Insights

In brief

The case of Whitsunday Regional Council v Branbid Pty Ltd & Anor [2017] QPEC 66 concerned an originating application in the Planning and Environment Court. The Whitsunday Regional Council (Council) sought punishment against each of the Respondents for contempt of court for failure to comply with the orders of the Planning and Environment Court made on 8 February 2017. The orders relevantly required the Respondents to cease providing temporary accommodation to people in campervans and tents on the subject land.
 
The Court found that the Respondents were in contempt of court, having failed to cease the operation, and imposed fines and ordered the Respondents to pay a percentage of the Council's costs. 

Orders of the Planning and Environment Court

The Planning and Environment Court made a declaration that Branbid Pty Ltd, the First Respondent, use of land located at Miowera Saleyards, Roma Peak Road, Bowen, for temporary accommodation for campervans and tents was a development offence because it was assessable development requiring a development permit and no development permit had been issued. 
 
The Planning and Environment Court ordered that the First Respondent and Mr Brett Fallon, the Second Respondent, cease providing or permitting to provide temporary accommodation to people in campervans, tents, or caravans on the subject land without obtaining an effective development permit for that use. 

Contempt of court

Prior to the initial proceeding before the Planning and Environment Court, the First Respondent was issued with a show cause notice and a subsequent enforcement notice to remedy the development offence, however they were ignored. In the proceeding before the Planning and Environment Court, the Second Respondent argued strongly against the relief sought by the Council as he believed it was an arbitrary and unreasonable attack on his and the First Respondent's freedom to use the subject land as they pleased. 
 
In the subsequent proceeding, the Planning and Environment Court found that each of the Respondents were in contempt of court as the evidence clearly showed beyond a reasonable doubt that they had continued the unlawful use of the subject land. Additionally, the Court noted that continuing the unlawful use of the subject land provided a commercial benefit to both Respondents as the customers had paid a $5 fee to stay per night. 

Legislative framework

Under section 36 of the Planning and Environment Court Act 2016 (PEC Act) a Planning and Environment Court judge has the same power to punish a person for contempt as a District Court judge, and the District Court of Queensland Act 1967 applies to the Planning and Environment Court in the same way as it applies to the District Court. 
 
Section 129 of the District Court of Queensland Act 1967 states that a person is in contempt of the District Court if the person fails to comply with an order of the court without a lawful excuse. Section 129 also provides that a District Court judge has the same power as a Supreme Court judge to punish as if it were contempt of the Supreme Court. 
 
The Uniform Civil Procedure Rules 1999 (UCPR) apply to contempt of court proceedings. Rule 904 of the UCPR states that a person against whom a non-monetary order is to be enforced must be notified of the terms of the order in an appropriate manner. The Court observed that both Respondents were notified of the terms of the proposed orders by both email and via the post to their nominated addresses. 
 
It is required under rule 926 of the UCPR that the respondent be personally served with the originating application and any affidavit. The Court in this instance noted that personal service did not initially occur but held that personal service was ultimately conducted. 

Court identified relevant factors for determining whether to impose a fine

The Council sought the imposition of a fine against the Respondents. The Court identified the following as being the relevant considerations in arriving at the appropriate relief:
 
  • the characterisation of the conduct constituting the contempt;
  • given that the penalty to be imposed is a fine under the Penalties and Sentences Act 1992, the financial circumstances of the offender and the burden imposed on the offender.
The Court held that the unlawful use of the subject land by the Respondents was for financial gain. The financial gain from the unlawful use however was not particularly lucrative as the Respondents only charged customers $5 per night to stay. The Court also considered the capacity of each Respondent to pay any potential fine. The First Respondent owned the subject land unencumbered and therefore had a notable financial asset. The Second Respondent was the sole director of the First Respondent and received a pension. On that basis, the Court found that the Second Respondent’s financial circumstances were not substantial and took this into account when imposing the fine. 

Costs

The Council also sought an order that the Respondents pay its costs in respect of the contempt proceedings. The Court took into account His Honour Justice McCurdo's statement in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118 in which His Honour stated that indemnifying a party by requiring costs to be paid by the contemnor as between solicitor and client is to impose a further sanction or punishment for the contempt and can be onerous. 
 
In respect of the legal requirements for a costs order, the court noted that an order for costs can only be under sections 60 and 61 of the PEC Act. In this case, the proceeding was an originating application for contempt of court which is not provided for under sections 60 and 61 of the PEC Act. The Court was however satisfied that under the UCPR, where the power to punish for contempt is found, rule 932 allows the Court to award costs for punishment for contempt of court. 

The Court fined the Respondents and ordered that they pay the Council's costs

The First Respondent was fined $15,000 and the Second Respondent was fined $5,000 for contempt of court. The Planning and Environment Court referred the fine against the Second Respondent to the State Penalties Enforcement Registry for recovery. 
 
The Council also sought an order that the fines be paid into their operating fund under section 246 of the Local Government Act 2009. The Court found however that section 246 did not apply in this case as it only applies to proceedings brought by a local government for an offence against a Local Government Act. 
 
In determining the order for costs, the Court took into account over-representation of the Council and the duplication of material brought before the Court. The Court held that the Respondents were to pay only 60% (30% each) of the Council's costs on an indemnity basis. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​