Browning & Anor v Cairns City Council & Anor [2002] QCA 161 [2002] QPELR 583

SUPREME COURT OF QUEENSLAND CITATION: Browning & Anor v Cairns City Council & Anor [2002] QCA 161 PARTIES: SCOTT CAMERON BROWNING (applicant / respondent) THOMAS PATRICK SARGEANT (applicant/ not a party to this application) v CAIRNS CITY COUNCIL (first respondent / respondent) ANITA BERNSTROM (second respondent /applicant) FILE NO/S: Appeal No 4306 of 2001 P & E Appeal No 7 of 1998 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time Miscellaneous Application - Civil ORIGINATING COURT: Planning and Environment Court at Cairns DELIVERED ON: 10 May 2002 DELIVERED AT: Brisbane HEARING DATE: 17 April 2002 JUDGES: McPherson and Williams JJA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the order made. ORDER: Applications refused with costs. CATCHWORDS: ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – PROCEDURE – NOTICE OF APPEAL – where application for extension of time within which to appeal contempt order imposed by Planning and Environment Court – where application out of time – where no sufficient explanation for the delay – where merits review of the order rather than a question of law would be raised by appeal – application dismissed with costs District Court Act 1967 (Qld) s 129 Integrated Planning Act 1997 (Qld) s 4.1.5, s 4.1.56, s 4.1.57 AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 -- 1 of 4 -- 2 COUNSEL: J Bradshaw for the applicant D Morzone for the first respondent JD Henry for the third respondent SOLICITORS: Thompson & Royds Lawyers for the applicant Miller Harris for the first respondent MacDonnells for the second respondent [1] MCPHERSON JA: The applications to extend time and for leave to appeal should be refused with costs. I agree with the reasons of Williams JA. [2] WILLIAMS JA: Consequent upon a series of hearings in the Planning and Environment Court at Cairns, that court on 17 April 2001 ordered that the applicant, Anita Bernstrom, be imprisoned for 3 months for contempt of court. The sentence has been served. This court now has before it an application for leave to appeal, with an associated application for an extension of time, against the finding of contempt which was initially made on 2 March 2001. [3] It is not necessary to refer to the history of the proceedings involving the parties to the present application in great detail. Suffice it to say that on 7 April 2000, after a contested hearing, an order was made requiring the present applicant to remove certain items and structures from the subject land and not to use specified items and structures on that land without approval of the Cairns City Council. That order was made in proceedings to which the present respondents Browning and the Cairns City Council were parties. [4] On the basis that the applicant had contravened that order Browning applied to have the applicant dealt with for contempt. That application was brought pursuant to s 4.1.5 of the Integrated Planning Act 1997, and in particular paragraph (3) thereof. After a contested hearing the court found on 2 March 2001 that the applicant had contravened the orders in question, that is she was in contempt of court, and ordered that she pay the sum of $3,000 within 40 days; in default thereof the order required the applicant to show cause on 17 April 2001 why a sentence of imprisonment of 3 months should not be imposed. [5] The sum of $3,000 was not paid and a show cause hearing was held on 17 April 2001. The court concluded, after a contested hearing, that cause had not been shown and an order was made requiring the applicant to serve a sentence of 3 months imprisonment. [6] Throughout the proceedings up to that point of time the applicant had been represented by an agent, not a qualified lawyer, and a person who had been declared a “vexatious litigant”. It is clear from the material that during those proceedings the applicant preferred to accept and act upon advice from that person rather than on advice from a qualified lawyer. [7] That agent prepared a notice of appeal against the order of imprisonment for contempt; that document was filed on 15 May 2001. That notice was ineffectual because leave to appeal had not been obtained pursuant to s 4.1.56 of the Integrated Planning Act. Further, though not of material relevance for present purposes, it should be noted that some of the relief claimed in that notice (for example, -- 2 of 4 -- 3 damages) was entirely inappropriate. The matter came before this Court on 20 February 2002 when it was pointed out to the barrister then representing the applicant that leave was necessary before any appeal could be heard by this Court. The matter was adjourned on the undertaking of the applicant’s then legal advisers to file the necessary applications. Consequent upon that an application for leave to appeal, and a further application for an extension of time relating thereto, were filed. Additional affidavits supporting those applications were filed. [8] Section 4.1.57 of the Integrated Planning Act requires a party seeking leave of the Court of Appeal to appeal against a decision of the Planning and Environment Court to apply for leave within 30 business days after the court’s decision; if leave is granted then the notice of appeal must be filed within 30 business days thereafter. As already noted the critical decisions of the Planning and Environment Court were made in March-April 2001, and the relevant applications seeking leave and an extension of time were not filed until February-March 2002. [9] The only explanation proffered for that delay is that the applicant had been relying on advice given to her by her non-legally qualified agent. [10] In support of the applications currently before the court the applicant lodged a draft notice of appeal which would be filed if leave were granted. The grounds of appeal referred to therein indicate that on appeal the court would be asked to consider whether the judge at first instance erred in failing to recognise a distinction between wilful disobedience and casual, unintentional disobedience (cf AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98). As the argument unfolded it also emerged that the applicant would be seeking to place additional material before the Court of Appeal on the hearing of the appeal in support of a contention there was no contempt; the additional material was not formally before this Court on the hearing of the present application. [11] The jurisdiction of the Planning and Environment Court to punish for contempt is governed by s 4.1.5 of the Integrated Planning Act and s 129 of the District Court Act 1967. [12] When the argument addressed to the court on the hearing of the present application was properly analysed it raised no issue as to the jurisdiction of the Planning and Environment Court to find that a party to a proceeding had acted in contravention of a court order. Rather the matters the applicant wishes to raise go to the merits of the order and factual issues relevant thereto. [13] The applicant has not provided a sufficient explanation for the delay in making the application for leave to appeal. The fact that she relied on advice from a non- qualified person does not afford a proper and sufficient explanation for the delay. But that could be overcome if it was demonstrated that there was some question of law of some importance which would be raised by the appeal. I am not satisfied that the applicant has demonstrated that there is some point of law in this case which requires consideration by the Court of Appeal. Rather, as already noted, any appeal would constitute a merits review of the decision below. [14] The court was told that there are still proceedings before the Planning and Environment Court in Cairns relating to the user of the land in question, and the -- 3 of 4 -- 4 applicant has the right to apply to that court for a variation of its earlier orders, particularly if some change in relevant facts or circumstances can be established. [15] It follows that the applications now before this Court should be refused with costs. [16] HELMAN J: I agree with the reasons of Williams JA and with the orders he proposes. -- 4 of 4 --