Browning & Anor v Cairns City Council & Anor [2001] QPEC 30

State Reporting Bureau (80 Q_u_e_e_ns_l_a_n_d_G_o_v_e_rn_m_e_n_t ·-~,1~ Department of Justice and Attorney-General it);:&4~ 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. PLANNING AND ENVIRONMENT COURT JUDGE WHITE p & E Application No 7 of 1998 SCOTT CAMERON BROWNING and CAIRNS CITY COUNCIL and ANITA BERNSTROM CAIRNS .. DATE 02/03/2001 JUDGMENT Applicant First Respondent Second Respondent 1 ,<"~ 4Tl1 Fluo1, Tl1e Lavv Cua1ts Co111plex, Oeo1ge Obeet, D1isba11e Q. 48S8. Telepl1011e. {07) 9247 4800. Facsi111ile. {67) 9247 559£ I f -- 1 of 71 -- 02032001 D.1 T4/CON M/T CNSl/2001 (White DCJ) HIS HONOUR: This is an application that the second respondent, Anita Bernstrom, be dealt with for contempt for disobedience to orders made by this Court. On 11 February 1997, an order was made by consent, including the consent of the second respondent, by his Honour Judge Daly, in the Planning and Environment Court in Cairns, granting the second respondent consent to use her land, situated at Lower Freshwater Road, Freshwater, for the purposes of a camping area, "with approximately 50 tent sites, amenities block, single storey, 14 metres by 8 metres, and office, approximately 4 metres by 4 metres, subject to 33 conditions." This particular matter first came on before me in 1999. The applicants, Browning and Sargeant, applied for declarations and consequential orders, in effect alleging that uses to which the second respondent was putting her land were unlawful, and further that she was in breach of some of the conditions under which the aforementioned consent was granted. On 25 November 1999, I published reasons and made certain orders. So far as this application is concerned, I made relevant findings of fact, firstly, that five canvas accommodation units, constructed on the land, and more particularly, the use thereof for accommodation was unlawful. I also made findings of fact that the second respondent had not complied with condition 9(C) of the approval which required "a dense landscape buffer of three metres to the 2 JUDGMENT 10 20 30 -- 2 of 71 -- 02032001 D.l T4/CON M/T CNSl/2001 (White DCJ) north and south property boundaries." I also made findings of fact that three caravans and a bus, which were being used for the purposes of accommoda~ion on the second respondent's land, were unlawful, in that they were in breach of condition 23 of the aforesaid approval. It is relevant also to note that in those original proceedings, the Cairns City Council appeared in support of 10 the second respondent. At the time of making my decision on 25 November 1999, for reasons which I set out, I had some sympathy for the predicament in which the second respondent found herself, and I declined to make specific orders appropriate to remedy the specific matters of unlawfulness which I have just identified. However, the matter came back before me on 7 April 2000, as a result of what I found to be the second respondent's conduct, aggravating the unlawfulness of the activities earlier identified. 3 JUDGMENT 20 -- 3 of 71 -- 02032001 D.l TS-6/KLW M/T CNSl/2001 (White DCJ) On 7 April 2000 I made the following orders: "(1) that unless written approval of the Cairns City Council pursuant to local law number 5 Temporary Homes is obtained beforehand within 30 days hereof the second respondent is to remove the bus and all caravans and other vehicles or structures used as temporary accommodation from the subject land 10 (2) that the second respondent not use any bus, caravan or other mobile or temporary structure for dwelling purposes upon the subject land without the written approval of the Cairns City Council pursuant to local law number 5 Temporary Homes ( 3) that the second respondent remove the canvass accommodation units from their bases, dismantle them and to pack them away (4) that the second respondent shall not re-erect the canvass accommodation units on the subject land until further order of this Court (5) that the second respondent shall not use the subject land for the purposes of a camping ground until further order of this Court". The evidence of the second respondent's failure to substantially obey these orders is compelling. Firstly, there is the affidavit of Scott Cameron Browning filed on 14 February 2001. Mr Browning resides on the neighbouring property to that of the second respondent and when at home is in a good position to observe what is taking place on the second respondent's land. In paragraph 5 of his affidavit he says that since 7 April 20 30 2000 he has observed activity on the property consistent with ~ the operation of a camping ground. He has observed people coming on to the property to take up accommodation and then leave the property. He has also observed in the 10 month period since the matter was last before me that the bus, three 4 JUDGMENT -- 4 of 71 -- 10 J 02032001 D.1 TS 6/KLW M/T CNSl/2001 (White DCJ) caravans and five safari tent structures have remained on the property. He has observed that the bus and three caravans have been continuously occupied during the period. He has observed that one of the safari tent structures has been permanently occupied since prior to Christmas 2000. He observed that as of 14 February 2001 the three caravans, the bus, one of the five safari tents and a small tent set up in a horse stable building were all occupied. Exhibited to this affidavit as SCB3 is a set of photographs illustrating the vehicles, safari tents and the small tent to which he refers. There is also in evidence a letter from the second respondent addressed to the Mayor dated 27/6/2000. The contents of that letter indicate a clear understanding on the part of the second respondent of the effect of the orders which I made. The respondent, however, also filed an affidavit in this Court on 31 July 2000. This appears to have been a response to the applicants formerly taking out the orders which I made on 7 April 2000 serving the second respondent with a copy thereof. It is quite clear from that affidavit and the attachments thereto that the respondent asserted a right to decline to obey the orders made on 7 April 2000, putting into question the jurisdiction of the Court to make the orders. 5 JUDGMENT 10 20 30 -- 5 of 71 -- 02032001 D.1 TS-6/KLW M/T CNSl/2001 (White DCJ) It is to be noted that the second respondent was legally represented before me when the matter first came on before me for hearing. No objection to the jurisdiction of the Court was voiced at that time. It is true that she was not legally represented and when the matter came on on 7 April 2000, but once again, no objection to the jurisdiction was advanced. The material does show that following that date the second respondent did consult solicitors with a view to considering 10 an appeal against the making of those orders, but it is apparent that no such appeal eventuated. It seems that the second respondent has taken to herself the privilege of deciding that this Court has no jurisdiction to make the orders which I made, without in any way testing the matter on appeal. In any event, I take the view that the second respondent's own affidavit and the letters attached thereto evidence that the second respondent has made no attempt to obey the orders made on 7 April 2000, and to date has formed no intention to obey those orders. In my view, her own correspondence and affidavit very substantially corroborate the evidence contained in Mr Browning's affidavit. The second respondent filed an affidavit on 19 February this year containing a bare denial of the matters contained in detail in Mr Browning's affidavit. In light of the support for Mr Browning's account in the material to which I have earlier referred, I reject the second respondent's denial. I 6 JUDGMENT 30 -- 6 of 71 -- 0 02032001 D.1 TS-6/KLW M/T CNSl/2001 (White DCJ) give it no weight. I am therefore satisfied that Mr Browning's account of what has taken place is accurate, and therefore, subject to matters to which I will shortly turn, I am satisfied that the second respondent is in breach of each of the five orders which I made on 7 April 2000. I now turn to the matters raised in her defence. The second respondent has appointed Mr Peter Alexander Gargan, her agent, for the purposes of this hearing. Mr Gargan was himself declared a vexatious litigant pursuant to the Vexatious Litigant's Act of 1981. As such, he would require leave of the Court to commence any proceedings in his own name. However, section 4.1.13 of the Integrative Planning Act of 1997 permits a party to proceedings in this Court to appear by agent. As a result of that I've permitted Mr Gargan to appear. It is ironic that a person who cannot himself commence proceedings in any Court without the leave of the Supreme Court appears to have a right to appear for another in Court proceedings. I suspect that some of the past litigation which resulted in Mr Gargan being the subject of the declaration by the Supreme Court, involved litigation in the District Court, some of which passed through my Court. I should say, however, that whilst some of the propositions advanced by Mr Gargan I have considered to be beyond reason, he has always behaved within an appropriate level of courtesy when appearing in Court and I feel bound to say has never been long-winded. 7 JUDGMENT 10 20 30 -- 7 of 71 -- 02032001 D.l T5-6/KLW M/T CNSl/2001 (White DCJ) The propositions advanced by Mr Gargan in oral submissions bear considerable similarity to the arguments advanced, apparently, by the second respondent to the Cairns City Council, in support of her claimed right to ignore the orders I made. I may also observe that some of the propositions advanced bear some similarity to matters raised by Mr Gargan in other litigation. 8 JUDGMENT 10 -- 8 of 71 -- J 02032001 D.1 T7/CON M/T CNSl/2001 (White, DCJ) Nevertheless, as has been observed, sometimes when a person advances propositions of law, which on their face appear to be outrageous and/or without merit, one must always give them some thought in case the person advancing the propositions might stumble across a good point. Mr Gargan raises a constitutional point. As I understood the submission, it was that I had no jurisdiction to deal with this, the proceedings for contempt, on the basis that the Australian Constitution guaranteed a right to trial by jury for any criminal offence. In particular, he appeared to rely on section 80, which provided "the trial on indictment of any offence against any law of the Commonwealth shall be by jury." It may be observed that section 80 refers to trial on indictment, which this is not. It also refers to trial on indictment of any offence "against any law of the Commonwealth", which this is not. What the argument seems to 10 overlook is that the Australian Constitution, together with 20 other imperial legislation, preserved the validity of the Queensland Parliament, and the Queensland Constitution. Section 2 of the Constitution Act 1867 imperial, which dealt with the Constitution of the State of Queensland, gives the Queensland Parliament the power to make laws "for the peace, welfare, and good government of the colony in all cases whatsoever." In my view, the power to make laws concerning the establishment and operation of State Courts is within the 30 power of the Queensland Parliament, under the Constitution of 9 JUDGMENT -- 9 of 71 -- 02032001 D.1 T7/CON M/T CNSl/2001 (White, DCJ) the State of Queensland. The Integrated Planning Act, which deals with the regulation of the use of land, in my view, is clearly within the power of the Queensland Parliament. The Act under which the Planning and Environment Court was established, indeed the Act under which its predecessor, the Local Government Court was established, were valid laws passed by the Parliament of Queensland and within the power of the Parliament of Queensland, pursuant to the Constitution of Queensland. And the Integrated Planning Act provides for the jurisdiction of this Court to deal with the matters which came before the Court originally, and in particular, section 4.1.5 expressly provides a Judge of the Planning and Environment Court "the same power to punish a person for contempt of the Court as a Judge has to punish a person for contempt of the Court as a Judge has to punish a person for contempt of a District Court." 10 Specifically, section 4.1.5(3) of the Integrated Planning Act 20 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." I am satisfied that I have jurisdiction to deal with the second respondent for contempt of the orders made on 7 April 2000. Mr Gargan also advances arguments which he submits would lead me to find the second respondent not guilty of contempt. He firstly raises an argument which appears to suggest that the orders which I made dealt with chattels which had become part 30 of the land by reason of them being fixtures. I pointed 10 JUDGMENT -- 10 of 71 -- 02032001 D.1 T7/CON M/T CNSl/2001 (White, DCJ) to him during the course of argument, and I point out again in these reasons, that none of the buses, caravans or tents are in any ~ay attached to the land in such a way as to become fixtures, and therefore part of the land. The point has no relevance. Mr Gargan has also suggested that section 22 of the Criminal Code applies in this case. In particular, he refers to subsection 22(2), which provides "but a person is not criminally responsible as for an offence relating to property for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud." He submits that this section of the Criminal Code relates to a charge or proceedings for contempt, pursuant to section 4.1.5 of the Integrated Planning Act, by reason of section 36 of the Criminal Code, which so far as is relevant provides, the 10 provisions of this chapter apply to all persons charged with 20 any criminal offence against the statute law of Queensland. I have not heard what I would consider to be comprehensive argument on the subject, but I expect that Mr Gargan is right, that the defence of honest claim of right, under section 22 of the Criminal Code, may apply to an offence of contempt under the Integrated Planning Act. However, the difficulty faced by the second respondent is that the offence of contempt, under the Integrated Planning Act is 30 not an offence relating to property. It is true that the 11 JUDGMENT -- 11 of 71 -- 02032001 D.l T7/CON M/T CNSl/2001 {White, DCJ) orders which I made relate to property, but the offence itself is not an offence which relates to property. It is an offence of disobedience to the order of th€ Court. In my view, also, the nature of the right claimed, or purportedly claimed by the second respondent, and advanced by Mr Gargan on her behalf, is not an honest claim of right within the meaning of that term in subsection 22{2) of the Criminal Code. Her claim of right, assuming it to be honest, is a right to be disobedient to the orders of the Court, on the basis that the Court had no jurisdiction to make such orders. This is not a claim of right in relation to the particular property concerned. It is well established by the cases that the honest claim of right referred to in subsection 22{2) must be a claim of right to do with a title or some right to deal with the particular 10 property, which would entitle the person concerned to deal 20 with the property such that that person would not be guilty of the offence with which he or she is charged. 