Logan City Council v Whelan - [2015] QPEC 23

PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND

CITATION:

Logan City Council v Whelan [2015] QPEC 23

PARTIES:

LOGAN CITY COUNCIL
(applicant)

v

WHELAN, THOMAS VINCENT
(first respondent)

and

WHELAN, AMANDA JANE
(second respondent)

and

WHELAN PLANT HIRE QLD PTY LIMITED

(third respondent)

FILE NO/S:

3629/13

PROCEEDING:

Application

DELIVERED ON:

19 May 2015 (Delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2015

JUDGE:

Rackemann DCJ

ORDER:

1. First Respondent be fined $2,500 for contempt of the order of his Honour Judge Jones made on 26 February 2014 in this proceeding.

2. The First Respondent pay this fine within nine months of this order being made.

3. The Third Respondent be fined $12,000 for contempt of the order of his Honour Judge Jones made on 26 February 2014 in this proceeding.

4. The Third Respondent pay this fine within six months of this order being made.

5. The First Respondent and Third Respondent are to jointly pay the Applicant's costs of this proceeding for investigations, gathering evidence and legal costs of and incidental to this application as an amount of $17,000 within 12 months of this order being made.

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONTEMPT – where non-compliance with orders – where parties handed up a draft consent order which set the punishment for contempt – punishment for contempt a matter for the court, rather than consent agreement.

COUNSEL:

NJ Kefford for the applicant

S Keliher for the respondent

SOLICITORS:

Minter Ellison for the applicant

Milne Legal for the first and third respondents

HIS HONOUR: This is an application to deal with the first and third respondents for contempt. The contempt is said to arise from non-compliance with an enforcement order made by his Honour Judge Jones on the 26th of February 2014. That order was directed to at least three things: the first is a demountable building which was on a certain property, but which did not have approval; the second is a hangar building and some fill, which again was present on the property, but without approval; and the third was an unlawful use of premises for heavy vehicle parking. The orders, in effect, required the respondents to either obtain approvals regularising each of those components, or to cease the unlawful use and remove the offending buildings and fill. The order set out a timetable for achieving that.
The respondents admit that they did not either cease the use or remove the buildings or fill within the time specified in his Honour’s order and they admit that they are in contempt. The only remaining issue is what punishment they should receive for that contempt.
When the matter first came before me yesterday, I was handed a draft order, which would have fined the respondents for contempt in nominated amounts. The parties indicated their agreement to punishment by fines in the amounts stated in the draft order. Apparently, their agreement followed some mediation, as a result of which there was also agreement to new enforcement orders, to which I will…

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 Logan City Council v Whelan 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: [2015] QPEC 23
Decision Date: 19 May 2015 (Delivered ex tempore)

CaseChat Overview and Summary

Logan City Council, the applicant, filed a contempt application against the respondents, Whelan and others, in the Queensland Planning and Environment Court. The applicant sought penalties for the respondents' non-compliance with certain court orders. The legal dispute involved the interpretation and enforcement of planning and environmental court orders, focusing on whether the court should impose its own penalties for contempt or accept those outlined in a draft consent order provided by the parties. The court was required to determine whether it had the discretion to impose its own fines for contempt or if it should adhere to the terms proposed in the draft consent order.

The court examined the authority to impose penalties for contempt and whether the terms of the draft consent order could bind the court in this respect. The court held that the imposition of a punishment for contempt is within the court's discretion and not subject to agreement by the parties. The draft consent order, which attempted to set the punishment for contempt, was not binding on the court. Consequently, the court imposed its own fines, finding the first respondent liable for a $2,500 fine and the third respondent liable for a $12,000 fine. Additionally, the court ordered the respondents to jointly pay the applicant's costs amounting to $17,000.

The court's decision underscored the principle that the imposition of fines for contempt is a matter for judicial discretion. The draft consent order could not limit this discretion. The court found the first respondent liable for a $2,500 fine and the third respondent liable for a $12,000 fine. Furthermore, the court ordered that the respondents jointly pay the applicant's costs, amounting to $17,000, within specified timeframes. This decision reinforces the court's authority to determine appropriate penalties for contempt, independent of any consent agreements proposed by the parties.

Orders

Orders of the court

1. First Respondent be fined $2,500 for contempt of the order of his Honour Judge Jones made on 26 February 2014 in this proceeding.

2. The First Respondent pay this fine within nine months of this order being made.

3. The Third Respondent be fined $12,000 for contempt of the order of his Honour Judge Jones made on 26 February 2014 in this proceeding.

4. The Third Respondent pay this fine within six months of this order being made.

5. The First Respondent and Third Respondent are to jointly pay the Applicant's costs of this proceeding for investigations, gathering evidence and legal costs of and incidental to this application as an amount of $17,000 within 12 months of this order being made.

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:	Logan City Council v Whelan [2015] QPEC 23
PARTIES:	LOGAN CITY COUNCIL (applicant) v WHELAN, THOMAS VINCENT (first respondent) and WHELAN, AMANDA JANE (second respondent) and WHELAN PLANT HIRE QLD PTY LIMITED (third respondent)
FILE NO/S:	3629/13
PROCEEDING:	Application
DELIVERED ON:	19 May 2015 (Delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2015
JUDGE:	Rackemann DCJ
ORDER:	1. First Respondent be fined $2,500 for contempt of the order of his Honour Judge Jones made on 26 February 2014 in this proceeding. 2. The First Respondent pay this fine within nine months of this order being made. 3. The Third Respondent be fined $12,000 for contempt of the order of his Honour Judge Jones made on 26 February 2014 in this proceeding. 4. The Third Respondent pay this fine within six months of this order being made. 5. The First Respondent and Third Respondent are to jointly pay the Applicant's costs of this proceeding for investigations, gathering evidence and legal costs of and incidental to this application as an amount of $17,000 within 12 months of this order being made.
CATCHWORDS:	PLANNING AND ENVIRONMENT – CONTEMPT – where non-compliance with orders – where parties handed up a draft consent order which set the punishment for contempt – punishment for contempt a matter for the court, rather than consent agreement.
COUNSEL:	NJ Kefford for the applicant S Keliher for the respondent
SOLICITORS:	Minter Ellison for the applicant Milne Legal for the first and third respondents