Bundaberg Regional Council v Bailey [2017] QPEC 31 [2017] QPELR 782

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bundaberg Regional Council v Bailey [2017] QPEC 31 PARTIES: BUNDABERG REGIONAL COUNCIL (applicant) and KAREN NOLA BAILEY (respondent) FILE NO/S: 2625 of 2016 DIVISION: Planning & Environment DELIVERED ON: 15 May 2017 – delivered ex tempore DELIVERED AT: Brisbane HEARING DATE: 15 May 2017 JUDGE: RS Jones DCJ COUNSEL: MA Williamson for the applicant JM Hewson for the respondent SOLICITORS: Connor O’Meara for the applicant Holding Redlich for the respondent [1] HIS HONOUR: I am concerned here with an application brought by the Bundaberg Regional Council, in effect, seeking orders requiring me to make a finding that the respondent is in contempt, and thereafter make further orders dealing with how that contempt should be dealt with. [2] Pursuant to section 439 of the Sustainable Planning Act 2009, a judge of this court has the same power to punish a person for contempt of the court as the judge has to punish that person for contempt of the District Court. Subsection (3) provides: If a person at any time contravenes an order of the court, the person is also taken to be in contempt of the court. [3] In this case contempt has been established not only through the evidence that has been placed before me, but also through the admission made by the respondent through her counsel. The respondent was of course present but is represented by Ms Hewson of Counsel. Contempt, having been established, as I indicated, this court has the same powers to punish as the District Court. [4] Some background is necessary in this context. On 24 May 2012, Judge Durward made a number of orders pursuant to section 604 of the Sustainable Planning Act. Relevantly, the orders provided: -- 1 of 9 -- 2 The respondent by herself and her servants or agents remove from the land and do not replace all things in connection with the dismantled building that has been placed on the land, unless the respondent complies with paragraph 3 of the order. [5] Paragraph 3 then went on to relevantly provide –I say “relevantly provide,” because subparagraph (a) of order 3 is not in issue. So, relevantly, order 3 provided: Forthwith, commence and complete the building works authorised by the building development approval which is attached hereto and marked A, so that: (b) by 30 June 2012, including all the works necessary so that a form 16 inspection certificate for the frame stage of the building work is provided to the applicant, and also to provide a statement from a private certifier to the applicant that the roof sheeting has been installed in accordance with the manufacturer’s specifications; (c) by 14 August 2012, complete all exterior building work in accordance with the requirements of the building development approval and concurrence agency response (for example, painting of the external cladding, install or repair windows, the enclosing of the subfloor with timber battens, etcetera) and provide a statement from a private certifier to the effect that the external works have been completed in accordance with paragraph 3 (c) of this order; and (d) by 4 October 2012, complete all works necessary and provide a form 21 final inspection certificate from the private certifier to the applicant. [6] As I have already indicated and it is not in dispute that orders 3(b), (c) and (d) have not been complied with. A liberty to apply provision was also contained within the orders. In this case it is not in dispute that there are a number of personal circumstances surrounding the situation of the respondent in this proceeding that have led to this unfortunate situation. In the affidavit of Cara Jayde Levy, filed in this court on 20 November 2016, there are numerous exhibits, and I will go to some that were referred to during the course of the proceeding. On 18 March 2013, the respondent wrote to the applicant council saying, among other things: I’ve employed a plumber who is now preparing for the watered and septic to be connected, $5000. I have ordered two tanks from Bundy Tanks to be delivered and connected this week, $4500. Both Bundaberg operators need payment, which I am requesting you will refund these moneys to the companies, $9500. Currently I’ve become homeless and need to live there permanently, so it is a matter of urgency for me. Having the water and septic would help a lot (this might [indistinct] some councillors) being used by me and not mental health. Whichever way you look at it. [7] There is further correspondence of 18 March 2013 from the respondent to the council addressing a number of things and particularly the tragic loss of a son. Reference is also made to having to receive medical treatment, that is, on the part of the respondent. -- 2 of 9 -- 3 [8] On 9 November 2015, some years, obviously, after the relevant orders were made, the applicant council wrote to the respondent and, among other things, that correspondence pointed out that recent investigations revealed that there had not been compliance with the subject orders made by Judge Durward. The letter went on to say: Accordingly, you are required to undertake the following: (1) comply with the requirements of the enforcement notice dated 13 October 2015; and (2) satisfy the requirements of court order number 1214 of 2012 issued by his Honour Judge Durward in the Planning and Environment Court, Brisbane 24th May 2012. Further investigations of these matters will be undertaken after Friday, 27 November 2015. Should the above requirements be met, council will initiate the following actions: Regulatory action for non-compliance of enforcement notice; Commencement of contempt of court proceedings in the Planning and Environment Court for breaching a court order. [9] The applicant council again wrote to the respondent on 30 January 2016. That correspondence relevantly stated: Recent investigations have found that the court order number 1214 of 2012 has not been complied with. Accordingly, you are required to undertake the following: (1) satisfy the requirements of court order number 1214 of 2012 issued by his Honour Judge Durward in the Planning and Environment