12 JUDGMENT -- 12 of 71 -- 02032001 D.l T8/KLW M/T CNSl/2001 (White DCJ) There is no doubt that the second respondent probably owns all of the property the subject of the orders which I made. She has a right to deal with them as the owner of the property. Such a right in no way relates to a right to be disobedient to the orders of a Court, even though those orders be in relation to such property. There was also a submission made to me suggesting that the respondent was entitled to trial by jury by reason of some provision in the Anti-Discrimination Act of 1991. In my view it has no relevance to this case. Sub-section 7(1) of the act lists the bases upon which a person may be unlawfully discriminated against. None of those bases are in any way relevant to the matter before the Court. I am therefore satisfied beyond reasonable doubt that the second respondent is guilty of contempt in that she has been 10 directly disobedient to orders 1, 2 and 3 made on 7 April 20 2000. As a consequence, by not obeying those orders, she is disobedient to orders 4 and 5. However, at this stage, there is no need and it is perhaps inappropriate to deal with her for contempt of those latter orders, namely 4 and 5. Strictly speaking she is not directly in disobedience to them until and unless she obeys orders 1, 2 and 3. I want to hear your submissions on the penalty, and one might have thought that some attention should be given in respect of penalty to encouraging the second respondent to obey the order. Do you have any instructions, Mr Morzone, that since last 30 week she has obeyed the orders? 13 JUDGMENT -- 13 of 71 -- 02032001 D.1 T8/KLW M/T CNSl/2001 (White DCJ) MR MORZONE: No, I haven't' received any update on that basis yet, your Honour. I couldn't submit one way or the other. HIS HONOUR: Unless I hear to the contrary I assume she's still in disobedience to the orders. Is that right, Mr Gargan? MR GARGAN: Your Honour, it is right, and I've heard your judgment, and I thank you----- HIS HONOUR: Okay, well let's just MR GARGAN: Thank you for your word. HIS HONOUR: Okay, I just wanted to confirm that. MR GARGAN: All right. Okay. HIS HONOUR: I'll give you a chance to talk about penalty shortly. Yes, Mr Morzone. It has not been unknown that in cases like this, a person who is disobedient to Court orders and is contempt - in contempt of the Court orders is gaoled until that contempt is, as it were, purged. I prefer not to gaol Ms Bernstrom. I would prefer it, ideally, that she would obey the orders, but I'm prepared to consider a penalty somewhat less than sending her to gaol in an attempt to press her to obey the orders before resorting to that last resort. MR MORZONE: One of the----- HIS HONOUR: What are the rules MR MORZONE: The rule for----- HIS HONOUR: -----in the District Court? Rules which deal with this - the uniform civil procedure rules. MR MORZONE: Rule nine hundred and----- HIS HONOUR: Obviously there is provision for a monetary penalty. MR MORZONE: That's so, your Honour. HIS HONOUR: Is there provision for a daily penalty, whilst the contempt persists? 10 30 40 MR MORZONE: Your Honour, the - the procedure in the uniform so civil procedure rules basically assists your Honour by enabling your Honour to provide whatever is the power of the Supreme Court Judge. All that is dealt with for penalty in the Integrated Planning Act is an increase of the penalty or a change of the penalty to two years----- HIS HONOUR: Provided for under MR MORZONE: -----or three----- 14 60 -- 14 of 71 -- 02032001 D.l T8/KLW M/T CNSl/2001 (White DCJ) HIS HONOUR: -----the District Court Act. MR MORZONE: Yes. Or three thousand penalty units----- HIS HONOUR: Yes. MR MORZONE: -----under the District Court Act. O 10 HIS HONOUR: Yes. Well, I mean it seems to me, what - possibilities seem to me that I could impose a fine for the contempt to date and with a daily penalty to apply until the orders are obeyed, but I don't know whether I have the power to do that. I'd need to be persuaded. I can't see that on the Integrated Planning Act. It might arise under the rules of Court, perhaps. MR MORZONE: Your Honour will see the----- 20 HIS HONOUR: So where are the rules? MR MORZONE: It's in the chapter----- HIS HONOUR: Or is it in the Supreme Court Act? MR MORZONE: Well the procedure and the like is in the - in the - chapter 10, I think it is, commencing around Rule 925. HIS HONOUR: Nineteen----- MR MORZONE: Nine hundred and twenty-five. HIS HONOUR: Nineteen - 925. MR MORZONE: That's chapter 20, part 7, your Honour. I should correct myself. And rule 930 deals with punishment which refers the matter to the scope of the Penalties and Sentences Act. HIS HONOUR: Is there anything like section 129 of the District Court's Act in the Supreme Court Act? MR MORZONE: Well I'm just trying to locate that now. I suspect so, but I can't tell your Honour----- HIS HONOUR: So what do we do? Under the Penalties and Sentences Act I'm empowered to impose a fine, allow time to pay and make an order in relation to a default penalty of 30 imprisonment. 50 MR MORZONE: Indeed. The only authority that I found - locate is one where there was a similar proceeding, but the argument I have relates to costs of Hervey Bay City---- HIS HONOUR: No, we'll come to that - we'll come to that. MR MORZONE: Yes. Hervey Bay City Council and Stathopoulis, where at least his Honour indicates that----- 15 60 -- 15 of 71 -- 02032001 D.l TS/KLW M/T CNSl/2001 (White DCJ) HIS HONOUR: Who was it? Who was the Judge? MR MORZONE: It was Judge Quirk. HIS HONOUR: Yes. MR MORZONE: On that occasion, and again there's - there's no real indication of - of what the disobedience was, but it was 10 an order for declarations and they weren't followed. He says at paragraph 4, "After a number of adjournments in response to the pleas by Mr Stathopoulis", S-T-A-T-H-O-P-O-U-L-I-S, "for time to complete the necessary works it was considered that a suspended sentence of imprisonment for contempt was called for". So at least his Honour, Judge Quirk, was open to that as a sentencing option. HIS HONOUR: Yes. 16 -- 16 of 71 -- 10 02032001 D.1 T9/CON M/T CNS2/2001 (White DCJ) MR MORZONE: The----- HIS HONOUR: But I'd - I'm a great admirer of Judge Quirk, but a suspended sentenc2 and imprisonment for a contempt, where you're trying to get someone to obey a Court order, seems a little strange. Perhaps there was good reason for that. MR MORZONE: And I couldn't tell your Honour what the terms of the declaration were. HIS HONOUR: Yes, you mean - you don't advance, do you, that I have the power to impose a daily penalty during the continued contempt? MR MORZONE: Well I can'----- 10 HIS HONOUR: So what I would have to do would be to impose a 20 fine now, if I was going to fine - I mean I - all options are open. MR MORZONE: Quite. HIS HONOUR: But what - I mean, in the end, I'd be looking - I'm looking for some form of sanction which would encourage the second respondent to obey the orders. So I could, I could impose a fine with a default of the fine not paid within a certain period, but if she simply chose to pay the fine, and 30 still not obey the orders, there would be a need for another application to be made to the Court. MR MORZONE: That's so. HIS HONOUR: But depending on what's said for later this morning, I suspect it won't be your client who has to bring the matter to Court for any further contempt that, that may be, Mr Morzone, which, I suppose, would be a relief to him. The other thing I should say, I have no power to order that 40 the second respondent pay your costs of this proceeding, do I? MR MORZONE: Beg pardon, your Honour? HIS HONOUR: I have no power to order that Ms Bernstrom pay your client's costs of this proceeding. MR MORZONE: Yes. I've got submissions----- HIS HONOUR: That's the irony of the situation. MR MORZONE: Yes. I've got submissions about that. HIS HONOUR: All right. Well, I will deal with that question of costs before I make a final decision on the penalty, because that may be relevant to the penalty. But in any event, it would seem that if I fine her - remember - have you got the judgment, a few years ago now, there were some people, some farmers, fairly large-scale farmers down in Central 50 Queensland who - I mean, they borrowed a lot of money to 60 17 -- 17 of 71 -- 02032001 D.1 T9/CON M/T CNS2/2001 (White DCJ) develop their property and buy very expensive farming equipment, and basically it didn't work out. They went broke and the bank foreclosed on them, and they resisted. MR GARGA!J: You're talking about the Muirhead case, your Honour. HIS HONOUR: Sorry? MR GARGAN: I think it might have been the Muirhead case, your Honour. HIS HONOUR: You could be right, Mr Gargan. But I have an idea they went - I'm not sure - my recollection is that it was Justice Thomas, but----- MR GARGAN: I think it was Thomas. HIS HONOUR: -----it would have gone to - you think so? MR GARGAN: It was Thomas, yes. HIS HONOUR: Justice Thomas, yes. But I think he might have gaoled them, with a view that the sentence would continue until they in fact ceased the contempt. I could be quite wrong with that. But you don't happen to have the judgment? 10 20 MR MORZONE: I don't, your Honour. Certainly it's - it sounds 30 familiar as the Muirhead case----- HIS HONOUR: Mmm. MR MORZONE: -----when there was even a decision to secede from the rest of Australia-- HIS HONOUR: That's right, they were----- MR GARGAN: No, no. That's not that one, that's a different ~ one. HIS HONOUR: Is it? MR GARGAN: It's a different case, yes. Your Honour, that's a fellow in Western Australia, and there's another one in----- HIS HONOUR: No, no. I know Prince Leonard of Hutt. Oh he--- MR MORZONE: Yes, but there's another one called Gary Friend-- HIS HONOUR: -----he seceded, he seceded years ago, but my recollection is that the Muirheads were attempting, or purporting to follow him. I think - largely, law enforcement agencies and governments have treat Prince Leonard of Hutt as being basically an eccentric souvenir of Australia, but nobody wanted it to start spreading, and so the Muirheads' view was 50 taken more seriously. I have a pretty good idea that the 60 18 -- 18 of 71 -- 02032001 D.1 T9/CON M/T CNS2/2001 (White DCJ) Muirheads were attempting to do that, but----- MR MORZONE: I haven't - I didn't----- HIS HONOUR: -----the Court objected. MR MORZONE: -----look for that decision, your Honour, but I could turn it up in the library. 10 HIS HONOUR: Yes. But anyway, you haven't got - you haven't got a copy of that judgment? MR MORZONE: I don't at the moment. HIS HONOUR: You don't advance the proposition that there can be an ongoing penalty until the contempt is ceased? MR MORZONE: Well only to the extent that I haven't 20 ascertained what the Supreme Court powers might be, if there's any under the Act, and I'm sure there would be. But it may not be as clear as the District Court Act 129----- HIS HONOUR: Yes. MR MORZONE: -----and the only other assistance----- HIS HONOUR: What does that say? A something or other - I seem to - oh no, I've got that here. MR MORZONE: The only other assistance, your Honour, is that in the Integrated Planning Act, at section 4.1.6, the Court may make an order, give leave, or do anything else it is authorised to do on the terms the Court considers appropriate. It still requires an authority, of course, so unless I can---- HIS HONOUR: That relates to specifically to dealing with someone for contempt, or is that a general power of the Court? ~ MR MORZONE: It immediately follows from the contempt provision, and reads on as if it is the matter dealing with contempt. It's under the general division of powers of the Court. In any event, then your Honour's authority would be - or the source of that would be section 129, which then takes the source to the Supreme Court, and I'll need to take some short time to locate the relevant provisions of the Supreme Court Act as to the extent to which your Honour can impose a penalty in the form of a daily rate. ~ HIS HONOUR: Mmrn. I'll let you consider that. Ms Djohan, do you want to say anything about the penalty? MS DJOHAN: Only in so far as that from memory, and it may be of some assistance, I - I was under the impression that the Penalties and Sentences Act actually had a provision in there regarding daily penalties, and given that the reference, section 129, imports you into the ECPR which then raises that fact. That may be of some assistance. 60 19 -- 19 of 71 -- 02032001 D.1 T9/CON M/T CNS2/2001 (White DCJ) HIS HONOUR: The daily penalty, you think, in the Penalties and Sentences Act. MS DJOHAN: I think so. HIS HONOUR: That's very good. We don't often see you in the criminal jurisdiction. MS DJOHAN: Mmm. HIS HONOUR: I suppose, for that matter, I could make a probation order and make it a condition of probation that she obey the Court's orders. MR GARGAN: Your Honour, could I make a suggestion to the Court under section----- HIS HONOUR: Let's just - well, wait a minute now. Just a moment, Mr Gargan. Well look, you just see----- MR GARGAN: I'm only attempting to help, that's all I didn't say anything. HIS HONOUR: Oh no, no. I'm going - I'm going to ask you to, to help too shortly. You just keep looking at that point and I'll see what Mr Gargan has to say, Mr Morzone. Yes, Mr Gargan? 10 20 30 MR GARGAN: Your Honour, the - it's - I think it's common ground that we're dealing under section 129 of the District Court Act, and section 129(4) says, "Before the Court rises, the Court may ask the person to explain why the person should not be punished, or adjourn the matter to be dealt with on a stated date." Now, the matter of penalty, in this particular instance, is one that, that I don't think any of us have really looked at in a manner to be able to assist the Court. I think we should possibly take advantage of, of 129(4) (B), and adjourn the matter for the - to deal with the matter of 40 penalty on an occasion when I can do some research and find out what similar cases are, and come to the Court in a position to assist the Court in this. HIS HONOUR: Yes. Well, I mean I can - I think that subsection (4) more appropriately applies to dealing with a contempt in the face of the Court. This is a different form of contempt. MR GARGAN: Oh look, I----- HIS HONOUR: But, I mean it would certainly be open to me to adjourn the proceedings further to deal with the matter of penalty. Mr Gargan, what everyone is interested in here is having Ms Bernstrom obey the orders of the Court. Now it would be - if she doesn't want to be punished, or only wants to be punished in a very minor way, that's the answer to it. It's in her hands, if she obeys the orders. 