Blacktown City Council v Wilkie (No 15)

[2016] NSWLEC 98

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Blacktown City Council v Wilkie (No 15) [2016] NSWLEC 98
Hearing dates:	18 and 19 March, 6, 7 and 8 May, 29 and 30 August 2013 and 13 August, 4 September (further written submissions) and 2 October 2015 (further written submissions)
Date of orders:	09 August 2016
Decision date:	09 August 2016
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [239].
Catchwords:	CONTEMPT: application to withdraw plea of guilty – legal principles – whether plea of guilty attributable to a genuine consciousness of guilt – whether there is an issuable question as to guilt – whether arguable that a plea in bar of autrefois convict available – whether compliance with orders forming the basis of the contempt charge impossible – whether later orders superseded earlier orders in respect of same subject-matter – whether statement of charge defective because it only referred to earlier orders – whether orders inoperative because they did not state time for compliance – leave granted to withdraw plea of guilty.
Legislation Cited:	Civil Procedure Act 2005, Sch 1, s 4 Criminal Procedure Act 1986, s 156 Uniform Civil Procedure Rules 2005, Sch 1, rr 1.5, 36.5, 40.6
Cases Cited:	Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2003] FCA 159; (2003) 127 FCR 542 Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612 B v B [1991] FCR 386 Blacktown City Council v Wilkie [2001] NSWLEC 269; (2001) 119 LGERA 255 Blacktown City Council v Wilkie [2002] NSWLEC 119 Blacktown City Council v Wilkie [2003] NSWLEC 120 Blacktown City Council v Wilkie (No 12) [2011] NSWLEC 238 Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110 Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252 Brown Brothers v Pittwater Council [2015] NSWCA 215; (2015) 209 LGERA 53 Carter v Roberts [1903] 2 Ch 312 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Danchevsky v Danchevsky (No 2) (1997) 121 SJ 796 Davies v Beyond Building Systems Pty Ltd [2009] NSWSC 1282 Environment Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gilbert v Endean (1878) 9 Ch D 259 Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 Kumari v Jalal [1997] 1 WLR 97; [1996] 4 All ER 65 Lamb v Lamb [1984] FLR 278 Lawson v The Queen [2011] NSWCCA 44; (2011) 206 A Crim R 557 Loury v R [2010] NSWCCA 158 Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 Pattison (Trustee), in the matter of Bell (Bankruptcy) v Bell [2007] FCA 137 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Penrith City Council v 24/7 Waste Bins Pty Ltd [2002] NSWLEC 186 Piras v The Queen [2006] NSWCCA 396; (2006) 167 A Crim R 260 Pittwater Council v Brown Brothers Waste Contractors (No 4) [2013] NSWLEC 219 R v Boag (1994) 73 A Crim R 35 R v Foley [1963] NSWR 1270 R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 R v Kouroumalos [2000] NSWCCA 453 R v Liberti (1991) 55 A Crim R 120 R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 R v O’Neill [1979] 2 NSWLR 582 R v Parkes [2004] NSWCCA 377 R v Sagiv (1986) 22 A Crim R 73 R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 Rand v Rand [2010] FamCAFC 167 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 Rotner v The Queen [2011] NSWCCA 207 Sauer v R [2006] NSWCCA 81 Siminton v Australia Prudential Regulation Authority (No 3) [2008] FCAFC 89; (2008) 168 FCR 140 Solicitor General v Jones [2013] EWHC 2579 (Fam) Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 Wilkinson v Anjum [2011] EWCA Civ 1196; [2012] 1 WLR 1036 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Witness J A v Scott [2015] QCA 285 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37
Texts Cited:	Borrie & Lowie: the Law of Contempt (4th ed) (LexisNexis, United Kingdom, 2010)
Category:	Principal judgment
Parties:	Blacktown City Council (Applicant)  Misty Wilkie (First Respondent)  Mark Reid (also known as Craig Floyd) (Second Respondent)  Graveyard Recycling Pty Ltd (Third Respondent)
Representation:	Counsel: Mr P McGuire (Applicant) N/A (First Respondent) Mr P Kintominas with Ms K Longin (Second Respondent) N/A (Third Respondent)   Solicitors: Houston Dearn O'Connor (Applicant) N/A (First Respondent) Woolf Associates (Second Respondent) N/A (Third Respondent)
File Number(s):	40025 of 2001
Publication restriction:

Judgment

Mr Floyd Seeks Leave to Withdraw a Plea of Guilty to Contempt Proceedings

1. By his fourth further amended notice of motion (filed on 29 August 2013), the defendant to contempt proceedings, Mr Craig Floyd (also known as Mr Mark Reid), seeks to withdraw a plea of guilty entered in those proceedings on 28 June 2011.