Court. A further check of council’s records and/or inspection of the residence will be planned after 29th January 2016 to ensure compliance with the above request. Failure to comply with council’s request will result in enforcement proceedings being commenced in the Planning and Environment Court for contempt of the court order. [10] That correspondence provoked a response by the respondent dated 17 February 2016. That correspondence points out a number of things, in particular, how distressing to the respondent these proceedings were, and went on to say: I have also employed mental health lawyers in Brisbane to act for me. You will be pleased, I’m sure. The media have also been advised to your personal actions against me. The Westpac Bank is also quite appalled at how you would treat someone that is making a difference in your region with mental health patients… domestic violence against families, pregnant teenage girls and, of course, the homeless. After giving you 60,000 for rates, all community agencies also support me as a director of [indistinct] plus, been afflicted with a short-term memory loss by ECT. I would have retired if not for the community need. I am not happy to go down this road again, but if this is the way you would prefer, without consultation with myself to try and work together, then so is it. Can’t this matter be sorted without legal action? At least work with me and help me [indistinct] council need to help? -- 3 of 9 -- 4 [11] The applicant council wrote to the respondent on 29 April 2016, again, essentially, identifying the failure to comply with the order and, again, indicating what action the council would take. That correspondence concluded by saying: Given your flagrant and continued disregard of the order, the council feels it has little choice but to take further enforcement action, which may include bringing an application to the court. [12] Thereafter it sets out the relief it would be seeking, including punishment for contempt and costs. The letter then goes on to say: If you wish to make any representations as to why the council should not take further enforcement action, including bringing an application to the court to require the demolition of the building and to punish you for your contempt, then please provide us with a response by no later than Friday 13 May 2016. [13] On 12 May 2016, the respondent replied setting out her intentions for the subject premises, and identifying a number of other matters, including, in particular, the following: As you are aware, I suffered suicidal depression after losing two sons in a matter of months. Unfortunate, I needed to get my shoulder replaced last year. This was also long recovery. My business suffered greatly as a result of [indistinct] work, on the edge of bankruptcy, putting me into financial hardship with my bank, etc. In all, I’ve tried to get things progressing to completion. I am still in financial hardship with my bank. I have sold one of the houses. [14] There was further correspondence of 26 May 2016 making a number of other suggestions and there was further correspondence of 23 June 2016 suggesting, among other things, that the mediation or without-prejudice meeting take place to see if the matter could not be resolved. [15] I have not been taken to any material which would indicate why it is that despite the liberty to apply provision, although such a provision is not really necessary, why the respondent, at no time, made any attempt to have the orders varied. That is an unfortunate situation, and at least one of the underlying reasons why the matter is now before me. [16] There is no doubt that the respondent has been subject to a number of unfortunate, if not tragic, circumstances. It is not necessary to go into the financial background in any detail. It is accepted by the applicant that the respondent is, indeed, under financial stress. The written submissions advanced on behalf of the respondent identify a number of particularly significant issues concerning, among other things, the health or otherwise, really, of the respondent. None of those assertions were disputed: The respondent’s ability to comply with the enforcement order has been impacted by a number of significant personal and financial issues she has experienced. By way of back ground, Ms Bailey has a history of mental health issues and suffers recurrent major depressive disorder, which continues to affect her. This follows the death of one of her sons, Jay, in September 2010. -- 4 of 9 -- 5 She was admitted to the Belmont Private Hospital from 18 October 2010 to 18 November 2010. She was readmitted between 17 June and 2 August 2011, and then 11 to 13 September 2011, where she underwent electric shock therapy. A letter of Dr Lyndall White, consultant psychiatrist, dated 13 April 2012, states that it is likely that the course of ECT also introduced a mild to moderate disruption of short-term memory as a side effect. Between May 2012 and September 2012, another of her sons (Michael) was admitted to intensive care on multiple occasions and passed away on 21 September 2012. Ms Bailey was again admitted to the Belmont Private Hospital on 24 July 2012, and discharged on 3 September 2012, during which time the respondent received ECT due to major depressive disorder. The respondent separated from her husband on or about February 2013 and became homeless for approximately six weeks. Further, the respondent has been dealing with a number of financial constraints which have affected her ability to comply with the enforcement order. Since she first went into hospital, she has also started to experience financial difficulties. She was unable to work between 10 January 2013 and 10 July 2013, due to major depression, as stated in the doctor’s certificate of Dr Scott Jenkins, dated 31 May 2013. She suffered a fracture of her fight forearm in two places in or around 9 July 2015 as a result of a fall. More recently, the respondent self-presented to the Belmont Private Hospital for a number of mental health complaints on 31 August 2016 until 5 October 2016. [17] It can be seen that there have been a number of financial and health issues that would have materially