Blacktown City Council v Nitopi (No 2)

[2019] NSWLEC 118

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blacktown City Council v Nitopi (No 2) [2019] NSWLEC 118
Hearing dates:	5 August 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [44]
Catchwords:	PRACTICE AND PROCEDURE - Notice of Motion seeking to invoke Slip Rule to permit orders that a moiety of the fines imposed in the primary decision be paid to the Applicant - application of Slip Rule - power to award a moiety - orders amended/added to order payment to the Council of half of each fine imposed on the Respondent
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 124 Fines Act 1996, s122 Land and Environment Court Act 1979, ss 23 and 67 Native Vegetation Act 2003 Uniform Civil Procedure Rules 2005, r 36.15
Cases Cited:	Auburn Council v Zizikas and Ors [1999] NSWLEC 222 Blacktown City Council v Nitopi [2019] NSWLEC 40 Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114 CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 4) Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 4) CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) v Metro Chatswood Pty Ltd (No 4) [2013] NSWLEC 83 DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 L. Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; [1982] HCA 59 Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Category:	Consequential orders (other than Costs)
Parties:	Blacktown City Council (Applicant) Giuseppe Nitopi (Respondent)
Representation:	Counsel: Mr P Boncardo, barrister (Applicant) No appearance on Notice of Motion (Respondent)   Solicitors: Sparke Helmore (Applicant) Hunter Lawyers (Respondent)
File Number(s):	280643 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The subsequent application

The statutory provision

The issues arising for consideration

At the hearing on 5 August 2019

What is the effect of s 122(2) of the Fines Act?

The appropriateness of ordering a moiety to be paid to the Council

Orders

JUDGMENT

Introduction

1. On 5 June this year, I imposed fines totalling $77,400 (being fines of $5,400 and $72,000) on Mr Nitopi with respect to the two charges of contempt of court to which he had pleaded guilty (Blacktown City Council v Nitopi [2019] NSWLEC 40). Blacktown City Council (the Council), the entity which had brought the charges of contempt against Mr Nitopi, had not made, prior to the handing down of my judgment or at the time of my publication of my judgment and its reasons, any application pursuant to s 122 of the Fines Act 1996 (the Fines Act) for a moiety of any fines imposed on Mr Nitopi to be paid to the Council.

The subsequent application

2. By Notice of Motion filed on 27 June 2019 (Amended Notice of Motion filed on 26 July 2019), the Council sought to have me consider such an application. That application came before Pepper J on 19 July 2019 as the List Judge, with her setting the motion down for hearing by me on 5 August 2019. On that day, Mr Boncardo, counsel for the Council, appeared before me to move on the motion seeking the moiety of the penalties imposed on Mr Nitopi. Although the motion was in amended form, nothing turns on that fact for the purposes of this discussion.

3. There was no appearance for Mr Nitopi (nor was it reasonable, under the circumstances, to expect that there might have been such an appearance, as the disposition of the penalties which had been imposed on him could reasonably be assumed to be a matter of complete indifference to him).

The statutory provision

4. As earlier noted, the Council seeks to have orders made with respect to each of the two fines imposed on Mr Nitopi that a moiety of each of them be paid to the Council. The power for me to do so is said to arise from s 122 of the Fines Act, a provision in the following terms:

122 Payment of share of fine to prosecutor(cf Fines and Penalties Act 1901 sec 5 (3))

(1)   This section applies where:

(a)   the Act imposing or authorising the imposition of a fine or other penalty does not make any provisions for its application when recovered, and

(b)   the prosecutor is not a police officer.

(2)   The court before which proceedings are taken to recover any such fine or other penalty may direct that such portion of it (not exceeding one-half) is to be paid to the prosecutor.

(3)   For the purposes of this section, fine does not include an amount of the kind referred to in section 4 (1) (e) or (f).

The issues arising for consideration

5. Three matters potentially arose for determination as to whether or not I had power to make the moiety-authorising orders sought by the Council. The first two of those matters had been identified by Mr Boncardo and addressed in written submissions filed at the time of filing of the Council’s Notice of Motion. Those two matters were:

1. How did I have the power to hear and determine the Notice of Motion given that I had made final orders disposing of the matter on 5 June 2019; and

2. Did fines imposed for contempt of court fall within a class of fine satisfying the terms of s 122(1)(a) of the Fines Act?

