Rockhampton Regional Council v Dubois - [2014] QPEC 13

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Rockhampton Regional Council v Dubois [2014] QPEC 13

PARTIES:

ROCKHAMPTON REGIONAL COUNCIL
(Applicant)

and

JOHN WILLIAM DEMPSTER DUBOIS
(Respondent)

FILE NO/S:

87/13

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning & Environment Court, Rockhampton

DELIVERED ON:

3 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2014

JUDGE:

Searles DCJ

ORDER:

The Respondent is in contempt of this court.1)

The Respondent is sentenced to imprisonment for three months, to be suspended after he has served one month.2)

A warrant for the arrest of the Respondent is to issue forthwith but to lie in the Registry until 4pm on 7 April 2014 to allow the Respondent to deliver himself into the custody of the Department of Corrective Services Rockhampton. 3)

The Respondent is to pay the Council’s costs on an indemnity basis.4)

CATCHWORDS:

PLANNING & ENVIRONMENT - CONTEMPT OF COURT – Application for orders that the Respondent be punished for ongoing contempt of court of an order made on 11 June 1999 – penalty

Criminal Code Act 1899 (Qld) ss 22 and 205.

District Court of Queensland Act 1967 s 129.

Penalties and Sentences Act 1992 s 9.

Sustainable Planning Act 1999 ss 439, 457, 609, 610 and 945.

Sustainable Planning and Other Legislation Amendment Act (No. 2) of 2012 s 61.

Uniform Civil Procedure Rules 1999 r 930.

Cases:

Battle Pty Ltd v Hoy [2000] QDC 043 – cited.

BCC v Stapleton [2006] QPEC 073 – cited.

Booth v Yardley [2008] QPEC 100 – distinguished.

City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd [2006] QSC 031 – cited.

Colgate Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225 – applied.

Crowther v State of Queensland [2006] QCA 308 – cited.

Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339 – cited.

Lade & Co P/L and Ors v Black [2006] 2 Qd R 531 – cited.

Purtill v Landfix Pty Ltd [2004] QPEC 067 – cited.

Witham v Holloway (1987) 183 CLR 525 – cited.

COUNSEL:

Applicant: Mr S Ure

Respondent: Dr C J McGrath

SOLICITORS:

Applicant: King & Company

Respondent: CQ Legal

OF THE APPLICATIONNATURE

Application

The Applicant “Council” filed this “Application” on 19 September 2013 seeking orders that the Respondent be punished for contempt of court constituted by his contravention of orders made by Britton SC DCJ on 11 June 1999 (“1999 Order”). A copy of the 1999 Order is attached as Annexure A to this judgment.

1999 Order

The relevant parts of the 1999 Order are these:-

“1. …

2. That within seven (7) days of the date hereof the Respondent remove the hoist and associated equipment located outside the south-western corner of the existing workshop and depicted in the copy photograph annexed hereto and marked as “Annexure 3”.

3. That the Respondent do forthwith cease using the land for any purpose other than:-

(a) the existing lawful non-conforming use as…

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.

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Details

Case: [2014] QPEC 13
Decision Date: 3 April 2014

CaseChat Overview and Summary

In Rockhampton Regional Council v Dubois, the Council sought orders for the Respondent to be punished for ongoing contempt of court, related to an order made on 11 June 1999. The matter was heard in the Queensland Court of Appeal, which had to determine whether the Respondent was guilty of contempt of court and, if so, what penalty should be imposed.

The central legal issue was whether the Respondent's continued non-compliance with the 1999 order constituted contempt of court. The court had to consider the nature and seriousness of the contempt, the Respondent's conduct, and whether the contempt was wilful and persistent. The Respondent argued that his actions were not wilful and that the order was ambiguous, but the court found that the Respondent had deliberately disregarded the court's direction.

The Court of Appeal held that the Respondent was in contempt of court, as his actions were wilful and persistent in their disregard of the court's order. The court noted the seriousness of the contempt, as it had persisted for over fourteen years. The court sentenced the Respondent to imprisonment for three months, to be suspended after he had served one month. Additionally, a warrant for the arrest of the Respondent was issued but was to lie in the registry until 4pm on 7 April 2014 to allow him to deliver himself into custody. The Respondent was also ordered to pay the Council’s costs on an indemnity basis.

Orders

Orders of the court

The Respondent is in contempt of this court.1)

The Respondent is sentenced to imprisonment for three months, to be suspended after he has served one month.2)

A warrant for the arrest of the Respondent is to issue forthwith but to lie in the Registry until 4pm on 7 April 2014 to allow the Respondent to deliver himself into the custody of the Department of Corrective Services Rockhampton. 3)

The Respondent is to pay the Council’s costs on an indemnity basis.4)

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:	Rockhampton Regional Council v Dubois [2014] QPEC 13
PARTIES:	ROCKHAMPTON REGIONAL COUNCIL (Applicant) and JOHN WILLIAM DEMPSTER DUBOIS (Respondent)
FILE NO/S:	87/13
DIVISION:	Planning & Environment
PROCEEDING:	Application
ORIGINATING COURT:	Planning & Environment Court, Rockhampton
DELIVERED ON:	3 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	27 February 2014
JUDGE:	Searles DCJ
ORDER:	The Respondent is in contempt of this court.1) The Respondent is sentenced to imprisonment for three months, to be suspended after he has served one month.2) A warrant for the arrest of the Respondent is to issue forthwith but to lie in the Registry until 4pm on 7 April 2014 to allow the Respondent to deliver himself into the custody of the Department of Corrective Services Rockhampton. 3) The Respondent is to pay the Council’s costs on an indemnity basis.4)