Rockhampton Regional Council v Dubois [2014] QPEC 13

3. That the Respondent do forthwith cease using the land for any purpose other than:-

(a) the existing lawful non-conforming use as declared by the Court in this Order; and

(b) a use permitted in the Residential zone A pursuant to the transitional Planning Scheme for the City of Rockhampton; and

(c) in Area C on Annexure 1 for gaining access to the existing workshop as described herein."

[3] In 1930 the Respondent's father purchased 395 Rhodes Street ("Land"). At the time of purchase there was a house on the Land.[1]

[4] Since 1930, the Land has been used as a motor garage under the name "Koongal Motors".[2] Koongal Motors has from time to time serviced trucks, buses, cars and other vehicles from a workshop on the Land ("Workshop").[3]

[5] In 1960, the Respondent began work as an apprentice mechanic at Koongal Motors.[4]

[6] In 1986 the Council introduced the 1986 Town Plan.[5] Koongal Motors was allowed to continue to operate as a motor garage without restrictions even though Rhodes Street was classified as "Residential A".[6] On 30 August 2005 the Rockhampton City Plan came into effect. Under the Rockhampton City Plan, the Land was reallocated to the Lakes Creek Residential Area which was equivalent to the Residential A classification in the 1986 Town Plan. On 8 May 2009 the current Rockhampton City Plan, subtitled Reprint 1, took effect ("RCP"). The 1999 Order provides the benefit of applying the transitional RCP to the Land.

[7] The Workshop is located in the north-western corner of the Land. The house is located in the southern-central section. In the north-eastern corner is a driveway area allowing access from Paterson Avenue. This area is divided into a northern section, known as "Area B", and a southern section, known as "Area A". In the south-western corner is a driveway area allowing access from Rhodes Street. This area is known as "Area C". The site plan of the Land[7] is attached to the 1999 Order which is Annexure A to this judgment.

[8] In 1995 the Council applied to the Court to close down Koongal Motors for non-compliance with the RCP.[8] On 7 June 1996 Nase DCJ declined to close down the business but made an order defining the extent of the lawful nonconforming use of the Land by the Respondent ("1996 Order").[9]

[9] In 1997 the Respondent was convicted in the Rockhampton Magistrates Court for contempt for contravening the 1996 Order.[10] He was fined $1,000.00 and ordered to pay court costs of $49.95 and the Council's legal costs of $3,000.00.[11]

[10] As can be seen from Annexure A, the 1999 Order delineated the boundaries of the existing lawful non conforming use[12] and Order 2 of the 1999 Order required the Respondent to move the vehicle hoist and associated equipment ("Hoist") from Area C to inside the Workshop within seven days.[13]

[11] Initially the Respondent complied with Order 2 by relocating the Hoist inside the Workshop within seven days.[14]

[12] In 2001 the Respondent was convicted for contempt of the 1999 Order for using Area B for repair work. He was fined $1,500.00 and was ordered to cease carrying out the environmentally relevant activity.[15]

[13] Sometime in 2010 the Respondent returned the Hoist to Area C.

[14] On 19 September 2013 the Council filed the present Application[16] particularising the breach of the 1999 Order in these terms:-

(a) the Respondent failed to remove the Hoist located in Area C over various dates from 22 October 2010 to 9 May 2013;[17] and

(b) the Respondent carried out mechanical repairs to vehicles in areas not permitted by the 1999 Order.[18]

[15] On 15 December 2013, after being served with the Application, the Respondent removed the Hoist.[19]

[16] At the outset of the hearing the Respondent raised a limitation issue in relation to the Council's particulars. He argued that the Council should be restricted to reliance upon those instances of alleged contempt occurring after 19 September 2012, being 12 months back from the filing of the Application. Those particulars are, by reference to the Application:-

[17] The Respondent argued that the proceedings were brought under the Court's power vested in section 439 of the Sustainable Planning Act 1999 ("SPA") which provides:-

(1) A judge of the court has the same power to punish a person for contempt of the court as the judge has to punish a person for contempt of the District Court.

