Crowther v State of Qld [2006] QCA 308

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - PROCEEDINGS BY AND AGAINST THE CROWN - INJUNCTIONS AGAINST THE CROWN - CONTEMPT PROCEEDINGS - Crown immunity from prosecution for contempt - not abrogated by particular statutory provision - contempt proceedings criminal in character

Crown Proceedings Act 1980 (Qld), s 7, s 9, s 10

Environmental Protection Act 1994 (Qld), s 22

Australian Alliance Assurance Co. Ltd v Attorney-General of Queensland & John Goodwyn [1916] St R Qd 135, cited

Australian Alliance Assurance Company Ltd v Attorney-General for Queensland & Ors [1917] AC 537, cited

Burghes v Attorney-General [1911] 2 Ch 139, cited

Dyson v Attorney-General [1911] 1 KB 410, cited

Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397; Appeal No 1495 of 1999, 3 October 2000, cited

Hodge v Attorney-General [1839] EngR 1213; (1839) 3 Y & C Ex 342; 160 ER 734, cited

Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15, cited

In re M [1993] UKHL 5; [1994] 1 AC 377, applied

Prohibitions Del Roy [1572] EngR 255; (1608) 12 Co Rep 63, cited

Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth [1912] HCA 94; (1912) 15 CLR 182, cited

Witham v Holloway (1995) 183 CLR 525, cited

P A Freeburn SC with E J Morzone for the respondent

[1] de JERSEY CJ: On 27 February 2003 the Planning and Environment Court ordered, by way of injunction, that the respondent, the State of Queensland, "ensure that after January 2005, in respect of any processes of welding, cutting, machining or grinding of metal conducted at the Yeronga Institute of TAFE, any outlet for odour emissions be located further than 100 metres from Park Road, Yeronga". A further order on 24 September 2004 amended the earlier order by substituting June for January. Those orders were made in a proceeding in that court commenced by an originating application filed on 14 June 2002.

[2] By paragraph one of an application filed in that same proceeding, on 19 October 2005, the applicant sought, from the Planning and Environment Court, against the respondent, "[a]ppropriate penalties for contempt" of the order made on 27 February 2003 and amended on 24 September 2004. In further and better particulars dated 22 November 2005, the applicant said that she was not alleging that particular officers of the respondent breached the order, rather that "the State of Queensland - as the owner of the premises comprising the Yeronga Institute of TAFE - has done so".

[3] On 7 December 2005 the Planning and Environment Court ruled that that claim for relief must fail, because the respondent - the State - could not be prosecuted for contempt of court. On 8 December 2005, that court formally ordered that paragraph one of the application be struck out. (The court did not deal, or have to deal, with a separate contention that contempt could not, as a matter of fact, be established.)

[4] The Judge constituting the Planning and Environment Court referred to authority for the general principle that a finding of contempt cannot be made against the Crown. He did not consider that legislation relied on by the applicant, the Crown Proceedings Act 1980 (Qld) and the Environmental Protection Act 1994 (Qld), altered that position. He also declined to draw, from a concession by Counsel for the respondent that an injunction may be granted against the Crown, any consequent implicit acknowledgement that contempt proceedings could be sustained were the injunction breached in circumstances which otherwise would amount to contempt of court. (It was not submitted, before us, that in that last respect, his Honour erred.)

[5] By application filed in the Court of Appeal on 6 March 2006, the applicant sought leave to appeal from that judgment of the Planning and Environment Court of 8 December 2005. The applicant had filed a notice of appeal on 23 December 2005. The need to obtain leave to appeal was then overlooked.

[6] Any application for leave to appeal should have been made within 30 business days of 8 December 2005 (s 4.1.57(1) Integrated Planning Act 1997 (Qld)). But we have received comprehensive submissions on what is a short point of law, and because the Planning and Environment Court's determination of that question was plainly correct, it is convenient on that basis to refuse leave to appeal.