6. In my preparation for the hearing of the Notice of Motion, I considered the terms of s 122, particularly the wording of s 122(2). As a consequence, I caused my Associate to communicate with the legal representatives of the Council and Mr Nitopi. Her e-mail was in the following terms:

His Honour has carefully read the Applicant's submissions filed on 26 July 2019 in support of the Applicant's Amended Notice of Motion seeking, substantively, an order pursuant to s 122(2) of the Fines Act 1996 that half of each of the penalties imposed on Mr Nitopi be paid to the Applicant.

In the course of his Honour's preparation for the hearing of the Amended Notice of Motion, his Honour has considered the terms of s 122(2) of the Fines Act 1996. Two matters arising from this provision are not addressed in the Applicant's submissions filed on 26 October 2019. These are:

•   How can the present proceedings be regarded as one is currently on foot for the purposes of recovery of the fines imposed on Mr Nitopi? and

• How is the Land and Environment Court the relevant court for the purposes of s 122(2) of the Fines Act 1996?

His Honour appreciates that, in the past in this Court (and other courts), orders have routinely purported to be made ordering that half of any imposed fine be paid to the prosecutor in circumstances where s 122(1) of the Fines Act 1996 does not act to preclude such a payment. However, his Honour has been unable to find any authority on the operative effect of s 122(2) of the Fines Act 1996 concerning the two matters set out above.

Orders made in this Court (including by his Honour) purportedly ordering such payments have, in the past, arisen in circumstances where these issues have not been contested or required to be addressed.

However, as these issues have now come to his Honour's attention, it will be necessary for the Applicant (at least) to address these matters when the Amended Notice of Motion comes before his Honour next Monday afternoon.

His Honour advises that, if either party wishes to address these two matters in writing, such submissions are to be provided to his Honour by the close of business on Friday 2 August.

7. Unsurprisingly, Mr Nitopi’s legal representatives did not respond.

8. On the other hand, Mr Boncardo provided detailed written submissions addressing the issues I had raised concerning s 122(2) of the Fines Act.

At the hearing on 5 August 2019

9. I am satisfied that the Slip Rule, r 36.15 of the Uniform Civil Procedure Rules 2005 (UCPR), does provide a proper foundation to permit me to consider the merits of the Council’s application (subject to my satisfaction that the second and third jurisdictional barriers did not act to prevent that occurring) - L. Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; [1982] HCA 59).

10. However, I indicated to Mr Boncardo that, if I was not satisfied that the fines which I had imposed on Mr Nitopi fell within the type of penalty encompassed by s 122(1)(a) of the Fines Act, it would not be necessary for me to consider the issues arising from s 122(2) which I had requested be addressed. It is, therefore, appropriate to commence by considering the issues requiring to be satisfied as set by s 122(1).

11. First, it is clear that fines imposed for contempt of court are clearly, relevantly, fines falling within the purview of the Fines Act itself. This arises as a consequence of the definition of “fine” in s 4 of the Act, expressly nominating that a fine imposed for contempt of court was so encompassed.

12. However, for progressing further, it was necessary that I be satisfied that these fines were ones that fell within the scope of s 122(1)(a) of the Fines Act.

13. I indicated to Mr Boncardo my concerns that this was not the case. He submitted to me that there were two statutory sources of power that authorised me to impose the fines and that, as a consequence, this jurisdictional test was satisfied.