(2) The District Court of Queensland Act 1967, section 129, applies in relation to the court in the same way as it applies in relation to the District Court.

(3) If a person at any time contravenes an order of the court, the person is also taken to be in contempt of the court."

[18] Section 129 of the District Court of Queensland Act 1967 ("DCA"), relevantly provides:-

(1) A person is in contempt of the District Court if the person -

(a) without lawful excuse, fails to comply with an order of the court (other than an order mentioned in paragraph (e)), or any undertaking given to the court; or

(e) without lawful excuse, disobeys a lawful order or direction of the court at the hearing of any proceeding; or

(2) A District Court judge has the same power to punish for a contempt mentioned in subsection (1) as a Supreme Court judge would have if the contempt were a contempt of the Supreme Court.

[19] The Respondent argued that contempt should be considered an offence against the SPA as the proceeding was to be heard summarily. He relied on sections 609 and 610 of the SPA, which provide:-

Proceedings for an offence against this Act are to be taken in a summary way under the Justices Act 1886.

A proceeding for an offence against this Act must start -

(a) within 1 year after the commission of the offence; or

(b) within 6 months after the offence comes to the complainant's knowledge."

Hence, it is said, the effect of section 610 is to limit the particulars of the alleged contempt to the 12 months prior to the Application. If that is correct then the only particulars the Council may rely upon relate to incidents on:-

[20] The Council argues that section 439 does not create an offence against the SPA, so that sections 609 and 610 are not relevant.

[21] Chapter 7 of the SPA is headed "Appeals, offences and enforcements."

1. Part 1 deals with the establishment of this court, its jurisdiction and powers and appeals to and from it.

2. Part 2 deals with the building and development dispute resolution committees.

3. Part 3 deals with offences and is headed "Provisions about offences, notices and orders."

(a) Division 1 of Part 3 is headed Particular offences and exemptions.

(i) Subdivision 1 deals with Developments offences.

(iii) Subdivision 3 deals with the penalty of providing false or misleading documents or declarations to an assessment manager.

(b) Division 2 provides for show cause notices to be issued by an assessing authority which reasonably believes a development offence has been committed or is being committed.

(d) Division 4 provides for offence proceedings in the Magistrates Court.

(e) Division 5 provides for proceedings to be brought in this court for, amongst other things, orders to remedy or restrain the commission of a development offence.

4. Part 4 contains section 609 and 610 relied upon by the Respondents.

[22] Section 439 vests in this Court the usual power vested in all courts to deal with contempt. Section 439 is under Part 1 of Chapter 7. Sections 609 and 610 are under Part 4 of Chapter 7. Sections 609 and 610 refer to offences against the SPA which are found in Part 3. Contempt of this court is not an offence against the SPA.

[23] As the Council pointed out, as the DCA does not place any time limitations on initiating contempt proceedings, it would seem incongruous for the SPA to vest power from section 129 of the DCA but then limit its application in sections 609 and 610. It is logical that without clear legislative intention, no limitation be placed on the offence of contempt of court. Some cases may not be dealt with by the court for years. I am thinking here of offenders who breach bail conditions and are only apprehended some years later.

[24] Section 205 of the Criminal Code Act 1899 (Qld) ("Criminal Code") relevantly provides:-

"205 Disobedience to lawful order issued by statutory authority

(1) Any person who without lawful excuse, the proof of which lies on the person, disobeys any lawful order issued by any court of justice... is guilty of a misdemeanour, unless some motive of proceeding against the person for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment."

[25] I accept the Council's arguments on this issue. The Council is entitled to rely upon all its particulars.

