Brisbane City Council v Parker & Bowman [1996] QSC 222

C) TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS ~HITE J o writ No 7160 of 1996 BRISBANE CITY COUNCIL Plaintiff and JOHN PARKER First Defendant and JOHN BOWMAN Second Defendant () BRISBANE .. DATE 29/08/96 JUDGMENT 1 4th Floor, The Law Courts, George Street. Brisbane. Q. 4000 Telephone: (07) 3227 -1360. Facsimile: (07) 32275532 -- 1 of 14 -- 290896 T3/SA4 M/T 1041/96 (White J) HER HONOUR: The Brisbane City Council seeks an injunction restraining the defendants, Messrs Parker and Bowman, from holding a festival on land owned by Mr Bowman at Bald Hills, a suburb within the jurisdiction of the council. The festival advertised widely by flyer is due to commence from 5 p.m., 10 Friday, 30 August, that is, tomorrow afternoon. The defendants seek an adjournment until tomorrow so that, as I comprehend the submission made on their behalf by Mr Kimmins o of counsel, they may be able to address the concerns expressed 20 by the council and that material may be laid before the Court. () I should say at this stage that when the matter commenced this afternoon before me, Mr Kimmins announced his appearance as being for the defendants and, indeed, that was his 30 understanding at the time. After hearing argument on both sides, I adjourned for a short while to read the material but o indicated before doing that that I proposed not to grant the adjournment but instead to grant the injunction sought by the council. 40 Mr Kimmins indicated that he wished to make a telephone call, and I should also add that Mr Kimmins appears before the Court without his instructing solicitor who I discern is a person acting alone and he was necessarily engaged in matters 50 pertaining to this application with what was then understood to be both his clients. 60 2 JUDGMENT -- 2 of 14 -- o o o o 2~0896 T3/SA4 M/T 1041/96 (White J) On my return to the Bench when I was about to commence giving the reasons for the injunction, Mr Kimmins indicated that his instructions were that he appeared only for Mr Parker and not for Mr Bowman. However, it is clear, in my opinion from reading the material which is uncontested, that Mr Bowman has been informed of these matters and will be aware of what is going on. He may not have been served formally in the usual manner but there is ample affidavit material before the Court deposing to attempts to serve the defendants in the usual way. In the affidavit of Diane Elizabeth Quinn, she indicates that on 29 August at approximately 9 o'clock she was telephoned by a person who identified himself as Mr James Cremin and said that he was a solicitor and was instructed to act on behalf of Mr Parker and Mr Bowman and the Rebels Motor Club. The other material of Mr Reid and Ms Rienstra also deals with attempts at personal service. There is no material before the Court to contradict that of the council, and although Mr Kimmins' instructions are limited, I do not understand that the defendants wish to challenge the thrust of the council's material, rather,' they wish to put further material before the Court so that the Court can be seized of changed plans or proposals which might satisfy the council. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 14 -- o .290896 T3/SA4 M/T 1041/96 (White J) The council first heard of the IIBikerfest ll , for that is what it is described as in the flyer, on 13 August 1996. A copy of the flyer was received by the council on the 15th, and Mr Parker was challenged about it and was told that a permit was required. The flyer is illustrated to attract motorbike club members and motorbike riders generally, one might have concluded. It has a map drawn on it indicating the land where the festival is to be held and it promises a number of things and I quote from the flyer, IIAratula, Queensland's wildest weekend has moved closer to Brisbane and is now called 'Bikerfest'. It will ~ have all the things that made Aratula so great but only a o C) short distance Brisbane on 60 acres of private property with swimming holes and river. Don't miss out on a great time at a great new location. II It also promised bikes, girls, drag racing, live entertainment and prizes. The benefit is described as going to the Aspley Special School and the admission at $25 at the gate. A number of sponsors are indicated on the flyer, a radio station and a brand of whiskey, not Scotch though I think. An application for permit was made to the council on 16 August and the fee was paid. Mr Parker was the applicant and he had attended personally at the council. He described the event as "bike show and band" and that it would involve 100 club members as the number of employees, and that there were would be accommodation for 1500 people standing. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 14 -- ! o o 290896 T3/SA4 M/T 1041/96 (White J) Mr Parker was told personally that other material was required by way of support material, and a document was prepared by an employee of the city council and placed in his letterbox in order to assist him. In that letter, Mr Mothershaw of the council said that the application needed to be supported with a site plan and that he would need to address the conditions detailed in the guidelines for such events, a copy of which had been given to him when he attended at the council office. On 19 August, a 10 page site plan was delivered to the council. It indicated that camping was to take place on the land, that there would be stalls, toilet facilities, and that there would be bands on a stage. The council employees charged with administering this part of the council ordinances went to the site and inspected it. They took the opportunity to speak to surrounding residents who expressed concerns about traffic, noise and security issues. It appears on 22 August a site inspection was held by Mr Mothershaw with Mr Bowman, one () of the defendants who own the land. o 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 14 -- o 290896 T4/JB M/T 1041/96 (White J) The council, after due consideration, refused to grant a permit to hold the "Bikerfest". The delegate was Mr Whittaker and I have affidavits from him setting out his reasons in some detail for refusing the permit and I do not propose to set those out here except that they encompass detailed matters of public health and safety and amenities for the residents nearby. On 23 August the refusal was hand-delivered to Mr Parker's address although at the time no one appeared to be home and the letter was put in his letterbox. That was a Friday. On the following Monday Mr Mothershaw spoke to Mr Parker by c=) telephone asking him if he had received the letter indicating that the permit was not to be granted and he indicated that that had indeed occurred but he went on to say that it was too late to stop theC1Yent now and there were people coming from Cairns and other places and added that "We have been advertising the event for two months in biking magazines." o Mr Mothershaw discussed with Mr Parker the problems of him () leaving it until so very late to make the application to the council. Mr Parker then, according to Mr Mothershaw, said that if a sign was put on the gate of the land saying that the event was to be cancelled or that it was at some other location, then the bikers would likely create a bigger problem for local residents in that event. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 14 -- I , , 290896 T4/JB M/T 1041/96 (White J) There was then some conversation in which Mr Mothershaw proposed some alternative locations and discussed those with Mr Parker. He then asked Mr Parker what his intention was about the event to which he replied, lilt is going ahead at Bald Hills. We have now built a stage and the earthworks are continuing. II Mr Parker said to Mr Mothershaw that he did not know that he had to deal with the council but when Mr Mothershaw said to him that he had already dealt with the Boonah Shire in respect () of a fest at Aratula and he required a licence it must have been obvious to him that he needed a licence in Brisbane and o he allegedly replied, "Yes, you are right. II Mr Mothershaw attended at the property on 27 August and noticed what appeared to be a stage was erected and he took a photograph which is in the material. He met Mr Bowman, the owner of the land, on that day and he confirmed that the land o was to be used for the "Bikerfest" and he was told of the refusal of the permit by the council. o On that same day Mr Mothershaw delivered personally to Mr Parker a letter calling upon him to confirm in writing that the "Bikerfest" would not take place and gave him until 9 o'clock on 28 August to confirm this and that letter appears in these terms towards the end: "If I do not hear from you by this time, then I shall refer the matter to Brisbane City Council's Legal Services Branch for legal action. It may be that they will think it necessary to seek an injunction against yourself'and the club." 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 14 -- '290896 T4/JB M/T 1041/96 (White J) The relevant ordinance of the city council is chapter 5 and I think it unnecessary to deal further with that. It requires anyone who wishes to carry out activities of the kind to which the "Bikerfest" flyer says that it is directing itself and indeed in the application to the city council, to have a permit from the council before those activities may be carried out. The approach to take in applications for injunctions to enjoin what can be described as criminal or quasi criminal conduct is conveniently set out in the judgment of the New South Wales o Court of Appeal in Peek. against New South Wales EGG Corporation. o The President identifies, as a general principle, that a Court of Equity may intervene in certain circumstances to enforce the criminal law by injunctive relief despite the fact that criminal sanctions remain unexhausted,only in special circumstances. His Honour sets out examples of the kind of () circumstances where that can occur. o Where the criminal penalty provided is not effective or is wholly ineffective in the circumstances to deter the unlawful conduct of the party whom it is sought to restrain such as the conclusion is readily reached that prosecution and the processes of the criminal law will not deter that party from a continuing breach of the criminal law. 8 JUDGMENT 10 20 30 40 50 60 -- 8 of 14 -- I, , 290896 T4/JB M/T 1041/96 (White J) Secondly, the party whom it is sought to restrain has evidenced a clear and unequivocal intention to continue to flout the criminal law. And (c) unless the party in breach is stopped, there is a significant risk that widespread breaches of the law will be encouraged by others resentful of the 10 continuing activities of the party in breach or encouraged by that course by the example of such a breach. Glass JA considered the decisions from which those special circumstances have been derived and added that in his opinion o 20 those decisions did no more than recognise that circumstances can exist which justify the exercise of a discretion to grant o equitable relief to restrain the commission of future offences notwithstanding that criminal sanctions have not been exhausted. He went on to say that they failed to establish 30 any principles which determine when that discretion mayor may not be exercised. () He said it would not be possible to extract from the myriad of fact permutations a classification which would permit 40 o circumstances to be define a fortiori as special or not special for the purposes of justifying or not justifying a discretionary grant of equitable relief and simply added that the trial Judge just have regard to all the circumstances which relevantly militate for or against the granting of the 50 relief in making the discretionary judgment as to injunction. 