Paroz v Paroz (No 4)

[2010] QSC 488

[2010] QSC 488

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

PETER LYONS J

No 9656 of 2004

LESLIE ROLAND PAROZ	Plaintiff/Respondent
and
IAN LESLIE PAROZ, JENNIFER MARGARET PAROZ, KAREN ANN PAROZ and LEWIS MARTIN PAROZ	Defendants/Applicants

BRISBANE

..DATE 19/08/2010

ORDER

HIS HONOUR:  By consent, I order that Anne Fordyce and Bradley
Vincent Hallen, appointed as receivers of the partnership
referred to as The Land Partnership from 19 July 2010, be
authorised to act as the agent of Leslie Roland Paroz to sell
the livestock the subject of the injunction contained in
paragraph 1(c) of the order made by me on 11 June 2010
depastured on the properties referred to in that paragraph with express authority to perform the following acts:

(1) to appoint any third party (including, without limitation,
cattle transportation agents and cattle auctioneers) to sell,
as soon as practicable, the livestock referred to herein;

(2) pending sale of the livestock referred to herein to
appoint any agent to provide any care or maintenance to the
livestock as the receivers may in their absolute discretion
deem fit;

(3) to stand possessed of the proceeds received from the sale
of the livestock referred to herein for and on behalf of
Leslie Roland Paroz subject to their providing any accounting
reasonably required by Leslie Roland Paroz;

(4) to make payment of any reasonable fees rendered by any
agent appointed by the receivers pursuant to paragraphs 1 and
2 herein from the sale proceeds held by the receivers pursuant
to paragraphs 3 herein and

(5) upon written demand from Leslie Roland Paroz (or his duly authorised legal representative) to pay to Leslie Roland Paroz (or his duly authorised legal representative) the balance of the proceeds held by the receivers from the sale of the livestock but only following payment of any amounts payable to any agent appointed by the receivers pursuant to paragraphs 1 and 2 herein.

There will be liberty to apply.

I otherwise adjourn the application for the variation of
orders made on 5 July 2010 to 9.15 on Wednesday, 1 September
2010.

I reserve costs of that application.

...

HIS HONOUR:  On 7 April 2010 I granted the present applicants an interlocutory injunction restraining the respondent from
carrying out certain farming activities on properties named in
that order.  On 11 June 2010 I handed down reasons in which I
determined to extend the operation of that order to other
properties and to order that the respondent remove certain
livestock from those properties.  The making of that order was finalised on 6 July 2010.

These proceedings are brought on the basis of breaches of
those orders by the respondent.  The breaches are said to have
occurred on a number of dates commencing with 16 April 2010,
that is nine days after the making of the first order, until
19 June 2010 so far as the farming activities are concerned; and by reason of the failure of the respondent to remove the
livestock from the properties by 30 July 2010.  That failure
continues.

There is some additional background that should be mentioned.
First on 4 June 2010 as a result of one of the applications
brought by the applicants, I made a finding that the
respondent was in breach of the first order.  It can be seen
that he, nevertheless, continued to act in breach of the order
within a relatively short time thereafter.

Indeed, as I have indicated, it was on 11 June 2010 that I
gave reasons indicating that the first order would continue and that the additional order relating to the removal of the cattle would be made.

The proceedings came before me again in relation to these
orders on 3 August 2010 when I made additional findings about
the conduct of the respondent.  At that time I was told that a
third application would be made because of the respondent's
failure to remove cattle by the date specified in the order
finalised on 6 July.

I should record the dates on which the respondent has been
found to have breached the orders.  The farming activities
consisted in part of slashing grass and in part of planting
crops on the properties referred to in the order of 7 April.
The slashing occurred on 16, 17 and 19 April 2010 and again on
1, 2, 3 and 10 May 2010.  Planting occurred on 24, 25, 26 and
27 May 2010 and on 15, 17, 19 June 2010.  These dates are
recorded in a schedule which became Exhibit 1 and which was a
result of discussion between counsel for the parties.  The
extent of the slashing and planting, which I have also
referred to as farming activities, appears from an aerial
photograph exhibited to an affidavit of one of the applicants.
He estimates that the activities extended over about 80
percent of the area of the properties the subject of the
injunction.

