Auburn Council v Czopak [No 4]

[2005] NSWLEC 439

Reported Decision: (2005) 142 LGERA 380

Land and Environment Court

of New South Wales

CITATION:	Auburn Council v Czopak [No 4] [2005] NSWLEC 439
PARTIES:	APPLICANT: Auburn Council RESPONDENT: Mychajlo Czopak
FILE NUMBER(S):	40472 of 2005
CORAM:	Pain J
KEY ISSUES:	Contempt :- respondent purged contempt during course of proceedings - penalty for contempt - discretion - costs
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121D Land and Environment Court Act 1979 s 69 Land and Environment Court Rules 1996 Pt 6 r 2 Supreme Court Rules 1970 Pt 55 r 13
CASES CITED:	Ashfield Municipal Council v Stavitsky [2005] NSWLEC 492; Auburn Council v Czopak [2005] NSWLEC 357; Auburn Council v Czopak [No 2] [2005] NSWLEC 372; Auburn Council v Czopak [No 3] [2005] NSWLEC 417; Byron Shire Council v Hutton & Ors [2003] NSWLEC 157; Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309; South Sydney City Council v Hexiva Pty Limited [2002] NSWLEC 174; The Registrar of the Court of Appeal v Gilby (Mahoney, Priestley and Clark JJA, NSWCA, 20 August 1991, unreported); Tzavellas v Canterbury City Council (1999) 105 LGERA 262; Wood v Staunton (No. 5) (1995) 86 A Crim R 183
DATES OF HEARING:	19/07/2005 26/07/2005 20/09/2005
DATE OF JUDGMENT:	10/21/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Vergotis (solicitor) SOLICITORS: Matthews Folbigg RESPONDENT: Mr E White (barrister) SOLICITORS: Robilliard & Robilliard

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 October 2005

40472 of 2005 Auburn Council v Czopak [No 4]

JUDGMENT

1 HER HONOUR: Auburn Council (“the Council”) has filed an Amended Notice of Motion dated 18 July 2005 seeking orders that the Respondent is in contempt of Court. In the Amended Notice of Motion the Council seeks the following orders:

Background

2 On 17 June 2005 I delivered an ex tempore judgment in Auburn Council v Czopak [2005] NSWLEC 357 and made the following orders:

…
4. An order that the Respondent be restrained from using the dwelling house and any ancillary outbuildings erected on the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe for residential purposes or any other purposes after Friday 24 June 2005;

5. An order that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe on or before Friday 24 June 2005;
…

3 On 21 June 2005 I delivered an ex tempore judgment in Auburn Council v Czopak [No 2] [2005] NSWLEC 372 and made the following order:

1. An order that the Applicant enter the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe and do all such things as are necessary or convenient to give effect to the terms of Emergency Order No. 2 pursuant to s 121D of the

Environmental Planning and Assessment Act 1979 given by the Applicant to the Respondent on 15 April 2005 to demolish the dwelling house and all other ancillary outbuildings erected on the premises upon the Respondent complying with order 5 of the Orders dated 17 June 2005…

4 Seven statements of charge are attached to the Amended Notice of Motion dated 17 June 2005. The seven statements of charge allege that the Respondent has failed to comply with orders 4 and 5 dated 17 June 2005 on seven occasions, being 27 June 2005, 28 June 2005, 29 June 2005, 30 June 2005, 4 July 2005, 11 July 2005 and 15 July 2005.

5 The Amended Notice of Motion first came before the Court on 18 July 2005. On that occasion, the Respondent did not appear. On 18 July 2005 I delivered an ex tempore judgment in Auburn Council v Czopak [No 3] [2005] NSWLEC 417 and ordered that the Respondent attend Court on 19 July 2005 to answer the charges. The Respondent attended the Court on 19 July 2005 accompanied by Mr Neville Ciric, a friend. On the basis of Mr Ciric’s evidence I adjourned the matter to 26 July 2005 to allow the Respondent to remove his possessions and made the following order:

1. An order that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe on or before 12.00 pm on Monday 25 July 2005;

…

6 On 26 July 2005, I was informed by the parties that, with the help of Mr Ciric, the Respondent had removed his possessions and evacuated the dwelling house in accordance with order 1 dated 19 July 2005 and was residing in accommodation provided to him by the Council.