1. whether the Respondent is guilty of contempt as alleged;

3. whether the Court has power to award costs in the proceedings; and

4. if costs are payable whether the successful party should be awarded all of its costs and whether those costs should be payable on an indemnity or standard basis.[20]

[27] The Respondent will be guilty of contempt if he has, without lawful excuse, failed to comply with the 1999 Order. The proceedings are criminal in nature so the allegations must be proven beyond a reasonable doubt.[21]

1. In breach of Order 2 of the 1999 Order, the Respondent failed to remove the Hoist from Area C ("Order 2 Breach"). The Council particularises eighteen occurrences on which the Hoist was witnessed in Area C;[22] and

2. In breach of Order 3 of the 1999 Order the Respondent has, from time to time, used the Land or allowed the use of the Land in contravention with the 1999 Order ("Order 3 Breach"). The Council provides evidence of several occasions when the Respondent was seen using the Land in contravention with the 1999 Order.[23]

[29] To prove the Order 2 Breach the Council relies on the evidence of its Development Compliance officer Ms Judith Noland. Ms Noland's affidavit of 24 September 2013 details eighteen occasions when she witnessed the presence of the Hoist in Area C, namely:-

[30] Ms Noland exhibited several photographs of the particularised occurrences evidencing the presence of the Hoist in Area C on 10 December 2011 and 19 April 2013 respectively.[24] Photographs "JN7" and "JN 18 2/2" are annexed to this judgment as Annexure B.

[31] In answer to the Council's case, a week before the hearing, the Respondent deposed the following in his affidavit:-[25]

18. To the best of my recollection, around 2010 I started receiving rates notices from the Council based on the whole of my land at 395 Rhodes Street, Koongal having changed from Residential to Commercial/Light Industry...

19. After receiving the first rates notice that 395 Rhodes Street, Koongal was now recognised as Commercial/Light Industrial, it was my honest belief that the Order of His Honour Judge Britton SC was no longer relevant, as the Order referred to use permitted in the Residential A zone...

21. Therefore, sometime after this I returned the hoist and associated equipment to its original position outside my existing workshop, believing that I was allowed to do so.

22. After receiving a pending contempt charge, I sought legal advice. I was advised to remove the hoist and associated equipment.

23. The hoist and associated equipment was removed from 395 Rhodes Street, Koongal on Sunday 15 December 2013...

Particulars of the Application in Pending Proceedings in regard to area "C" filed on 19 September 2013

26. In response to the allegations involving the hoist in area "C" where a white sedan was raised on it for a period and then sitting on it while lowered for a further period.

The white sedan was my own vehicle and the hoist was broken for the period when it was raised." (emphasis added)

[32] In support of his asserted honest belief regarding the rates notices, the Respondent tendered Exhibit 1 comprising an Annual Valuation Notice from the Department of Natural Resources and Mines dated 24 February 2003 ("AVN") and a letter from that department dated 29 June 2006 ("Letter").

[33] The AVN advised that at 1 October 2002 the Land was valued at $33,000.00 noting that the valuation had not changed since 1 October 1999. There was no mention of the classification of the land.

[34] The Letter advised the Respondent that a previously advised Land valuation of $46,000, to take effect on 30 June 2006, had been found to be incorrect when compared to other properties used for residential purposes in the locality. It went on to say that:-

"Because the property is used for a mechanical repair business, the land has been compared to other properties used for similar purposes"

The Letter advised that a new valuation would be issued in the near future.

[35] There was nothing in either the AVN or Letter to support the honest belief the Respondent says he held.

[36] In paragraph 26 of his affidavit, the Respondent seeks to justify the presence of the Hoist in Area C on the basis that it was broken. I infer from the paragraph 26 admission that the Hoist was located in Area C in the eighteen instances particularised by the Council.

The Council's Evidence in Response re Rates Notices

[37] The Council filed a further affidavit of Ms Noland dated 26 February 2014, annexed to which were all of the rates notices relating to the Land. The annexures included notices from 4 February 2009 to the current one issued on 5 February 2014. Rates notices are issued twice a year.

[38] These notices show that, from 4 February 2009 to 30 June 2009, the Land attracted a General Rate Category R5 - All Other Land category which includes a Single Dwelling. From 1 July 2009 to 20 June 2012 the Land attracted General Rate Category 9 - Urban Residential 1 or Residential 1 category. From 1 July 2012 to the present time the classification was General Rate Category 1 - Commercial/Light Industry.