14. He commenced by submitting that s 67(1)(d) of the Land and Environment Court Act 1979 (the Court Act) provided an express basis for this jurisdiction. The relevant portion of the provision is in the following terms:

67   Powers of the Court as to the production of evidence

(1)   The Court shall have and may exercise the functions vested in the Supreme Court in respect of the following matters:

(a)   …

(b)   …

(c)   …

(d)   the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of any process issuing out of the Court, and

(e)   …

15. As my researcher pointed out to me, and I advised Mr Boncardo, s 67(2) of the Court Act expressly excludes, relevantly, proceedings in Class 4 of the Court's jurisdictions from the operation of the section. As these proceedings had been brought as civil enforcement ones within Class 4 of the Court’s jurisdiction, pursuant to the then numbered s 124 of the Environmental Planning and Assessment Act 1979 (and thus fell within that exclusion), that statutory provision was not available to be of assistance to the Council in this regard.

16. The second provision, in the Court Act, advanced as constituting a statutory basis satisfying s 122(1) of the Fines Act was s 23, a provision in the following terms:

23   Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

17. I indicated to Mr Boncardo that I had significant reservations as to whether this provision could be construed in the fashion advanced by him. As he had not addressed this provision at any length, in his first tranche of written submissions, I granted him a further period of time within which to provide supplementary submissions on this point. I indicated that, if I was satisfied that I should conclude that s 23 of the Court Act did provide a proper basis for proceeding to consider the issues arising from s 122(2) of the Fines Act, his written submissions on that further point provided a sufficient basis for such consideration.

18. On 13 August 2019, Mr Boncardo provided further written submissions in support of his proposition that s 23 of the Court Act did provide sufficient basis for satisfaction that the fines imposed by me on Mr Nitopi fell within the description that they were fines where the authorisation of the imposition of that fine was pursuant to an Act which not make any provisions for its application when recovered.

19. The written submissions on behalf of the Council concerning s 122(1)(a) were comparatively brief. Despite this, it is unnecessary to repeat them in their entirety.

20. First, the submissions addressed the remarks of Sheller JA in Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 (Mushroom Composters), where his Honour said, at 23:

The Court’s power to impose a fine by way of punishment for contempt derives from the consequences at common law of the commission of the offence.

21. First, it is to be observed that, as is pointed out in the Council’s written submissions, despite the fact that his Honour’s determination formed part of the majority of the Court of Appeal, they were nonetheless obiter dicta as the other member of the majority, Meagher JA, did not address the point.

22. However, if that was the only barrier to my being satisfied that I should reach a similar conclusion and, thus, dismiss this application by the Council, it is necessary to explain why a more contemporary decision of the High Court in DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 (DJL) has effectively set aside this broad conclusion. In DJL, the plurality of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow And Hayne JJ), at [25], addressed the question of whether or not a superior court of record, expressly created by statute with statutory powers and functions, had any inherent jurisdictions (as is here requiring consideration) when compared to courts such as the High Court or the Supreme Court in each State (courts which undoubtedly have inherent jurisdiction). The plurality said, at [25]:

The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction". The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred" . It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.

23. Although put, in each instance, in slightly differing terms, Kirby J and Callinan J each concurred in this broad proposition in their separate judgments.

24. Although addressing the position of the Family Court, it is undoubtedly the position that this Court is a superior court of record (certainly without doubt when the powers and functions of the Court are exercised by a judge sitting in this class (Class 4) of the Court's jurisdiction). However, as was the case with the Family Court being dealt with by the High Court in DJL, this Court is a statutory court with its powers and functions defined, primarily, by virtue of the Court Act, but with such additional powers and functions with which this Court is expressly vested by any of the individual jurisdiction-conferring enactments imported by the combination of each of those enactments and the enumeration of enactments set out in ss 16 to 21C of the Court Act itself.

25. It is also to be noted that there are a number of decisions in this Court where the High Court's determination in DJL was considered and where it has been held that the broad proposition advanced in DJL, as earlier quoted, was appropriately applicable to this Court. I have carefully read the analysis in the cases of this nature to which the Council’s submissions of 13 August 2019 particularly refer (eg CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 4) Metro Chatswood Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 4) CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) v Metro Chatswood Pty Ltd (No 4) [2013] NSWLEC 83 per Craig J at [27]) and see no reason to conclude that I ought not follow that which has been held with respect to the applicability of DJL to this Court.

26. As a consequence, following DJL, there cannot be any inherent common law jurisdictional basis by which this Court can impose punishments for contempt, in Class 4 proceedings, when a person commits contempt by failing to obey an order given in such proceedings.