2. I am of the opinion that leave to withdraw his prior plea of guilty ought to be permitted. In summary, the plea was not attributable to a genuine consciousness of guilt on the part of Mr Floyd and there are “issuable” questions as to his guilt.

Mr Floyd is Ordered to Remove Material From Land Owned by a Third Person

3. In the original proceedings, Blacktown City Council (“the council”) sought the following relief (Blacktown City Council v Wilkie [2001] NSWLEC 269; (2001) 119 LGERA 255 (“Wilkie”) at [4] per Pearlman J):

4.   The council seeks a declaration that the four respondents have each carried out or permitted or suffered to be carried out development for the purposes of a tip, waste management facility, garbage depot, recycling yard or like use contrary to the provisions of the Environmental Planning and Assessment Act 1979 (‘the EP&A Act’). As against all four respondents the council seeks orders that they:

(i)   Cease using or causing, permitting or allowing the use of the site for that specified purpose;

(ii)   Be restrained from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste on to the site; and

(iii)   Remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility.

4. Wilkie concerned “a large amount of waste material” deposited on land located at Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park (“the land”) (at [1]). The land was owned by Mr Mario Constantine and leased to Ms Misty Wilkie, who in turn sublet the land to Graveyard Recycling Pty Ltd (“Graveyard”), a company controlled by Mr Floyd.

5. The council commenced Class 4 civil enforcement proceedings against Ms Wilkie, Mr Floyd and Graveyard to remove the waste from the land. Ms Wilkie joined Mr Constantine to the proceedings.

6. The then Chief Judge, Pearlman J, dismissed the claim against Mr Constantine on the basis that he was an innocent party in the deposition of the waste on his land insofar as he did not authorise it, did not consent to the sublease, contacted the council when he became aware of the presence of the waste, and sought to eject Ms Wilkie from the land. A cross-claim brought by Mr Constantine against the council was also dismissed by the Court.

7. However, her Honour did make orders against the remaining three respondents. As against Mr Floyd and Graveyard, Pearlman J found that the material had been deposited by them in contravention of the Environmental Planning and Assessment Act 1979 (“the EPAA”), and therefore, ordered them to remove the illegally deposited material from the land.

8. As against Ms Wilkie, Pearlman J held that she had permitted or suffered the land to be used for the purpose of a tip or recycling yard contrary to the EPAA and that accordingly she should be ordered to remove the unlawfully placed material, the order being contingent on Mr Floyd’s failure to do so.

9. As made on 6 December 2001 by Pearlman J, the orders of the Court were as follows (“the 2001 orders”) (at [77], emphasis added):

77.   In accordance with the foregoing, I make the following formal orders:

(1) I declare that the first respondent has permitted or suffered the carrying out of development on the land known as part lot 2 in deposited plan 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park (“the site”) for the purpose of a tip or recycling yard or like use contrary to the Environmental Planning and Assessment Act 1979.

(2) I declare that the second and third respondents their servants or agents have carried out development, or caused, permitted or suffered the carrying out of development on the site for the purposes of a tip or recycling yard or like use contrary to the Environmental Planning and Assessment Act 1979.

(3)   I order the first respondent, the second respondent and the third respondent forthwith to cease using or causing, permitting or allowing the use of the site for the purposes of a tip or recycling yard or like use.

(4)   I order the first respondent, the second respondent and the third respondent to be restrained forthwith from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste on to the site.

(5)   I order the second respondent and the third respondent to remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. The removal of such waste shall commence within seven days of the date of this order and shall be completed within five weeks of the date of this order.

This order shall remain on foot and with full force and effect whether or not order 6 has come into operation.

(6)   I order the first respondent to remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility.

This order is contingent upon the second and third respondents failing fully to comply with order 5 of these orders within the time therein specified. Accordingly, this order is postponed until the expiration of that time, and, unless there has been full compliance by the second and third respondents with order 5 within that time, this order shall operate and be of full force and effect after that time.

(7)   I dismiss the cross-claim of the fourth respondent.

(8)   I order the first respondent, the second respondent and the third respondent to pay the applicant’s costs of the proceedings against each of them respectively, such costs to be as agreed or as assessed.

(9)   I order the applicant to pay the costs of the fourth respondent in respect of the proceedings against the fourth respondent, such costs to be as agreed or as assessed.

(10)   I order the fourth respondent to pay the costs of the applicant in respect of the cross-claim, such costs to be as agreed or as assessed.

(11)   The exhibits may be returned.

10. Upon the application of Ms Wilkie, order 6 was later amended to insert the following additional sentence, “the removal of the waste and its transfer to a licensed waste management facility in accordance with this order shall be completed within 35 days” (Blacktown City Council v Wilkie [2002] NSWLEC 119).