impacted on the respondent’s ability to comply with the orders. As I have already indicated, it is most unfortunate that she did not take steps to seek appropriate relief in this court. There is no dispute that there has been breach of orders made, nor can be in dispute that the breaches are significant, they could not be said to be peripheral or merely incidental. They are substantive. And, as I have already indicated, the orders the subject of this proceeding date back to May 2012. [18] I have been referred to a number of cases dealing with the issue of what would be the appropriate penalty. Broadly speaking, they indicate, in circumstances where a period of actual custody or another form of prison order is not required, fines of between $1000 to $5000 seem to have been awarded or imposed on a number of occasions. In Bundaberg Regional Council v Lammi & another [2014] QPEC 52, Judge Horneman- Wren had to deal with contempt proceedings. His Honour pointed out that, in the circumstances of that case, there was a great degree of regret shown by the respondent in not being able to comply with the orders. His Honour also observed that steps were being taken to remedy the breaches. Taking those and, obviously, other matters into account, his Honour ordered that the respondents be jointly fined $5000 for contempt. [19] In the Gold Coast City Council v Christophi [2014] QPEC 62, Judge Everson also had to deal with contempt proceedings. There, as is the case here, had been a number of what could be described as warnings issued by the applicant in the event that the orders were not complied with. In paragraph 12, his Honour observed: -- 5 of 9 -- 6 Despite being appropriately warned that his conduct was in breach of the order, the respondent maintained a defiant attitude. He did not seek to regularise the use by obtaining an appropriate development permit. He berated staff of the applicant and at the hearing of the application, where he represented himself, he made scandalous and groundless allegations impugning the character and reputations of officers of the applicant witnesses called on his behalf and the solicitor representing the applicant. [20] It could be said that that case represented a situation where not only was there blatant disregard for orders made by the court, but there was also clearly no sign of remorse. The finding that the orders made relevantly included a finding that the respondent was in contempt and he was fined $5000. There was also a further order that the unlawful use had to cease within 28 days of the day of making those orders. I was also referred to the Logan City Council v Whelan [2015] QPEC, where a fine of $2500 was imposed. [21] The case to which I was referred to by Mr Williamson, counsel for the applicant, seems to be the most relevant. But, of course, none are definitive. But in Logan City Council v Jones [2016] QPEC 60, the contempt proceedings involved a situation where there was an allegation of there being a commercial element associated with the unlawful conduct. It would appear at paragraph 13 that his Honour concluded that any commercial element would not have been, to use words, “terribly large”. [22] His Honour then went on to identify that there was really no good excuse for failing to comply with the orders of the court. Here, there is no good excuse for the continual non-compliance with the orders in issue, but there is clearly– an excusatory background for at least some delay in compliance. And, by that, I am referring to the financial and health situation of the respondent. That said, of course, they do not provide a total excuse or defence at law. As is the case here, his Honour also identified that the respondent appeared to have come to their senses and were taking steps to remedy the situation. In paragraph 22, his Honour said: In the circumstances, it seems to me that imposing a substantial fine upon them is not a particularly attractive sentencing option, given that they seem to not have the capacity to make payment. Further, given the attitude which they have taken to the matter, at least since May, and given the concrete steps they have taken to demonstrate that change of attitude, and given the contrition which they have expressed today, it seems to me that they are a low risk of contravention in the future, either at this property, which they may not be at for much longer, or more generally. Further, whilst general deterrence is of some significance, ordinarily, I do not think that placing a substantial fine upon a person of modest means in financial trouble and the subject of mental health issues is an appropriate way to pursue general deterrence. [23] His Honour quite correctly identified that contempt of the court is a serious matter. It goes significantly to the heart of the justice system. The community will have no faith in orders that the court makes in circumstances where people treat those orders with total disregard without any risk of penalty. Deterrence, of course, works in -- 6 of 9 -- 7 two ways. One is the general deterrence, to deter other people from carrying out conduct such as this, but also, at a personal level, to deter you from further breaches of court orders. [24] I do not have the same level of confidence that Judge Rackemann had in that particular case, that there is a low risk of further contravention. Here, the history leads me to conclude that I am not so confident but I certainly hope that it is the case. That said, his Honour made reference to a number of matters relevant here: the financial difficulties of the respondent, the facts that there were mental health issues involved and that there was now a recognition that concrete steps have to be taken to remedy the breach. [25] In that particular case, his Honour considered it appropriate to impose a sentence which, in effect, required the respondent entering into recognisance in the amount of $1000 on the condition that he must appear before the Court if called to do so within the timeframe of the order. In the circumstances, having regard to not only your financial circumstances but also the other health issues to which I have referred, I have decided to