[7] Counsel for the respondent have referred us to authority for the principle that the Crown cannot itself be prosecuted for contempt. That authority is as follows:

(a) Hogg, Liability of the Crown at 58:

'Contempt has never been available against the Crown itself. Indeed, in origin, disobedience of a court order was punishable on the ground that it was contemptuous of the King's authority. It was therefore impossible for the King himself to be in contempt. It was also unthinkable that the Courts could imprison or fine the King. In fact, the Courts never permitted the question to be raised, because the Courts refused to issue the orders of mandamus, injunction, specific performance or discovery, or the writs of execution or attachment, against the Crown. ...' (my emphasis)

(b) In re M [1993] UKHL 5; [1994] 1 AC 377 at 424 (HL):

"The Court of Appeal were of the opinion that a finding of contempt could not be made against the Crown, a government department or a minister of the Crown in his official capacity. Although it is to be expected that it will be rare indeed that the circumstances will exist in which such a finding would be justified, I do not believe there is any impediment to a court making such a finding, when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the Crown in his official capacity. ..." (my emphasis)

(c) Halsbury's Laws of Australia Vol 5 at 188,209 [105-280]:

"The Crown is not subject to the contempt jurisdiction of courts, although it is under a duty to comply with orders of the court."

[8] In his written outline Mr Morris QC, who appeared for the applicant, submitted this principle is based on the premise that as head of jurisdiction, the sovereign cannot be punished by her own courts. He submitted that because, in Queensland, the Queen and her representative have no more than a symbolic or titular role in the administration of justice, there is insufficient justification for maintaining that principle, albeit well established. He sought support in the observation by Coke CJ in Prohibitions Del Roy [1572] EngR 255; (1608) 12 Co Rep 63 at 65; [1607] EWHC J23; 77 ER 1342 at 1343, that "(as) Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege" (the King is under no man, but is under God and the law).

[9] This principle is however current, as shown by the above references, including the comparatively recent affirmation by the House of Lords in 1994, and at the hearing of the application, Mr Morris accepted its currency.

[10] Mr Morris's substantial position was that the principle has been displaced in Queensland by legislation: the Crown Proceedings Act 1980 (ss 9(2) and 10), and the Environmental Protection Act 1994 (s 22).

[11] Section 9(2) and (3) of the Crown Proceedings Act provides:

(a) the rights of parties including rights of appeal shall as nearly as possible be the same; and

(b) judgment may be given and costs awarded;

as in a proceeding between subject and subject.

(3) To remove any doubt, it is declared that this section does not require the Crown to comply with a provision (other than a procedural provision) of an Act or law that does not otherwise bind the Crown."

In a proceeding by or against the Crown, the court shall, subject to this Act, have power to give all such judgment as it has power to give in proceedings between subject and subject and otherwise to give such appropriate relief as a particular case requires."

[13] The term "proceeding" is defined in s 7 of the Act to mean "any action, suit or proceeding of a civil nature".

[14] In Hinch v Attorney-General (Vict) [1987] HCA 56; (1987) 164 CLR 15, 49, Deane J said that "[p]roceedings seeking the imposition of ... punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature ...". Subsequently in Witham v Holloway (1995) 183 CLR 525, 534, Brennan, Deane, Toohey and Gaudron JJ endorsed that observation, saying that all proceedings for contempt "must realistically be seen as criminal in nature". One may add reference to Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397, where with the agreement of the other members of the Court, Muir J said:

"Proceedings for contempt are criminal in nature and contempt charges must be proved beyond reasonable doubt." (para [29])

[15] While not cavilling with that characterisation, Mr Morris submitted that because this application for the imposition of penalties for contempt was filed in the (civil) proceeding begun by the originating application filed on 14 June 2002, s 9(2) and s 10 applied. But that would ignore the substance of the claim being made. The application filed on 19 October 2005, claiming penalties for contempt, is, for the purposes of those sections, the relevant "proceeding", and because it is criminal in character, those provisions can have no application. They are not apt, in this situation, to abrogate the immunity established by the common law.

[16] It is interesting to note that similar provisions existed in England, contained in the Crown Proceedings Act 1947 (UK), as at the time of the decision of the House of Lords in Re M, and did not deflect the House of Lords from its affirmation of the principle. I refer particularly to s 21(1), which provides in part:

"In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:..."