Cross-Examination of the Respondent re Rates Notices

[39] The Respondent was cross-examined on the rates notices.[26] Despite the Council documents clearly showing the classification change occurred on 1 July 2012, he would not accept that the change had occurred on 1 July 2012. Instead he continued to articulate the honest belief that the change had occurred in 2010.[27]

[40] The Respondent raised section 22 of the Criminal Code which provides:-

"22 Ignorance of the law - bona fide claim of right

(1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.

(2) 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." (emphasis added)

[41] He submitted that the context of the rates notices founded in him an honest claim of right without the intention to defraud. His submission regarding section 22 is somewhat confusing:-

"...the respondent does not submit that this defence is a strong one or that it should avoid liability in this case. It is submitted that the case law on this point is confusing and the Court should explain the operation of the defence in the circumstances of this case."[28]

[42] I reject the evidence of the Respondent as to the holding of any honest belief or the holding of any honest claim of right under section 22 to the extent that it conflicts with that of the Council. In my view the Respondent was a most unimpressive witness who obfuscated and avoided answering questions on the issues. I consider he would say anything to advance his cause and is not to be believed. This was exemplified by the Respondent's assertion in cross-examination that the 1999 Order was not a consent order. The Respondent suggested that the consent order had been drafted and agreed between his counsel and the Council's counsel without his instructions, knowledge or consent. Relevantly the transcript reads:-

"Mr Ure: ...Again, you are saying there that the Order is wrong, aren't you?[29]

Respondent: ---If I can be allowed to comment Mr Ure what I started to say before when you cut me off so abruptly, I seem to recall coming to the Planning and Environment Court along with my barrister, and I seem to recall you personally coming up to my barrister approximately five minutes before the court case was due to go to court. And I believe at the time that you had somewhere in the vicinity of 45 witnesses sitting out in the foyer of the court, and you came up and said to my barrister, 'We've got to do something, the council doesn't have a case"[30]

His Honour: ...that - that - were you going on to say, as you alluded to earlier, that you didn't consent to this order?[31]

Respondent: ---As far as I can recall, your Worship I don't recall having anything to do with it. The - the meeting in relation to that was all the people that were sent home, all the witnesses and I believe there was a conference between my barrister and Mr Ure. And, as I recall, the - the council said to my barrister that they didn't have a case. And subsequently, as a result of that, we came in here and had a discussion...[32]

...Mr Ure in return wanted something from us. So that something that they wanted was to remove the hoist and remove the sign of the building within seven days, which was done, and then I had to get approval when I put - when I put them back.[33]

His Honour: And that was a consent order?[34]

Respondent: ---That - that as I understand it.[35]

Respondent: ---I don't believe I did.[37]

Mr Ure: You were - sorry, I didn't mean to interrupt, your Honour. You were legally represented, weren't you?[38]

Respondent: ---I was legally represented. I believe Tony Arnold was the barrister, and I believe that - that you, yourself, and Mr Arnold worked this out between youse. I just don't understand how - how that can - can happen. But, anyway that's - as I recall it, to the best of my knowledge, that was what happened..."[39]

[43] On 14 June 2012 the Respondent and his brother, Mr Daryl Dubois met with two representatives of the Council, Ms Noland and Mr Newsome. The meeting was recorded with the consent of the Respondent.[40] Ms Noland and Mr Newsome put the same issue of consent to the 1999 Order to the Respondent.[41] At the meeting the following was said:-

"Mr Newsome: Did you appeal the decision by the court?

Ms Noland: There's a comment on here that this is a court order and this has come off the court file.

Ms Noland: That the court order is agreed by Mr John Dubois."

I have no doubt whatsoever that the Respondent consented to the Order and was fully aware of its contents.

[44] I am satisfied beyond a reasonable doubt that the Respondent is guilty of the contempt alleged in relation to Order 2 of the 1999 Order. It is clear that the Respondent knowingly, without lawful excuse, failed to comply with Order 2 on the eighteen occurrences particularised and evidenced by the Council.

[45] I am not satisfied of the Respondent's lawful excuse under section 22 of the Criminal Code as I have said; I do not believe that the Respondent held or exercised an honest claim of right without the intention to defraud.

[46] Further, assuming for the moment, the Respondent's argument on the particulars issue is correct, there remain instances of the Respondent's contempt within the twelve months limitation period he relies on.