adopt a course of action adopted by Judge Rackemann in the Logan City Council v Jones. I also would note in this context that the imposition of a significant fine would also be likely to make it less likely that you would be able to comply with the orders that I intend to make. [26] In respect of the contempt proceedings, I find that contempt has been proved and that, of course, is beyond reasonable doubt. The sentence that I impose is that you be released upon you entering into a recognisance in the amount of $1000 and on the condition that you must appear before a court if called upon to do so within the time prescribed in the further orders that I propose to make. And that time period will be 1 March 2018. [27] I will turn now to the question of costs. There was only one instance of reserved costs and they involved the situation when Bundaberg was in flood. Mr Williamson, quite fairly, in my view, accepted that it would not be appropriate to make costs orders against the respondent in respect of that proceeding. That said, this is a situation where the respondent has been responsible for ongoing failure to comply with orders made by the court, and in circumstances where the failure to comply had been identified by the applicant, and the consequences of failure were clearly pointed out. And in this context, I note that there was more than one warning issued. [28] I can readily accept that the financial circumstances of the respondent and her mental health and other health issues would have caused material difficulty in complying with the orders within the time frame posed. That said, those orders were made in May 2012. The circumstances of the respondent do not, in my view, fully explain the extent of the delay. And, also, as I pointed out, no attempt had been made to vary the orders the subject of this proceeding. [29] It seems to me that this is a situation where the applicant was left really with no alternative, other than to bring these proceedings, and, having brought them, has been successful. On balance, I consider that this is an appropriate case where costs should follow the event, and I, therefore, order that the respondent pay the applicant’s costs of this proceeding on a standard basis. -- 7 of 9 -- 8 [30] Following discussion with Mr Williamson about the concern that I had that any costs orders that I imposed might materially affect the respondent’s ability to carry out the works required has led me to conclude that that concern could be addressed by making an order that the applicant ought not seek to enforce the cost orders made until 1 March 2018. The relevance of that date is that it is the date when the last step of compliance is contemplated in the further orders that I will make. [31] Turning then to the works to be carried out and when they will be carried out, there is an affidavit by Donald Andrew Bentley, who is a building certifier. In his affidavit, he deposes that the remaining works required to complete the dwelling could be generally described as follows: (1) finalisation of all internal fit-out works, which in my view are not likely to be extensive; (2) finalisation of all external rectification works and finishes, which are not extensive; (3) the front stairs need to be made compliant with building Code requirements, including providing a landing. [32] According to Mr Bentley, the work is not particularly extensive, and could be completed within a period of two to three months. There seemed to be some issue concerning the front steps, which I must say, I do not fully understand. But I do not understand that those issues concerning the front steps would materially impact on Mr Bentley’s opinions. [33] An affidavit was filed on behalf of the respondent, that affidavit being one from, as I understand it, her current partner, a Mr Gerard Godbold. No issue was taken to Mr Godbold being the respondent’s partner, and I intend to proceed on the basis of what he says as being an accurate reflection of the facts and circumstances to which he refers. He identifies that he is a qualified painter and decorator with over 40 years’ experience. Also, as I understand it, he has been assisting the respondent in carrying out the relevant works on a part-time or casual basis. [34] According to him, the major works remaining in respect of the property are plumbing and electrical. He goes on then to deal with a number of matters concerning the carrying out of electrical, plumbing and painting and plastering. He goes on to state that the works will take materially longer than the estimate provided by Mr Bentley. And, on that basis, the respondent sought an extension for the timeframe for the carrying out of the works for another 12 months. [35] Although neither Mr Godbold nor Mr Bentley were required for cross-examination, no issue was taken with Mr Bentley’s identification of the works that were needed to be carried out to generally satisfy the orders of the court. And, in my opinion, his estimate of timeframe is more likely to be accurate than that of Mr Godbold. In saying that, I in no way mean to impugn Mr Godbold’s relationship with the respondent. It just seems to me that Mr Bentley, being a building certifier, and where Mr Godbold is a painter and decorator, albeit with extensive experience, Mr Bentley’s estimate is more likely to be an accurate one. [36] That said, though, following the discussion with both counsel, I have decided that the orders proposed by the respondent ought to be amended to include in proposed order 1, words to the effect that, unless otherwise authorised by the court, or some similar such wording, the respondent by herself, her servants or agents must, in respect of the land described, lot 602 on Crown Plan A2881 and situated at 2 -- 8 of 9 -- 9 Kennedy Street, Avondale, be subject to orders in the terms of paragraphs (a), (b) and (c) of the proposed draft. Further, in respect of order (d), in lieu of the date 10 November 2017, the date 1 February 2018 will be inserted, and that in respect of order 1(e), the date of 22 December 2017 be deleted and, instead, the date 1 March 2018 be inserted. Otherwise, the orders will be in the terms in the draft. -- 9 of 9 --