[17] I turn to the second statute on which the applicant relies. Section 22 of the Environmental Protection Act provides:

"22 Act binds all persons

This Act binds all persons, including the State, and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States."

[18] The injunction granted by the Planning and Environment Court was based on a finding that the respondent had breached the Environmental Protection Act "and that further offences might be committed unless appropriate steps are taken" (order of 27 February 2003). One such step concerned the locating of the process covered by the injunction in question here.

[19] Section 22 of the Environmental Protection Act confirms that that legislation binds the Crown. It followed that an injunction could be granted against the State in an endeavour to forestall further breaches of the legislation. The legislation does not however say anything to dispel the Crown's immunity from action for contempt, should the injunction be breached.

[20] Mr Morris submitted that the unsatisfactory end result is that the State "is free to contravene judicial injunctions with absolute impunity". Of course one would confidently expect the State, by its officers, conscientiously to adhere to the terms of any injunction granted against it; and for that reason, granting such an injunction should not lack utility. But the position remains that should such an injunction be breached, in circumstances otherwise amounting to contempt of court, proceedings in contempt against the Crown itself are unavailable, because the legislation has not effected an abrogation of the common law immunity.

[21] For these reasons, the judgment of the Planning and Environment Court was plainly correct, and leave to appeal should be refused.

[22] McMURDO P: The relevant facts, issues and statutory provisions are fully stated in the reasons of the Chief Justice and Jerrard JA. I will not unnecessarily repeat them in setting out my own brief reasons for also refusing the application.

[23] The applicant, Ms Crowther, sought against the respondent, the State of Queensland, in the Planning and Environment Court on 7 December 2005 "[a]ppropriate penalties for contempt of Planning and Environment Court order of the 24/9/04 ordering any outlet at Yeronga Tafe for cutting, machining, grinding, welding of metal be relocated further than 100 metres from Park Road after 1st July 2005". At the hearing of that application counsel for the respondent submitted that the application should be struck out because the Crown in right of the State of Queensland cannot be prosecuted for contempt. The judge invited counsel for the applicant to consider whether he wanted to seek leave to amend the identity of the respondent to the application. After a brief adjournment the applicant's counsel indicated that he did not wish to pursue that course; nor did he apply to amend the application to seek an alternative remedy such as a declaration to the effect that the respondent was in breach of the order of the Planning and Environment Court amended on 24 September 2004 together with an order for indemnity costs. The learned primary judge accepted the respondent's contention and struck out that part of the application seeking penalties for contempt against the respondent.

[24] I note that, in a related earlier hearing in the Planning and Environment Court, another judge, when refusing an application from Ms Crowther to vary the court's order of 24 September 2004, forewarned her of the difficulties of enforcing that order unless "... individuals can be identified whose activities are calculated to and do result in [the] Court's orders being contravened, ... Ms Crowther's difficulty is that she has to identify the individuals to be taken to task."[1]

[25] The applicant now applies for leave to appeal from the strikeout order of 8 December 2005 under s 4.1.56(2) Integrated Planning Act 1997 (Qld), contending that the judge's ruling amounted to an error of law (see s 4.1.56(1)(a)). An extension of time within which to bring that application is necessary because, whilst the applicant filed a notice of appeal within the apposite time limit, she did not file an application for leave to appeal until 6 March 2006. This was because her lawyers did not realize that leave to appeal was needed. The respondent can point to no prejudice in those circumstances. The applicant should be granted an extension of time until 6 March 2006 to file the application for leave to appeal.

[26] The applicant concedes that there is a long-standing principle of constitutional law that the Crown is not subject to the contempt jurisdiction of its courts.[2] The applicant contends, however, that s 9 of the Crown Proceedings Act 1980 (Qld) ("the Act") alters the common law position. That section relevantly provides:

(a) the rights of parties including rights of appeal shall as nearly as possible be the same; and

(b) judgment may be given and costs awarded;

as in a proceeding between subject and subject.