[47] The 1999 Order provides that the Respondent can use Area C only for uses permitted in a Residential zone A and for gaining access to the Workshop.[42] The Council argues that the Respondent has used Area C for purposes other than those permitted in a Residential zone A and for gaining access to the Workshop.[43]

[48] Access is defined by the Shorter Oxford English Dictionary as:-

"coming towards someone or something; or a way or means of approach or entrance."

The Oxford Thesaurus of the English Language defines access as synonymous with:- "entrance; entry; way in, means of entry, ingress, approach or means of approach."

Accordingly the Respondent will be in contempt if it is proven, beyond a reasonable doubt, that he used or allowed the use of Area C for anything other than:-

"coming towards the Workshop; a way or means of approach or entrance to the Workshop; an entrance, entry, way in, means of entry, ingress, approach or means of approach to the Workshop."

[49] The Council relied on the affidavit of Judith Noland filed 24 September 2013 and a statement of Elsie May Larkings, a resident of 397 Rhodes Street.[44] Of the breach events relied on by Council, the events on 27 August 2012 and 19 April 2013 were witnessed by Ms Noland and on 28 April 2013 by Ms Larkings.

"On 27 August 2012, I attended Koongal Motors. From my car on the road, I saw a white utility in area "C" near the property boundary with Rhodes Street. I saw that the bonnet of the vehicle was up and there were a number of items including a red bucket on the driveway in front of the vehicle. I saw Mr Dubois at the engine of the utility. It appeared to me that Mr Dubois was carrying out mechanical work on the vehicle. After a short period of time, Mr Dubois noticed me and immediately moved away from the vehicle."[45]

"... The white utility is my own workshop vehicle and I was doing the regular maintenance checks like on water, oil and fluid levels. There was no "mechanical work" done beyond these checks."[46]

"On 19 April 2013, I attended Koongal Motors. From my car on the road, I saw a blue all-wheel-drive vehicle parked in area "C" near the property boundary with Rhodes Street. I saw that the vehicle had its bonnet up and saw Mr Dubois in blue work clothes leaning over the engine of the vehicle. After getting out of my car, I saw Mr Dubois emerge from his position over the engine of the vehicle and wipe his hands on a rag. It appeared to me that Mr Dubois was undertaking mechanical work on the vehicle."[47]

"... The blue all-wheel-drive was parked in that position by a customer when they delivered the vehicle for repairs. The bonnet was lifted so that the owner could provide me with instructions in regard to the problem. The vehicle was not parked in this position for long..."[48]

"On 28 April 2013, I saw John carrying out mechanical work on the white Mack truck in area "C" towards the Rhodes Street front of his property. It appeared to me that he was undertaking general maintenance on the truck."[49]

"The white Mack prime mover is owned by me. It is necessary to lower the "bulbar" so that the bonnet can be lifted to do routine fluid checks and I would not class this as mechanical work."[50]

[56] At the meeting earlier referred to the issue of the use of Area C was put to the Respondent. The following was recorded as being said:-

1. Respondent: "...the court rulings are totally irrelevant..."[51]

Respondent: "...the fact of the matter is when I, if a customer drives in in a car and I want to check the oil in the vehicle or something like that and I lift up the bonnet..."[52]

Mr Newsome: "Now would you agree that you undertake work in this area?"

Respondent: "I've undertaken work in that area for years."[53]

[57] In her affidavit, Ms Noland summarised the Meeting as follows:-

"On 14 June 2012, at the meeting at City Hall, Mr Dubois spoke about the use of area "C". He said words to the effect of:

(a) The area is not access - it is part of Koongal Motors;

(b) He had undertaken work in that area for years; and

[58] The Council cross-examined the Respondent on the transcript of the Meeting. As with all his oral evidence the respondent was deliberately evasive and unresponsive.[55]

[59] The Respondent argues that the inspection and maintenance checks on vehicles owned by him can be regarded as part of the normal residential use of the land.[56] He identified the white utility vehicle of 27 August 2012 as his own workshop vehicle.[57] He said that the white Mack prime mover of 19 April 2013 was also owned by him.[58] However, the blue all-wheel-drive of 19 April 2013 is admitted to have been owned by a customer. [59]

