Mills and Ors –v- Townsville City Council and Anor (No. 2)

[2003] QPEC 18

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Mills & Ors –v- Townsville City Council & Anor (No. 2) [2003] QPEC 018

PARTIES:

Christopher Anthony Richard MILLS, Nerolie Ann MILLS, Ian James LAMONT, Margaret Jean LAMONT, Robin Henry HARRISON, Lena Norma HARRISON, Allan Edward EVANS, and Vivien Clair EVANS

Appellants

TOWNSVILLE CITY COUNCIL

Respondent

RSL (QLD) WAR VETERANS’ HOMES LTD
(ACN 010 488 454)

Co-respondent

FILE NO:

396/2002

PROCEEDING:

Appeal

DELIVERED ON:

 2 May 2003

DELIVERED AT:

Townsville

HEARING DATE:

1 May 2003

JUDGE:

CF Wall QC

ORDER:

No further orders made

CATCHWORDS:

PRACTICE – CONTEMPT OF COURT – SCANDILISING THE COURT -  sequelae to appeal against decision to approve nursing home – adjournment to allow parties opportunity to reconsider design before orders made – comments by councillors published in newspaper during adjournment – wh comments undermined public confidence in administration of justice -  wh comments amounted to contempt.

Cases referred to:
Attorney-General for NSW v Mundey [1972] NSWLR 887 – app
R v Dunbaben ex parte Williams (1935) 53 CLR 434 – cons
Bell v Stewart (192) 28 CLR 419 – cons
R v Foster and Ors (1937) St R Qd 368
R v Breet [195] VLR 226

Legislation referred to:
Integrated Planning Act ss 4.1.5(1) and (2), 4.1.54.
District Court Act s 129
Uniform Civil Procedure Rules, r 928(1)
Planning & Environment Court Rules, r 3(2).

COUNSEL:

Mr M Daubney SC with Mr R Quirk – Respondent

SOLICITORS:

City Solicitor – Respondent

PLANNING AND ENVIRONMENT COURT

JUDGE C F WALL QC

No D396 of 2002

CHRISTOPHER ANTHONY RICHARD MILLS and NEROLIE ANN MILLS and
IAN JAMES LAMONT and
MARGARET JEAN LAMONT and
ROBIN HENRY HARRISON and
LENA NORMA HARRISON and
ALLAN EDWARD EVANS and
VIVIEN CLAIRE EVANS

Appellants

and

TOWNSVILLE CITY COUNCIL

and

RSL (QLD) WAR VETERANS' HOMES LIMITED
(ACN 010 488 454)

Respondent

Co-Respondent

TOWNSVILLE

..DATE 02/05/2003

..DAY 7

JUDGMENT

HIS HONOUR:  This matter involves the sequelae to an appeal which I heard on the 10th, 11th and 12th of March 2003.  That was an appeal by submitter objectors against a decision of the Townsville City Council to approve the co-respondent's application for a 30 bed nursing home on land at Rowes Bay, Townsville.

On the 21st of March 2003, I delivered reasons upholding the appeal on the grounds that the proposed development would have an unacceptable impact on the amenity of the surrounding area by reason of its size, bulk and height.  Rather than then formally making an order that the appeal be allowed, at the request of the parties I adjourned the further hearing of the appeal to allow them an opportunity to reconsider the design of the nursing home in the light of what I had said.  They did this and agreed on a new design which satisfied the concerns I had expressed.  On the 28th of April 2003, I formally allowed the appeal and approved the development on the basis of the new design.

The Council did not like the decision I gave on the 21st of March 2003 and certain councillors reacted with spoiled petulance.  Their comments were published in the local newspaper, the Townsville Bulletin, on the 22nd of March 2003 and the 26th of March 2003.  The second report was about a meeting of the Council held on the 25th of March 2003.

In their entirety, the two reports are as follows:

First Report

"A Judge has directed that a proposed 30-bed nursing home planned for the RSL Villas at Rowes Bay be redesigned.
           Handing down his ruling on the project in the Planning and Environment Court yesterday, Judge Clive Wall also suggested Townsville City Council revise its guidelines for assessment of proposed developments.
           It should take more account of the fact that the views of ordinary people in the area were relevant, Judge Wall said.
           A group of neighbourhood residents led by solicitor Chris Mills had appealed against the council's approval for the three to four-storey project.
           Judge Wall said he believed the appeal should be allowed but said he would not hand down any orders at this stage.  He directed that the parties get together to reconsider the design of the nursing home.
           The hearing was adjourned to a date to be fixed.
           Outside Court, Townsville City Council Planning and Development Committee chairman John Robertson rejected the criticism and said the council stood by its approval of the project.
           Cr Robertson indicated the council would back any appeal the RSL might decide to make if it refused to change its plans for the project and was eventually ruled against in the Court.  'Our main concern is that the Court is making policy on land use decisions in this city,' he said.

'Judge Wall's comments suggest that the views of a handful of immediate neighbours outweigh the needs of the broader community.

'It is our understanding that the Court is supposed to determine whether matters comply with the law, not make determinations on design and aesthetics.'