50 MR GARGAN: That's absolutely correct, your Honour, and look, 60 20 -- 20 of 71 -- 02032001 D.1 T9/CON M/T CNS2/2001 (White DCJ) I've listened to your judgment. I believe there are grounds that, that it can be appealed in certain sections----- HIS HONOUR: Oh no. Look, she's very welcome to appeal. MR GARGAN: I understand that----- HIS HONOUR: She didn't think I - she thought I was wrong, she 10 should have appealed long before this. MR GARGAN: I - I realise that, your Honour, I wasn't involved. HIS HONOUR: Yes. MR GARGAN: How - however, she - it will be my submission that the Penalties and the Integrated Planning Act does not leave a lot of - lot of leeway. Perhaps for the - you know, you have 20 the same power to punish for contempt as a Judge has to punish a person in the District Court, and so one----- HIS HONOUR: Well look, the Penalties - there is - there is an express provision as to the maximum penalty, isn't there? MR GARGAN: Yes. It's been increased from one year to two years and 84 penalty units. HIS HONOUR: Exactly. Well, I'm sure she wouldn't want to be 30 in gaol for two years, would she? MR GARGAN: I'm sure she wouldn't. HIS HONOUR: And - I don't know, what's a - what's a penalty unit these days? MR GARGAN: $60 I think it is in Queensland. HIS HONOUR: And how many penalty units is it? MS DJOHAN: $75, your Honour. MR GARGAN: Oh, it's gone up. HIS HONOUR: $75 is a penalty unit? Where is this provision that changed the----- MR MORZONE: Your Honour will see it at section 4.1.5 of the Integrated Planning Act, subsection 4. so HIS HONOUR: Oh yes. Three thousand penalty units, $75. MR GARGAN: It's $210,000. $210,000 in normal figures I think, isn't it? HIS HONOUR: I'm sure she wouldn't like to be fined up to that level either. MR GARGAN: Two hundred and twenty-five. 21 60 -- 21 of 71 -- 02032001 D.l T9/CON M/T CNS2/2001 (White DCJ) HIS HONOUR: Not that I'm going to, but the point is the ball's ion her court. I want these orders obeyed, Mr Gargan. Either appealed, and the Court of Appeal discharges them and cancels them----- MR GARGAN: I understand that. I understand exactly where you're coming from, and----- HIS HONOUR: Well I want them obeyed. MR GARGAN: I understand that. HIS HONOUR: Now your difficult is - the difficulty she's got, Mr Gargan, is that I made those orders back in April last year. She took advice from solicitors and didn't proceed with any appeal. It's too late to be appealing those orders now. She can appeal against the conviction for contempt, but - 10 anyway, it's up to you and it's up to her. Already up to her 20 what she does, but at the moment - at the moment, until the Court of Appeal rules somehow that she doesn't have to obey those orders, I've found her guilty of contempt, and I want those orders obeyed. Now what's she going to do about it? I'm going to stand down for five minutes, and you talk to her, and I want some serious talk about what's going to happen to have these orders obeyed. THE COURT ADJOURNED AT 11.19 A.M. 22 30 -- 22 of 71 -- 02032001 D.1 Tl0/KLW M/T CNS2/2001 (White DCJ) THE COURT RESUMED AT 11.43 A.M. HIS HONOUR: I'll hear from you in a second, Mr Gargan. Mr Morzone. MR MORZONE: I can be of some assistance, your Honour. 10 Section 8 of the 1991 Supreme Court Act that gives the Supreme Court unlimited jurisdiction in law and equity. The laws of Australia are of some assistance in this regard, which takes up your Honour's view. It says, "But it has been judicially recognised that a - a one-of fine of a fixed amount will have little or no effectiveness in compelling compliance with a subsisting order or undertaking" . 20 And the authority for that was an example of Von Doussa, V-O-N - D-O-U-S-S-A, against Owens, O-W E-N-S, number 2. HIS HONOUR: That's the Judge, isn't it? MR MORZONE: It could well be. So his Honour, against the - no doubt, the contemptuous party, but 1982, 30----- HIS HONOUR: Oh, I see. 30 MR MORZONE: -----South Australian State Reports, 391 at 399, but this is the important part, "The High Court has accordingly held that by analogy with coercive prison sentences a fine may be stipulated as accruing in amount according to a fixed scale until the relevant order undertaking is complied with, or it may be suspended on terms that it will not be enforced if compliance has occurred within a stipulated time, or the amount may be left open for a fixed period to give 40 further time for the contempt order give thought to complying". And the authority is Australasian Meat Industry Employees Union and others and Mudginberry, M-U-D-G-I-N-B-E-R-R-Y, Station Proprietary Limited, and I wonder whether or not that was even the one that your Honour was thinking of. HIS HONOUR: No that was an abattoir up in the Northern Territory. ~ MR MORZONE: Yes. And this is reported at 1986, 161 Commonwealth Law Reports---- HIS HONOUR: What Court though was that? MR MORZONE: -----page 90. HIS HONOUR: What Court was----- 23 60 -- 23 of 71 -- 02032001 D.l Tl0/KLW M/T CNS2/2001 (White DCJ) MR MORZONE: It was from the Federal----- HIS HONOUR: It was the Court dealing with the contempt. MR MORZONE: It was from the Federal Court. HIS HONOUR: Federal Court. MR MORZONE: So, that's - I've brought that authority, your Honour--- - HIS HONOUR: You just got to be a little bit careful with comparing the District Court with the Supreme Court because the District Court's a statutory Court created by statute whereas the----- MR MORZONE: True, although your Honour has the powers of the 10 Supreme Court Judge----- 20 HIS HONOUR: Yes. MR MORZONE: -- --in relation to contempt. So then your Honour moves into that jurisdiction which is an unlimited one, both at law and equity. HIS HONOUR: Yes. MR MORZONE: So for the limits of the Constitution and in this 30 instance there wouldn't be any - any arguments to go and raise about that I would suspect. HIS HONOUR: Well you say that there is power to----- MR MORZONE: Yes. HIS HONOUR: -----and you've got the copy of that judgment there? MR MORZONE: I've got a - I've brought the----- HIS HONOUR: It got to the High Court, did it? MR MORZONE: Yes, it did, and the relevant page is 114, where they take that from, and as your Honour was walking in I was trying to locate it, but apparently on that page is authority for an analogy of the prison terms being used in that form, which your Honour also adverted to. There's no reason why a 40 fine couldn't be used. There is nothing express in the so Planning and Environment - in the Penalties and Sentences Act which seems to assist in defiling the point, although it is wide enough to allow that course to take. HIS HONOUR: Yes. These - these penalties mentioned in 4.1.5(4). The 12 months and the 84 penalty units don't appear in section 129 that I can see. MR MORZONE: Well I was hoping that I had an old act, but that certainly seemed to be----- 60 24 -- 24 of 71 -- 02032001 D.l Tl0/KLW M/T CNS2/2001 (White DCJ) HIS HONOUR: Oh, I got the Butterworth's reporting service. The amount I pay for it I hope it's up to date. MR MORZONE: Well I use the Internet, your Honour, and that is apparently up to date to the minute, but----- HIS HONOUR: And you can't see that reference either? 0 10 ) rt MR MORZONE: That section seems to have not been part - item 4 and it does indicate a - a form of amendment. HIS HONOUR: The act was amended. The act was amended by 66 of 99 and the Integrated Planning Act was introduced in '97 and '98 it became law I think. See, it must have been amended. If you go to - go over to 312275.6, it says, "For the purposes of this act the value of a penalty unit is $75". MR MORZONE: Is your Honour reading from the annotations to--- HIS HONOUR: The annotations----- MR MORZONE: -----to the District Court Act? HIS HONOUR: -----to the District Court Act. MR MORZONE: Yes. HIS HONOUR: Does Harrison Muirhead get a mention there? I just feel that section 129 of the District Court Act has been amended. That's the only place where the penalty could have been dealt with. Well it must have been. MR MORZONE: And I can't locate the specific express provision in the Supreme Court Act which prescribes a----- HIS HONOUR: Deal with a penalty. MR MORZONE: -----penalty. HIS HONOUR: Yes. MR MORZONE: So, it - it may be, your Honour, that the District Court Act has been amended to enlarge the power to that of a Supreme Court. HIS HONOUR: Yes. MR MORZONE: But in the process has left behind what could be a guidance as to the----- HIS HONOUR: Well anyway at this stage, Mr Morzone, I wasn't contemplating a gaol sentence of more than two years or a fine of more than - what was it - $300,000. MR GARGAN: Two hundred and twenty-seven. 25 20 30 50 -- 25 of 71 -- 02032001 D.l TlO/KLW M/T CNS2/2001 (White DCJ) MR MORZONE: And no doubt it's - it's to anticipate disobedience on a large scale----- HIS HONOUR: Oh yes. MR MORZONE: -----but there might be environmental damage or the like. HIS HONOUR: Yes. MR MORZONE: So, certainly we're well within---- HIS HONOUR: Yes. MR MORZONE: -----any consideration. That's my submission. HIS HONOUR: Yes, as I said, my main concern is to have the 10 orders obeyed. All right, Mr - did you want to - I'll just 20 see if - do you want to add anything further to what you've already said, Ms Djohan, on the question of penalty? MS DJOHAN: Oh, no, your Honour. HIS HONOUR: Now, Mr Gargan. MR GARGAN: Your Honour, the - I've talked to Ms Bernstrom and she - she's in - feels she's in a terrible position because you've - there's - on one hand there's - there's a law you've 30 made that - that says she's got to stop doing this and on the other hand she's got an approval from the Council to say she can. Albeit there - there's a little bit of time to go before it becomes absolute and - and she's got basically two - two concurrent obligations, as it were, that - that - that are causing her a - a great deal of trouble in - in knowing----- HIS HONOUR: She doesn't have concurrent obligations, Mr Gargan, and I had some sympathy for her, but in the end, you know - I mean, the trouble started when her house burnt down, 40 and instead of re-building the house she used the money to build these platforms for these tents. That's where it all goes back. To that. MR GARGAN: Not quite. If I - unless I'm incorrect, when the house burnt down the bank took the money. Is that what happened? 26 -- 26 of 71 -- 0 D 02032001 D.l Tll/LET M/T CNS2/2001 (White J) HIS HONOUR: Oh well, that might be right. MR GARGAN: Yeah. HIS HONOUR: But she----- MR GARGAN: You know. HIS HONOUR: She got a lot - look, she built those platforms and spent a lot of money on that, and didn't - didn't provide any accommodation for herself and her close family and the like. MR GARGAN: Mmm. Anyway, look there's a case here I have pulled off the internet, a John Alan Witham v. John William Holloway, which is a High Court case dealing with contempt in the Supreme Court of New South Wales. Now, this chap was a - a house removalist and - and was ordered to stop conducting his business, and continued to do so, and the Supreme Court Judge in that case committed to him a month in prison for one month for contempt of Court. Now that was appealed to the High Court and it was - the appeal was upheld, not on grounds applicable necessarily here, however, the - Ms Bernstrom's in the position where she still feels that she has legal grounds to challenge your judgment today. HIS HONOUR: Well look, Mr Gargan, I'm not interested. MR GARGAN: Yeah, look, I know that. HIS HONOUR: She's had plenty of time to challenge these orders. MR GARGAN: I understand that. HIS HONOUR: You can tell all that to the Court of Appeal. And let me remind----- MR GARGAN: Yeah. HIS HONOUR: Let me remind not just you, but her, of this, Mr Gargan. This approval she's got from the Council doesn't relate to those buses and caravans and things. No it doesn't. It relates to an approval to use the land, use it for these tents, doesn't it? SECOND RESPONDENT: Your Honour, in the approval, one of the----- HIS HONOUR: Stand up when you're speaking, please. SECOND RESPONDENT: Sorry. MR GARGAN: Could we swear her, your Honour? HIS HONOUR: No, I don't want to - no, it wouldn't do any good. 27 10 20 30 50 60 -- 27 of 71 -- 02032001 D.l Tll/LET M/T CNS2/2001 (White J) SECOND RESPONDENT: Your Honour, in the new approvals I have got the conditions as set aside for the - the accommodation side of the buses and the caravan. HIS HONOUR: These are things that are used for your own accommodation, aren't they? SECOND RESPONDENT: That's right. HIS HONOUR: I gave you time to make application----- SECOND RESPONDENT: I did that. HIS HONOUR: -----with the Council, and you were refused. SECOND RESPONDENT: No, your Honour, I've got a letter in writing, and I paid a hundred and five dollars to the Council 10 for the - for the - for that accommodation, and that's local 20 law number 20, not local law number 5. 'Cause local number 5----- HIS HONOUR: Where are - where are these documents. SECOND RESPONDENT: Well----- HIS HONOUR: Talk's cheap. Let me see some documents. SECOND RESPONDENT: I didn't bring it with me today. HIS HONOUR: Well you see, if you are able to demonstrate - if you'd been able to demonstrate that you had consent for using the buses and the caravans for accommodation, well I wouldn't have - I wouldn't have found you in contempt in relation to that order. SECOND RESPONDENT: Your Honour, it was brought up at the - at our last court case, and I thought this was a verdict so I - I 30 didn't bring my papers. 