The term "proceeding" is defined as "any action, suit or proceeding of a civil nature".[3]

[27] The applicant's application to penalise the respondent for contempt related to an amended order obtained against the respondent for breaches of the Environmental Protection Act 1994 (Qld) ("EPA"). I am prepared to accept for the purposes of the applicant's present argument that the original proceedings against the respondent in the Planning and Environment Court under the EPA, in light of the concessions there made by counsel for the respondent,[4] were civil proceedings to which s 9(2) of the Act applied.[5] The central issue is then whether the applicant's proceedings against the respondent for contempt were an "action, suit or proceeding of a civil nature" so that s 9(2) of the Act applies to alter the position at common law. In Witham v Holloway[6] Brennan, Deane, Toohey and Gaudron JJ referred with approval to the comments of Deane J in Hinch v Attorney-General (Vict)[7] and noted that all proceedings for contempt must realistically be seen as criminal in nature so that all charges of contempt must be proved beyond reasonable doubt.[8] McHugh J also concluded that in Australian courts all contempts, whether civil or criminal, must be proved according to the criminal standard of proof.[9]

[28] It follows that the applicant's application to penalize the respondent, the State of Queensland, for contempt is not an "action, suit or proceeding of a civil nature" to which s 9 of the Act applies. This conclusion is also consistent with interpreting s 9 in the context of the preceding and subsequent sections which, together with s 9, constitute Pt 2 of the Act. If the legislature intended that s 9 of the Act should have the effect of removing the long-established principle of constitutional law that the Crown cannot directly be prosecuted or punished for contempt, it can be expected to have so stated in the clearest of terms; it did not. The application to punish the respondent for contempt was misconceived. The application for leave to appeal to this Court should be refused.

[29] I nevertheless share the Chief Justice's expectation that the respondent will conscientiously adhere to the terms of any court order even though the respondent is not subject to penalties for contempt of court. I am confident that is also the community expectation.

[30] I would extend the time for filing the application for leave to appeal to 6 March 2006 but refuse the application for leave to appeal.

[31] JERRARD JA: In this matter I have read the reasons for judgment and orders proposed by the Chief Justice, and respectfully agree that a finding of contempt was not available against the State of Queensland, and that leave to appeal should be refused.

[32] The applicant succeeded in her original proceedings in the Planning and Environment Court, in which, in reasons delivered on 20 December 2002, Judge Robin found that the applicant had established that the respondent State of Queensland had committed offences against ss 430, 438(2) and 440 of the Environmental Protection Act 1994 (Qld) by reason of activities carried on at the Yeronga Institute of TAFE, and that further offences would be committed unless the then respondent State of Queensland was restrained. On 27 February 2003 Judge Robin made formal orders declaring that the offences were proved, and an order requiring the respondent State of Queensland to carry out works designed to contain offensive emissions within the relevant Blocks C, and D, or parts thereof, and to provide for their safe dispersal. There was a further requirement to install systems to warn off and limit the consequences of failure of the containment measures. Some of those measures were required to be implemented by 31 May 2003 and some by 31 July 2003. There were also orders:

"3. Order that the respondent ensure that after January 2005, in respect of any process of welding, cutting, machining or grinding of metal conducted at the Yeronga Institute of TAFE, any outlet for odour emissions be located further than 100 metres from Park Road, Yeronga.

4. The Parties shall have liberty to apply."[10]

[33] Judge Robin foreshadowed that the latter order might be varied or set aside under UCPR r 667 or r 668, or under analogous provisions of the general law, and on 24 September 2004 Senior Judge Skoien, then constituting the Planning and Environment Court, made an order varying Order Number 3, allowing the respondent until the end of June 2005 to ensure that the outlet for the identified odour emissions was located further than 100 metres from Park Road Yeronga. Claire Crowther appealed against that order varying Judge Robin's Order Number 3, and her application was dismissed by this Court.[11]

