DISTRICT COURT OF QUEENSLAND
CITATION:
Hourigan & Anor v Grimes [2020] QDC 215
PARTIES:
GEOFFREY MATTHEW HOURIGAN
and
LISA MAREE HOURIGAN
(plaintiffs)
v
ROSS FRANCIS GRIMES
(defendant)
FILE NO:
D089/2019
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Southport
DELIVERED ON:
2 September 2020
DELIVERED AT:
Southport
HEARING DATE:
21 July 2020
JUDGE:
Kent QC, DCJ
ORDER:
The respondent has a case to answer on the contempt proceeding, apart from particular (h)
CATCHWORDS:
COURTS AND JUDGES – CONTEMPT – GENERAL PRINCIPLES – CIVIL AND CRIMINAL CONTEMPT – where orders were made restraining the defendant from retaking or attempting to retake possession of certain property and from interfering with the plaintiff’s occupation and use of premises – where the plaintiff filed an application for an order of contempt for breaching those orders – where the matter was adjourned so that the respondent could advance a no case submission – whether a case is established to a prima facie standard.
Australian Securities Commission v Macleod (No. 1) (1993) 40 FCR 155 at 157.
Doney v R (1991) 171 CLR 207.
Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd (1976) 2 NSWLR 15.
R v Sutton (1986) 2 Qd R 72.
Witham v Holloway (1995) 183 CLR 525.COUNSEL: T. Matthews QC with M. Campbell for the applicants/plaintiffs
A. O’Brien for the respondent/defendant
SOLICITORS: Simmons & McCartney for the applicants/ plaintiffs
Nyst Legal for the respondent/ defendant
Introduction
This is an application for orders and relief related to alleged contempt of court by the defendant in the context of orders made in the course of the proceeding. The plaintiffs’ application was filed 25 May 2020 and the application was heard on 21 July 2020.
The procedure adopted by consent of the parties was that affidavit material was filed on behalf of the applicant and witnesses were cross-examined. The matter was then adjourned so that the respondent/defendant could advance a no case submission. The submissions have been provided in writing.
Nature of the case
The parties have been involved in a dispute the subject of proceedings in this Court. On 20 March 2020 orders were made restraining the defendant from retaking or attempting to retake possession of certain commercial units on the subject property (in essence, a small industrial complex) at Staplyton, and from interfering with the plaintiffs’ occupation and use of those premises[1]. The present application was filed on 25 May 2020, for orders that the defendant be committed to a correctional facility or otherwise punished for contempt of court in breaching the orders. Particulars were alleged including various conduct of the defendant, broadly, the use of weed killer sprayed in various locations which made the occupation and use of the premises more difficult or dangerous and thus interfered with it. The details of the particulars, some of which are abandoned, are set out in the narrative below.
The submissions
[1] The order is court file document no. 76
Defendant’s Submissions
On behalf of the defendant it is submitted that there…
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- Case
- [2020] QDC 215
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the evidence presented was sufficient to establish a prima facie case of contempt, meaning that the defendant could be found in contempt if the case proceeded. The court considered the nature of the breach and whether it was substantial enough to warrant contempt. The plaintiff argued that any physical interference with the premises would amount to a breach of the orders and that the evidence showed Grimes had sprayed the weed killer indiscriminately and with disregard for human safety.
The court accepted the plaintiff's submissions with one qualification, finding that the defendant had a case to answer on the contempt proceeding, except in relation to particular (h). The court held that the evidence showed Grimes had sprayed the weed killer in various areas, including where access to the premises would be restricted by natural aversion to the substance, and that there was no evidence of the spraying being accidental. The court also noted that Grimes's conduct in spraying from a vehicle at a distance gave an impression of indifference to human safety.
The court's orders were that the defendant had a case to answer on the contempt proceeding, except in relation to particular (h). The case was adjourned for further hearing on the contempt proceeding.
Orders
Orders of the court
The respondent has a case to answer on the contempt proceeding, apart from particular (h)
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
The plaintiff also submits that it is incorrect for the defendant to argue that there must be a “substantial” breach before the contempt is established. There is a reference to the dictionary meaning of “quiet enjoyment”. This includes the observation that conduct making the ordinary use and enjoyment of the premises impossible (for example, by blocking entrances to the premises) is sufficient and any physical interference with the premises will amount to a breach of a covenant for quiet enjoyment; Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd.[10] In that case, it was sufficient for a breach of a covenant for quiet enjoyment where entry on to the demised premises of rainwater caused by the failure of the lessor to keep roof gratings and drainpipes clear of rubbish.[11]It is submitted that the proven conduct in the circumstances amounts to a prima facie case of breach of the orders.[10] (1976) 2 NSWLR 15.[11] At p27; see also Aussie Traveller Pty Ltd v Marklea Pty Ltd (1998) 1 Qd. R. 1 at p9 per McPherson J.A. and the cases there discussed; in that case sawdust and noise were sufficientConsideration The present issue, therefore, is whether there is a case established to a prima facie standard. The present question is not whether on the evidence as it stands the defendant ought to be found to be in contempt, but whether he could lawfully be so found.[12] The situation of no case to answer will normally only arise if there is a defect in the evidence such that, taken at its highest, it would not sustain a conclusion of guilt.[13][12] R v Sutton (1986) 2 Qd R 72.[13] Doney v R (1991) 171 CLR 207. In my view, the plaintiff’s submissions on the issue of a prima facie case must be accepted, with one qualification set out below. The spraying of the weed killer was at least potentially dangerous to humans, as is established by the uncontradicted evidence of Jonathon Hourigan, who was previously injured by it, or at least a similar product with the same active ingredient. The evidence shows it was sprayed in various areas, in my present view somewhat indiscriminately, including areas where at least access to and enjoyment of the premises would be restricted by natural aversion to coming into contact with a substance which at least Jonathon Hourigan had been previously injured by. The witnesses rejected the idea of the defendant demonstrably spraying the grass and any spraying of the property being accidental;[14] and the evidence must be taken at its highest for present purposes.[14] e.g. Geoffrey Hourigan T1-38 ll 24-40; T1-44 ll40-45; also Jonathon’s evidence referred to at footnote 8 above The defendant’s position is not assisted by his spraying of various areas from the vehicle, at some distance. This gives an impression of indifference at best to human safety; it is quite different from alighting from the vehicle and engaging in precisely targeted spraying of weeds or grass. It is also not assisted by what appears to be targeted spraying of the door to Unit 4; clearly enough there were no weeds there, and touching the door is necessary to access Unit 4.