It is apparent, therefore, that this conduct has been
persistent and extensive and carried out plainly in breach of
the orders which have been made and at least in part at a time
when the respondent must have been aware of the likely
consequences of his conduct.

Indeed, in a letter of 23 April 2010 from the solicitors for
the applicants to the solicitors for the respondent, reference
was made to his conduct in slashing part of the land.  The
letter states that photographs were taken of the respondent
engaging in this activity and the letter warned that if he
persisted in that conduct, contempt proceedings would be
instituted.

On 27 May 2010 the solicitors for the applicants wrote to the
solicitors for the respondent again.  That letter stated that
the solicitors had been instructed by the applicants that the
respondent had commenced planting an oats crop on the land.
The letter pointed out that that was in clear contravention of
the orders of 7 April 2010.

I have already mentioned that on 24 June 2010 I made findings
about the contempt of the respondent; and I made further findings to that effect on 3 August 2010.

The order for the removal of the cattle identified the date
for removal as 30 July 2010.  That date was fixed after a
discussion involving the respondent, and was selected on the
basis that it was a date that would enable the respondent to
comply with the order.  However, the evidence demonstrates
that no action has been taken to remove the cattle or any of
them.  The number of cattle is not entirely clear.  There is
evidence that some 175 cattle are on some of the properties
and that there are cattle on other properties to which the
second order relates, but no specific number is provided for
them.

I should point out that the respondent has not sought to
challenge any of the evidence or to contend that he is not in
contempt of the orders.

In Hafele Australia Pty Ltd v. Maggbury Pty Ltd [2000] QCA 397
at [36] and [37] Muir J, as his Honour then was, discussed the
purpose of contempt proceedings.  His Honour said that “in the
case of civil proceedings the main purpose of the sanctions
provided by the rules in the event of a failure to comply with
court orders is coercive rather than punitive.”

In the present case coercion is not of primary significance.
The properties are under the control of receivers.  In an
order made today ultimately by consent the receivers have been
authorised to sell the cattle on behalf of the respondent.
It, therefore, seems that the effect which the orders sought
to achieve will be achieved in the near future.

The farming activities of the respondent appear to have
reached a stage of substantial completion and there has been
no suggestion of a continuation of those activities after
19 June.  There has been likewise no suggestion that it is
appropriate to make orders requiring the respondent to restore
the properties to the condition in which they were prior to
his activities.

Coercion, however, is not the only relevant consideration.  In
Australian Meat Industry Employees’ Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 110
Gibbs CJ, Mason, Wilson and Deane JJ noted the dual character
of civil contempt.  One aspect is the “penal or disciplinary
jurisdiction to be exercised by the Court in the public
interest.”

In Evenco Pty Ltd v. Amalgamated Society of Carpenters,Joiners, Bricklayers and Plasterers of Australasia Union of Employees, Queensland [1999] QSC 77 at [4]-[6] Chesterman J, as his Honour then was, noted that in taking proceedings a party who brings a contempt application is “performing a public service as well as seeking to enforce its own rights.” By doing that, that party “is maintaining respect for the law and confidence in judicial orders by obtaining from the court
a sanction which is appropriate in the particular circumstances.”  It seems to me that these are considerations of some significance in the present case.

In ASIC v. Michalik [2004] NSWC 1259 at [29] Palmer J
identified a number of principles or factors relevant for
consideration in dealing with the case before him.  Some of
those are of relevance in the present case.

From the factors mentioned by his Honour I take the following:

(a) the seriousness of the contempt;

(b) whether the contemnor was aware of the consequences to
himself of what he proposed to do;

(c) the reason or motive for the contempt;

(d) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

(e) whether there has been any expression of genuine
contrition by the contemnor;

(f) the character and antecedents of the contemnor;

(g) what punishment is required to deter the contemnor and
others of like mind from similar disobedience to the orders of
the Court;

(h) what punishment is required to express the Court's
denunciation of the contempt.