[34] This appeal is from a Planning and Environment Court decision striking out para 1 of an application by Claire Crowther, filed 19 October 2005, in which she sought "Appropriate penalties for contempt of Planning and Environment Court Order of the 24/9/2004 ordering any outlet at Yeronga Tafe for cutting, machining, grinding, welding of metal be relocated further than 100 metres from Park Road after 1st July 2005."[12] The particulars in support of that application described her seeing a heat shimmer from four southern C Block stacks, lasting three quarters of an hour on 7 July 2005, which caused "stinging eyes", in Park Road adjacent to the Yeronga TAFE; the same complaint for 8 July 2005, for a half hour period; a complaint of a fusty dry odour being prevalent for a quarter of an hour on 14 July 2005, causing a "chemical feel on [her] skin", in Park Road adjacent to the Yeronga TAFE; the like at 8.00 pm on 14 July 2005, and again between 9.00 pm and 9.20 pm that same date, when a metallic odour was prevalent in Park Road at that place; a complaint of a prevalent metallic odour for three quarters of an hour on 26 July 2005, which caused stinging eyes, in Park Road at that place; and complaints of the same kind of specific odours being prevalent on various dates in August, September, October and November 2005, at either precisely specified times or for short, identified periods.[13] She supported those particulars with an affidavit swearing to her personal observation and experience of all of those matters, and that they were the same as the conditions experienced before December 2002, and with an affidavit[14] from a Coralie Crowther (her mother) supporting her affidavit evidence in respect of a specified date in October 2005. She filed other affidavit material, in which two deponents described smelling the odour of burning metals in Park Road, and apparently coming from the Yeronga TAFE, in October 2005.

[35] Even if every word of Claire Crowther's affidavit and those of her supporting deponents were accepted without hesitation, that would not obviously establish breach of the order that any outlet for odour emissions at the Yeronga Institute of TAFE, in respect of any processes of welding, cutting, machining or grinding of metal, be located further than 100 metres from Park Road, Yeronga. The respondent State of Queensland filed an affidavit, which, if accurate, described extensive steps to ensure that activities capable of coming within the order did not take place within C Block or 100 metres of Park Road. However, even without any evidence from the respondent, the applicant's affidavit material was arguably insufficient to establish that the outlets for odour emissions from the specified processes were not located further than 100 metres from Park Road.

[36] The State of Queensland did not rely on deficiencies in her evidence. It had not appealed the original orders made against it by Judge Robin, but later successfully applied to vary Order Number 3. On Ms Crowther's appeal against the order varying the injunctive Order Number 3, the State of Queensland did not suggest that that order did not bind it. However, when Ms Crowther's application filed in October 2005 came on for hearing on 7 December 2005, senior counsel for the respondent submitted that a finding of contempt could not be made against the Crown. Counsel cited authority, referred to by the Chief Justice.

[37] There has been a considerable change from the original position that the Crown was immune from civil and criminal proceedings against it. In Dyson v Attorney-General [1911] 1 KB 410, an action for a declaration, Cozens-Hardy MR remarked that it had been settled for centuries that in the Court of Chancery the Attorney-General might in some cases be sued as a defendant as representing the Crown,[15] and that in such a suit relief could be given against the Crown. Cozens-Hardy MR also held that the court had jurisdiction to maintain an action against the Attorney-General as representing the Crown, although the immediate and sole object of the suit was to affect the rights of the Crown in favour of the plaintiffs, citing Hodge v Attorney-General.[16] His Lordship then held that relief by way of declaration alone could be sought against the Attorney-General as representing the Crown; and that a plaintiff seeking that was not bound to proceed by petition of right.[17] Fletcher Moulton LJ agreed that Hodge v Attorney-General supported an action against the Attorney-General, as representing the Crown, for a declaration affecting the rights of the Crown and subsequent relief. Farwell LJ held that that plaintiff was entitled to ask for a declaration of the true construction of an Act, which imposed burdensome and expensive enquiries on the plaintiff, and for non-compliance with which the plaintiff was threatened with fines.