40 HIS HONOUR: Well they are - well, you're quite right, but I didn't understand that to be the case. Where - where is this----- SECOND RESPONDENT: Yeah. HIS HONOUR: Did you know anything about it? SECOND RESPONDENT: A letter written on 20 May. Peter Gargan so brought it up. MS DJOHAN: It was raised the last time we were in Court last week. I have no knowledge of any approval. I could get further instructions on that. My understanding was that there was some dispute between the applicability of local law 5, as opposed to local law 20. I have no knowledge that any approval has been issued HIS HONOUR: Well what's local----- 28 60 -- 28 of 71 -- 0 02032001 D.l Tll/LET M/T CNS2/2001 (White J) MS DJOHAN: -----under that local law. HIS HONOUR: -----law 20? MS DJOHAN: Local law 20 deals with caravan parks and camping grounds. HIS HONOUR: And deals with people living in caravans and the like as permanent accommodation in caravan parks and camping grounds? MS DJOHAN: Yes, your Honour. HIS HONOUR: See, look, the problem is that one of the bases upon which this whole trouble started was that you hadn't complied with the conditions of approval to use the place as a camping ground, and you had specific conditions that applied. That you weren't allowed to have camper-trailers, caravans, and the like on the land. This was a tent camping ground, and a tent camping ground only. SECOND RESPONDENT: Excuse me your Honour, the - those conditions were relating to permanent residents - guests, but we were only a tourist park and that we aren't allowed to have permanent caravans as far as paying guests is concerned. HIS HONOUR: That's right. They were relating to your people 10 20 who came in and paid to camp there. That's right. ~ SECOND RESPONDENT: Yeah. HIS HONOUR: Which is why, so far as your accommodation is concerned, you had to look at local law 5. SECOND RESPONDENT: No, local law 20, your Honour. HIS HONOUR: Well what was the one that - what's local law 20? Do you know what local law 20 is? 40 MS DJOHAN: Local law 20 was caravan parks and camping grounds, and there is - was a dispute at the time that the approach was made by Ms Bernstrom to the Council whether that in fact applies in this situation. HIS HONOUR: What did the Council say? MS DJOHAN: At that time, local law 5 applied. HIS HONOUR: And not local law----- MS DJOHAN: That was my----- HIS HONOUR: - - -20? MS DJOHAN: They were my instructions at that time. HIS HOI:JOUR: See, h0\\1 can you have - ho\v can :lou ha\re ronsPnt- 50 under local law 20 from the Council if the Council has told 60 29 -- 29 of 71 -- 02032001 D.1 Tll/LET M/T CNS2/2001 (White J) you that they don't consider it applies? SECOND RESPONDENT: Your Honour, I was wondering if we could get the Court adjourned so I can bring all my papers, and show you a local law 20 and local law number 5. Council - Council local law. MS DJOHAN: I'm wondering whether that means the approval, or 10 the actual local laws, because I can supply those as well if that was an issue. SECOND RESPONDENT: The actual local laws, and - the actual local laws. HIS HONOUR: Well where does this mention of it come up? I mean, is it somebody's affidavit or anything, or did just - Mr Gargan just----- MS DJOHAN: No----- HIS HONOUR: -----rolled it off the tongue? MR GARGAN: Raised it - yeah. MS DJOHAN: No, your Honour, the mention of it was raised by Mr Gargan last week. It was originally raised in the September 1999 proceedings between solicitors. Local law 5 20 and local law 20 were - were given as copies across to Ms 30 Bernstrom's solicitors at the time. They were never raised - local law 20 was never raised from that point onwards, until after his Honour's decisions - orders in April last year. HIS HONOUR: Well in terms of the effect of local law 20, what's your submission? Does it apply, or not? MS DJOHAN: Not in my opinion, no. HIS HONOUR: Let's see where Mr Gargan mentioned it. MR MORZONE: Your Honour, I might be able to assist in this regard. HIS HONOUR: Yes. MR MORZONE: SCBl0 in Mr Browning's affidavit, is the report upon which Council have apparently made a decision, or given an approval notice, about the application that's currently 40 before the Council. That approval notice - that approval so notice has been given to Ms Bernstrom, and time has yet to elapse for appeal periods to - to go by. But that is the only time when this local law 20, as we apprehend it, or any consideration or tacit approval by the Council, has been given for structures, and it's at paragraph 2 of these - of the report - or the recommendation. Your Honour will find that at Exhibit SCBl0 on the second page of that exhibit. This is the decision that, it's my submission, has no effect, and therefore it - it hasn't 30 60 -- 30 of 71 -- ) 02032001 D.l Tll/LET M/T CNS2/2001 (White J) commenced to operate. HIS HONOUR: Just give me the number again. SCB? MR MORZONE: Exhibit SCBl0. It's got a covering page headed "Planning and Development Committee Meeting, 16 January 2001." HIS HONOUR: Yes. MR MORZONE: And at paragraph 2 is the extent of the new but as yet ineffective approval, and to the extent it relates to caravans, it's the last sentence. "The existing bus and caretaker's caravan used as manager's accommodation and caretaker's caravans, acceptable as an interim measure for a duration to the satisfaction of the chief executive officer." 10 Now as yet, that is part of the approval for the further application which hasn't been accepted, as I understand it, or 20 periods elapse such that the notice of the decision - or the decision notice is to be given to the objectors yet, so it's still at the early----- HIS HONOUR: Well----- MR MORZONE: -----stage. HIS HONOUR: -----yes. Oh yes, look, you see----- MR MORZONE: And that's----- HIS HONOUR: -----I ordered that the land not be used for the purposes of a counting - a camping ground until further order of this Court. MR MORZONE: Quite. HIS HONOUR: It doesn't matter what the Council approves. MR MORZONE: That's so. HIS HONOUR: It's got to - in this application, because of the breaches, I require, before it's used as a camping ground----- MR MORZONE: Mmm. HIS HONOUR: ----Ms Bernstrom to come back to the Court and show that she's got the approval. MR MORZONE: Quite. And - and this document here, or whatever the decision notice is at the moment, is incapable---- HIS HONOUR: It relates to a camping ground. MR MORZONE: Yes. It's incapable of being the consent which your order - your Honour ordered would be required in order to change the orders, because it's ineffectual at the moment. There is no final consent which is then applicable to this 30 40 50 land for its future use, until Ms Bernstrom's appeal period 60 31 -- 31 of 71 -- 02032001 D.l Tll/LET M/T CNS2/2001 (White J) has elapsed, or there otherwise is a decision to accept the decision, and secondly, after Mr Browning, together with other objectors, have been served with the decision and they've got appeal rights, which either must be elapsed or determined. HIS HONOUR: Well how many objectors were there? Do you know? MR MORZONE: I couldn't assist your Honour about that. It 10 might well be in the report, but - but certainly Mr Browning was an objector. HIS HONOUR: Anyway, this approval relates to the bus and one caravan. MR MORZONE: That's so. So that's even the extent of it in any event, and of course your Honour has discretions about all - all matters, but it still isn't - there is still no approval in existence----- ~ HIS HONOUR: Oh yes. MR MORZONE: which would comply with your Honour's expectation of what would be represented. 32 -- 32 of 71 -- 02032001 D.l Tl2/KLW M/T CNS2/2001 (White DCJ) HIS HONOUR: I thought you - you were about to stand existing bus and caretaker's caravan" - this is what document says - "used as manager's accommodation and caretaker's caravans acceptable as an interim measure duration to the satisfaction of the Chief Executive". many people are staying? SECOND RESPONDENT: Yes, your Honour----- up. "The this for a How HIS HONOUR: I mean have you Have you got children----- I mean, what's the situation? SECOND RESPONDENT: Yes. HIS HONOUR: -----living with you? SECOND RESPONDENT: Yes, your Honour, I've got a nine year old 10 boy who lives with me----- ~ HIS HONOUR: Yes. SECOND RESPONDENT: -----in the bus. HIS HONOUR: Yes. SECOND RESPONDENT: I've got a caretaker who - who is - lives in the caravan----- HIS HONOUR: Yes. SECOND RESPONDENT: -----and I've got my 90 year old father who lives in the caravan - which he's lived there for 13 years. HIS HONOUR: Who's the caretaker? SECOND RESPONDENT: Bill McKenzie. HIS HONOUR: Is that the person who appeared for you last time you were here? SECOND RESPONDENT: No, no. That was----- HIS HONOUR: Why do you need a caretaker if you're not carrying on any business - or you shouldn't be carrying on a business. SECOND RESPONDENT: Well, I have to leave the property at times to - and there needs to be somebody on the property. It's - it's an open property. HIS HONOUR: To tell people who come in and want to book a camp site that you're not open at the moment, is that why he's got to be there? SECOND RESPONDENT: Yes, your - your Honour. HIS HONOUR: I was being facetious. 33 30 40 50 60 -- 33 of 71 -- 02032001 D.l Tl2/KLW M/T CNS2/2001 (White DCJ) SECOND RESPONDENT: Yes. Your Honour, I - I - I did try and follow - follow your orders as-- -- HIS HONOUR: Oh, look don't. Look, please. SECOND RESPONDENT: No, I have. I----- HIS HONOUR: Don't take me for a fool. SECOND RESPONDENT: I----- HIS HONOUR: You haven't tried to follow my orders at all. SECOND RESPONDENT: Yes, I have. I have submitted what you ordered, I have made an application to the Council, the letter is is proof that I did so----- 10 HIS HONOUR: Look, of course you have. You've tried to - 20 you've tried to fix things up so that what you're doing is lawful, but you've done nothing to stop doing the unlawful things that I told you you had to do. Now please I'm not going to revisit that. I want to know that there's going to be some substantial compliance with these orders otherwise I'll have to take - take account of that in arriving at an appropriate punishment. SECOND RESPONDENT: I - your Honour, I beg to differ, I did pull the tents down. The Council got evidence that the - that 30 the tents were dismantled. They were tied down and dismantled. I've got evidence of a letter----- HIS HONOUR: Well why did you put them back up again? SECOND RESPONDENT: Because I got advice that---- HIS HONOUR: Who from? SECOND RESPONDENT: I got some legal advice that----- HIS HONOUR: Who from? Mr Gargan? SECOND RESPONDENT: Mr Gargan and----- HIS HONOUR: Just while I think of it Mr Gargan, a bit of advice to you, do you know that it's against the law to practice as a lawyer unless you're properly admitted to practice? MR GARGAN: Oh, absolutely, your Honour. HIS HONOUR: I'd be a little bit careful, if I were you. MR GARGAN: Absolutely. HIS HONOUR: Keep that in mind, won't you. Yes, go on. 50 SECOND RESPONDENT: And before I was ignorant of the fact that there could have been a chance that your Honour had erred, and 60 34 -- 34 of 71 -- 02032001 D.1 T12/KLW M/T CNS2/2001 (White DCJ) therefore I opened after I served the affidavits in the Courts. I reopened the business and I still would like to challenge that in the Supreme Court. HIS HONOUR: Well you've done nothing to do that, have you? SECOND RESPONDENT: Well I did go to Townsville and I was informed my - by my solicitors in Townsville at the time that 10 I was too late to appeal because I could not appeal on your decision in April because your - your decision of November - your first decision stands so I was not----- HIS HONOUR: You went to----- SECOND RESPONDENT: decision. -----was not able to appeal on your April HIS HONOUR: You went to solicitors straight after I gave that 20 decision in April, didn't you? SECOND RESPONDENT: Yes, that's right. HIS HONOUR: Yes, okay. I don't want to know what your solicitors told you that----- SECOND RESPONDENT: My solicitor told me that I was in a catch 22 situation, that I was not able to appeal, that the Council were not going to give me their approval and I was going to go 30 bankrupt, and therefore I did the action that I - I could only do. I'm sorry, your Honour, I'm not----- HIS HONOUR: This might be a - yes, thank you, sit down for a minute. Ms Djohan, this might be a hard question for you to answer, there seems to me to be a degree of inconsistence in refusing the temporary accommodation application under bylaw - under local law 5 or whatever it's called. At least, say, in relation to the bus, and apparently contemplating allowing those vehicles to be used as accommodation units under this 40 approval. MS DJOHAN: As to what's contained in the decision notice, your Honour, I have no instructions as to how that was derived. In relation to local law 5, I can only tell you from my own involvement that there was never a local law 5 application lodged with Council after your Honour's orders. HIS HONOUR: Is that right? I see. MS DJOHAN: There was a great deal of debate relating to the applicability of local law 5. HIS HONOUR: Where was that? MS DJOHAN: After the April orders. HIS HONOUR: Well the debate's been taking place outside the Court, heh? 35 50 60 -- 35 of 71 -- 02032001 D.l Tl2/KLW M/T CNS2/2001 (White DCJ) MS DJOHAN: I might add that the Council maintained the local law 5 was applicable. HIS HONOUR: Was applicable. MS DJOHAN: Was applicable. HIS HONOUR: Yes. Oh well, it's very comforting to know that 10 the Cairns City Council agreed with me on that point. Yes. How soon are you willing to pack up those safari tents and put them away? Simple question, isn't it? SECOND RESPONDENT: Yes, your Honour, I----- HIS HONOUR: If there was a cyclone brewing and you were worried about them it wouldn't take you long to pack them up and put them away, would it? SECOND RESPONDENT: Your Honour, I haven't pulled them down in a cyclone. They've withstood a hundred and fifty knot winds, they don't need to be pulled down in a cyclone. HIS HONOUR: You - well my memory must be pretty bad. Didn't you tell me you packed - that was one of the reasons you told me why they were tents because they were so portable, you pack them up in a cyclone or floods or something? SECOND RESPONDENT: Yes, your Honour, that's----- HIS HONOUR: You had photographs. Didn't you come along with photographs showing water lapping over the top of the deck with no tent on it 'cause you'd taken them down? SECOND RESPONDENT: Yes, your Honour, the first cyclone I did. HIS HONOUR: Okay, so you have taken them down in a cyclone. 20 30 SECOND RESPONDENT: I have taken - in the first cyclone. The 40 tents were a new - they were a new product in Australia. They come from South Africa. They have not been cyclone rated. The first cyclone I had pulled them down which - which actually was more damaging to the tents than having them up in the cyclone, because the bathrooms are exposed and----- HIS HONOUR: Look, I am not going to waste time with this sort of thing. All of these things have been heard. The question was, how soon are you willing to take them down and pack them up? It is relevant to the penalty that I am going to impose so for the contempt. SECOND RESPONDENT: Your Honour, after the appeal. HIS HONOUR: Thank you. And do I take it that you are unwilling to obey any of the orders until after the appeal, is that the situation? SECOND RESPONDENT: Yes, your Honour. 36 60 -- 36 of 71 -- D 02032001 D.l Tl2/KLW M/T CNS2/2001 (White DCJ) HIS HONOUR: Thank you, take your seat. Do you want to say anything about the punishment? Let me hear you about the costs. MR MORZONE: Does your Honour still have my outline of submissions as part of the file? HIS HONOUR: I do. Wait and see if I can find it. Yes, now, let's see. Costs against the Council first respondent. I had a look at that. Costs against the second respondent. MR MORZONE: Well there are four sections which, in my submission, your Honour may be taken to. The first is section----- HIS HONOUR: 4.1.23. MR MORZONE: -----1. - yes. That's a matter dealing with the procedural requirements of the Court. It's a matter which---- HIS HONOUR: Oh, I did look at this. MR MORZONE: Yes. HIS HONOUR: You'd need to persuade me, Mr Morzone. 1D 2D MR MORZONE: Yes, well I'll endeavour to do so, your Honour. 3D In paragraph 5 of your Honour's judgment which contained the orders as they were made, your Honour effectively and indeed, your Honour did make, in my submission, a direction that Ms Bernstrom would only have the orders dealt with if she returned back before your Honour. 