11. Ms Wilkie subsequently successfully overturned order 6 in the Court of Appeal (Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 at [69]). Order 5, however, remained in place.

History of the Contempt Proceedings

12. On 24 June 2002, Pearlman J found Mr Floyd guilty of contempt of order 5 of the 2001 orders and sentenced him to two months imprisonment.

13. The sentence was suspended for two months until 23 August 2002, to allow Mr Floyd an opportunity to purge the contempt. The suspension was extended on multiple occasions (to 9 September 2002, 1 October 2002, 29 October 2002 and 17 December 2002).

14. But Mr Floyd did not take advantage of the extensions and, as a consequence, he served two months in jail commencing 17 December 2002 until 16 February 2003.

15. On 23 May 2003 Mr Floyd was again found guilty of contempt in further proceedings arising out of his failure to complete the removal of waste from the land in accordance with order 5 of the 2001 orders. This time, Mr Floyd was sentenced to prison for a period of six months (Blacktown City Council v Wilkie [2003] NSWLEC 120).

16. In her reasons for judgment, Pearlman J:

1. found that Mr Floyd had not removed the waste material as required by order 5 of the 2001 orders and continued to disobey that order (at [10]);

2. held that the obligation on Mr Floyd to remove the waste cast by order 5 was a continuing obligation and that it remained on foot and with full force regardless of whether or not a similar obligation came into force on Ms Wilkie (at [17]);

3. held that the Court had the power to punish him for his continuing disobedience by committing him to prison for a longer period than that which he had already served (at [17]);

4. held that the contempt was serious because of the adverse environmental effects of the waste stockpile and because of the need to vindicate the authority of the Court in light of the sporadic and insignificant attempts by Mr Floyd to remove the waste (at [18]-[20]); and

5. committed Mr Floyd to imprisonment for a term of six months, however, in light of:

1. the council’s submissions that the sentence should be suspended on the condition that Mr Floyd remove the waste at 500 tonnes per month; and

2. Mr Floyd’s submissions that he was unable to remove the waste at 500 tonnes per month due to his personal circumstances at the time, but was able to remove the waste at a rate of 50 tonnes per month (at [24]),

held that the sentence should be suspended for a period of six months on the condition that Mr Floyd remove the waste at 50 tonnes per month (at [27], emphasis added (“the 2003 orders”)):

27   In accordance with the foregoing, I have concluded that I should commit the second respondent to prison for a period of six months, but that I should suspend that sentence for a period of six months, upon the terms sought by the council except as to the amount of waste to be removed each month, which should be fixed at 50 tonnes instead of 500 tonnes.

17. Between June 2003 and August 2006, Mr Floyd removed some of the waste material from the land, generally at a rate of about 50 tonnes per month. But later this removal became increasingly random, and ultimately ceased altogether.

18. The council therefore commenced further proceedings for contempt on 9 April 2008, alleging that Mr Floyd was in continuing breach of the obligation to remove the waste material as required by the 2003 orders.

19. On 18 February 2009, a third notice of motion bringing further contempt proceedings against Mr Floyd was dismissed by Biscoe J, after Mr Floyd and the council agreed to a form of orders varying order 5 of the 2001 orders. These new orders were framed as follows (“the 2009 orders”, emphasis added):

By consent of the Applicant and the Second Respondent:

1.    That Order 5 of the Court made on 6 December 2001 be varied as follows:

(a)    That the second respondent Craig Floyd remove the exisiting soil gravel bricks demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes over each and every two (2) calendar monthly periods commencing 1 March 2009 and have it transferred to a licenced waste management facility.

(b)    That the Second Respondent deliver by post or fax or in person, documentary evidence of the removal of material pursuant to Order 5(a) to the Council within five (5) days of the date of the removal.

2.    That the Notice of Motion filed on 9 April 2008 be dimissed.

3.    That the second respondent pay the Applicant’s costs of the Notice of Motion filed on 9 April 2008 in the sum of four thousand dollars ($4,000.00).

20. In these proceedings the council alleged continuing disobedience by Mr Floyd of the 2009 orders, in that he had failed to comply with the requirement that he remove the waste from the land at the rate of at least 100 tonnes every two months. It subsequently filed a fourth notice of motion and statement of charge in respect of Mr Floyd’s ongoing contempt on 13 May 2010. It is this statement of charge that underlies the present application by Mr Floyd.

21. Not unimportantly, the statement of charge was amended on 29 November 2010 and again on 28 June 2011.

22. The contempt proceedings were set down for hearing on 29 November 2010, before Sheahan J, for the imposition of an appropriate sentence. On that day the Court ordered the charge to be adjourned provided that Mr Floyd and the council enter into consent orders whereby Mr Floyd was required to clean up the land by 2014.

