Brisbane City Council v Stapleton & Ors [2006] QPEC 73

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[2006] QPEC 073 PLANNING AND ENVIRONMENT COURT JUDGE RACKEMANN P&E Application No BD3293 of 2005 BRISBANE CITY COUNCIL Applicant and RICHARD JOHN STAPLETON First Respondent and BRADLEY POOL AND Second Respondent LISA BERNADETTE POOL and DONALD JOHN WALKER AND Third Respondents BEVERLEY ANNE WALKER BRISBANE ..DATE 20/07/2006 ORDER -- 1 of 8 -- 2 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the Brisbane City Council for the first respondent, Richard John Stapleton, to be punished for contempt of Court. The power of the Court to punish a person for contempt is found in Section 4.1.5 of the Integrated Planning Act. Subsection (3) of that section provides that "If a person at any time contravenes an order of the Court the person is also taken to be in contempt of the Court." The basis upon which it is alleged that a contempt has been committed by Mr Stapleton is his contravention of an order of this Court. The Court first made orders with respect to Mr Stapleton on 28 October 2005. On that occasion the Court made 10 orders, although not all of those are relevant for present purposes. Relevantly, the orders included the following: "1. The first respondent be restrained from using premises located at 35 Turley Street, Fairfield...for the purpose of a warehouse as defined in Brisbane City Plan 2000. 6. The first respondent remove from that part of the premises marked "A" on the attached plan...all materials, goods, equipment, motor vehicles and trailers stored thereon for purposes associated with the conduct of a warehouse...by 4 p.m. on 5 December 2005. 7. The first respondent remove from that part of the premises marked "B" on the attached plan...all materials, goods, equipment, motor vehicles and trailers stored -- 2 of 8 -- 3 1 10 20 30 40 50 60 thereon for the purposes associated with the conduct of a warehouse...by 4 p.m. on 23 January 2006. 8. The orders in paragraphs 1 and 2 hereof be suspended in their operation only to the extent necessary to facilitate compliance by the first respondent with the orders in paragraphs 5, 6 and 7 of this order." Mr Stapleton did not remove things from the identified areas by the times required in paragraphs 6 and 7 of that order. The Court was however, prepared to extend the time for compliance. In that regard further orders were made on 6 December 2005 and 24 January 2006. The orders of 24 January 2006 included the following: "1. The time for compliance by the first respondent with paragraph 6 of the Court's order of 28 October 2005 be further extended to 4 p.m. on 2 February 2006. 2. The time for compliance by the first respondent with paragraph 7 of the Court's order of 28 October 2005 be further extended to 4 p.m. on 14 March 2006." The material demonstrates beyond a reasonable doubt that the first respondent failed to comply with the orders by the times specified. Indeed, the first respondent admits to being in contempt of the Court by contravening orders 1, 6 and 7 of the Court order of 28 October 2005 as extended. While he claims to have suffered some difficulties achieving compliance, I am satisfied that the non compliance, whilst -- 3 of 8 -- 4 1 10 20 30 40 50 60 perhaps not contumelious, was wilful and not casual, accidental or unintentional. The more difficult question on the application is determining what, if any, penalty the Court should impose on Mr Stapleton in respect of the contempt. Section 4.1.5(4) provides: "If a person is taken to be in contempt of the Court under sub section (3), the District Court of Queensland Act 1967, section 129(4) applies in relation to the contravention as if the person were an offender, and as if the expression 12 months were 2 years and the expression 84 penalty units were 3,000 penalty units." That provision was obviously drafted with the previous version of Section 129 in mind. Section 129(2) of the District Court of Queensland Act now provides that a District Court Judge has the same power to punish for a contempt as a Supreme Court Judge would have if the contempt were a contempt of the Supreme Court. Rule 930 of the Uniform Civil Procedure Rules provides, in turn, that the Court may punish an individual by making an order that may be made under the Penalties and Sentences Act 1992. By virtue of section 14H of the Act's Interpretation Act the reference to section 129 in the Integrated Planning Act should be taken to be a reference to the section in its current form. The result is that the Court may punish Mr Stapleton by making an order that may be made under the Penalties and Sentences -- 4 of 8 -- 5 1 10 20 30 40 50 60 Act 1992. That Act provides a number of different options with respect to punishment. In deciding which is the appropriate sentencing option all of the relevant circumstances must be taken into account