CAN A LOT OWNER BE IMPRISONED FOR FEEDING BIRDS?

Can a Lot Owner be Imprisoned for Feeding Birds? It seems like it would be a pretty straightforward answer of “No”.

However, we recently acted for a Body Corporate that obtained orders in the Magistrates Court of Queensland that in effect, stated if a Lot owner continued to feed the birds at the scheme, he would be subject to imprisonment for a period of three months.

So how did we and the Body Corporate get to this stage?

In 2018, the Body Corporate obtained orders from an Adjudicator of the Office of the Commissioner for Body Corporate and Community Management that stated:

“[the Owner] must immediately cease allowing food scraps to fall, be placed or thrown onto the common property in any way that encourages wild birds/animals to come onto the common property.”

There is nothing particularly unusual about those orders as they are often issued by Adjudicators for breaches of by-laws and the nuisance provisions under the Act.

What was unusual was the extent of the damage to the scheme and the effect that feeding birds had on other owners. The mess caused by the birds (and by mess, yes, I mean faeces) was so extensive that it required the Body Corporate to continually clean the common property and rendered the balcony below the owner’s lot to be unusable, as the mess posed a risk to public health and safety.

The story does not end there. The Lot owner continued to feed the birds in contravention of the Adjudicator’s Orders.

In 2019, the Body Corporate, through its solicitors at the time, registered the Adjudicator’s Order as an Order of the Magistrates Court to take enforcement steps. The form of that enforcement was to issue a Complaint and Summons in the Magistrates Court for failing to comply with the Adjudicator’s Orders.

This resulted in the Lot owner being fined $1,000 and having to make payment of some of the Body Corporate’s costs.

Still, the Lot owner was not deterred. He continued to feed the birds, and in 2020, the Lot owner was again issued with a Complaint and Summons, which resulted in him being fined $2,500 and being required to pay some of the Body Corporate’s costs.

Contempt of Court proceedings

Despite being fined for a second time, the Lot owner continued his conduct. At this stage our firm was engaged to provide the Body Corporate with some further options.

The option provided to the Body Corporate, and ultimately pursued, was to bring an application for Contempt of Court which carries a potential prison sentence.

The Lot owner was served with the application for contempt but did not appear at the hearing of the application. Due to the very serious nature of the penalty that could be applied, the Magistrate issued a Warrant for the Arrest of the Lot owner to be brought before the Court for the hearing of the application.

That ultimately occurred earlier this month.

Result of Contempt of Court proceedings

The Magistrate made orders that the Contempt of Court had been proven and that the Lot owner was to be sentenced to three months’ imprisonment, suspended for two years. The Body Corporate was awarded significant costs for this process.

The effect of the Order is that if the Lot owner feeds the birds again in the next two years he will, on the application of the Body Corporate, likely be sentenced to a term of three months’ imprisonment.

If we take a step back, a potential term of imprisonment on the surface seems to be a pretty extreme punishment.

However, the Magistrate’s and the Court’s punishment was not for the act of feeding birds, but rather the continued failure to comply with Orders made by an Adjudicator and the Magistrates Court over a period of approximately five years. The lesser punishments of fines did not deter the Lot owner, so the Magistrate was prepared to make the Orders for Contempt.

So, I return to my initial question, can a Lot owner be imprisoned for feeding birds?

The answer to that question is no, but they most definitely can be imprisoned for Contempt of Court.

Article Contributed by Brenton Schoch, Partner, Grace Lawyers

At Grace we provide bodies corporate with effective, efficient and affordable advice. Call us on 1300 144 436 for guidance if a Lot owner fails to comply with an Adjudicator’s Orders.