[60] The Council argues that working on the white utility vehicle, which is a Koongal Motors business vehicle, is an incident of business use[60] and that the white Mack prime mover is involved in a nitropel carting business, the administrative base of which is 395 Rhodes Street.[61] The Respondent admitted the use of the white Mack prime mover for carting fertiliser at the hearing.[62]

[61] Under the RCP the use of the Land is classified as Low Impact Industry. The Land attracts this classification as it is used for "Automotive Repair and Services."[63] It is clear from the evidence that the use of Area C on 27 August 2012, 19 April 2013 and 28 April 2013 was part of the Low Impact Industry classification, not the residential use. The 1999 Order restricts the use of Area C to "access" and residential use only.

[62] I am satisfied, beyond a reasonable doubt, that Area C has been continually used by the Respondent for purposes other than those permitted by the 1999 Order. The evidence establishes that the Respondent has undertaken the following activities in Area C:-

These activities have been undertaken on vehicles owned by the Respondent for a business use and a vehicle owned by a customer of his business. None of the activities undertaken can be considered residential use or "access".

[63] The Respondent is guilty of the contempt alleged in relation to the Order 3 Breach. It is clear, beyond a reasonable doubt that he, without lawful excuse and deliberately, failed to comply with an order of the Court. His entire conduct regarding both contempt counts reflects a contumelious disregard of the 1999 Order.

[64] Rule 930 of the Uniform Civil Procedure Rules 1999 ("UCPR") empowers the Court to punish the Respondent by making an order under the Penalties and Sentences Act 1992 ("PSA").

[65] The general principles for sentencing of offences under the PSA should be applied to sentencing for contempt.[64] The purposes of sentencing stated in subsection 9(1) of the PSA include punishment, general deterrence, and personal deterrence. Subsection 9(2) states the considerations a court must have regard to in sentencing an offender, including:-

(a) that a sentence of imprisonment should only be imposed as a last resort;

(b) the maximum penalty prescribed for the offence;

(c) the nature of the offence and how serious it was; and

(d) the extent to which the offender is to blame for the offence.

[66] Authorities put before me show that penalties for contempt can range from no penalty for technical and minor breaches of court orders,[65] to substantial fines[66] and sentences of imprisonment where the contempt is of a serious nature.[67] I regard this as a serious contempt.

[67] The Respondent submitted that a fine of $5,000.00 would be an appropriate penalty, relying on Booth v Yardley [2008] QPEC 100 ("Booth"). In Booth Wilson DCJ fined the respondent $5000 for contempt in respect of an order to remove a power grid protecting an orchard from marauding squadrons of flying foxes. Wilson DCJ provides:-

"[1] Mr and Mrs Yardley own a property at Mirriwinni in North Queensland where, in the past, they grew lychees and other fruit. In an effort to stop flying foxes taking their produce they constructed aerial grids, electric wires on metal poles, above the orchard which either injured and killed some of those creatures or had the propensity to do so.

[2] Dr Booth has been an active advocate for the conservation of flying foxes since 1999 and brought proceedings in this Court in 2006 for an order under the Nature Conservation Act 1992 that the Yardleys dismantle the grids. After a hearing in November 2006 this Court ordered that they do so within 3 months, i.e. by the end of February 2007.

[3] The Yardleys disconnected power to the grids, but did nothing else. Dr Booth then sought an order that they be punished for contempt. In that proceeding the Yardleys argued that disconnecting the electricity was sufficient compliance, but that was rejected and on 8 February 2008 I ordered that, by 31 March, they effect dismantling by pulling down and taking apart the horizontal wires and metal poles which comprised the grids."[68]

[69] In the present case, the relevant 1999 Order was made almost fifteen years ago. Prior to the 1999 Order the Respondent was aware there were restrictions as to his rights of use of the Land under the 1996 Order. Booth is distinguishable in it involved a fine of $5,000.00 for failure to comply with an order made two years earlier.