37 -- 37 of 71 -- 02032001 D.1 T13/CON M/T CNS2/2001 (White DCJ) "If the second respondent does obtain the consent of the Council, the Cairns City Council, for an expanded or change of use, the subject land is - of the subject land, in respect of the canvas accommodation units, then she must return and produce s~ch consent to the Court before the restraining orders will be lifted." So unlike----- HIS HONOUR: But that wasn't a formal order, that was an 10 explanation, wasn't it? MR MORZONE: Well, in my submission, it's a direction. It was a procedural direction to her as to how she would need to approach the Court in order to have them lifted. Now, what she decided to do was not obey that procedural direction. It's in mandatory terms. She must return and produce such consent. HIS HONOUR: Mmm. MR MORZONE: She elected not to undertake that procedural direction, and disobeyed the orders. In any event, without undertaking the Court's imposed requirement. So, in my submission, it is distinguishable from Hervey Bay City Council and Stathopoulis, which your Honour may obtained a copy - I have a copy for your Honour which I can hand up. Where his Honour Judge Quirk, in that case, took the view that failure to comply with the orders made for a declaration and 20 injunction were not the procedural requirements of the Court. ~ In my submission, this is different in that whilst there isn't a compliance with those orders, substantive orders, there is a failure to comply with the procedural requirement to return first before taking matters down and disobeying. So there's a - I distinguish that case in that regard, and it - in my submission, I mean I'd also submit that, of course, his Honour Judge Quirk's decision is persuasive to your Honour, not binding----- HIS HONOUR: Mmm. MR MORZONE: -----but of course strongly persuasive. Paragraph 3----- HIS HONOUR: It's a sensible concession. MR MORZONE: That paragraph 3 and paragraph 6.5, they also argue there as a procedural requirement which reinforces your Honour's direction, but also acts on its own, which does not seem to have been raised before his Honour Judge Quirk, and so that is the rules impose an obligation, a mandatory obligation on all parties and practitioners to do certain things within the rules of the Court, and their purpose is for a just and expeditious resolution of the real issues. HIS HONOUR: Mmm. MR MORZONE: So there is overlaid a positive obligation on Ms Bernstrom to have complied with the order in a procedural sense as well as a substantive sense. And the reason for that 60 38 -- 38 of 71 -- 02032001 D.1 T13/CON M/T CNS2/2001 (White DCJ) is to overcome the problem that we're now discussing, and that is to avoid other parties and the Court not being put to difficult issues as far as costs, time, and the administration of justice. So it is overall the procedural requirement which his Honour Judge Quirk hasn't alluded to and I could only submit that may not have been----- HIS HONOUR: You have no difficulty persuading me that the 10 exceptions contained in subsection 2 should include making an order for costs against a person found guilty of contempt of an order of the Court. No difficulty at all. I mean it's strange, isn't it, that, subject to what's said, of course, that it appears that you might have an opportunity to obtain an order for costs against the Council, but less an opportunity to obtain an order for costs against the second respondent, who is the party in contempt of the Court's orders. 20 MR MORZONE: That's so. HIS HONOUR: But I suppose we all learn by experience, and perhaps the people responsible for framing legislation and amendments to it might learn by the experience. MR MORZONE: What it does do though, your Honour, is provide your Honour with hours of a Supreme Court Judge in the circumstances, and Rule 932 makes it absolutely discretionary. But there does seem to then set up what might be an 30 inconsistency. At 900, Rule 932----- HIS HONOUR: Yes. Of course, part of the problem here is perhaps the Rule of Statutory Interpretation that Mr Gargan keeps overlooking, that the particular prevails over the general----- MR MORZONE: Quite. HIS HONOUR: -----and you've got - subsection 1 is particular. ~ MR MORZONE: That's so. HIS HONOUR: And I think that's the - that's the difficult one to overcome. MR MORZONE: Or - that's right. And so I won't be pressing that. In - the other alternative is section 4.123(2) (F) - "without limiting paragraph (D) a party has incurred costs because another party has introduced or sought to introduce so new material", and the submission about that is Ms Bernstrom, instead of embarking upon an appeal, has filed her affidavit in June, which overtly demonstrated an intent not to comply with these orders. And - July, I should say. And that because of that material, which required Mr Browning to have to again deal with Council with a view to having the enforcement, and ultimately it was that material which was relied upon right up until the hearing, bar that - that very broad affidavit which indeed supported an application to dismiss the application for contempt. So that is the material eo 39 -- 39 of 71 -- 02032001 D.1 T13/CON M/T CNS2/2001 (White DCJ) which could otherwise be new. But I perhaps don't----- HIS HONOUR: Look, Mr Morzone, the proposition advanced in your written submissions----- MR MORZONE: Mmm. HIS HONOUR: -----as I understand it, and I might be 10 overlooking something, is that you're relying on a number of - at least one of these items, as it relates to an application for costs against the local authority, particularly (H) is the one that - seems to be one that you rely on. MR MORZONE: That's so. HIS HONOUR: "The Court considers an assessment manager, a referral agency or a local government should have taken an active part in that proceeding, and it did not do so." MR MORZONE: Mmm. HIS HONOUR: Or "An applicant submit a referral agency, assessment manager or local government does not properly discharge its responsibilities in the proceeding." MR MORZONE: Quite. 20 HIS HONOUR: But there's nothing in this act that says whilst 30 those facts might enliven the jurisdiction, that the order for costs must be made against the party who is in default? MR MORZONE: Oh, quite. I mean, your Honour, I approach the costs in an alternative - in an alternative way. HIS HONOUR: So you - you'd say that if I found - if I found one of those facts - let's call them facts, preconditions, conditions precedent - that gives rise to the discretion to make an order for costs, once that's done, the amount of the 40 costs or the party against whom the costs order is made, is really in the discretion of the Court. MR MORZONE: Quite. HIS HONOUR: The default, as it were, enlivening the discretion may be, in this case, you'd say the Cairns City Council. But that doesn't necessarily mean the order should be made against the Council. MR MORZONE: No. HIS HONOUR: You're asking me to make an order against the Council, I take it? MR MORZONE: Yes. Because the proceedings that your Honour has heard is the proceedings which were commenced by an application for declaration of an injunction. HIS HONOUR: Mmm. 40 50 60 -- 40 of 71 -- 02032001 D.1 T13/CON M/T CNS2/2001 (White DCJ) MR MORZONE: It's those proceedings which continue, and this application for contempt is made within the proceedings. HIS HONOUR: Yes. Oh yes. MR MORZONE: The submission is that if the Council had undertaken a responsibility, which they so clearly recognise in their material, to have brought the application, then Mr 10 Browning's role would be miuimal. He - he would have to be served, because he's a party to the overall proceeding, but he certainly wouldn't have to have the carriage of the matter. HIS HONOUR: Mmm. MR MORZONE: And therefore, a lesser need for him to be compensated, as far as costs. But where he has to, by force as it were, take on the role as the enforcer of the Court's powers, where a local authority has the duty to ensure peace 20 and good order of their jurisdictional area, then, in my submission, a party who has that duty under the Local Government Act, who failed to take up the need to enforce orders dealing with their local - their planning scheme, in my submission, ought to be responsible to a citizen who is forced to do that role. HIS HONOUR: Mmm. MR MORZONE: I know Ms Djohan has arguments against that, 30 saying for instance that there isn't any obligation to the Council to bring contempt proceedings. The submission about that is that if that's the only method in which the Council must ensure to govern their - the area, then so be it. That might be the only matter which it ought to do. 41 -- 41 of 71 -- 02032001 D.l T14/KLW M/T CNS2/2001 (White DCJ) HIS HONOUR: Is the town planning scheme a local law? MR MORZONE: I don't think it would considered a local law within the Integrated Planning Act. It - it becomes legislation under which the local law is made. It - it's the primary and principle legislation. The local law takes a subordinate role. My learned friend disagrees with that. HIS HONOUR: Oh, right. MR MORZONE: Maybe there's a submission which----- HIS HONOUR: Let me look at the Local Government Act. Local law is a law made by a local government. It's a planning scheme, isn't it? Doesn't the planning scheme have a force of law? MR MORZONE: It does most certainly. It - it's considered a statute, isn't it? HIS HONOUR: Otherwise what am I doing finding that the - these activities carried on by Ms Bernstrom unlawful? MS DJOHAN: The local law is a law made under a certain - a certain part of the Local Government Act on particular topics, and it's made according to a process which is - which is provided for in the Local Government Act. HIS HONOUR: Well, just a minute. MS DJOHAN: Planning scheme in the case of a transitional planning scheme was made under the Local Government Planning and Environment Act and in case of the - any other scheme----- HIS HONOUR: Well let me just explain to you why I'm interested in this. Section 20 of the Local Government Act, says, "In exercising its jurisdiction of local government, a 10 20 30 local government has 11 , so far as is relevant to this point, 40 "(B) an executive role for three enforcement of its local law". And when you look at the definition of local law has the meaning given by section 850, and when you look at section 850 you find a local law is a law made by a local government. That's all. MS DJOHAN: Section 850 precedes the local law making powers of the local government in that chapter. HIS HONOUR: Well, do you say it means a local law - a law made by a local government pursuant to chapter 12. MS DJOHAN: That's right. HIS HONOUR: Which deals with local laws and subordinate local laws. MS DJOHAN: That's right. 42 50 -- 42 of 71 -- 02032001 D.l Tl4/KLW M/T CNS2/2001 (White DCJ) HIS HONOUR: Is the town planning scheme a subordinate local law? MS DJOHAN: No. A subordinate local law would be what was used to be called a local law policy which is a document in support of local law such as local law 5 and local law 20. HIS HONOUR: Where does the planning scheme obtain the force 10 of law? MS DJOHAN: Under the----- HIS HONOUR: Integrated Planning Act. MS DJOHAN: -----Planning Act. If it was made under the Integrated - well if it is to be made under the Integrated Planning Act or the Local Government Planning and Environment Act and its continued effect is under the transitional 20 provisions of the Integrated Planning Act. HIS HONOUR: It doesn't say a local law is a law made by a local government pursuant to this chapter, does it? MS DJOHAN: I submit to-- HIS HONOUR: It just says a law made by a local government. MS DJOHAN: My submission would be that the use of that term 30 is quite specific and a planning scheme can be distinguished from a local law in that context. HIS HONOUR: Mmm, you might be right. MR MORZONE: Under section 2.1.23 subsection 1 - that's 2.1.23 subsection 1 of the Integrated Planning Act deals with what your Honour's picked up. A local planning instrument----- HIS HONOUR: Do you want to tell me again? MR MORZONE: 2.1.23 subsection 1. That elevates the town planning scheme in whatever form of instrument it takes as a statutory instrument under the Statutory Instruments Act and has the force of full----- HIS HONOUR: Yes. MR MORZONE: And----- so HIS HONOUR: Yes. MR MORZONE: Though my submission I suppose on this aspect deals with section 4.l.23.2E----- HIS HONOUR: Yes. MR MORZONE: -----and that is the responsibilities of the Council and - and the submission is along the lines of what your Honour has been talking about, although takes one step 60 43 -- 43 of 71 -- 02032001 D.l T14/KLW M/T CNS2/2001 (White DCJ) back. With subsection 20, your Honour says - I've missed out on my copying, but it's (B)II Administration of Local Government is the executive role. HIS HONOUR: Sorry, where is this now? MR MORZONE: In section 20 of the Local Government Act which your Honour has. So the submission is the responsibility 10 which your Honour considered in III Enforcement of its local laws, in - in my submission can be taken up with II, Administration of Local Government. 22 subsection 1 then deals with the exercise of the jurisdiction in basic territorial unit. 25 then provides that each local government has jurisdiction to - and I take up this point - to otherwise ensure the good rule and government of its territorial unit. HIS HONOUR: And where are we looking at now? MR MORZONE: So, sub - section 25. So once its jurisdiction is established, its jurisdiction is then to make local laws for and otherwise ensure the good rule of government of its territorial unit. HIS HONOUR: 26.1 "A local government's jurisdiction of local government includes jurisdiction to make local laws with respect to any manner - any matter required or permitted to be prescribed under this or another act". MR MORZONE: The only submission about the local law aspect is local law is like the local ruling number 5, it's the old bylaws----- HIS HONOUR: Yes. MR MORZONE: that we used to have. But the power of section 36, "The local government has in the exercise of its jurisdiction all the powers of an individual. A local 20 30 government may, for example" - and this is subsection 2 (D) - 40 "do other things necessary or convenient to be done in the exercise of its jurisdiction". There's certainly a jurisdiction - there's a duty in my submission where they must otherwise ensure the peace, order and good government, and the power is to all - to do all things necessary or convenient to be done in the exercise of its jurisdiction. It's not good enough, in my submission, to say, "Oh well, this is an order of the Court, therefore we're just an idle bystander", and indeed that wasn't what the Council approached it as at all. Their view was, there's an order been made, we can't do oo anything as far as going into seize buses and - and the like, and to make an enforcement process as if it was an order of the Council, but their only option was recognise that as being, returning to the Court to enforce the order by contempt. All of that reasoning was right, except Mr Browning, not withstanding his request and - and encouragement - encouragement to do so, is left on his own continuously, to a point where he says, "Blocked. I'll have to do it", and here he is again. 