The Council’s submissions

7 The Council relied on three affidavits of Mr Michael Ryan, the Council’s Senior Health and Building Surveyor sworn on 27 June 2005, 4 July 2005 and 15 July 2005. Mr Ryan also gave oral evidence. He stated that he attended the dwelling located at 11 New Street, Lidcombe (“the site”) owned by the Respondent on 27 June 2005, 28 June 2005, 29 June 2005, 30 June 2005, 4 July 2005, 11 July 2005 and 15 July 2005. Mr Ryan stated that on each of the occasions he observed the Respondent using the dwelling house located on the site as a residence. Mr Ryan gave evidence that as the Respondent had not evacuated on each of the seven occasions, the Council was unable to carry out its obligations under

order 1 dated 21 June 2005.

8 The Council submitted that on the basis of the evidence provided by Mr Ryan the Respondent should be found guilty of contempt. The Respondent had a long history of non-compliance, had failed to comply with numerous Court and Council orders, expressed no contrition or remorse for his actions and had not given reasons for his contempt to the Court. In these circumstances, the Council submitted that the Respondent was guilty of contumacious contempt.

9 The Council submitted that if the Court found that the Respondent was guilty of contempt beyond reasonable doubt the appropriate punishment would be a pecuniary penalty or fine. The Council also submitted that as it had no choice but to incur significant costs in bringing these proceedings it should be entitled to its costs.

The Respondent’s submissions

10 On 19 July 2005 and 26 July 2005 the Respondent was unrepresented, but was accompanied by Mr Ciric who spoke on his behalf. Mr Ciric submitted that the Court should exercise leniency on the basis that the Respondent did not fully understand the nature of the proceedings and now that the Respondent had removed his possessions from his dwelling he was happy to comply with the Court orders. I adjourned the matter on 26 July 2005 to allow the Respondent to obtain legal advice and granted leave for him to make further submissions at a later date.

11 On 20 September 2005, the Respondent was legally represented and further submissions were made on his behalf. The Respondent relied on his affidavit sworn 20 September 2005. In his affidavit, the Respondent stated that he was 78 years of age and had owned and lived at the site since 1968. The Respondent considered he was in good physical health, but that he was forgetful, was easily confused and worried about things that would normally not be a problem. He stated further that he received an age pension, had a nominal amount in savings, and during the period following orders 4 and 5 dated 17 June 2005 he had no one to assist him to move his belongings off the property.

12 Counsel for the Respondent submitted that in the circumstances, the Court should exercise its discretion in favour of the Respondent and not impose any penalty. The Respondent is an elderly man, has limited resources and it is apparent that he may not have the mental capacity to understand the significance of the orders made by the Court. Counsel for the Respondent noted that while it was apparent that the Respondent had breached orders 4 and 5 dated 17 June 2005, the Respondent had complied with the orders by 26 July 2005. In addition, as the Respondent’s dwelling at the site had already been demolished, there was no need for the Court to consider general deterrence in any fine or penalty it imposed as there was no longer any chance the Respondent may continue to breach orders 4 and 5 dated 17 June 2005.

13 In relation to costs the Respondent argued that in recognition of the circumstances of the case the Court should exercise its discretion in favour of the Respondent and not order that he pay costs. The Respondent has limited resources, and apart from a nominal amount of savings, his only other asset is the land situated at the site. In these circumstances, the Court should not make an order for costs.

Finding

14 Part 6 r 2 of the Land and Environment Court Rules 1996 adopts Pt 55 r 13 of the Supreme Court Rules 1970 and gives the Court power to punish a contemnor by committal to a correctional centre or fine or both. The Council has proposed that a fine is an appropriate penalty. It is clear from the evidence before the Court that the Respondent continued to use the dwelling house located on the site as a residence contrary to order 4 dated 17 June 2005, and failed to evacuate the dwelling located on the site contrary to order 5 dated 17 June 2005. Accordingly, I consider that the Council has proved beyond reasonable doubt that the Respondent was in contempt of Court on 27 June 2005, 28 June 2005, 29 June 2005, 30 June 2005, 4 July 2005, 11 July 2005 and 15 July 2005. I must therefore consider whether punishment for the Respondent is appropriate given that the Respondent has purged his contempt in the course of these proceedings.

15 In Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 the Court of Appeal had occasion to order punishment for contempt of court. In the course of his judgment Kirby P said at 314:

A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.