[38] In Australian Alliance Assurance Co. Ltd v Attorney-General of Queensland & John Goodwyn [1916] St R Qd 135, the Full Court likewise upheld, over objection, a claim for a declaration against the Attorney-General as representing the Crown, and which was brought other than under the provisions of The Claims Against the Government Act 1866 (Qld). The claim originally brought was not under that legislation because no nominal defendant had been appointed by the Governor on a petition under that Act, by the time the litigation began.[18] The declarations claimed were as to various asserted rights of the plaintiffs under the provisions of The Workers' Compensation Act 1916 (Qld), and as to the invalidity of certain regulations. Chubb J wrote, of the objection that the plaintiffs' only remedy, if any, was by action under The Claims Against the Government Act, that the plaintiffs were not claiming to recover money or property from the Crown, but simply declarations of their rights (if any) under the statute, and that the court had jurisdiction to make a declaratory judgment against the Attorney-General, as representing the Crown. He held that result was clear from Dyson v Attorney-General [1911] 1 KB 410,[19] Burghes v Attorney-General[20], and Colonial Sugar Refining Co Ltd v Attorney-General for the Commonwealth.[21] Shand J also relied on those decisions[22] for the conclusion that a declaration could be made against the Attorney-General representing the Crown, other than in a proceeding under The Claims Against the Government Act. Lukin J came to the same conclusion.[23] Cooper CJ and Real J seemed content to assume the jurisdiction that the majority found. On an appeal to the Privy Council,[24] the Privy Council considered the matter on its merits, and wrote nothing to challenge the asserted jurisdiction. That jurisdiction establishes a right to a declaration against the Crown, irrespective of legislative sanction for that proceeding.

Claims against the Crown, authorized by statute

[39] There is legislative sanction in s 10 of the Crown Proceedings Act 1980 (which replaced The Claims Against the Government Act 1866) for a court to "give all such judgment" in proceedings against the Crown as the court has power to give in proceedings between subject and subject; and otherwise to give such appropriate relief as a particular case requires. That would include a declaration and, of course, costs. Section 11 of the Crown Proceedings Act 1980 specifically provides means to satisfy a judgment for money, damages, or costs in a proceeding against the Crown, and in my opinion Claire Crowther could ask for a declaration, which the Planning and Environment Court would have had jurisdiction to make, that the State of Queensland had breached the injunctive order. If she established the breach she would be entitled to costs.

[40] The State of Queensland might contend that that was essentially a finding of contempt disguised as a declaration. Much the same sort of claim was made on behalf of the Crown in argument in Australian Alliance Assurance Co Ltd v Attorney-General for Queensland [1917] AC 537, where it was submitted[25] that the court had no jurisdiction to make a declaration that was, in effect, an injunction. That argument had relied on the submission that there was no jurisdiction to make an injunctive order against the Crown; but although that last proposition was not challenged in any of the judgments, the Full Court held the jurisdiction existed to make a declaration.

[41] I agree with the Chief Justice that the definition of "proceeding" in the Crown Proceedings Act 1980 stands in the way of success for Claire Crowther, to the extent that she relies on the Crown Proceedings Act 1980 in her application for an order finding the State of Queensland in contempt. Proceedings for contempt do not satisfy the description of an action, suit, or proceeding of a civil nature. It follows that s 10 of that Act cannot be applied to include a power to punish for contempt. That is consistent with the difficulty in applying the provisions of UCPR rr 921 to 932, dealing with contempt, to the Crown. For example, UCPR rr 930 makes provision for punishment of either an individual (who may be punished by the court making an order that might be made under the Penalties and Sentences Act 1992 (Qld)) or a corporation. In the latter case the court can punish by seizing property or ordering a fine or both. The Crown Proceedings Act 1980 makes much more restricted provision for the satisfaction of judgments against the State of Queensland.

[42] But that more restrictive provision does allow for the satisfaction of costs orders, and the respondent State of Queensland conceded that the Planning and Environment Court had jurisdiction in this matter to make injunctive orders against it. That was not challenged in this application or on this appeal. Since that power is conceded, and since the power is consistent with the terms of ss 9(2) and 10 of the Crown Proceedings Act 1980, it would also be consistent with that Act to hold that the Planning and Environment Court could declare, if so satisfied, that the respondent had not complied with the injunctive order, specifying the failure, and make appropriate declarations as to what the respondent had to do to comply, and order costs against the State of Queensland, which could include an order for indemnity costs. Those are orders which could be given in proceedings between subject and subject, and would be appropriate relief in a case of this nature. That would satisfy s 10.

