Bernstrom, Re [2001] QSC 156

State 0 \ · I 5 b 4 \ 1 g4-, Reporting Bureau ~\Bf<.wK'-'/ {P\ Queensland Government ~")1; Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 8312 of 2001 REVISED COPIES ISSUED State Reporting Bureau Date: 3 / 5 / 01 RE APPLICATION TO THE COURT FOR HABEAS CORPUS BY ANITA BERNSTROM TOWNSVILLE .. DATE 02/05/2001 JUDGMENT 1 Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07) 3247 4360. Facsimile: (07) 3247 5532 -- 1 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) HIS HONOUR: This is an application for a writ of habeas corpus which was made returnable today. On return of the writ, Mr Elliott appeared for the respondent, the general manager of the Townsville Correctional Centre, John Dunthorne, and read an affidavit by Mr Dunthorne. Attached to that affidavit is a copy of a warrant directed to, amongst others, the person in charge of any prison, relating that the applicant, Anita Bernstrom, had been ordered to be committed to Her Majesty's Prison at Townsville for her contempt of an 10 order made by the Planning and Environment Court at Cairns on 2 March 2001. The warrant, on its face, is adequate authority, indeed a command to Mr Dunthorne to hold the applicant in custody, and I am satisfied that so far as that aspect of the matter is concerned, the right of Mr Dunthorne to hold the applicant in custody has been demonstrated. In the material filed by the applicant, who appeared unrepresented, she has exhibited to an affidavit a document which is referred to as an application for a writ of habeas 20 corpus and certiorari. This document has not in fact been filed but Mr Elliott accepted that it was not inappropriate for the Court to consider arguments advanced by the applicant based upon the alleged lack of jurisdiction of the Planning and Environment Court at Cairns to make the order which was made. A brief history of the matter is that on 25 November 1999 the Planning and Environment Court made a declaration that Miss Bernstrom had not complied with the terms of a consent by the 30 local authority to use certain land as a camping ground and 2 JUDGMENT -- 2 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) that some of the equipment which was in use on the site was outside the scope of the consent. No order was made at that time for their removal, however the matter came back before the Court in April 2000 when His Honour, faced with the continuing state of affairs of the applicant using the land in the manner described, made orders requiring the applicant to dismantle certain canvas accommodation units and to remove certain vehicles, both of which activities were being engaged in unlawfully. 10 In neither of those instances was any appeal instituted. Again, it seems clear that the applicant continued to disobey those orders. The persons concerned, who had instituted the proceedings, Scott Cameron Browning and Thomas Patrick Sargent, then applied to the Court to have the applicant dealt with for contempt. When the matter came before the Court on 2 March this year, it seems clear from His Honour's reasons for judgment, a copy of which is on the file, that the applicant had continued to disobey the orders and had made no attempt to 20 appeal against them. These matters, I should add, were all acknowledged by the applicant before me. On 2 March 2001 the Court ordered the applicant to be fined the sum of $3,000 for contempt and ordered that she pay that amount within 40 days otherwise she was to appear to show cause why a sentence of imprisonment of three months should not be imposed. I should interpolate here that the applicant herself did not really file any material about the matters that had taken place before the Planning and Environment Court 30 to which I have referred, but these matters appear in the 3 JUDGMENT -- 3 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) judgment of the Planning and Environment Court, which is on the file, and the relevant facts were all acknowledged by the applicant before me. On 17 April 2001 the matter again came before the Planning and Environment Court, the moneys not having been paid and the offending items not having been removed. His Honour ordered that the applicant be sentenced to three months' imprisonment. A substantial number of arguments have been advanced before me by the applicant and these are set out in a written submission which will be placed with the file. These matters were advanced by a person who the Court gave power to appear on behalf of the applicant before the Planning and Environment Court both at the time that the fine was imposed, and at the subsequent hearing on 17 April. It seems clear enough that the same person prepared the written submissions, and indeed Miss Bernstrom has referred to him as being the source of advice to her. The arguments raised are many and various and in some instances not easy to follow. One of them appears to be the same argument advanced to the Supreme Court in the matter of Sharples against Arnison and Beattie & O'Shea (No S1182/2001, Ambrose J, Supreme Court Brisbane, 5 March 2001, unreported). Essentially the argument is that because