27. I have earlier noted the fact that s 67(1)(d), a provision creating a statutory power to punish for contempt, is expressly excluded, by s 67(2), from applying in Class 4 proceedings.

28. The necessary consequence of the combination of the effect of the High Court's decision in DJL and the statutory exclusion of the contempt‑punishing power in s 67(1)(d) of the Court Act applying in Class 4 means that it is necessary to look elsewhere to see what is the source of power for a judge of this Court to punish for contempt when that contempt is occasioned by a breach of an order made in Class 4 proceedings.

29. The submissions on behalf of the Council propose that the source of this power is to be found in s 23 of the Court Act, a provision (as earlier noted) in the following terms:

23   Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

30. It seems to me that this is a conclusion that is inevitable to be reached as there is no other potentially available source of power to be found in the Court Act.

31. In Auburn Council v Zizikas and Ors [1999] NSWLEC 222, Cowdroy J considered the question of whether or not s 23 of the Court Act provided a statutory basis for the imposition of a fine for contempt of court in a fashion which satisfied s 122(1)(a) of the Fines Act so as to permit him to order a moiety of that fine be paid to the (then) Auburn Council as the initiator of the proceedings against Mr Zizikas. He held that it did not do so. There were, on my reading of that decision, two primary bases for that conclusion. The first was that he accepted the view expressed by Sheller JA in Mushroom Composters that this Court had an inherent common law right to impose such a fine. The second element was that he was not satisfied that s 23 of the Court Act operated to impose such a fine for contempt, this being the first of the limbs of s 122(1)(a). That latter position is undoubtedly correct.

32. However, I am satisfied that the decision in Zizikas is plainly wrong and ought not be followed. This is because each of the bases relied upon by Cowdroy J cannot, on the present state of the law, be maintained. First, for reasons earlier set out, the decision of the High Court in DJL makes it clear that the remarks in Mushroom Composters by Sheller JA do not now reflect a correct understanding of the position of superior courts of record that are creatures of statute.

33. As a consequence, as noted, there must be some identifiable foundational statutory power authorising the imposition of a fine for contempt (this being the second of the elements in s 122(1)(a) of the Fines Act), even if the statute from which such power can be derived does not expressly impose a fine for such conduct, but merely authorises the imposition of such a fine. It is clearly correct that s 23 of the Court Act does not operate to impose such a fine but, given that s 67(1)(d) is expressly not available in Class 4 to provide a basis for authorising the imposition of such a fine, by default s 23 of the Court Act must be accepted as being the statutory source of such power, as there is not now (and has never been, to my knowledge) any dispute that this Court does have this power to punish contempts arising to be addressed by breaches of orders made in Class 4 of the Court's jurisdiction.

30. As consequence, it follows that I am satisfied that a fine imposed for contempt of court is a fine authorised to be imposed pursuant to s 23 of the Court Act and is a fine for the disposition of which there is no statutory requirement.

What is the effect of s 122(2) of the Fines Act?

35. I have earlier set out the terms of the communication with the Council's legal representatives in which I sought submissions concerning how s 122(2) of the Fines Act was to be considered. As I have also noted, Mr Boncardo provided thoughtful written submissions on this point. The import of those submissions was that a proper reading of the provision meant that it did not act as a bar to this Court, in proceedings that led to the imposition of a fine that satisfied the terms of s 122(1)(a), from making an order directing that a moiety of the fine be paid to the party initiating the proceedings leading to that fine being imposed. It is, fortunately for me, unnecessary for me to address this point in detail. It is sufficient to note that, simultaneously with this question arising in these proceedings, a similar question arose for consideration by Preston CJ in Chief Executive, Office of Environment and Heritage v Brummell [2019] NSWLEC 114.

