Queensland Building and Construction Commission v van Uden

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DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building & Construction Commission v van Uden [2021] QDC 103

PARTIES:

QUEENSLAND BUILDING & CONSTRUCTION COMMISSION

(Applicant)

v

MARINUS HENDRIKUS VAN UDEN

(Respondent)
FILE NO:

BD 1761 of 2020

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

11 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2021

JUDGE:

Dearden DCJ

ORDER:

The respondent, Marinus Hendrikus van Uden, is guilty of contempt in respect of each of charges 1 and 2.

CATCHWORDS:

CONTEMPT OF COURT – Failure to comply with court orders – Continued non-compliance – Defendant failed to attend trial – Defendants self-represented – Contempt proven – Deferred determination of penalty

LEGISLATION:

District Court of Queensland Act 1967 (Qld) s. 129.

Penalties & Sentences Act 1992 (Qld) ss. 44-51, 152-153A

Queensland Building & Construction Commission Act 1991 (Qld)

Uniform Civil Procedure Rules 1999 (Qld) rr 904(1)(b), 926, 930

CASES:

Australian Consolidated Press v Morgan (1965) 112 CLR 483

Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271

Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68, citing Blair v Curran (1939) 62 CLR 464

Lade v Lade & Co Pty Ltd v Black [2006] QCA 294

Polis v Zombor [2019] FCA 856

R v Bonacci [2015] VSC 121

Ronowska v Kus (No. 2) (2012) 221 A Crim R 261

Witham v Holloway (1995) 183 CLR 525
COUNSEL:

N J Derrington for the applicant
No appearance for the respondent
SOLICITORS:

Clayton Utz for the applicant
No appearance for the respondent

Introduction

  1. The applicant/plaintiff, the Queensland Building & Construction Commission (‘QBCC’), filed an application on 29 January 2021 (an amended version of which was filed by leave at the hearing on 4 June 2021),[1] seeking that the defendant/respondent, Marinus Hendrikus van Uden be punished for contempt pursuant to Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r. 930.

    [1]The amendments were minor and corrected factual details in respect of the particulars of contempt for failure to comply with Order 4 of his Honour Judge Barlow QC made on 26 August 2020 at paras 2(c)(vii)(E), 2(c)(xvii)(B) and 2(c)(xx)(E).

  2. The QBCC is a statutory corporation established under the Queensland Building & Construction Commission Act 1991 (Qld). On 19 June 2020, the QBCC instituted proceedings against the defendant seeking to restrain him from publishing “injurious falsehoods” concerning the QBCC and its employees on various social media accounts including Facebook, Instagram, Twitter and YouTube.[2] The proceedings related to “vituperative statements” about named employees of the QBCC, and variously alleged that the QBCC was corrupt, a liar, employed building inspectors who were committing criminal offences by working as unaccredited inspectors, and further asserts that all QBCC building inspectors should be imprisoned.[3]

    [2]See Claim and Statement of Claim, filed 19 June 2020.

    [3]Exhibit 1 – Written submissions of the applicant [2]; Statement of Claim [10].

  3. On 26 August 2020, Barlow QC DCJ entered default judgment for the QBCC against the defendant and made orders including:

    “2.The Defendant, within seven (7) days of this service of this order…

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Details
Case
[2021] QDC 103
Decision Date

CaseChat Overview and Summary

The case of Queensland Building and Construction Commission v van Uden involved the Queensland Building and Construction Commission (QBCC) bringing proceedings against Marinus Hendrikus van Uden for contempt of court. The dispute centred on van Uden's failure to comply with court orders to cease defamatory and injurious social media posts regarding the QBCC and its employees. Despite being served with an interlocutory injunction and a default judgment, van Uden continued to publish the impugned posts. Consequently, the QBCC sought to have van Uden held in contempt of court for his non-compliance with the court's orders.