44 60 -- 44 of 71 -- 02032001 D.l T14/KLW M/T CNS2/2001 (White DCJ) SECOND RESPONDENT: Six months later. HIS HONOUR: Yes. MR MORZONE: And - and it's----- HIS HONOUR: Oh, look, you've got a pretty good argument in support of the exercise of the discretion. It's a question of 10 whether the discretion arises. MR MORZONE: Right. And the - the discretion arises, in my submission, because in my submission it must be a responsibility of Council, either in (H) or (I) of section 4.1.23 to have done what Mr Browning has done. 45 -- 45 of 71 -- 02032001 D.l T15/LVT M/T CNS2/2001 (White DCJ) It must, in my submission and it ought to be, a responsibility of a local Government as well as being taking proper part in the proceedings as being a - a authority to assist the Court in its jurisdiction. In that process must necessarily also be the party who is the prime mover of matters of enforcement. Surely that can't be left up to objectors who subsequently become applicants? Or surely, if Mr - Mr Browning decided to 10 sit by because he didn't - he didn't have any funds, that somehow the local authority is performing their function and responsibility by idly sitting by? And I - can I give your Honour this example: what if a guest went on one of those tents and fell through the wall and - and - and snapped their spine? So, there's an injury on an illegal - illegal structure on which your Honour has made an order. Why wouldn't this case, that hypothetical, fit into Pyrenees Shire Council and Day? And I - I submit it would. 20 There would have been a duty of the council to ensure that that structure was removed. It was their role as the local Government authority to ensure that its town planning instruments and its town planning laws were complied with, albeit altered by the Court, and if someone had fallen in - in such a way, in my submission it would have been----- HIS HONOUR: Its town planning instrument hasn't been altered by the Court. MR MORZONE: Well, its town planning instrument has been suspended, at least by your Honour's order. Or - or enforced by it. HIS HONOUR: No, no. No. This - I haven't sought - these orders don't change the town planning scheme at all. These orders deal with conduct unlawful under the planning scheme----- MR MORZONE: Your Honour's quite right----- HIS HONOUR: -----under local laws and----- MR MORZONE: -----and I--- - HIS HONOUR: -----under the planning scheme. Yes. MR MORZONE: I withdraw that. Your Honour is quite right. The - there was a non-compliance with the town planning scheme 30 which your Honour declared and made orders in relation to. so Those orders put the applicant back into the position that she should have been in, had she not complied with the conditions and that is not have commenced the use. So your Honour doesn't----- HIS HONOUR: Well, it's perhaps so - no, it might just be a matter of history now. It might not be particularly relevant but let's go back to the original hearing where in fact the Council was conducting an argument that - also that the 46 -- 46 of 71 -- 02032001 D.l T15/LVT M/T CNS2/2001 (White DCJ) respondent was not in breach of the planning scheme. The Council didn't appeal that decision. MR MORZONE: And - and your Honour made orders. I mean, it would be an extraordinary thing to think, in my submission, an extraordinary submission to make that a council who is corrected by the Court arm of this jurisdiction who acts in almost an administrative sense of being as council in its 10 hearing and somehow the real local authority can sit by as if it's just a mere citizen. It's a mere citizen who doesn't even have to have regard to compliance. So, in my submission, there must be some form of responsibility and it's not too different to the responsibility - indeed in my submission it's the same as the responsibility which the Court found in Pyrenees Shire Council where there was inaction on a threat to commence - inaction in relation to a non-compliance for fire purposes. There wasn't 20 a - a prosecution which ensued because of Council's decision to stand idly by, and there was a fire and they were found to be liable. In this instance, there is a finding of the Court where the - the planning scheme is - has been breached, continues to breach. The Council take all the steps with the hallmarks of intending to carry out its - and also acknowledge its responsibility to bring contempt proceedings, all but up to the eleventh hour refusing to do so. And then Mr Browning has 30 to come in and do what it is that people pay rates to do, and that is, ensure the peace, order and good government of the neighbourhood, of the jurisdictional area, and that's not his responsibility. And albeit, he's the - the - the neighbour and the applicant. His - his motivation is to preserve what orders he had put in place, otherwise why would he need bother? HIS HONOUR: Well, he's entitled to the benefit of the town planning scheme. 40 MR MORZONE: Quite. And the keeper of the town planning scheme, in my submission, is the Council, not Mr Browning. Can I just return shortly to Ms Bernstrom, your Honour. Probably - and as your Honour appreciates, my style is sometimes to bring the best point out last, but it may well be the best point. HIS HONOUR: Yes? MR MORZONE: 4.1.23(2) (e) in my submission is fatal to the second respondent's position----- HIS HONOUR: Mmm. MR MORZONE: -----and that is, she is, in my submission, the applicant in respect of the development approval which was the subject of the proceedings; that is, a declaration as to what 47 -- 47 of 71 -- 02032001 D.l Tl5/LVT M/T CNS2/2001 (White DCJ) this development approval meant and what was its enforcement. She was the applicant which is spoken about there----- HIS HONOUR: What - what----- MR MORZONE: -----and----- HIS HONOUR: What are you looking at now? MR MORZONE: Sorry, 4.1.23 subsection 2----- HIS HONOUR: Yes? MR MORZONE: Sorry, should be (i) - I - I've said----- HIS HONOUR: Yes, (i) MR MORZONE: ----- (e). HIS HONOUR: Yes, you said (e). Yes, that's (i). Yes? MR MORZONE: Yes, I beg your pardon. So, she's the applicant who does not properly discharge her responsibilities in the proceedings, and again the submission is that those responsibilities are both procedural and substantive, and it is distinguishable from the matter which his Honour Judge Quirk had, because her responsibilities take on a substantive 10 20 and procedural aspect. 30 Otherwise, your Honour, the submission is that Mr Browning ought, in my submission, be compensated for bringing these matters to the attention of the Court and he acted reasonably in expecting the local authority to do so. He acted reasonably in having to ultimately bring his own application, having first invited the Council to do so. HIS HONOUR: Uh-huh. MR MORZONE: And the Council's approach was, "Oh well, look, we don't think contempt, even though this is what we've been telling Ms Bernstrom we're going to do, but directions might be appropriate." And then: "Oh no, look, it's premature" - regretfully 12 months over the due date, rather than being premature. They're my submissions. HIS HONOUR: Thank you. Mr Gargan? MR GARGAN: Your Honour, much is said about the Council's obligation to enforce the the town planning scheme. It has been I think it's common ground that the town planning scheme is a statutory scheme in Queensland. The Council's obligation to enforce that arises not under the contempt proceedings. If they think they've got a good case against Ms Bernstrom, they've got to come under 204 of the Criminal Code. That's what it's there for. 48 40 50 60 -- 48 of 71 -- 02032001 D.1 T15/LVT M/T CNS2/2001 (White DCJ) Now, they decided that they probably could not, having to strictly prove every element of the offence, bring a successful prosecution under section 204. Scott Browning----- HIS HONOUR: Well, just hold on. MR GARGAN: -----acting for himself----- HIS HONOUR: Wait till I have a look at 204 of the Criminal Code. MR GARGAN: This will be his statute rights. HIS HONOUR: I'm overcome with curiosity. Mmm. Go on, Mr Gargan. MR GARGAN: Right. But the Council pretty well, rather than - 10 than come and use contempt which in a circumstance such as 20 this where it is alleged that she has broken a statute, contempt really seems like a back door way of - of getting at what is really or should be a criminal offence and attract all the protection available to an indictable offence which 204 is. Had the Council brought the action under 204, Scott Browning is pretty well precluded by the current statutory scheme in Queensland from bringing his own - own action. It may be done but it's extremely----- HIS HONOUR: Have you noticed----- MR GARGAN: -----difficult. HIS HONOUR: Have you noticed, Mr Gargan, in your extensive readings of the law that sometimes the law provides alternatives to people? MR GARGAN: Oh, it certainly does. 30 HIS HONOUR: They're not bound to take the one that you think ~ they should take. They might - they might take - take a different one that suits them. It might be more convenient to them to take a different course. Have you noticed that that----- MR GARGAN: Well----- HIS HONOUR: -----arises in the law from time to time? 49 -- 49 of 71 -- 02032001 D.1 T16/KLW M/T CNS2/2001 (White DCJ) MR GARGAN: It certainly does. HIS HONOUR: They're not bound to take the one that you think they should take. They might - they might take - take a different one that suits them. It might be more convenient to them to take a different course. You notice that that arises in the law from time to time. MR GARGAN: It certainly does, but in this particular instance, why should a local authority which I pay rates to indirectly, be obliged to enforce a law for a private citizen? When they have a - a criminal code option----- HIS HONOUR: That's what policemen do, isn't it? MR GARGAN: Heh? HIS HONOUR: Well that's what policemen do, isn't it? MR GARGAN: No, they - they don't in fact. They in fact act for the Crown. They're sworn to act for the Crown and the Crown does the proceeding. The police came out and had a look and decided that it was not a matter for the Crown. It was not a matter that - that required their intervention. Under those circumstances, the bringing of - of contempt proceedings where it doesn't appear to necessarily be in the same strict standard of proof is, in fact, a difficult area and that will 10 20 need to be - to be - be canvassed on appeal. The - there's a 30 lot made - there's been a lot made today about subsection 2 of the Queensland Constitution Act, however, there is another section there that qualifies the entire Constitution at section 53, and that says, "The office of Governor cannot be altered without a referendum". Now the office of Governor was altered by a referendum in 1990. HIS HONOUR: Oh, come on. No, Mr Gargan. MR GARGAN: All right, you don't want to hear this. HIS HONOUR: No, come on. MR GARGAN: Okay. Look, this is - this is a matter of appeal. Look, I really haven't got a lot to say. The - the - I don't believe, as far as costs are concerned that the Council should wear this. This is specifically brought, not for the Council's benefit or the community benefit, but for Mr Browning's benefit. HIS HONOUR: Well, listen don't you worry about the Council. They'll be very capably represented by Ms Djohan. MR GARGAN: Yeah, right. HIS HONOUR: There's also a request that Ms Bernstrom be ordered to pay Mr Browning's costs. You direct your attention to that. 50 50 -- 50 of 71 -- 02032001 D.l T16/KLW M/T CNS2/2001 (White DCJ) MR GARGAN: Well, your Honour, I'll draw your attention to the case of John Allen Witham v. John William Holloway which went to the High Court in 1995, dealing with contempt. It was dealing with contempt in regard to a matter before the Supreme Court of New South Wales. In that the High Court held that there is substantially no difference between civil and criminal contempt, and that in Australia today they're basically one and in the same. This was a case regarding 10 standard of proof, but that - that's the - one of the opener - or one of the outcomes of the case is that they have declared that there is no difference between the two contempts. In criminal matters the defendant, I believe, does not have to pay the costs of - of the prosecution - has to suffer the penalty. HIS HONOUR: No, that's usually the - well, not - not in all cases. In - in, for instance, a - a case prosecuted in the Magistrates Court under the Justices Act orders can be made 20 that unsuccessful defendants pay the costs of the successful complainant and the other way around. MR GARGAN: Yes, that - that is true, your Honour, but that's a consent jurisdiction. HIS HONOUR: Oh. This - this----- MR GARGAN: Yes, I realise that. HIS HONOUR: -----consent jurisdiction seems to be a notion that only you understand or----- MR GARGAN: Your Honour, I'll read the statute. HIS HONOUR: Advance, Mr----- MR GARGAN: I'll read the statute, section 51 of the Supreme Court Act 1995 - deals with consent, and it deals specifically 30 with consent and it says, "A Judge may by consent try 40 questions of fact. The consent has to be in writing and it's there to protect Judges, not to protect the defendant". HIS HONOUR: That's where Judges don't have - otherwise have a jurisdiction, Mr Gargan. MR GARGAN: Well, it's - a Judge has no - no protection in - in Federal jurisdiction whatsoever. HIS HONOUR: Well, that doesn't worry me, does it? I----- MR GARGAN: Well--- - HIS HONOUR: I'm okay at the moment. MR GARGAN: Maybe - maybe not. HIS HONOUR: I'm in the State jurisdiction. 51 50 -- 51 of 71 -- 02032001 D.l T16/KLW M/T CNS2/2001 (White DCJ) MR GARGAN: Maybe not. However, it doesn't say that - that unless a statute otherwise provides, it just says, "A Judge may by consent try questions of fact". HIS HONOUR: What are you looking at, the Supreme Court Act? MR GARGAN: Yes, section 51. HIS HONOUR: Yes. MR GARGAN: And it - it - that - that would appear to be a protection of a civil right. Anyway the - the contempt - coming back to contempt, what I'm saying is that - that contempt is a - basically is a criminal proceeding and if someone wants to bring a criminal proceeding then under normal conditions the person bringing that would pay the costs and under normal conditions in Queensland that's the Crown. This 10 is a private individual. There are prohibitions on that in - 20 in the Criminal Code which - which - and - and 102(A) of the Justices Act that deals with that particular situation as well. It's my submission that - that there should be no - should be no costs ordered. HIS HONOUR: Thank you. MS DJOHAN: Your Honour, I have an outline of submissions which I'll pretty much stick to, but what I'll - the basic premise of my submission is that your Honour's discretion does 30 not get invoked under 4.1.23 of the Integrated Planning Act. HIS HONOUR: Yes, well let's take a seat while I quickly just look through this. MS DJOHAN: Your Honour, a couple of points were made by you earlier on when you went through the history of this matter which I would like to correct if I might. HIS HONOUR: Yes. MS DJOHAN: You've mentioned the fact that Council were in support or basically didn't - were in support of Ms Bernstrom's position in the earlier proceeding. That's correct in so far as Council argued in good faith that the structures were in fact tents. However, no argument was raised by Council in relation to the other breaches mentioned by the applicants at the time and, in fact, what we - what the Council did was file an extensive affidavit material about 40 what it - its officers observed on the site and allowed your so Honour to make it his decision as to whether in fact there were breaches. 