36. Although the fine his Honour imposed for the breach of the Native Vegetation Act 2003 was a fine which fell within the first limb of s 122(1)(a) of the Fines Act, the issue arising concerning s 122(2) is identical. His Honour addressed this provision at [102] to [112] of his decision. He concluded that a proper reading of s 122(2) led to the result that it was within power to consider whether or not a moiety should be paid to the initiating party in circumstances where there was imposed by this Court a fine which otherwise clearly fell within the scope of s 122 of the Fines Act. It is unnecessary for me to set out the entirety of his Honour's reasoning on this point. It is sufficient for me to observe that it is entirely appropriate that I adopt it for the purposes of these proceedings.

The appropriateness of ordering a moiety to be paid to the Council

37. As I have concluded that all three questions of power requiring consideration in these circumstances have been satisfied, it is then necessary for me to consider whether or not, as a matter of discretion, I should make such an order in favour of the Council with respect to each of the fines that I have imposed on Mr Nitopi.

38. In Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154 (Boggabri Coal), Preston CJ discussed (although in a different statutory context, nonetheless relevantly) what might provide a basis for ordering the payment of a moiety to an initiating party in proceedings where a fine was imposed, being a fine falling potentially within the scope of s 122 of the Fines Act. His Honour explained, at [58] to [63], why such a moiety order might be regarded as appropriate to provide recompense for expenses incurred by the initiating party where those expenses would not be reimbursed to that party as a consequence of the making of an ordinary costs order in such proceedings.

39. I also discussed those matters in Secretary, Department of Planning and Environment v AGL Energy Limited; Secretary, Department of Planning and Environment v AGL Upstream Infrastructure investments Pty Limited [2017] NSWLEC 2 (AGL Energy) at [134] to [157].

40. In these proceedings, I have evidence in an affidavit dated 24 July 2019 by Mr Jason Roberts, a Development Control Officer, as to the nature of the work undertaken by him and other officers of the Council for the purposes of preparation for these proceedings and where the expense of that participation in those activities does not fall within the scope of the costs order (even though it is an indemnity costs order) made in these proceedings.

41. I am satisfied that that evidence, consistent with the discussion in Boggabri Coal and AGL Energy provides a proper and appropriate basis upon which I should exercise my discretion to order that a moiety of each fine imposed on Mr Nitopi on 5 June 2019 be paid to the Council pursuant to s 122 of the Fines Act.

Orders

42. It follows from all of the foregoing that the orders made by me on 5 June 2019 should be amended/added to, pursuant to r 36.15 of the UCPR, to provide that a moiety of each fine be paid to the Council. However, in circumstances where Mr Nitopi has played no part in these proceedings by which the Council seeks a moiety of the fines in its favour (and there can be no suggestion that it would have been appropriate or necessary for him to have taken such a path), there is no basis upon which any costs order should be made arising out of this motion brought by the Council.

43. My orders made on 5 June 2019 were in the following terms:

(1)   Mr Guiseppe Nitopi (the Respondent) is guilty of contempt of court by failing, by 31 December 2017, to remove half of the waste located on 70-72 Wellington Road, Riverstone, contrary to the undertaking to the Court given by him on 3 November 2017 to do so;

(2)   The Respondent is fined $5,400;

(3)   The Respondent is guilty of contempt of court by failing, by 31 March 2018, to remove all of the waste located on 70-72 Wellington Road, Riverstone, contrary to the undertaking to the Court given by him on 3 November 2017 to do so;

(4)   The Respondent is fined $72,000; and

(5)   The Respondent is to pay the Applicant’s costs on the indemnity basis.

44. It therefore follows that, to dispose of this motion, the orders I now make are:

1. Pursuant to r 36.15 of the Uniform Civil Procedure Rules 2005, the orders made in this matter are amended/added to as follows:

1. Order (4) is amended by deleting the word “and”;

2. Order (5) is amended by adding, at its conclusion, the words “other than the costs of the application for payment of a moiety of the fines to the Applicant”;

3. Order (6) is added, being that:

(6) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Applicant one half of the fine imposed pursuant to (2); and

4. Order (7) is added, being that:

(7) Pursuant to s 122(2) of the Fines Act 1996, the Registrar is directed to pay to the Applicant one half of the fine imposed pursuant to (4).

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Decision last updated: 22 August 2019