I will mention some of these factors briefly.  The reason or
motive for the contempt has not been specifically identified.
The respondent has given no evidence in the proceeding.  The
respondent, however, has for his working life, along with the
applicants, been engaged in a farming activity on the
properties mentioned in the orders, together with other
properties.  It may be said that it has been his life's work.
The most likely explanation for his conduct is a hope that he
would receive, as a result of the winding up of the
partnership between the parties, the properties on which he
carried out the farming activities and wanted them to be in a
condition which would enable him to carry on his pastoral
activities, in particular the grazing of cattle.  A possible
alternative is that he hoped to delay the winding up for a
lengthy period of time and wished to have an oats crop as feed
for his cattle in that period.  In either case it would seem
to me that he intended to achieve a benefit or gain.  Indeed,
it is difficult to see why he would have carried on these activities, particularly in the face of an order, unless there
was some benefit for him in doing so.

I regard the respondent's contempt as of a serious order.  I
have noted the occasions on which it occurred.  I have noted
the warnings given to him at an early stage and that
proceedings were instituted at a relatively early stage as a
result of his continued breaching of the first order.  I have
also noted that findings were made against him on two
occasions.

His conduct may be regarded as quite extensive.  His failure
to remove any of the cattle, notwithstanding the substantial
period of time given to him to do so, is completely
unexplained.  In my view, that adds to the seriousness of his
conduct.

I should also point out that there has been no expression of
contrition by the respondent.  I make that observation against
the background that he has not sought to contest the issue
whether, in fact, he was in breach of the orders.

I should also mention that his character and antecedents
appear to be good.  There is no suggestion of any previous
breach of a Court order or of any other significant
wrongdoing.

A number of factors are pointed out on his behalf.  One was
that the primary nature of proceedings such as this is to
ensure compliance by coercing a respondent to carry out a
Court order.  I have already mentioned the significance of
that factor but noted that it is by no means the only
consideration.

Another is that his conduct has caused no loss to the
applicants.  In support of that he relied upon the affidavit
of a person with high level qualifications in crop agronomy
and related areas, who expressed the conclusion that the
planting of the oats crop would have very little detrimental
effect on the soil of the properties and might, in fact, be
beneficial; and on an affidavit of a valuer that the oats crop
has improved the overall marketability of the property.

Those facts may be true but it seems likely that the
respondent's conduct commits part of the land to a particular
form of activity for some months.  The proceedings are brought
against the background of a winding up of a partnership
between the parties.  There is a prospect that other parties
than the respondent might have the benefit of future ownership
and use of the properties in respect of which the prohibition
of the particular farming activities was ordered, and their
intended use might not coincide with what results from the
respondent's activities.

It was also submitted that he did not intend any harm to the
property but that he only wanted to farm the land, that being
evident from earlier proceedings between the parties.  In the
sense that he wished to further his farming activities, I have little difficulty accepting that submission.

It was also pointed out that he cares for his mother who is
aged and suffers from dementia.  Indeed, it was submitted that
if the respondent is not available to continue to care for
her, it is likely that she will have to be removed from the
only home she has known since she married the father of the
respondent and of the male applicants.  There has been no
suggestion that this submission is not correct, although in
accepting it I do not wish to suggest that the male applicants
are not concerned for the welfare of their mother.

In addition, the mother of the respondent has a right to
reside in a house on one of the farms which is conditional
upon her continuing residence there.  It is submitted that if the respondent were not available to continue to care for her,
resulting in her having to live elsewhere, her right would
cease.  Again there is no suggestion that that submission is not correct.

I should also mention a matter referred to in the
submissions for the applicants.  It is that the respondent is
of an unusual personality type.  That appears to be a
reference to what emerged from the substantive hearing before
me in related proceedings.  It reflects the respondent's
determination to remain on the farms and his strong attachment
to them because of their long-standing connection with the
Paroz family.  It may provide in some part an explanation for
the respondent's conduct but plainly it offers no excuse for
it and cannot be a particularly significant factor in any
order I make.

Mr Ferrett of Counsel, who appeared for the respondent,
provided a useful and extensive summary of a number of cases
in which penalties have been imposed for contempt.  I do not
propose to refer to it in detail, but will mention some of the
authorities to which he referred. 