52 -- 52 of 71 -- 02032001 D.1 T17/CON M/T CNS2/2001 (White DCJ) Also, in respect of the formal filing of your Honour's orders on 7 April 2000, it was in fact Council who formally took those orders out on 3 July and not the applicants. I'll just revert then to my submissions if I might. The basic premise of my subrr.issions are that Council has a discre~ionary power under the Act, under the Integrated Planning Act, to bring declaratory or inductive proceedings, or in fact to bring an application before your Honour in relation to punishment of 10 the person in contempt. That discretionary power is not only confined to a party in the Council's position, but is in fact open to other parties. I argue that that is - does not impose a legal duty upon the Council to take proceedings of that nature, and the applicants have in fact themselves taken upon themselves to take that course of action available to them under section - section 4.1.5 voluntarily. The remainder of my submissions relate to your Honour's ability to exercise the discretion afforded under 4.1.23, and 20 in so far as the applicants' submissions on the point are relevant, they refer to subsection 2(H) and 2 (I). 2(H) - I'll deal with 2(I) first, because it's the smaller of the two. 2(I) refers to the ability to your Honour - for your Honour to award costs in a situation where an applicant submit a referral agency, assessment manager or local government, does not properly discharge its responsibility in the proceedings. The term "responsibilities in the proceedings", I submit, refers to the responsibilities that are imposed on the parties named to do what the Act specifically requires of 30 them when they become embroiled in those capacities, in the proceeding in which the Act governs. And that was a decision of Judge Quirk in Clare Shaw and Brisbane City Council two years ago. The Council has discharged its responsibilities specifically imposed upon it under the Act, in so far as it has responded to these proceedings. IPA does not specifically impose an obligation to - upon Council to commence proceedings for the punishment of contempt by a party, or in fact to commence ~ proceedings to enforce the integrity of its planning scheme. As I mentioned, I believe that that's a discretionary duty which is one which will be exercised, or needs to be exercised, after balancing of a number of factors, which may include resources, risks to health of the offending conduct, availability of alternative measures, and policy of the party. In respect of section 4.1.23(2) (H), which refers to the need for a party in the role of assessment manager, referral agency, or local government, to have taken an active part in so the proceeding, I submit that this Council has taken an active part in the proceedings however you define the term "proceedings", whether it be from the original actions that were commenced in 1998 before this Court, or if you define that to mean simply the proceedings commenced by the applicants recently for the contempt issue. The - in November - in the September 1999 hearing, the Council submitted a great of affidavit material to assisc cne Courc, so it did provide evidence to the Court about what was 60 53 -- 53 of 71 -- 02032001 D.1 T17/CON M/T CNS2/2001 (White DCJ) occurring on the subject premises, and in the March 2000 mention of this matter, it was in fact Council who brought the matter back to Court for mention to have the second respondent inform the Court of how she was progressing with compliance with the previous orders. At that time, a significant amount of affidavit material was also presented to the Court about what had happened on the land in the interim period. 10 Finally, my submission is that the power to award costs against a party under IPA is limited to proceedings brought under that Act, and does not extend to permit punishment of a party for an act or inactivity alleged under another local government act. In that respect, I pick up Mr Morzone's submission in relation to Pyrenees and Day, and I note that that action was in fact a negligence action against the Council, in which substantive issues relating to Council's negligence was squarely put before it, and it was able to, in those proceedings, make its case against those allegations. 20 In that case, the - the plaintiff had to demonstrate that it could overcome the various limbs of negligence and prove those against the Council. My submission is that your Honour's power is limited to what the parties are obliged to do under this Act, and not to punish a party for failure to satisfy a general law duty or a specific legal duty imposed by another act. They're the extent of my submissions. HIS HONOUR: Thank you. MR MORZONE: I can only say one thing----- HIS HONOUR: If you had a look at that decision of Judge Quirk's that's referred to by Ms Djohan? MS DJOHAN: I've got copies of that, for sure. MR MORZONE: Yes, your Honour. The matter of Shaw? HIS HONOUR: Yes. MR MORZONE: I have got a copy of that. HIS HONOUR: Okay. Yes. That's okay. Do you want to say anything about that? MR MORZONE: Only to the extent that it's distinguishable. It 30 40 doesn't involve contempt proceedings. It deals with matters - so it's only a short decision. His Honour does say, "I would interpret the provision to refer to responsibilities that are imposed on the parties named to do what the Act specifically requires of them when they become involved in those capacities in proceedings which the Act governs." And the submission is that those responsibilities are those which I, in my submission, dealt with in the Local Government Act as well, under which the local authority obtains its very basis of jurisdiction and power. 54 60 -- 54 of 71 -- 03022001 D.l T17/CON M/T CNS3/2001 (White DCJ) So the Integrated Planning Act ought not to be administered as if the local authority is a nobody. It is a functionary that hasn't any impact as a particular role within the local government jurisdiction, so therefore the mere fact that it is the local authority gives rise to matters of responsibility which, under the Integrated Planning Act, is a responsibility of the local authority. And----- HIS HONOUR: Well that might be so, but it's not a statutory compulsion, is it? MR MORZONE: Well, it's a statutory compulsion, in my submission, in as much as it was a statutory compulsion in Pyrenees Shire Council, and I'll deal with that shortly, to - where the Court found that that local authority did have the compulsion, the public duty, to bring the application for enforcement. The prosecution proceedings to ensure compliance 10 with the fire regulation. 20 HIS HONOUR: Yes, but that----- MR MORZONE: And I deal with----- HIS HONOUR: But that was the foundation of the duty of care, wasn't it? MR MORZONE: Well there were findings in there, your Honour - let me just make this straight though - I don't raise Pyrenees 30 Shire Council as saying this is a case which is like a negligence case and the Court made orders about costs, I rely on Pyrenees Shire Council for decrees by the High Court to say that a local authority, in the exercise of its jurisdiction as such, has got public obligations to do certain things. HIS HONOUR: Oh, yes. MR MORZONE: And one of those obligations which that Court---- HIS HONOUR: And if somebody suffers injury as a result of a breach of the public obligation, where that injury is foreseeable, then the local authority will be found negligent. MR MORZONE: Perhaps. But the ruling of it, and my instructing solicitor has taken it away, but it's at 192 Commonwealth Law Reports, and I can't recall the page, but your Honour will see that the Court went to great lengths to determine what was first, the public duty. Not just what was so its duty in a common law basis for a negligence action, but what was it obliged to do as a matter of public duty, and when this Act refers to responsibilities, within a proceeding of a local authority where there are enforcement powers within those proceedings, not just contempt proceedings, and that's the area my learned friend makes. This is not an originating application. It never was filed as such. It never was intended as such. Your orders that your Honour made were never intended to be 60 55 -- 55 of 71 -- 03022001 D.1 T17/CON M/T CNS3/2001 (White DCJ) final orders, and that's demonstrated by the need for the further order of the Court, not within some other proceedings, but within these proceedings, and in the invitation and direction to Ms Bernstrom to return to your Honour with the appropriate cohaent. It wasn't to be in other proceGdings, but in these proceedings. The major proceedings of injunction and declaration are continuing. Therefore, is it a public duty of the Council to have taken steps, as Pyrenees ought to 10 have done, to ensured compliance with the town planning scheme. 56 -- 56 of 71 -- 02032001 D.l Tl8/KEW M/T CNS3/2001 (White DCJ) MR MORZONE: And in this instance that enforcement is predicated by the order, which the - the local authority in their own wisdom, and in my submission, correctly proceeded on the basis that they were to carry these proceedings. And, your Honour will see the letters to the - the council about, "Please ensure that they're complied with". And, your Honour will see the letters of the council advising that they will, "Take this application", and yet when - when it comes time to 10 do so they don't, and then it's - someone stands up and says, "Oh, no that wasn't our responsibility". Well why - why write the letters in the first place? The letters were written because there was a recognition of a responsibility of a public duty to ensure compliance with the Town Planning Scheme within these proceedings, where the Court had made certain findings. Who else was going to be out there to police this? The Queensland Police Service? Well obviously not. The local 20 government and their appropriate officers? Obviously so. Certainly not the neighbours. And they are the obligations, in my submission, which the local authority has, under the Local Government Act, and in the context of the Integrated Planning Act, it is, in my submission, a requirement for them to act as a local authority in the - in its duty in exercising its responsibilities under the Integrated Planning Act. It ought not - it ought not be allowed to sit back, particularly where there's a flagrant breach of this kind, 30 inspect the property and discover the breach, make all of the overtures of having to make contempt application, and then somehow then deny the responsibility to do so. They - they're acting without power and without motivation of duty, or there's some benevolent fund and that's not quite the case. So my submission is that whilst his Honour makes that statement, this is a case which does squarely fit into an obligation of a local authority within the Integrated Planning Act. Where its very essence of being a local authority, gives 40 rise it's duty to ensure compliance with its Town Planning Scheme under the Local Government Act, and therefore within a proceeding it must be the primary authority which can take the enforcement proceedings available in the Act. They're my submissions your Honour. HIS HONOUR: What's provision for an appeal to the Court of Appeal from the Planning and Environment Court? MS DJOHAN: It commences on - it begins with 4.1.16. Oh sorry so - sorry, your Honour, that's the - where you can refer a question of law. HIS HONOUR: It's an appeal from a council's decision. MR MORZONE: 4.1.56----- MS DJOHAN: Mmm. 57 JUDGMENT -- 57 of 71 -- 02032001 D.l Tl8/KEW M/T CNS3/2001 (White DCJ) MR MORZONE: -----indicates the parties who may appeal, and that division 13 which commences with that section, your Honour. HIS HONOUR: 4.1.? MR MORZONE: Fifty six. And that seems to be the operative section. 10 HIS HONOUR: Appeals to Court of Appeal. MR MORZONE: Yes. HIS HONOUR: The second respondent has not demonstrated any basis upon which punishment for the contempt should not be imposed. Rather the second respondent expressly states an intention to continue to refuse to comply with the three orders, in respect of which she is found to be in contempt, made on 7 April 2000. I order that the second respondent be fined the sum of $3,000. I order that if such sum is not paid within 40 days hereof that the second respondent appear before this Court at 9.30 a.m. on Tuesday, 17 April 2001, to show cause why a sentence of imprisonment of three months should not be imposed. In other words if the fine is not paid within the 40 days, make sure you are here that morning Ms Bernstrom, on that date at 9.30, to show cause why a sentence of imprisonment of three months should not be imposed. You have that date also Mr Morzone? MR MORZONE: Yes, thank you, your Honour. HIS HONOUR: You have that date too, I'd like you to be here to be able to - sorry - it will be payable to the Registrar of 58 JUDGMENT 20 -- 58 of 71 -- 02032001 D.l TlB/KEW M/T CNS3/2001 (White DCJ) the Planning and Environment Court here in this building. So I'll ask him to inform me whether or not it's been paid. If it has been paid there'll be no need to appear. Perhaps you can both inquire of the registrar. MR MORZONE: Yes, certainly your Honour. HIS HONOUR: Okay question of costs. The power of a Court to 10 order that one party pay the legal costs of any other party in any proceeding is a statutory one. There is no automatic power to make such an order. The discretions to order costs in the courts of general jurisdiction, particularly the courts of general civil jurisdiction, is generally exercised in favour of a successful party against an unsuccessful party. That power and the way it has been exercised in Australian Courts, serves a useful public purpose. It does not guarantee, but tends to discourage frivolous actions. It does not guarantee, but tends to discourage those who are clearly in the wrong to take an appropriate course promptly. The Legislature in its wisdom has sought to depart from that practice in relation to the Planning and Environment Court with respect to proceedings brought before the Court pursuant to the Integrated Planning Act of 1997. 