60 9 JUDGMENT -- 9 of 14 -- o o 290896 T4/JB M/T 1041/96 (White J) In my view the correct approach here cannot be to await the breaches of the council ordinance and then to allow the council to prosecute and those prosecutions to take their ordinary course. The council has been charged with the orderly administration of the City of Brisbane, including the control of events such as this which is proposed. It has only to be stated to make clear that to wait until after the event would have very serious ramifications for public order and health and lead, in some circumstances, if not in this circumstance, to chaos in the administration of the city. There is no reason why the defendants cannot continue to negotiate with the Brisbane City Council in the time available to them to find either an alternative venue or to satisfy the requirements of the council as to public health and other matters which are set out in the reasons for refusing the () permit found in the affidavit of Mr Whittaker. o The defendants cannot be heard to complain about the shortage of time which is now left to them to embark upon such discussions with the council. I am clearly of the view that at all tim~s they were aware that it was necessary to approach the council for a permit to hold a festival of this kind on land so close to Brisbane and the fact that they avoided doing so has now brought about this result for them. 10 JUDGMENT 10 20 30 40 60 -- 10 of 14 -- ! o o o o 290896 T4/JB M/T 1041/96 (White J) It cannot be said that the council have evinced on their material, it must be said, anything other than a relatively helpful approach to the defendants in respect of this matter. Accordingly, I would refuse the application for the adjournment and grant the injunction. Do you have some proposals for the order? MR BAIN: These are agreed as we understand it, Your Honour. the orders be in terms of paragraphs 1, 2 and 3 of the notice of motion. HER HONOUR: Yes, thank you. MR BAIN: This as paragraph 4, that service of these orders be effective immediately upon any of the following. HER HONOUR: Yes. MR BAIN: (a) As to the first defendant (1) the reading of the same over to him by telephone or otherwise. HER HONOUR: Yes. MR BAIN: Or (2)sending a copy of the order by facsimile transmission to his solicitor Mr James Cremin. HER HONOUR: Yes. 1 1 JUDGMENT 10 20 30 40 50 60 -- 11 of 14 -- o o , 290896 T4/JB M/T 1041/96 (White J) MR BAIN: Or (3) delivering a copy of the order to the office of his solicitor, Mr James Cremin. (b) As to the second defendant (1) the reading of the same over to him by telephone or otherwise. HER HONOUR: Yes. MR BAIN: Or (2) sending a copy of the other by facsimile transmission to Mr James Cremin. HER HONOUR: Yes. MR BAIN: Or (3) delivering a copy of the order to the office of Mr James Cremin. HER HONOUR: Yes. MR BAIN: Or (4) posting a copy of the order at the property () 79 Millar Road, Bald Hills. Save as to costs, that would be o the orders, Your Honour. We should also draw Your Honour's attention that Your Honour isn't concerned with final relief today in the sense that there may be wider matters. What we have obtained from Your Honour is an interlocutory injunction. We should accordingly offer the undertaking as to damages. HER HONOUR: Yes, I was about to ask you whether----- MR BAIN: And that is offered accordingly. 12 JUDGMENT 10 20 30 40 50 60 -- 12 of 14 -- II' " 290896 T4/JB M/T 1041/96 (White J) HER HONOUR: Fortunately you do not have to query the capacity, I think, of the applicant to meet any undertakings - undertakings by the council. MR BAIN: Those orders will be upon the undertaking of the 10 applicant by me. HER HONOUR: Yes, thank you. MR BAIN: That only leaves the question of costs. o 20 o 30 o 40 o 50 60 13 JUDGMENT -- 13 of 14 -- 290896 T5/JJD1 M/T 1041/96 (White J) HER HONOUR: In terms of the costs, it is often usual to reserve the costs in what is essentially an interim injunction. This is so close to final relief. I think the facts and circumstances as I have outlined in my reasons for judgment dictate that this course really was brought about by conduct on the part of the defendants. In the first instance 10 simply not doing what at least one of the defendants knew was required and that is make an application for a permit in a timely fashion to the Council, so that negotiations or change of venue could have taken place and the wilful persistence after the permit was refused, in continuing with the plans to 20 hold the festival on the land, I think makes it appropriate o for me to make a costs order today. I would order that the first and second defendants pay the plaintiff's costs of and incidental to the notice of motion and today's hearing to be 30 taxed. o o 40 50 60 14 ORDER -- 14 of 14 --