One was the Law Institute of Victoria v. Nagle [2005] VSC 47.
In that case a person was punished for 44 breaches of an
injunction restraining him from acting as a solicitor when not
entitled to do so.  The effect of the penalties imposed was a
sentence of 22 weeks imprisonment wholly suspended for a
period of three years.

In another case, Queensland Law Society v. Sande [1998] 1 Qd R
273, a person who had acted as a solicitor when not entitled to do so and who had been restrained from doing so, breached the restraining order on several occasions.  He was fined and
sentenced to a term of imprisonment of three months which was
suspended.

In Harris v. Muirhead [1993] 2 Qd R 527 two
persons interfered with possession by receivers of real
property over which they had previously granted a mortgage.
They were found to have done so intentionally and in contempt
of Court.  Each was sentenced to a term of imprisonment of six
months, wholly suspended.

In R v. Lemmens [2010] QSC 271 a person who failed to comply
with a subpoena was sentenced to a term of imprisonment of
four months.  That person was already serving a term of
imprisonment for supplying drugs.

The authorities provided by Mr Ferrett demonstrate that an
extensive range of penalties may be imposed in a case like
this.

Reference was also made to Lade & Co Pty Ltd v. Black [2005]
QSC 325.  Cattle were permitted to stray from a property in
breach of undertakings.  A fine of $500 was imposed.  It
should, however, be noted that in that case the Court of
Appeal subsequently determined that contempt resulted from any
breach of the order.  I do not find this case of much
assistance in dealing with the proceedings before me.

In Camm v. ASI Development Co Pty Ltd [2007] QCA 317 a
sentence of six months' imprisonment had been imposed on a
person in breach of orders relating to the specific
performance of a contract of sale.  It is apparent that, on appeal, the Court did not consider the order unduly severe notwithstanding the poor health and indigent circumstances of the person to whom the order was directed.  That is because the punishment was imposed to “vindicate the authority of the cour,t and to protect the interests of the party who has the benefit of an order of the court by coercing the recalcitrant party into performing his or her obligations.”  The Court held that in that case “the only order likely to impose an effective sanction for Mr Camm's deliberate defiance of the authority of the court and to coerce him into divulging the true whereabouts of the vessel” the subject of the order was an order for imprisonment.  It should, however, be noted that the Court also considered that Mr Camm's fate was in his own hands, which made the submission that the punishment was excessive not particularly compelling.

Since in the present case there is no significant suggestion
of coercion, the term imposed in Camm is, in my view, not a
particularly good guide to the penalties to be imposed in the
present case.

In Formal Wear Express Franchising Pty Ltd v. Roach [2004] QCA
339 a person had given an undertaking not to conduct or be
concerned or interested in any business for the mobile hire of
formal menswear within a particular area.  The undertaking was
breached by a single transaction resulting in a fine of
$3,000.  Shortly after the fine was imposed, two further
transactions occurred, and a little later another transaction.
At first instance the person who had given the undertaking was
sentenced to a term of six months' imprisonment.  On appeal
that was reduced to a term of three months on each of the
three counts of contempt, the sentences to be served
concurrently.

Williams JA, with whom the other members of the Court agreed,
said that because of the contemptuous behaviour of the applicant in continuing to breach the undertaking so soon
after being fined for contempt, it was appropriate to impose a
custodial sentence.  His Honour stated that this was
particularly the case where there had been no acknowledgment
of wrongdoing by the applicant at the sentencing hearing or
subsequently.

In Rich v. Attorney-General for the State of Victoria [1999]
VSCA 14 at [45] the view was taken that the imposition of a
global punishment in respect of a number of punishable
contempts was incorrect: see also [40].

I, therefore, propose to impose separate penalties in respect
of each of the acts of contempt identified in Exhibit 1.

In respect of the 11 events occurring between 16 April and
27 May 2010, which were the subject of the application filed
on 3 June 2010, I intend to impose a separate fine for each in
the sum of $3,000 making a total of $33,000.

In respect of the events the subject of the application filed
on 6 July 2010, which occurred on 15, 17 and 19 June, I intend
to impose a more serious sentence.  I intend to impose a
sentence of five months' imprisonment.