59 JUDGMENT 20 -- 59 of 71 -- 02032001 D.l Tl9/KLW M/T CNS3/2001 (White DCJ) The legislature no doubt had good reasons for doing so and this judgment is not to be taken as a criticism of the legislation. However, the law in relation to the costs of proceedings as provided for in section 4.1.23 of the Integrated Planning Act starts with the proposition that each party to any proceeding in the Court must bear the party's own costs. Subsection 2, however, does provide circumstances in which the discretion of the Court to order that one party pay the costs or some of the costs of any other party arises. The applicant has been successful on this application which is brought within the larger proceeding originally commenced in 1998. There are nine various scenarios which must arise in order to enliven the Court's jurisdiction to make an order for costs. There are some which permit a Court to make an order for costs where conduct on the part of the applicant is called into question. Other circumstances deal with the failure of a party to proceedings to conduct itself properly in the course of bringing a proceeding to its conclusion. One to which I have been referred is: "(e) where a party has incurred costs because another party has defaulted in procedural requirements". 10 I am not satisfied that the failure of the second respondent 30 to obey, what in my view are, substantive orders of the Court can be property characterised as procedural requirements. I've been referred to: 60 JUDGMENT -- 60 of 71 -- 02032001 D.l T19/KLW M/T CNS3/2001 (White DCJ) 11 (h) the circumstances referred to therein so far as is relevant arise when the Court considers that a local government should have taken an active part in a proceeding and it did not do so". It would defy the truth to say that the Cairns City Council has not taken an active part in the proceeding as a whole. The Council has taken an active part in the proceeding at various times. Whether the position taken by the Cairns City Council at different times is thought to be commendable or justified is a matter about which minds might differ, but whatever the case might be, it cannot be said that the Council has failed to take an active part if the proceeding, save for one matter about which there is a need to give additional attention. The question is whether or not the Council should have instituted the proceedings for contempt, and therefore by reason for its failure to do so failed to take "an active part in the proceeding and it did not do so". I must confess to having considerable sympathy for the applicant, not only in the particular contempt proceedings but in the whole of this application. The applicant was faced with, what in my view was, conduct clearly unlawful pursuant to the Cairns City Council's planning scheme and the consent 10 20 granted to Ms Bernstrom concerning the use to which she might 30 put her land. The applicant was the immediate neighbour and was obviously the one most effected by that unlawful conduct. At his own expense, without any real hope of recovering costs, he brought the matter to Court only to find that in respect of 61 JUDGMENT -- 61 of 71 -- 02032001 D.1 T19/KLW M/T CNS3/2001 (White DCJ) a significant part of his claim, rather than being supported by the Cairns City Council, he was opposed. Ms Bernstrom continued to make use of her land in a way which was unlawful according to both the Council's planning scheme and the conditions of approval granted to her. There is no doubt that the Cairns City Council made attempts to have her comply, but that fell short of bringing the matter back before 10 the Court. It was left to the applicant, Mr Browning again, to bring the matter back to the Court. 62 JUDGMENT -- 62 of 71 -- 02032001 D.1 T20/LVT M/T CNS3/2001 (White DCJ) It should be pointed out that on the second hearing he was not opposed by the Council, and it must also be acknowledged that the Council put evidence before the Court which assisted in making a judgment as to whether or not Ms Bernstrom was continuing in breach. More specific orders requiring her to conduct her use of her land in a lawful fashion were made. Obviously she ignored 10 those further orders and has stated her intention to continue to do so. Whilst certainly the Council continued to attempt to encourage Ms Bernstrom to obey the orders of the Court, it was left once again to the applicants to bring the matter back before the Court, ·so that Ms Bernstrom would be forced to face the Court to answer to her continuing and wilful disobedience to the Court orders. At one stage the Council accepted, or appeared to accept, that she was in contempt of the Court orders and appears to accept 20 that it had some responsibility to bring the matter back before the Court. But that never eventuated. Under those circumstances, I have considerable sympathy to the applicant for the substantial costs which he has incurred in order to attempt to have his neighbour behave in a lawful fashion by reason of her breaches of the Council's planning scheme and her wilful disobedience to the Court orders. One can readily see the injustice of the applicants being required to bear their own costs of the proceedings. 63 JUDGMENT 30 -- 63 of 71 -- 1 02032001 D.l T20/LVT M/T CNS3/2001 (White DCJ) However, with some reluctance, I have come to the conclusion that the Council's conduct or absence of complete action cannot be properly characterised as failing to take an active part in the proceeding. Lastly, it is submitted that the discretion to make an order for costs is enlivened because the Cairns City Council has failed to properly discharge its responsibilities in the proceeding. For the reason also that I am not satisfied that the Cairns City Council had a responsibility to bring contempt proceedings against the second respondent, even in spite of its apparent acceptance that it did at one stage, is such as to form the conclusion that it has not properly discharged its responsibilities in the proceedings. In my view, responsibilities in the proceedings is confined to procedural requirements arising out of the Integrated Planning 10 Act and the Rules thereof, and itself obeying any Court orders 20 made as part of a proceeding. With some regret, therefore, I am compelled to the view that the discretion to make an order for costs in favour of the applicants does not arise in this case. I hope I won't be seeing you on that day in April, but I fear that I will. Adjourn the Court. 64 JUDGMENT 30 -- 64 of 71 -- 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. PLANNING AND ENVIRONMENT COURT CIVIL JURISDICTION JUDGE WHITE Appeal No 7 of 1998 SCOTT CAMERON BROWNING and THOMAS PATRICK SARGENT and CAIRNS CITY COUNCIL and ANITA BERNSTROM CAIRNS .. DATE 17/04/2001 JUDGMENT ,-··. • .. -· ... ·-•·-, ···:•)J'-. r ,, 1r ,- ) ,, ·.. ~. u u:, _, rt • u , :zoo,- _.,_, ~~'""' --...,.. Appellants First Respondent Second Respondent 1 4Th Floor The Law Courts Complex George Street Brisbape Q 4000 Telephope: (07) 3247 4360, Facsimilff (07) 3247 5532 -- 65 of 71 -- 17042001 T6-7/RGC M/T CNSl/2001 (White DCJ) HIS HONOUR: It is perhaps appropriate that I set out again the sad history of this matter. By order of this Court made in February 1997 the second respondent, Anita Bernstrom, obtained the consent to use her land for the purposes of a camping area. That consent set out detailed limitations on the manner in which the land could be used. The applicants, effectively neighbours of Mrs Bernstrom, as they were entitled to do, made application to the Court for declarations that certain uses to which Mrs Bernstrom's land was being put were outside the consent which she had been granted. In reasons for Judgement which I delivered on 25 November 1999 I made findings that Mrs Bernstrom had not complied with significant conditions of the consent to use the land as a camping ground and declared that certain canvas accommodation units were not tents and therefore were not within the scope of the consent which had earlier been granted. 20 At that time I felt some sympathy for Mrs Bernstrom. Rather than immediately order that she remove the canvas accommodation units and destroy the substantial permanent structures upon which they were erected I made no such remedial orders so that she might have the opportunity to regularise her situation and obtain the consent of the Cairns City Council to the uses involved. 2 JUDGMENT 30 -- 66 of 71 -- 20 30 17042001 T6-7/RGC M/T CNSl/2001 (White DCJ) When the matter came before me again in April 2000 it was apparent upon the evidence that Mrs Bernstrom had taken advantage of the fact that I had not ordered the removal and/or destruction of the offending structures by not only failing to cease using them but to use them contrary to and quite inconsistent with the declarations I had earlier made. I therefore made orders requiring Mrs Bernstrom to dismantle the canvas accommodation units and remove certain vehicles from the property which were being used for accommodation. Both activities were unlawful. I point out that at no stage did Mrs Bernstrom attempt to appeal against the declarations and/or orders made by this Court. continued to disobey them. It became apparent that she The applicants, once again at their own expense, applied to the Court to have Mrs Bernstrom dealt with for contempt. It became apparent on the hearing of that application on 2 March that Mrs Bernstrom had continued to disobey the orders of the Court and had never attempted to appeal their correctness or validity. Therefore, on 2 March I ordered that she be fined the sum of $3,000 for contempt, that she pay that sum within 40 days of that date otherwise she must appear before the Court this morning to show cause why a sentence of imprisonment of three months should not be imposed. 3 JUDGMENT 10 30 -- 67 of 71 -- 17042001 T6-7/RGC M/T CNSl/2001 (White DCJ) Thus we are gathered again in respect of this matter. The fine has not been paid, not one cent of it. I am prepared to accept that Mrs Bernstrom has financial difficulties which have made it difficult, perhaps impossible, to pay that fine. Remarkably, in spite of the vigorous submissions made on her behalf by her agent Mr Gargan 40 days ago, there has been no notice of appeal filed in the Court of Appeal against my decision to find Mrs Bernstrom guilty of contempt and to fine her in respect thereof. There has still been not the slightest attempt to have any of the orders I have made concerning Mrs Bernstrom's conduct put before a Court of Appeal to test the correctness or validity of my rulings. On the other hand, Mrs Bernstrom has made no attempt to obey the orders I made concerning the use she might make of her property. Upon her appearance this morning Mr Gargan has again attempted to re-argue the points concerning the validity of my rulings 20 on behalf of Mrs Bernstrom in an endeavour to persuade me that she has shown good cause as to why the sentence of imprisonment should not be imposed. I should say that if it would have been at all possible to avoid or put off the gaoling of Mrs Bernstrom I would have been pleased to achieve such a result. The whole purpose of these contempt proceedings has been to get her to obey the orders of the Court. I am quite sure that the applicants have no desire for Mrs Bernstrom to go to gaol. I certainly have 4 JUDGMENT 30 -- 68 of 71 -- 20 17042001 T6-7/RGC M/T CNSl/2001 (White DCJ) no desire for her to go to gaol, and yet again, when specifically asked this morning, she once again indicated that she will not obey the orders of the Court, not even temporarily pending the appeal which has been threatened but never eventuated to date. It is not as if these orders cannot be readily or conveniently obeyed. The orders which I have made do not require the destruction of any valuable structures. They simply require 10 the removal from the property of five canvas safari units and approximately three vehicles, as I recall. No doubt the removal of such items would require some physical work and might result in some inconvenience but they are not things which are incapable of being retrieved if and when Mrs Bernstrom obtains the final approval of the council to have these items on her property and to use them as she has been doing. Or, for that matter, if it be eventually ruled by a Court of Appeal that either my substantive orders were wrong or that my dealing with her for contempt was wrong. In other words, the orders are capable of being obeyed without great difficulty or inconvenience and the position could be retrieved by Mrs Bernstrom once and if it were determined that the use of those items was lawful. Once again, this morning she has indicated that she is not willing to obey the orders of the Court. 5 JUDGMENT 20 30 -- 69 of 71 -- 17042001 T6-7/RGC M/T CNSl/2001 (White DCJ) In summary, the position which Mrs Bernstrom has taken is that either I have no jurisdiction or authority to make the orders I made or that they were wrongly made. She is quite entitled to take that view. However, to date she has never been prepared to test that view on an appeal in spite of the fact that there is an entitlement to appeal to the Court of Appeal of Queensland against any decision made in this Court. She has also repeatedly stated an intention not to obey those orders. Sadly, she has placed me in the position where I really have no alternative. I order that the sentence of imprisonment of three months be served. I order the second respondent, Anita Bernstrom, to surrender herself into custody. I indicate that if the orders of the Court are complied with I will give serious consideration to an application for Mrs Bernstrom's immediate release. Would you please ask for a police officer to come from the watch-house? MR GARGAN: Your Honour, may I ask that the provisions of the Criminal Code regarding questions of the law be applied? That the execution be stayed until the question of law is considered by the Court of Appeal of the State of Queensland? HIS HONOUR: The trouble is you see Mr Gargan, is that so far Mrs Bernstrom has made no attempt to take the matter to the 30 Court of Appeal of Queensland. Your application is denied. 6 JUDGMENT -- 70 of 71 -- 20 30 17042001 T6-7/RGC M/T CNSl/2001 (White DCJ) Mrs Bernstrom, do you understand the situation? Get you family and friends to take steps to obey the orders of the Court by removing those structures and vehicles and I will immediately give very serious consideration, and while I cannot make absolute promises, probably favourable consideration to ordering your immediate release. PRISONER: Your Honour, may I say something? HIS HONOUR: Yes, why not? PRISONER: Your Honour, on 30 June I submitted an affidavit in this Court to state why I - why I followed these actions and, unfortunately, I abide by what I have stated on 30 June. HIS HONOUR: Well, you see, unfortunately Mrs Bernstrom, I have got to abide by the decisions I have made in the past. You apparently have not been willing to abide by them yourself. Thank you. That is all I want to hear from you. 7 JUDGMENT 10 20 -- 71 of 71 --