1. The Respondent was first convicted for a breach of the 1996 Order.

2. The Respondent was fined $1,000.00 and ordered to pay indemnity costs of $3,049.50.

4. The Respondent was convicted for a breach of the 1999 Order and fined $1,500.00.

5. The Respondent has continued to use the Land in contravention of the 1999 Order.

[71] Since 1996 the Respondent has been ordered to pay $5,549.50 in total. Despite these monitory penalties, the Respondent has continued to use the land in contravention of the 1999 Order. I am firmly of the view that a further fine of $5,000.00 or more would do little, to discourage the Respondent from continuing his anarchistic conduct in ignoring the 1999 Order.

[72] I believe the Respondent's continued offending in the face of his previous convictions supports the reasonable inference that any monitory penalty will not deter him from any future similar conduct.

[73] Having regard to the history of the matter and being conscious of the seriousness of imposing a prison term, I have nevertheless come to the view that imprisonment is the appropriate penalty. I order that the Respondent be imprisoned for three months, to be suspended after he has served one month.

[74] The statutory basis for the Court to award costs in the Planning and Environment Court is section 457 of the SPA. This was amended by section 61 of the Sustainable Planning and Other Legislation Amendment Act (No. 2) of 2012.

[75] The Council submitted that a costs order be made against the Respondent on the basis of section 457 as it exists today. The Respondent submitted that the provisions of section 945 preclude a costs order being made in favour of the Council. Section 945 provides:-

(1) Former section 457 continues to apply to a proceedings in the court that has been brought before the commencement.

(2) For subsection (1) a proceeding in the court (the originating proceeding) includes any interlocutory proceeding relating to the originating proceeding that is brought after the commencement."

[76] The Council submitted that the Application is not an interlocutory which is a proceeding normally relating to matters of practice and procedure in which the substantive rights of the parties to the matter are not finally determined. It is as a consequence of an interlocutory application. An interlocutory application is an application to a court to make an order before the court makes a final order in the proceedings.[69]

[77] The Council further submitted that the 1999 Order was a final order disposing of the issues in the proceeding. Consequently, the Application is not within the contemplation of section 945(2).[70]

[78] I accept the Council's argument. The Application is not interlocutory in nature given the finality of the 1999 Order.

[79] In Colgate Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) 46 FCR 225[71] Sheppard J reviewed the authorities and said that in order to award indemnity costs the circumstances of the case must warrant the Court departing from the usual course of standard costs.

[80] In the current circumstances I consider it appropriate to depart from the usual course and to award indemnity costs. The Application would not have been filed, nor the hearing required. if not for the repeated contempt of court of the Respondent. The situation was exacerbated by the Respondent's refusal to cooperate. Conversely the Council has been a model litigant and should not be liable for its own costs, considering the necessity of the Application to enforce the 1999 Order.

2. The Respondent is sentenced to imprisonment for three months, to be suspended after he has served one month.

3. A warrant for the arrest of the Respondent is to issue forthwith but to lie in the Registry until 4pm on 7 April 2014 to allow the Respondent to deliver himself into the custody of the Department of Corrective Services Rockhampton.

4. The Respondent is to pay the Council's costs on an indemnity basis.

Annexure A: Order of His Honour Judge Britton SC dated 11/06/1999, court document number 44

Annexure B: Affidavit of Judith Noland filed 24/09/13, court document 71, "JN-7" and "JN-18 2/2"

[1] Respondent's affidavit dated 21/02/14, court document 84, paragraph 5.

[5] Respondent's affidavit dated 21/02/14, court document 84, paragraph 9; Outline of Argument of the Applicant, paragraph 7.

[6] Respondent's affidavit dated 21/02/14, court document 84, paragraph 10; Outline of Argument of the Applicant, paragraph 7.

[7] Order of His Honour Judge Britton SC dated 11/06/1999, court document number 44, Annexure I.

[8] Respondent's affidavit dated 21/02/14, court document 84, paragraph 11.

[17] Application in Pending Proceeding, filed on 19/09/13, court document number 69, paragraph 6. Particulars 1.

