court may order the Respondent to serve the whole or part of the suspended imprisonment.” Vary paragraph 3 of such order by deleting “7 April 2014” and inserting in lieu thereof “29 August 2014”. Otherwise order that: 1. The application for leave to appeal be allowed. 2. The appeal be dismissed. 3. The applicant pay the respondent’s costs of and incidental to the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the applicant seeks leave to appeal under s 498 of the Sustainable Planning Act 2009 (Qld) against his conviction for contempt of court – where the applicant carried on a motor garage business on the subject land servicing a variety of vehicles from a workshop – where in 1999 an order was made that delineated the boundaries of the existing lawful non conforming use – where the 1999 order required the applicant to move a vehicle hoist and associated equipment from an area of the land to inside the workshop within seven days – where the primary judge held that the applicant knowingly and without lawful excuse failed to comply with the 1999 order – whether the primary judge erred in holding that the certain activities done to the applicant’s own utility vehicle, trucks and tractors in a prescribed area of the land were not permitted as a residential use of the land PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – IN RESPECT OF CONTEMPT OF INFERIOR COURT OR TRIBUNAL – where it was submitted by the applicant that the primary judge erred in that the sentence was manifestly excessive – where the applicant submitted the primary judge failed to take into account a number of relevant considerations when sentencing – where the sentence imposed on the applicant was three months imprisonment suspended after one month – whether the primary judge failed to adequately take the applicant’s apology into account –…