16 More recently, following a review of the relevant authorities in Maniam and The Registrar of the Court of Appeal v Gilby (Mahoney, Priestley and Clark JJA, NSWCA, 20 August 1991, unreported), Dunford J in the matter of Wood v Staunton (No. 5) (1995) 86 A Crim R 183 identified the considerations to be addressed . Dunford J stated at 185 that:

Those cases show that relevant matters for consideration in assessing the proper punishment for this type of contempt include:

1. the seriousness of the contempt proved;

2. whether the contemnor was aware of the consequences to himself of what he did;
3. the actual consequences of the contempt on the relevant trial or inquiry;
4. whether the contempt was committed in the context of serious crime;
5. the reason for the contempt;
6. whether the contemnor has received any benefit by indicating an intention to give evidence;
7. whether there has been any apology or public expression of contrition;
8. the character and antecedents of the contemnor;
9. general and personal deterrence; and
10. denunciation of the contempt.

17 The Council relied on Byron Shire Council v Hutton & Ors [2003] NSWLEC 157, where Lloyd J imposed a penalty of $40,000 for eight separate breaches of an order restraining the respondents from using and storing tables and chairs on a sidewalk. However, Hutton involved a commercial business utilising a sidewalk for financial gain and the circumstances of that case are not applicable here.

18 The Respondent is an elderly person who has lived in the same house, the subject of these proceedings, for nearly 40 years. It is difficult for me to gauge the extent of his understanding of the proceedings over the five occasions he has been before me, whether legally represented or not. He did have the benefit of legal representation during the early part of the proceedings when I made orders 4 and 5 dated 17 June 2005 and order 1 dated 21 June 2005, and from my observations his then acting solicitor made considerable efforts to explain matters to him, that solicitor being an Ukrainian language speaker. There has also been an Ukrainian interpreter present in Court on all but one occasion to translate matters for the Respondent. The Court and the Respondent have been greatly assisted by having his friend Mr Ciric accompany him on several occasions. No psychological assessment of the Respondent has been presented to the Court, but it is clear that he is elderly and that the circumstances are very unfortunate for him.

19 Due to concerns on my part about his physical safety I gave him a very short period to vacate the premises. Given his limited resources to effect the move, and despite the Council being willing to assist him, I accept it was very difficult for the Respondent to move within the time frame specified in the orders to vacate the premises. He did move out approximately five weeks after the date required by the Court order. Applying Wood v Staunton, as far as the matters specified by Dunford J are relevant, I consider that while the contempt is serious the Respondent may not have been fully aware of the consequences of his breaches of the Court’s order, the contempt was not committed in the context of a serious crime, the contempt has been purged enabling the Council to undertake the demolition of his home, that no particular benefit such as financial gain has accrued to the Respondent by virtue of his contempt, and taking into account his personal circumstances particularly his age and the fact he had to vacate his home of many years, the Court, in the exercise of its discretion, considers that no penalty should be imposed on the Respondent.

Costs

20 The issue then arises whether I ought award costs in the Council’s favour. Under s 69 of the Land and Environment Court Act 1979 I have broad discretion to grant costs. The Court has previously awarded costs to applicants in situations where a respondent has been found guilty of contempt but no penalty has been imposed (see for example South Sydney City Council v Hexiva Pty Limited [2002] NSWLEC 174 and Ashfield Municipal Council v Stavitsky [2005] NSWLEC 492). In the circumstances of this case I am satisfied that the Council was entitled to commence the contempt proceedings and that it was justified in doing so. The Respondent’s dwelling was clearly a risk to public safety and had been so since at least 15 April 2005 when the Council issued emergency orders to the Respondent to evacuate the dwelling. In addition, by virtue of the Respondent’s delay in evacuating the site the Council was frustrated from complying with order 1 dated 21 June 2005. I consider that the Council is entitled to its costs in relation to the hearing on 20 September 2005. As has previously been determined by this Court, impecuniosity on the part of a respondent is not a reason for declining to make an order for ` costs (see Tzavellas v Canterbury City Council (1999) 105 LGERA 262 at [12]). I will suspend the costs order for two years however to give the Respondent time to organise his affairs in relation to the property he owns.

Orders

21 The Court makes the following declarations and orders:

1. The Court declares that the Respondent is guilty of contempt of Court for failing to comply with orders 4 and 5 of the orders of this Court dated 17 June 2005;

2. No penalty is imposed by way of fine or otherwise;

3. The Court orders the Respondent to pay the Applicant’s costs of and preparation for the proceedings on 20 September 2005;

4. Order 3 is suspended for a period of two years; and

5. The exhibits are to be returned.