[43] Ms Crowther's senior counsel, Mr Morris QC, preferred to press for a finding of contempt, but I agree with the Chief Justice that that is not available under the Act, and not yet available at common law. In M v Home Office (H.L.(E)) [1993] UKHL 5; [1994] 1 AC 377, the House of Lords took the common law in the United Kingdom as far as the holding that there is no impediment to a court making a finding of contempt against a Minister of the Crown in his official capacity, but not against the "Crown" by name.[26] The judgment of the House given by Lord Woolf, while noting that it would be inappropriate to fine or sequestrate the assets of the Crown or a government department, held that that did not mean that a finding of contempt against a Minister would be pointless. His Lordship considered the very fact of making such a finding would vindicate the requirements of justice, and in addition an order for costs could be made to underline the significance of a contempt. Likewise the making of a declaration in what would be a civil proceeding within the meaning of the Act, namely the original proceeding brought in the Planning and Environment Court and not an independent proceeding seeking a fine or other orders for a contempt, would vindicate the requirements of justice, and an order for - if necessary and where appropriate - indemnity costs would underline the significance of the declaration.

[1] Crowther v State of Queensland [2005] QPEC 68, Appeal No 2377 of 2002, 20 July 2005, 5.

[2] See, for example, Hogg, P W & Monahan, P J Liability of the Crown (3rd ed, Carswell, Ontario), 2000, 58; Halsbury's Laws of Australia Vol 5, 188,209 par [105-280] and most recently In re M [1993] UKHL 5; [1994] 1 AC 377, 424, to which the respondent has referred us.

[4] Crowther v State of Queensland [2002] QPEC 79, Appeal No 2377 of 2002, 20 December 2002, [40].

[5] The EPA clearly bound the respondent, the State of Queensland (s 22 EPA). The applicant's original proceedings against the respondent for an injunction were treated as an application under s 505 EPA, which allowed the Planning and Environment Court, if satisfied that an offence under the EPA had been committed or would be committed unless the offender was restrained, to make orders to remedy or restrain the offence. The judge found that, even applying the standard of proof beyond reasonable doubt, he was satisfied that the respondent had committed offences against s 430, s 438(2) and s 440 of the EPA. He was prepared to declare that the respondent had committed offences against those sections and that an offence or offences against the EPA would be committed unless the respondent was restrained under s 505 EPA. Counsel for the respondent conceded that the judge could issue an injunction against the respondent under s 9 and s 10 of the Crown Proceedings Act 1980 (Qld): Crowther v State of Queensland [2002] QPEC 79, Robin DCJ, [41] and [54]. Despite that concession, it is not beyond doubt that the proceedings there brought by the applicant against the respondent under the EPA were an "action, suit or proceeding of a civil nature" to which s 9 of the Act applied, but it is unnecessary to reach a concluded view here.

[6] (1995) 183 CLR 525.

[7] [1987] HCA 56; (1987) 164 CLR 15, 49.

[8] (1995) 183 CLR 525, 534; see also Hafele Aust Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397, Appeal No 1495 of 1999, 3 October 2000, [29].

[10] This description of the orders and litigation history is taken from the decision of this Court in Crowther v State of Queensland [2005] QCA 47; Appeal No 8551 of 2004, 4 March 2005.

[11] Crowther v State of Queensland [2005] QCA 47.

[15] At 415, citing Pawlett v Attorney-General (1667) Hardres' 465; 145 ER 550 and Deare v Attorney-General [1835] EngR 55; (1835) 1 Y & C Ex 197; 160 ER 80.

[16] [1839] EngR 1213; (1839) 3 Y & C Ex 342; 160 ER 734.

[17] [1911] 1 KB 410 at 417.

[18] The reports of the case in the Full Court, and on appeal in the Privy Council, record that the plaintiffs commenced their action without any nominal defendant appointed; and maintained a similar action against one who was appointed after the writ issued.

[19] [1911] 1 KB 410.

[20] [1911] 2 Ch 139.

[21] [1912] HCA 94; (1912) 15 CLR 182.

[22] [1916] St R Qd 135 at 181.

[23] [1916] St R Qd 135 at 202.

[24] Australian Alliance Assurance Company Ltd v Attorney-General for Queensland & Ors [1917] AC 537.

[25] By Feez KC at [1916] St R Qd at 158.