The legal issues before the court included whether van Uden's actions constituted contempt of court, and if so, what penalty should be imposed. The court considered whether van Uden's continued publication of the posts, despite being aware of the court orders, amounted to a wilful disregard of the court's authority. The court also had to determine whether the contempt was direct or indirect and whether there were any mitigating factors that should be considered in imposing a penalty.

In delivering the judgment, the court found that van Uden's actions were indeed contemptuous. The court held that by continuing to publish the defamatory posts, van Uden had shown a deliberate and wilful disregard for the court's authority. The court noted that van Uden, who was self-represented, had ample opportunity to comply with the orders but chose not to do so. The court deferred the determination of the penalty pending further submissions from both parties.

The final orders of the court were that van Uden was found guilty of contempt of court in respect of each of the charges brought by the QBCC. The penalty for the contempt was deferred pending further submissions from both parties.

Orders

Orders of the court

The respondent, Marinus Hendrikus van Uden, is guilty of contempt in respect of each of charges 1 and 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is submitted[34] (and I accept) that there is an issue estoppel as between QBCC and the defendant that he was the publisher of the posts made prior to the commencement of the proceedings, as identified in the statement of claim, arising out of the summary judgment, entered in default,[35] of Barlow QC DCJ dated 26 August 2020.[34]Exhibit 1 – Written submissions of the applicant, [17].[35]Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68, at [23], citing Blair v Curran (1939) 62 CLR 464 at 531-532.Procedural history up to the entry of default judgment QBCC commenced proceedings on 19 June 2020 seeking to restrain the defendant from continuing to publish the impugned statements. That proceeding, together with an application for an interlocutory injunction was served on the defendant personally on 24 June 2020 at 18 Amaroo Place, Cooroibah, which was the defendant’s principal place of business recorded with QBCC.[36][36]Affidavit of Darren Whelan filed 6 July 2020, [1] – [3]; Affidavit of Cameron David Byram filed 25 August 2020, [4]. The application for interlocutory relief was listed for hearing on 7 July 2020, and on 6 July 2020 the solicitors for QBCC forwarded a copy of the QBCC’s outline of argument to the associate for Richards DCJ,[37] which prompted a response from the defendant, sent to one of the QBCC solicitors, which contained similar statements to statements made in the social media posts (including statements to the effect that the QBCC were corrupt, that the QBCC were engaged in a conspiracy, and that there are corrupt unaccredited building inspectors working for the QBCC).[38][37]Affidavit of Barry Thomas Dunphy filed 25 August 2020, Exhibit BTD-10, p.24.[38]Affidavit of Barry Thomas Dunphy filed 25 August 2020, Exhibit BTD-11, p.27; Statement of Claim, [10]. The defendant failed to appear on 7 July 2020, and in his absence Richards DCJ granted an interlocutory injunction restraining the publication of certain social media posts by the defendant and requiring him to remove the posts.[39] Those orders were personally served on the defendant on 10 July 2020 at 18 Amaroo Place, Cooroibah.[40][39]Document 10.[40]Affidavit of Darren Whelan filed 22 July 2020, [2] – [3]. The defendant failed to comply with the orders made by Richards DCJ,[41] did not file a defence in the proceeding, and on 26 August 2020, Barlow QC DCJ entered judgment in default for QBCC and made orders, which in summary:-“(a)required Mr van Uden to take all reasonable steps within his power to disable certain social media accounts or pages (the Accounts): Order 2(b)required Mr van Uden to remove certain statements about the QBCC and its employees published on them (the Posts): Order 3 and(c)permanently restrained Mr van Uden from publishing, or causing, encouraging, requesting or enabling to be published, by any means whatsoever, certain statements about the QBCC and its officers, agents and employees without prior leave of the court: Orders 4 and 5.”[42][41]Affidavit of Barry Thomas Dunphy filed 7 August 2020, [3] – [4].[42]Exhibit 1 – Written submissions of the applicant, [3(a) – 3(c)].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.