including not only the gravity of the offence but also Mr Stapleton's circumstances, including his personal circumstances. Mr Stapleton is a man of mature years, there is no suggestion his non-compliance with the current Court orders is part of any course of conduct of non-compliance with Court orders generally. The Brisbane City Council does not suggest that his non-compliance with the Court's orders is contumelious. Mr Stapleton suffers from medical conditions which are referred to in his affidavit material. He claims that he, in effect, made his best endeavours to clear his property, but that he was affected by his health problems and also some difficulty in appreciating how much of his property needed to be cleared in order that it could be said that he was no longer carrying out a warehouse use, as defined. I have taken that into account, although it must be said that the evidence does not show that any attempts prior to March of this year had made much of an impression in terms of reducing the extent of goods on his property. The material does, however, evidence that there was greater progress made after that time. In particular, there was subsequent substantial -- 5 of 8 -- 20072006 T12/JAG8 M/T CMS81/2006 (Rackemann DCJ) 6 ORDER 1 10 20 30 40 50 60 progress made with respect to area A. The extent of progress made with area B was less impressive, but there was still some progress. It might be noted, however, that an excessive amount of material remained in area B until it was removed by the Council. I take into account that, while he did not comply with the Court orders, Mr Stapleton has shown a degree of cooperation. He was cooperative with the Brisbane City Council in terms of its investigations. He was cooperative in the Court proceedings and frankly acknowledged that he had not complied with the Court orders. I take into account that, whilst the development offence was not a trivial matter, it is not suggested that any specific harm was caused to any specific person, or to the environment generally, by reason of the development offence or Mr Stapleton's failure to remedy the situation earlier, in accordance with the Court's orders. I also take into account the fact that the situation has now been remedied, although not by Mr Stapleton. The Brisbane City Council was able to obtain orders from the Magistrates Court, pursuant to the Local Government Act, which permitted it to go onto the property and remove remaining goods and chattels to the extent that was required in order to achieve compliance. I note, from the material, that Mr Stapleton appears to have taken a cooperative attitude when the Council executed those orders. -- 6 of 8 -- 20072006 T12/JAG8 M/T CMS81/2006 (Rackemann DCJ) 7 ORDER 1 10 20 30 40 50 60 The Council has removed a large quantity of material in recent times, to the point where it became satisfied that the property was no longer used for the illegitimate purpose of a warehouse. The provisions pursuant to which the Council obtained that order permit the Council to pursue Mr Stapleton for the costs of those actions and the Council intends to do so. While I do not consider that non-compliance with the Court's orders was a trivial matter, particularly having regard to the indulgences which Mr Stapleton was granted in terms of the extension of the time for compliance, nevertheless I do not think that the circumstances in this case are so serious as to warrant Mr Stapleton being subject to any custodial sentence in respect of the contempt. Mr Stapleton's material suggests, and he has confirmed, that, notwithstanding his medical conditions, he is able to perform light work notwithstanding. In the circumstances it seems to me that an appropriate way of dealing with Mr Stapleton in respect of this matter is to require him to perform unpaid community service. Mr Stapleton has agreed to the Court making such an order and has agreed to carry out its terms. Accordingly I order that Mr Stapleton perform 100 hours of community service, that he comply with the requirements set -- 7 of 8 -- 20072006 T13/VC2 M/T CMS81/2006 (Rackemann DCJ) 8 ORDER 1 10 20 30 40 50 60 out in Section 103 of the Penalties and Sentences Act, that he report to an authorised Corrective Services Officer at Brisbane within 24 hours. I make a recommendation that Mr Stapleton be only assigned light duties consistent with his capacity to undertake them, having regard to his medical situation. Mr Stapleton, do you understand that? FIRST RESPONDENT: Yes, your Honour. HIS HONOUR: Obviously, if I could suggest to you that you be somewhat vigilant in relation to the condition of your property from this point onwards because if you were to come back before the Court for not complying with any future orders obviously you may not be dealt with in a way which is quite as lenient as I have today. FIRST RESPONDENT: Yes, your Honour. ----- -- 8 of 8 --