23. The Court ordered that:

1.    The Prosecutor is to secure filing of Mr Minas’s notice of appearance for the Second Respondent by close of business 2 December 2010;

2.    The hearing of the current amended charge of contempt is to be adjourned to a date to be fixed, with liberty to the Prosecutor to restore on seven days’ notice to the Second Respondent and the Registrar;

3.    Order (2) is made on the basis of the Second Respondent and the Prosecturor entering into consent orders set out in the document filed in court this day; and

4.    Each party is to pay its own costs of charge initiated on 13 May 2010 up to and including today’s hearing.

24. The consent orders were attached to the formal orders of the Court and proscribed the following (“the 2010 orders”) (emphasis added):

1.    These orders are subject to access to the land situated at 230 George Ave Marsden Park (“the subject land”) being granted to Craig Floyd (“the Respondent”) by Mario Constantine or any subsequent owner of the subject land.

2.    By 1 March 2011 the Respondent is to have installed and is to be operating at the subject land a screening machine.

3.   Before the conclusion of 3 years from 1 March 2011 (being 1 March 2014), the Respondent is to have removed all waste material stockpiled on the subject land.

4.   No soil or other materials of any kind are to be brought onto the land by the Respondent.

5.    All material being removed from the subject land is first to be separated into recyclable and non-recyclable material.

6.   All recyclable material is to be sold, given away or otherwise removed from the subject land. All non-recyclable material is to be removed by the Respondent and is to be deposited at a licenced waste management facility.

7.   The Respondent is to submit to the director of City Strategy and development (or her successors) quarterly reports, such reports to inform Blacktown Council of:

(a)    Tonnage and date of material moved; and

(b)    Identification of the licenced waste facility or facilities    receiving the non-recyclable material. The quarterly    reports must be submitted by the Respondent on the    following dates:

(i)    1 April 2011

(ii)    1 July 2011

(iii)    1 October 2011

(iv)   1 January 2012

(v)    1 April 2012

(vi)    1 July 2012

(vii) 1 October 2012

(viii) 1 January 2013

(ix)    1 April 2013

(x)    1 July 2013

(xi)    1 October 2013

(xii)    1 January 2014

(xiii)   1 April 2014

25. As is immediately apparent, the 2010 orders were in very different terms than either the 2001, 2003 or 2009 orders. Moreover, the 2010 orders appeared to supersede the 2001, 2003 and 2009 orders.

26. When the matter came before the Court on 29 November 2010, Mr George Minas indicated that he appeared for Mr Floyd, despite not having filed a notice of appearance (the Court ordered the filing of a notice of appearance by Mr Minas by 2 December 2010).

25. On 28 June 2011 Mr Floyd pleaded guilty to the contempt charges initially laid on 13 May 2010. He was represented by Mr Minas at the time.

26. The further amended statement of charge (“the statement of charge”) filed in Court on 28 June 2011 stated as follows (emphasis added):

The Second Respondent is alleged to be guilty of Contempt of Order 5 of the Court’s Orders made in these proceedings on 6th December 2001 and varied by the Court on 18th February 2009, in that the Second Respondent has:

a)   on or about 1 March 2009 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility;

b)   on or about 1 May 2009 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility;

c)   on or about 1 July 2009 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility;

d)   on or about 1 September 2009 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility;

e)   on or about 1 November 2009 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility;

f)   on or about 1 January 2010 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility;

g)   on or about 1 March 2010 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

h)   on or about 1 May 2010 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

i)   on or about 1 July 2010 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

j)   on or about 1 September 2010 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

k)   on or about 1 November 2010 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

l)   on or about 1 January 2011 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

m)   on or about 1 March 2011 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

n)   on or about 1 May 2011 failed to remove the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste situated on the site known as Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park at the rate of at least 100 tonnes and have it transferred to a licensed waste management facility.

29. At the time the plea of guilty was entered by Mr Floyd, he was represented by Mr Minas (who had, by this stage, filed a notice of appearance). Notwithstanding a notice of appearance filed by Mr Minas, Mr Minas informed the Court that he had not been formally retained in the matter. The Court expressed the view to Mr Minas that this position could not seriously be maintained given that he was the solicitor on the record.

30. Curiously, the statement of charge did not refer to the 2010 orders. This omission, whether deliberate or accidental, is not, however, without consequences, which are discussed in detail below.

31. As at 28 June 2011 Mr Floyd had not filed any evidence in compliance with the orders made by the Court on 31 May 2011. Consequently, the matter was adjourned until 6 July 2011 for mention, at which time a new timetable for the filing of evidence and submissions was to be set and a date for the sentence hearing was to be fixed.