Judge Wall ruled that the size, bulk and institutional look of the Rowes Bay project would adversely and unfairly affect the suburb's general residential nature.

Judge Wall noted yesterday that at no time did the residents object to a nursing home being built on the site and that they clearly recognised the need for such a facility there.  The appeal was based solely on the size and bulk of the design, which would feature two rooftop 'towers' that would house plant and equipment.

He rejected evidence from the development's architect, Terry O'Toole, who said the design was residential and not institutional.  Judge Wall was also of the view that Mr O'Toole had endeavoured, through his testimony and a specially created photo montage, to play down the real impact of the project on the surrounding residential area.

He accepted testimony that the project was designed for expansion to double the number of beds at some time in the future, because of the large area of undercroft beneath part of the building."

Second Report

"Townsville councillors have reacted with anger to suggestions they failed to address residents' concerns about a nursing home development at Rowes Bay.
           They have also said a Townsville judge's remarks in a planning and environment Court appeal against the project were setting a 'dangerous precedent' and accused residents who objected as 'selfish'.
           One of the residents, Nerolie Mills, rejected the claims as 'completely untrue'.
           Last week, Judge Clive Wall directed that a proposed 30-bed nursing home planned for the RSL Villas at Rowes Bay be redesigned.
           Judge Wall also suggested Townsville City Council revise its guidelines for assessment of proposed developments, saying it should take more account of the views of ordinary people in the area.
           Local divisional councillor for the area Jim Gleeson banged his fist on the council table as he shouted 'shame, shame, shame'.
           'Because of the actions of three local residents, the RSL vets will be deprived of extra care in their declining years,' he said.
           Referring to concerns about design, planning and development, committee chairman Cr John Robertson said the project was always going to appear to some degree 'institutional'.
           He said a false expectation had been raised that residents had a right of veto over neighbouring developments.
           He also rejected the inference that the council had not listened to residents.
           Cr Nonda Pass said she couldn't believe how selfish people were.
           'They are going to get old one day and they may need a bed themselves,' she said.
           Mayor Tony Mooney said he was concerned the whole project could be lost and suggested the judge had usurped the role of council.
           The council considered the issues and tried to provide for the best possible outcome, he said.  'That's the role of elected councillors,' Cr Mooney said.
           'Those appointed to the bench are not appointed by divine intervention (and) they don't always get it right.'
           Cr Mooney said the council had listened to the community but maintained the residents simply did not want the nursing home.
           Residents' grounds for objection included that old people might want to go for afternoon walks and that noise would be created by ambulances, he said.
           'I hope that's not a reflection on where our society is heading because it's a pretty poor reflection, especially at a time when we are talking about supporting our troops overseas,' Cr Mooney said.
           However, Mrs Mills maintained they had objected to the design of the home, not the home itself.
           'We do want a nursing home,' Mrs Mills said.
           'We are working with the RSL to come up with an acceptable design.'"

The underlining is mine.

After approving the redesign on the 28th of April 2003, I raised with counsel for the respondent whether the underlined statements could amount to that type of contempt of Court known as scandalising the Court by making statements tending to undermine public confidence in the administration of justice.

I was initially concerned about how these statements may have been understood by the public and whether there may have been some resultant impairment in the public's confidence in the judicial system.  My initial reaction was, as I then expressed it, a tentative one and I invited submissions from Mr Quirk who then appeared for the respondent.  There is no suggestion that the three councillors have not been correctly reported.

On the 1st of May, I had the benefit of helpful argument from Mr Daubney SC who then led Mr Quirk for the respondent, on whether the matter should go any further.

On balance I am not satisfied that the statements made by Councillors Robertson, Gleeson and Mooney amount to contempt of Court of the nature I referred to.  Their comments are in the nature of misguided, ill-informed statements by dissatisfied litigants who were very upset at a decision contrary to their views and assessment of the situation without really knowing all of the details of the decision.

The conduct and statements of Councillor Gleeson reflect a basic misunderstanding of the position and are probably more directed at the appellants than the Court.  Upon analysis, he appears to have been performing for the gallery rather than reflecting on the position of the Court.  His actions bear the hallmarks of a staged theatrical performance for the benefit of some of his constituents, rather than an attack on the Court.

Councillor Robertson's statements were made in his capacity as Chairman of the Council's Planning and Development Committee and reflect a breathtaking and concerning ignorance of both the decision I gave and the powers and position of the Planning and Environment Court. It is concerning that he appears not to understand and appreciate such matters. Had he read my decision and had he understood the Integrated Planning Act, he could not sensibly have levelled the criticism which he did. The Planning and Environment Court does not make, and in this appeal did not make, "policy on land use decisions" in Townsville. The views of a "handful of immediate neighbours" did not "outweigh the needs of the broader community", rather it was the needs of the broader community which demanded that the decision to approve the original design be set aside. Finally, the jurisdiction of the Planning and Environment Court is not, as Councillor Robertson appears to think, restricted to determining whether "matters comply with the law". Most matters which come before this Court involve questions of fact including "design and aesthetics".

