In Berghofer v Wicks [2024] QSC 4 (10 January 2024), Burns J found the defendant to have acted in breach of an injunction enjoining him from conduct in relation to land he leased to the plaintiff and thereby in contempt of court. His Honour usefully canvassed the principles applicable upon an application for contempt. Some, but not all, of the particulars of contempt were found made out. The relevant portions of the reasons pertaining to the background facts, and the principles applied, are these:
[1] The plaintiff, Jacob Berghofer, applies to the court for orders pursuant to the provisions of Chapter 20 of the Uniform Civil Procedure Rules 1999 (Qld) that the defendant, Peter Wicks, be dealt with for contempt of an order of the court made on 23 December 2020. No less than 25 breaches of that order are alleged by way of charge in the application and, for the reasons that follow, I have found most of them to be proven to the required standard.
Background
[2] At all times material to this application, Mr Wicks was the registered owner of a grazing property known as Lochavon which is situated in Gordonbrook in the South Burnett region of Queensland. The property is comprised of 941 hectares in six contiguous parcels of land bounded by Wicks Road on the eastern side. …
[3] The parties first met in early 2015 when Mr Berghofer inspected Lochavon. This led to what seems to have been at first an informal arrangement whereby Mr Wicks allowed Mr Berghofer to move cattle onto the property and the pair worked co- operatively and for the common good until around the middle of 2019. In the meantime, and for much of 2017, the terms of a more formal arrangement were negotiated by the parties culminating in the execution of a written lease in February 2018.
[4] By the lease, and subject to only one qualification, the whole of the land comprising the six Lots was leased by Mr Wicks to Mr Berghofer along with the buildings, other structures and improvements on that land.1 The qualification — clause 19 — was in these terms:
EXCLUSION OF RESIDENCE/CURTILAGE/HORSE PADDOCK
19.1 The parties agree that the Lessor shall during the term or extended terms, be entitled to remain in occupation and possession of the residence, curtilage and horse paddock located on Lot 390 on CPFY805, and the Lessee shall have no responsibility to maintain or repair any of the improvements;
19.2 the Lessor shall (together with his invitees, agents and employees) have the right to traverse the other parts of the land for the purpose of accessing the area reserved under clause 19.1;
19.3 the Lessor in exercising his right under clause 19.1 shall not hinder or obstruct the Lessee’s use, business and enjoyment of the remainder of the land.” [Emphasis in original]
[5] Reference should also be made to clause 12.1:
QUIET ENJOYMENT: The lessor warrants that the lessee paying the rent hereby reserved and observing and performing the covenants, conditions and restrictions on its part herein contained shall and may peaceably hold and enjoy the demised premises during the said term without any interruption by the Lessor or by any person rightfully claiming through under or in trust for it.” [Emphasis in original]
[6] The lease was for a term of three years commencing on 1 January 2018 and expiring on 31 December 2020.2 There were two options to renew, each of three years’ duration, with the first option if taken up to commence on 1 January 2021 and expire on 31 December 2024.3 The permitted uses under the lease were cattle grazing and farming.4 Rental was agreed in the sum of $40,920 inclusive of GST for each year of the term,5 although clause 3.3 provided for additional rental to be payable by Mr Berghofer in the following circumstances:
ADDITIONAL RENT PAYABLE: The annual Rental shall be increased by $50.00 per annum for each hectare of the property which is planted by the Lessee under crops, on condition that the Lessee must apply appropriate amounts of fertiliser to any part of the land in which crops are grown. …” [Emphasis in original]
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[13] Eventually, Mr Berghofer applied to the court for an injunction restraining Mr Wicks from “impeding, obstructing or acting in any way that is inconsistent with or in breach of his rights to peaceful occupation, possession and enjoyment as lessee” under the lease. The application came on before Davis J on 23 December 2020 when orders were made, paragraph 1 of which provided that Mr Wicks was, “until the resolution of these proceedings or further order”, restrained “from impeding, obstructing or acting in any way that is inconsistent with or in breach of [Mr Berghofer’s] rights to peaceful occupation, possession and enjoyment of” each of the lots the subject of the lease.
[14] As I will find, Mr Wicks was not deterred, acting in breach of the injunction within a fortnight of the order having been made. Then, after a string of breaches between January 2021 and November 2022, the subject application was filed on 24 January 2023.
Proceedings for contempt
[15] As I have previously observed,6 the jurisdiction of the court to punish for contempt is both inherent and provided for under Chapter 20 of the Uniform Civil Procedure Rules 1999 (Qld).7 Because the liberty of the subject is potentially at stake, it is well established that strict compliance with the rules of procedure is required in a proceeding for contempt.8 It is equally well settled, and for the same reason, that nothing short of proof to the criminal standard will suffice in order to make out such a case.9 Of course, although it has been observed that a proceeding for contempt is essentially criminal in nature, it is not a proceeding that can be equated with a trial on indictment.10 Rather, it is a proceeding in the civil jurisdiction of the court and, as such, the UCPR apply. In that regard, save for one thing, all of the requirements of the UCPR were met in this case and the deficiency — personal service of the application and supporting material — was cured before the substantive hearing got underway.