32. On 6 July 2011 further consent orders were made in relation to the filing of evidence and submissions. Relevantly, Mr Floyd was ordered to file and serve his evidence and submissions by 28 July 2011. The sentence hearing was listed for 11 August 2011.

33. When the matter came before the Court on 6 July 2011, Mr Minas told the Court that he was “just helping him [Mr Floyd] out”. The Court urged Mr Floyd, and Mr Minas on Mr Floyd’s behalf, to inquire about obtaining pro bono counsel, or other legal assistance, through either the New South Wales Bar Association, the Law Society of New South Wales or Legal Aid, given the serious nature of the charges and the very real possibility of Mr Floyd being sentenced to a further term of imprisonment.

34. On 11 August 2011, because no evidence or submissions had been filed by Mr Floyd the hearing was vacated and the time for the filing and service of evidence by Mr Floyd was extended, and the sentence hearing was again set down, this time on 8 September 2011.

35. On 1 September 2011, the matter was again brought before the Court, by its own motion, because, once again, Mr Floyd had not complied with the orders of the Court in relation to the filing and service of his evidence and submissions. On this day, Mr Joseph Busuttil appeared as counsel for Mr Floyd. He requested, and was granted, additional time for Mr Floyd to file his evidence. Time was extended until 22 September 2011 and the sentence hearing was moved to 18 October 2011.

36. Then on 16 October 2011 the Court received an email from Mr Minas stating that he and Mr Busuttil no longer had instructions to act for Mr Floyd.

37. Thus on 18 October 2011, the day of his sentence hearing, Mr Floyd appeared in person. The Court inquired of Mr Floyd whether he would like the Court to arrange pro bono representation on his behalf.

38. Mr Floyd accepted the invitation, and with the assistance of the New South Wales Bar Association, Ms Katica Longin appeared for Mr Floyd. The matter was yet again set down for hearing, namely, on 8 December 2011. A pre-sentence report was requested by the Court.

39. On 29 November 2011 approximately one week before the sentence hearing, Mr Floyd filed a notice of motion seeking orders that the contempt proceedings be struck out as an abuse of process. Suffice it to say, the hearing date was vacated and a timetable was ordered for the preparation and hearing of Mr Floyd’s application. The constant delays in the finalisation of the matter prompted the Court, in its frustration, to observe the following (Blacktown City Council v Wilkie (No 12) [2011] NSWLEC 238 at [2]):

2   As set out in my earlier judgment of Blacktown City Council v Wilkie (No 11) [2011] NSWLEC 216 these proceedings have a tortured past and have been beset by many applications for adjournments and considerable delay, almost exclusively on the part of either Mr Floyd or his legal advisers. For example, this is the fifth time that there has been a vacation of a hearing date for these proceedings and, in particular, at least the fourth time that the sentence hearing, pursuant to the plea of guilty entered by Mr Floyd on 28 June 2010, has been vacated by the Court. On the last occasion a vacation application was made by Mr Floyd, the Court expressed the strident view that it was inconceivable that a further vacation of the sentence hearing would be entertained. However, this is the position the Court now finds itself in.

40. Notwithstanding these remarks, two further adjournments of Mr Floyd’s motion – one requested by the council (Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110) and one sought by Mr Floyd (Blacktown City Council v Wilkie (No 14) [2012] NSWLEC 252) – were granted by the Court.

Mr Floyd’s Application to Withdraw His Guilty Plea

41. Mr Floyd’s notice of motion seeking to have the contempt proceedings stayed or dismissed was amended numerous times:

1. an amended notice of motion was filed on 6 December 2011, seeking orders, amongst other things, that:

1. the contempt proceedings be struck out for failing to comply with the rules requiring personal service; as an abuse of process; for a violation of the principle against double jeopardy; or upon a plea of autrefois convict;

2. leave be granted to withdraw the guilty plea entered on 28 June 2011; and

3. Mr Floyd be found not guilty;

2. a further amended notice of motion was filed on 4 May 2012, seeking additional orders, namely:

1. that the 2009 orders be set aside because the consent was elicited by a material mistake; irregularity; illegally; or against good faith; and

2. that the 2009 orders be set aside because they were futile and impossible to perform;

3. a second further amended notice of motion was filed in Court on 18 March 2013;

4. a third further amended notice of motion was filed in Court on 6 May 2013, abandoning many of the orders previously sought; and

5. finally, a fourth further amended notice of motion was filed with leave of the Court on 29 August 2013 (“the notice of motion”), abandoning an order that the 2009 orders be set aside nunc pro tunc and that the contempt count be dismissed or withdrawn.