of the failure to submit to a referendum the Bill which became the Constitution 10 20 (Office of Governor) Act 1987, both the establishment of the 30 Planning and Environment Court and its actions, being 4 JUDGMENT -- 4 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) dependent upon the validity of the Act to which I have just referred, lacks legal validity, and it follows that the orders of the Planning and Environment Court in this matter are of no force or effect. It is not necessary for me to deal with the matter at any length. I accept and adopt the reasons of Mr Justice Ambrose in Sharples' case and reject the argument. A number of other arguments were advanced, the basis of which was that proceedings in contempt form part of the criminal law and therefore any charge of contempt should be dealt with on indictment before a Judge and jury. The arguments in this regard appear in the written submissions and were elaborated upon to some extent by Miss Bernstrom. I accept, of course, that the criminal standard of proof is applicable in this case, but as I have said, there does not 10 appear to be any room to doubt the factual matters that I have 20 outlined which were all acknowledged before me by the applicant. A Judge of the Planning and Environment Court has expressly conferred upon him by section 4.1.5 of the Integrated Planning Act (1997) as amended, the same power to punish a person for contempt of Court as does a Judge to punish for contempt of a District Court. Those powers are to be found in section 129 of the District Court Act, and the provisions of that section are made expressly applicable to the Planning and Environment 30 Court by section 4.1.5(2). As will be seen, 4.1.5(3) of the 5 JUDGMENT -- 5 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) Integrated Planninig Act expressly provides that if a person at any time contravenes an order of the Court, that is, the Planning and Environment Court, the person is also taken to be in contempt of the Court. There was some argument advanced that section 4.1.5 is beyond the power of the Queensland legislature to enact, but I do not accept that there is any basis for such a claim. Miss Bernstrom contended that she understood that when His Honour ordered that she pay the fine within 40 days, and in the event that she failed to do so she appear to show cause why she should not be sentenced to the term of imprisonment to which she was sentenced, she understood that her right to challenge that decision only arose at the end of the 40 days. It is difficult to see on what basis such an impression or understanding could be formed, but in any case it is plainly wrong, and even if it is the case, it does not affect, it seems to me, the validity of the Court's order. If the matter were to be considered solely by reference to the record to the extent it has been placed before the Court here, there is no basis which has been advanced which would give rise to any right to a prerogative order. Looking at the matter somewhat more broadly, by reference to the reasons for judgment and the transcript of the proceedings before His Honour, which have been placed on the file, no different conclusion, in my view, can be reached. 6 JUDGMENT 10 20 30 -- 6 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) There is, in my view, no merit in any of the matters advanced. The Court has the power to make the order which it did. The matter is truly a sad one. Miss Bernstrom makes it clear that she does not intend to comply with the orders of the Court, contending that she has various rights arising under the principles to which I have referred and which appear in the outline of the submissions, all of which, or any one of which, if accepted, would make the order of the Planning and 10 Environment Court an invalid one thus entitling her to be released from the imprisonment she is currently serving. At one time Miss Bernstrom put the matter upon the basis that she could not be sentenced to serve a term of imprisonment in respect of an order with which she fundamentally disagreed. The matter, of course, only has to be stated to be rejected. The result of the whole process has been that the applicant, instead of complying with the orders, has, on two occasions 20 before the Planning and Environment Court, and before this Court, with the assistance of the gentleman to whom she referred, sought to advance a variety of legal and constitutional issues, none of which, in my view, have any foundation of any kind. The result is that she has now been in prison since 17 April, a state of affairs that I think nobody would want to see continue. However, these matters are now entirely within Miss Bernstrom's hands. The formal order of the Court is that the application for the 30 writ of habeas corpus will be set aside and the application 7 JUDGMENT -- 7 of 8 -- 02052001 T14-16/DGJ M/T TSVSC2/2001 (Cullinane J) for certiorari (which it seems is, in any case would seem to be precluded by section 5.8.4(2) of the Integrated Planning Act) will be dismissed. HIS HONOUR: In the circumstances, I will make no order as to costs. 8 JUDGMENT 10 -- 8 of 8 --