[16] When a party moves the court to punish someone for contempt, the onus is at all times on that party.11 That said, although all of the elements of a charge of contempt must be made out, the particulars of the charge do not need to be made out in their entirety; it is enough if those particulars which are established by the evidence are sufficient to constitute proof of the essential elements of the charge.12
[17] In order to prove a charge of contempt involving the breach of a court order, it must be established that “the order is clear and capable of compliance, that the alleged contemnor has knowledge of the terms of the order and has by his act or omission breached the terms of the order”.13 The ordinary rules of construction apply, it not being the case that an order cannot be enforced unless the language of the undertaking is unambiguous and certain. To the contrary, if the order “bears a meaning which the court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed … as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not … preclude the court from enforcing the order … in the sense which the Court assigns to it”.14
[18] Under the general law, “the public interest requires that any disobedience more than casual, accidental or unintentional must at least be regarded as wilful”.15 As such, a deliberate act or omission which is in breach of an order will “ordinarily constitute wilful disobedience unless the alleged contemnor is able to show, by way of exculpation, that the default was casual, accidental or unintentional”.16 However, there must be “actual disobedience”, and that will not be so where the breach “occurs by reason of circumstances outside the control of the alleged contemnor”.17 Because of the way in which this case was litigated,18 it is unnecessary to determine whether a less onerous test applies when proceeding under Chapter 20 of the UCPR — and, in particular, rr 898 and 925 — to enforce an order of the court by means of an application for punishment for contempt.19 Instead, the approach I intend to take is to not find any of the charges proven unless I am satisfied beyond reasonable doubt that the breach alleged in each instance was wilful in the sense just discussed.
[19] In addition, because a finding that Mr Wicks was guilty of contempt will necessarily depend on the court’s willingness to draw an inference (in the case of each charge) that he acted wilfully, it is important to keep in mind that such an inference must not only be a rational inference from the proven circumstances but it must also be the only rational inference capable of being drawn.20 The same approach is required in the case of any finding that it was Mr Wicks and not some other unknown person who engaged in the alleged conduct.
[20] Rule 930 UCPR applies if the court decides that a contempt has been committed. In the case of an individual, the court may punish that individual by making any order that could be made under the Penalties and Sentences Act 1992 (Qld): r 930(2). The court may also make an order for punishment on conditions, including, for example, a suspension of punishment during good behaviour, with or without the giving of security: r 930(4). If the court orders that the contemnor be imprisoned, it must specify the prison at which he or she is to be imprisoned: r 931(1) UCPR. Costs are at the discretion of the court whether a specific punishment is imposed or not: r 932 UCPR.
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[47] It is almost trite to state that an injunction must be strictly obeyed and remains binding on the parties unless and until it is discharged.21 Indeed, the court is entitled to assume that those to whom injunctions are directed will act in good faith and seek to comply with them.22 It therefore ill-behoves a person restrained by order of the court to act on a view, whether on advice or otherwise, that the restraint no longer applies because of some intervening circumstance. It can be no defence that the party doing the act honestly believed, or was wrongly advised, that he or she would not be in breach of the order, if the act was deliberately done.23 An interlocutory injunction such as the one ordered by Davis J in this case is capable of being dissolved or varied and an injunction granted at trial may be set aside on appeal, but for so long as an injunction stands it must be obeyed. As Sir William Page Wood, VC said in Spokes v Banbury Board of Health:24
[T]he simple and only view is, that an order must be obeyed, that those who wish to get rid of that or must do so by the proper course, an appeal. So long as it exists, the order must be obeyed, and obeyed to the letter and anyone who does not obey it to the letter is guilty of committing a wilful breach of it, ….25
1 Clause 2.2 and Item 3 of the Schedule.
2 Item 4 of the Schedule.
3 Item 7 of the Schedule.
4 Item 6 of the Schedule.
5 Item 5 of the Schedule.
6 O’Connor v Hough [2016] 2 Qd R 543 , [41].
7 Bakir v Doueihi [2002] QSC 19 , [6] — [8].
8 Colefax v Colefax [1933] St R Qd 222 , 224; Hafele Australia Pty Ltd v Maggbury Pty Ltd [2000] QCA 397 , [29]; Costello v Courtney [2001] 1 Qd R 481 , [9]; Camm v ASI Development Company Pty Ltd [2007] QCA 317 , 10.
9 Witham v Holloway (1995) 183 CLR 525 , 534.
10 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 , 89; Witham v Holloway (1995) 183 CLR 525 , 534.
11 Witham v Holloway (1995) 183 CLR 525 , 530; Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 , [65], [101].
12 Matthews v ASIC [2009] NSWCA 155 , [48], [67]; Emmanuel College v Rowe [2014] QSC 238 .
13 Construction, Forestry, Mining and Energy Union v Grocon Constructions (Vic) Pty Ltd [2014] VSCA 261 , [139].
14 Australian Consolidated Press v Morgan (1965) 112 CLR 483 , 492.
15 Construction, Forestry, Mining and Energy Union v Grocon Constructions (Vic) Pty Ltd [2014] VSCA 261 , [140].
16 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 , 111–112; Witham v Holloway (1995) 183 CLR 525 , 530–534, 538–542; Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 , [26], [55]–[65] and [101]–[103].
17 Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 , [63].
18 As to which, see O’Connor v Hough (No 2) [2017] QSC 68 , [26] — [28].
19 See the discussion in Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 , [67]–[75].
20 Plomp v The Queen (1963) 110 CLR 234 , 252.
21 McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 , 313.
22 Wright, Layman & Umney Ltd v Wright (1949) 66 RPC 149 , 152.
23 Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 , [24], [44].
24 (1865) LR 1 Eq 42 , 48.
25 Ibid, 48.