42. After the decision was reserved, the Court of Appeal handed down the decision of Brown Brothers v Pittwater Council [2015] NSWCA 215; (2015) 209 LGERA 53. That case concerned, amongst other things, my decision refusing to allow contemnors to withdraw their plea of guilty. The contention in that case was that the contemnors had pleaded guilty on the basis of incorrect legal advice relating to the proper construction of consent orders entered into in 2007. The contemnors contended that it was arguable that upon the proper construction of the 2007 orders, particularly when read with the terms of an earlier development consent granted in 1995, that they were permitted to engage in such conduct, and consequently, that legal advice given to them to the contrary prior to the entry of their plea was incorrect.

43. At first instance the Court in Pittwater Council v Brown Brothers Waste Contractors (No 4) [2013] NSWLEC 219 had refused to grant the contemnors leave to withdraw their guilty pleas, concluding that they were attributable to a genuine consciousness of guilt and that there would be no miscarriage of justice if leave was refused. Further, to do so would undermine the public interest in the finality of litigation if the Court were to go behind the making of the 2007 consent orders and would jeopardise public confidence in the administration of justice because of the potential for “the scandal of conflicting decisions”. That scandal was based on the premise that, if the pleas were withdrawn, the 2007 consent orders which gave rise to the 2011 contempt proceedings, would conflict with an earlier conviction in 2009 for breach of the same consent orders in respect of the same acts.

44. Suffice it to say that some of the issues raised for determination in that case were relevantly similar to those requiring resolution in these proceedings. Because Pittwater Council was appealed shortly after this case was initially reserved on 30 August 2013, the parties to this application indicated a willingness to wait until the determination of the Court of Appeal proceedings in Brown Brothers before the Court handed down these reasons.

45. Unusually, the appeal took eight months to be heard and a further 11 months for judgment to be delivered on 24 July 2015. Upholding the appeal, the Court of Appeal, relevantly for present purposes, held that:

1. first, there was cogent evidence that the contemnors had pleaded guilty on the basis of incorrect legal advice given to them by their solicitor, namely, that they had no defence to the 2011 contempt charges, whereas upon the proper construction of the 2007 consent orders it was arguable that they had not breached them, and therefore, their pleas were not attributable to a consciousness of guilt (at [1], [3], [201] to [205] and [210]); and

2. second, the consequence was that the contemnors should have been permitted to withdraw their pleas of guilt notwithstanding their earlier conviction in 2009 for the same conduct. The alternative was to condone a miscarriage of justice, namely, that the contemnors would be convicted of a criminal charge of contempt as to which each had an arguable defence. This was an exceptional case in which the public interest in the finality of litigation and avoiding inconsistent decisions could not be permitted to perpetuate such a potential injustice (at [4] and [211]).

46. Given the success of the appeal, the parties to this application were afforded the opportunity of filing additional written submissions on the impact of the Brown Brothers, if any, on the present case. Both parties availed themselves of the opportunity to do so.

47. As the protracted history of these proceedings has made painfully clear, since their inception on 21 February 2001, two aspects have remained constant: the first is that the waste material remains on the land; the second is that of interminable delay in the finalisation of this matter.

48. The two bases for leave to withdraw the plea of guilty that emerged from the latest iteration of Mr Floyd’s submissions (written and oral) were that, at the time he entered the plea of guilty, he was unaware that:

1. a plea of autrefois convict was available to him; and

2. he could not be convicted of an order that was not capable of compliance.

Applicable Legal Principles for the Withdrawal of a Plea of Guilty

49. The principles applicable to an application to withdraw a plea of guilty are well settled.

50. By a plea of guilty a person admits the essential ingredients of the offence charged and “no more” (R v O’Neill [1979] 2 NSWLR 582 at 588B and 596C; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605B and Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 510). But this does not mean that the person is taken to have admitted all of the facts and particulars supporting the charge (Chow at 605B–605D).

51. Of course a person may plead guilty for reasons that extend beyond that person’s belief in his or her guilt and the Court is nevertheless entitled to act upon the plea. Hence, in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, Brennan, Toohey and McHugh JJ stated (at 141):

A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

52. The entry of a plea of guilty in such circumstances will nonetheless constitute an admission of all of the essential elements of the offence (see also Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 at [33]).