In respect of the contempt the subject of the application
filed on 3 August 2010, I intend to impose a sentence of nine
months' imprisonment.  I do that against the background of the

litigation and other matters which have occurred since the
making of the order of 7 April 2010.

I have imposed terms of the lengths I have identified
because I intend to make an additional order.  That order
gives recognition to the role the respondent plays in caring
for his mother.  I intend to order that the terms of
imprisonment be suspended forthwith for a term of two years.
Because I intended to take that course, it seemed to me not
inappropriate to mark the significance of the conduct by the
lengths of the terms I have identified.

I should add that each of the terms of imprisonment are to be
served concurrently.

Stand up, Mr Paroz.  Mr Paroz, you have been found guilty of
contempt of Court on 11 occasions between 16 April and 27 May
2010 by reason of your slashing and planting activities on the
properties referred to in the order made on 7 April 2010.

In respect of each occasion, I order you be fined the sum of
$3,000, making a total of $33,000.

In respect of the contempts committed on 15, 17 and 19 June
2010, I order that you be imprisoned for a period of five
months.

In respect of the contempt of Court constituted by your
failure to remove cattle from the property referred to in the
order dated 11 June 2010 and finalised on 6 July 2010, I order that you be sentenced to a term of imprisonment of nine
months.

I order that the sentences be served concurrently.

I order that all terms of imprisonment be suspended forthwith.

You must not commit another offence punishable by imprisonment
within a period of two years.  No doubt your Counsel will
explain to you fully the consequences of your doing so but you
may well end up serving the balance of the period or a
substantial part of the period nominated if you commit another
offence in that time.

...

HIS HONOUR:  The applicants have succeeded in obtaining orders
against the respondent as a result of a series of acts of
contempt of orders obtained by them over a period commencing
on 16 April 2010 and, in fact, continuing up until now.  They
seek their costs of their applications on an indemnity basis.
It is submitted on behalf of the respondent that their
motivations are by no means limited to upholding the authority
of the Court or matters of public interest.  Other submissions
adverse to them are set out in the written submissions made on
behalf of the respondent.

It seems to me that the proceedings commenced at a time when
the respondent had commenced to breach the order made on
7 April 2010 and clearly with a view to ensuring future
compliance.  Warning was given to the respondent coupled with
a threat to commence proceedings if he did not desist.  He
continued his conduct in the face of that warning, and
proceedings were commenced.  As time went by it was apparent,
notwithstanding findings made against him, that he was
continuing with his conduct, and allegations about that were
added to the allegations initially raised against him.  While
as things have turned out, coercion has ceased to be a
matter of primary concern in these proceedings, it may
perhaps fairly be said that is only as a result of the
respondent's consent given today to an order enabling the
removal of his cattle from the properties mentioned in the
order dated 11 June 2010.  In any event, there is a
significant public interest in upholding the authority of the
Court.

That was recognised by Gillard J in Law Institute of Victoria
Limited v Nagle [2005] VSC 47 at [26]. It was also recognised
by Chesterman J, as his Honour then was, in Evenco Pty Ltd v.
Amalgamated Society of Carpenters, Joiners, Bricklayers and
Plasterers of Australasia Union of Employees, Queensland (1999) QSC 77 at [4]-[6]. It has at times been recognised that an order for indemnity costs is also part of the punishment appropriately imposed on a person who acts in breach of orders of a Court.

In my view, this is an appropriate case in which to order the
respondent pay the applicant's costs of these three applications including reserved costs on an indemnity basis.
Their conduct in bringing these proceedings, in my view,
appropriately provides support for the authority of the Court
in making orders.  That is a matter of considerable public
interest.

The continued disregard by the respondent of those orders, a
disregard which has continued up to the present, demonstrates
an unreasonableness in his conduct which would also justify an
award of costs on an indemnity basis.

Accordingly, I order the respondent pay the applicants' costs
of and incidental to these proceedings on an indemnity basis.

...

HIS HONOUR:  The order extends to the payment of any reserved
costs in relation to those three applications.

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