Councillor Mooney, like Councillor Robertson, has also displayed a basic misunderstanding of the provisions of the Integrated Planning Act. Contrary to his views the Planning and Environment Court hears an appeal anew and may make orders it considers appropriate, including confirming, changing or setting aside the decision appealed against and making a decision replacing the decision set aside. If the Court changes or sets aside the decision, the Court's decision is taken to be the decision of the Council. See section 4.1.54 of the Integrated Planning Act.

In the present appeal, like all appeals, the Court did not usurp the role of the Council.  The "best possible outcome", to use Councillor Mooney's words, is achieved after a consideration of all of the relevant issues and evidence and after balancing the competing interests.  In this balancing exercise the views of the Council are not ignored, on the contrary, those views and its position as the local planning authority are taken into account.

I agree that a suggestion that Judges "don't always get it right" cannot be found, in a relevant sense, to be contempt of Court.  The suggestion states merely a self-evident fact.

The statements made by Councillors Mooney and Robertson are the language of a loser not a contemnor.  Their statements amount to no more than petulant, wrong-headed, false and misguided criticism, falling short of contempt.  The community and the Court are, I consider, sufficiently robust to shrug them off as being just that and as falling short of statements tending to detract from or impair the authority and influence of judicial determinations and the position of the Court.  Petulance is not synonymous with contempt.  Whilst wrong and ignorant, they could not be said to malicious, scurrilously abusive or pernicious.

I think the public are able to see through such statements and reject them for what they are, namely the anguished cries of an ill-informed, aggrieved litigant who is upset that a decision has apparently been made which he does not like and does not agree with.  As wrong as they are, the statements of Councillors Robertson and Mooney have not wounded the Court in a relevant sense, nor do I consider the public would reasonably think they have had that effect.

Whilst the statements do, to the extent I have referred to, distort and misrepresent the actual facts, they could not, in a relevant sense, be said to go beyond individual dissatisfaction with the decision, couched in the language of the aggrieved loser who happens at one stage to have been the decision maker.  They are no more than the frustrated cries of individuals unable to accept a view contrary to their own.  Understood this way, they could not be said to undermine and weaken public confidence in the Court, notwithstanding the positions in the community occupied by the councillors.
Courts are not immune from criticism, even mistaken criticism, nor do they fear or resent it, provided it does not extend to vilification and exhibit pernicious malice and I do not think the present statements do that.  They do not in the circumstances interfere with the due and fair administration of justice when properly seen for what they are and in the context in which they were uttered.  To adopt the words of Mr Justice Hope in Attorney-General for New South Wales v. Mundey [1972] NSWLR 887 at 908,

"A criticism does not become contempt because it is wrong-headed or based on the mistaken view of the facts or of the law.  Nor, in my opinion, need it be respectfully courteous or coolly unemotional."

Here, emotions were at a high and the councillors were upset at what they thought was a lost and needed nursing home.  Had they read my judgment and understood it and paused for reflection, they would not, I consider, have gone off half-cocked looking for a victim.

Judged in its proper light I am unable to conclude that the criticism levelled at the Court by Councillors Robertson and Mooney, ill-informed and incorrect as it was, amounts to scurrilous abuse exciting "misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office", to adopt the words of Mr Justice Rich in R v. Dunbaben ex parte Williams (1935) 53 CLR 434 at 442.

The language here is not "so wild and violent or outrageous as to be liable in a real sense to affect the administration of justice", Mr Justice Hope, Attorney-General for New South Wales v. Mundey at 910.

It is obvious that Councillors Robertson and Mooney do not, or at least did not when they made their statements, know the relevant law or understand the judgment I had given, but that is not a prerequisite to the right to criticise a decision of a Court.

I think that the good sense of the Townsville community is a sufficient safeguard here.  I have no doubt that the community is able to see through these statements and understand them for what they are.  See Bell v. Stewart (1920) 28 CLR 419 at 429, R v. Foster and Ors (1937) St R Qd 368 and R v. Brett [1950] VLR 226.

Courts should not rush to be overly critical of criticism, even discourteous, wrong and mistaken criticism, as the present is.  The contempt jurisdiction in this area should only be exercised sparingly and where really warranted.  The Court here has not been attacked in a relevant sense.

In my view, the statements by the councillors here are not such as could be said to be of a character calculated to interfere with the administration of justice or to undermine the public confidence in the proper functioning of the Courts and in these circumstances I do not propose that the matter be taken any further.

During argument, I made it clear that I did not understand the statements to be an attack on me personally and that is in fact the case.

Because of the conclusion I have reached, it is unnecessary to consider the extent of the contempt power in section 129 of the District Court Act (see section 4.1.5(1) and (2) of the Integrated Planning Act) (although my view is that subsection (1)(f) provides a sufficient power) or the procedure which should be followed had I reached a different conclusion, although I think the proper course would have been to direct the registrar to apply to the Court under rule 928(1) of the Uniform Civil Procedure Rules, see rule 3(2) of the Planning and Environment Court Rules.

Having disposed of the appeal, no further orders are now called for and none are made.

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