53. The following legal principles applicable to a grant of leave to withdraw a plea of guilty have been stated in various cases and were not disputed by the parties:

1. first, a court has a discretion to permit a change of plea at any time prior to sentence (Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 334; Chow at 599B and R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 at [4]);

2. second, whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the Court (R v Foley (1963) 80 WNNSW 726 at 727 and Piras v The Queen [2006] NSWCCA 396; (2006) 167 A Crim R 260 at [14]–[15]);

3. third, courts have emphasised that such applications must be approached with caution given the public interest in the finality of litigation (R v Liberti (1991) 55 A Crim R 120 at 122 and R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 at [31]);

4. fourth, there is no exhaustive statement of the circumstances in which pleas of guilty may be set aside. Each application will turn on its own facts (R v Sagiv (1986) 22 A Crim R 73 at 80–81; Piras at [18] and Lawson v The Queen [2011] NSWCCA 44; (2011) 206 A Crim R 557 at [32]);

5. fifth, although many cases concern an appeal from a conviction based upon a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea, in principle no stricter test should be applied to an application (such as the present) made before conviction (Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [26] citing R v Parkes [2004] NSWCCA 377 at [49]);

6. sixth, while there is considerable public interest in the expeditious conclusion of legal proceedings (Liberti at 122), the principle of finality will not be offended if it is established that there will be a miscarriage of justice if the plea is not allowed to be withdrawn (R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 at [26] and Brown Brothers at [156] and [208]-[209]); and

7. although discretionary, leave should be granted where the plea has been entered pursuant to some mistake, where the integrity of the plea is otherwise questionable or where it would otherwise lead to a miscarriage of justice (Liberti at 121–122; R v Boag (1994) 73 A Crim R 35 at 36–37 at 39; KCH at [32] and Piras at [18]. In R v Kouroumalos [2000] NSWCCA 453 Wood CJ at CL stated (at [19], quoted in Rotner v The Queen [2011] NSWCCA 207 at [47]):

What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question…

54. In R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 (applied in Sauer v R [2006] NSWCCA 81 at [8] and Loury v R [2010] NSWCCA 158 at [100]), Spigelman CJ set out a number of circumstances in which a court will set aside a conviction following a plea of guilty (at [32]):

32   The second ground of appeal alleges a miscarriage of justice. There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in Toro-Martinez (2000) 114 A Crim R 533. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty:

●   where the appellant “did not appreciate the nature of the charge to which the plea was entered”: Ferrer-Esis (1991) 55 A Crim R 231 at 233.

●   where the plea was not “a free and voluntary confession”: Chiron (at 220 D-E).

●   the “plea was not really attributable to a genuine consciousness of guilt”: Murphy [1965] VR 187 at 191.

●   where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”: Sagiv (1986) 22 A Crim R 73 at 80.

●   where the “plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt”: Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).

●   the “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt”: Maxwell at 511; 186-187.

●    if “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt”: Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998 and Favero [1999] NSWCCA 320.

55. More recently, in Brown Brothers the Court of Appeal summarised the principles as follows (at [156]-[162]):

156   Because a guilty plea “is an admission of all of the legal ingredients of an offence and is the most cogent admission of guilt that can be made”, an “asserted want of understanding of what was involved in [such a] plea … is approached with ‘caution bordering on circumspection’.” Such circumspection rests in part on the cogency of the plea itself and, too, “on the high public interest in the finality of legal proceedings”. The principle of finality is not offended once it is established that there will be a miscarriage of justice if a withdrawal application is not allowed.

157   In order to be given leave to withdraw a guilty plea:

It is necessary for the applicant to establish that a miscarriage of justice has occurred: Meissnerv The Queen [1995] HCA 41; 184 CLR 132 at 157. Without being exhaustive, that may be shown in circumstances where:

●    the applicant did not appreciate the nature of the charge to which the plea was entered: R vFerrer-Esis (1991) 55 A Crim R 231 at 233; R vIral[1999] NSWCCA 368; Meissnerv The Queen, supra, at 157.

● the applicant was not in possession of all of the facts and the plea was not attributable to a genuine consciousness or recognition of guilt: R v Murphy[1965] VR 187 at 191; R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep); R vGanderton (Court of Criminal Appeal (NSW), 17 September 1998; unrep); and R vFavero [1999] NSWCCA 320.

●    there was a mistake or other circumstance affecting the integrity of the plea as an admission of guilt: R vSagiv, supra; or where

● the advice of the applicant's lawyer(s) was imprudent, inappropriate or incorrect: R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310; R v Hawker [2005] NSWCCA 118.”

158   There is no “presumption one way or another … in favour or against an applicant for leave to have his plea of guilty changed to one of not guilty … [t]he only test [being] whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied [to] the applicant”. The fundamental proposition is that “it is a matter for the discretion of the Judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.” Nevertheless, “[i]t is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave.”

159   It is incumbent upon an applicant seeking leave to withdraw a guilty plea to identify clearly the substance of the proposed defence if the plea reversal is permitted and to “put forward at least some evidence, independent of his own evidence, and which, if accepted, would have justified a finding that the application to reverse the plea of guilty was a bona fide application.”