[19] Respondent's affidavit dated 21/02/14, court document 84, paragraph 17.

[20] Respondent's Outline of Argument, paragraph 4.

[21] Witham v Holloway (1987) 183 CLR 525 at 534 as per Brennan, Deane, Toohey and Gaudron JJ; Lade & Co P/L and Ors v Black [2006] QCA 294; [2006] 2 Qd R 531 at paragraph 65(d) as per Keane JA; Crowther v State of Queensland [2006] QCA 308 at paragraph 14 as per de Jersey CJ and paragraph 29 as per McMurdo P.

[22] Application in Pending Proceeding, filed by Council on 19/09/13, court document number 69, paragraph 6. Particulars 1.(i)-(xviii).

[23] Ibid, paragraph 7. Particulars 1.(i)-(vii).

[24] Affidavit of Judith Noland filed 24/09/13, court document 71, Exhibits JN7 and JN18 2/2.

[25] Affidavit of John William Dempster Dubois dated 21/02/14, court document 84, paragraphs 18-26.

[26] Transcript of hearing, Day 1, pages 23-29.

[28] Respondent's Outline of Argument, paragraph 45

[29] Transcript of hearing, Day 1, page 33.44.

[40] Affidavit of Judith Noland filed 24/09/13, court document 71, page 46, Exhibit "JN-25" at paragraphs 1 and 2.

[42] Order of His Honour Judge Britton SC dated 11/06/1999, court document number 44, Order 3(b) and (c).

[43] Outline of Argument of the Applicant, paragraph 12.

[44] Affidavit of Erin Louise Kay filed 08/10/13, Exhibit "ELK-3", Statement of Elsie May Larkings, page 3.

[45] Affidavit of Judith Noland filed 24/09/13, court document 71, paragraph 27.

[46] Affidavit of John William Dempster Dubois dated 21/02/14, court document 84, paragraph 29.

[47] Affidavit of Judith Noland filed 24/09/13, court document 71, paragraph 28.

[48] Affidavit of John William Dempster Dubois dated 21/02/14, court document 84, paragraph 30.

[49] Affidavit of Erin Louise Kay filed 08/10/13, Exhibit "ELK-3", Statement of Elsie May Larkings, page 3.

[50] Affidavit of John William Dempster Dubois dated 21/02/14, court document 84, paragraph 32.

[51] Affidavit of Judith Noland filed 24/09/13, court document 71, page 46, Exhibit "JN-25" at paragraph 14.

[53] Ibid, page 51, paragraphs 95 and 96.

[54] Affidavit of Judith Noland filed 24/09/13, court document 71, paragraph 43.

[55] Transcript of hearing, Day 1, pages 30-34.

[56] Outline of Argument of the Applicant, paragraph 28.

[57] Ibid, in reference to the Affidavit of John William Dempster Dubois dated 20/02/14, court document 84, paragraph 29.

[59] Affidavit of John William Dempster Dubois dated 21/02/14, court document 84, paragraph 30.

[60] Outline of Argument of the Applicant, paragraph 28.

[61] Ibid, paragraphs 16-17 in reference to the Affidavit of Judith Noland filed 24/09/13, court document 71, pages 10-12, Exhibit "JN-25".

[62] Transcript of hearing, Day 1, page 33.

[63] Rockhampton City Plan - Reprint 1 taking effect on May 8, 2009, page 3-25.

[64] BCC v Stapleton [2006] QPEC 073 as per Rackemann DCJ.

[65] Battle Pty Ltd v Hoy [2000] QDC 043 as per McGill DCJ. In BCC v Stapleton [2006] QPEC 073, Rackemann DCJ ordered 100 hours community service for contempt.

[66] Purtill v Landfix Pty Ltd [2004] QPEC 067 as per Wilson SC DCJ.

[67] Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339 at page 6 as per Williams JA with whom McPherson JA and White J agreed; City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd [2006] QSC 031 as per Atkinson J.

[68] Booth v Yardley [2008] QPEC 100, paragraphs 1-3.

[69] Outline of Argument of the Applicant, paragraph 33.

[71] Colgate Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225.