160   In considering whether a plea was entered on the basis of imprudent and inappropriate legal advice in circumstances such as to amount to a miscarriage of justice, the Court will consider:

a)    whether the advice given to the appellant was or was not imprudent and inappropriate;

b)    whether his plea was or was not attributable to a consciousness of guilt; and

c)    whether the material before this court shows that there is or is not a real question about his guilt.

161   As Kirby P explained in Liberti:

An accused person will not always know the legal consequences of the facts to which he pleads guilty. He or she is normally entitled, where represented, to look to the lawyers to explain those facts for their legal significance. Ultimately, the accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts.

162   In R vGanderton and R vFavero, the Court considered an application to withdraw a plea on the basis of absence of advice about defences lawfully available. In Ganderton, Sperling and James JJ held, in a passage applied in Favero, that belief by an accused that he is guilty of the offence charged which arises from a mistaken or possibly mistaken understanding of the facts or “from a failure on the part of the accused’s legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged”, in circumstances where there was an arguable case for acquittal, meant there was no “genuine consciousness of guilt” when the appellant pleaded guilty to the charges. Accordingly, there was an “issuable question of guilt” to be tried, and a miscarriage of justice warranting a new trial.

Mr Floyd’s Evidence

56. Mr Floyd relied on six affidavits in support of his application. First, an unchallenged affidavit of Mr Ryan Jacka, sworn 3 May 2012. Mr Jacka is a senior environmental scientist with SESL Australia. Attached to his affidavit was a report of the same date. The report stated that there was approximately 20,000-30,000 tonnes of mixed waste material on the land, showing a significant contamination with asbestos, which would therefore require offsite disposal at a licenced landfill. It was his conclusion that the material on the land could not be processed in any way to change its classification as Special Waste due to its high level of asbestos contamination.

57. Second, an unchallenged affidavit of Mr Scott Hartog, sworn 10 May 2012. Mr Hartog is a senior project manager employed by Delta Pty Ltd (“Delta”), which specialises in demolition projects, civil works, excavation and asbestos removal. Attached to his affidavit was a report dated 8 May 2012, of a preliminary costing for the clean-up of the land. The report estimated that 33,000 tonnes of material was on the land. If 100 tonnes of material were removed every two months, the total removal costs would be $26,651,268. However, if the entire stockpile was disposed of in a single event, the removal cost would be $4,869,000. But if the material was sorted, recycled and disposed of by coarse screening to separate the asbestos material, the estimated removal cost was $3,753,500.

58. Third, an affidavit of Mr Minas, sworn 27 April 2012. Mr Minas deposed to the instructions given to him by Mr Floyd on 29 November 2010 and 28 June 2011. He stated that he commenced acting “pro bono” for Mr Floyd on 29 November 2010, as a favour. Mr Minas’ evidence of his attendance at Court on that day was as follows:

3   On 29 November 2010, when this matter was before his Honour Justice Sheahan, I was appearing in another matter before the District Court. Mr Floyd           telephoned me on 29 November 2010 from the Land and Environment Court after his matter had commenced. Mr Floyd said words to the effect:

“Could you please come down to Court, the Council is threatening me that if I do not sign their orders I will go to gaol.”

    I told Mr Floyd words to the effect:

“I am in Court, and can’t really stay with you, but I will just come down and look over the orders”.

4    When I arrived, I had a discussion with Mr Shneider and Mr Apps.

    Mr Shneider said;

“Mr Floyd has not complied with previous orders of the Court”

I said:

“You know the situation that he doesn’t have any funds or resources to clean up the site, but Craig has told me he will be able to install a screening machine on site and start doing something about it.”

Following our discussion, Mr Shneider and Mr Apps then agreed to come to some arrangement. I was obtaining instructions from Mr Floyd as to his ability to install a screening machine.

Mr Shneider asked;

“Can he install the screening machine bon [sic] site, and dispose of the material every month?”

Subsequently negotiations were entered into upon which the parties drafted the Consent Orders. It was my understanding that if Mr Floyd signed the Consent Orders the charge of contempt would not be proceeded with. Some alterations were agreed to Mr Shneider’s proposed draft Consent Orders. The Consent Orders were then signed by me and Mr Shneider. I did not appear before the Court, and left before the matter concluded. I said to Mr Shneider;

“Could you please hand up the consent orders and mention the matter by consent.”

I was not aware what orders were made by the Court on that day. Mr Shneider did not contact me on that day as to the orders made.

5   On that basis I advised Mr Floyd that he was required to comply with those consent orders signed on 29 November 2010. I am not certain whether it was on 29 November 2010, or another day, I said to Mr Floyd words to the effect of:

“Now what you need to do is start screening and remove the material and keep in touch with Council about your progress.”

59. Mr Minas was not involved again in the proceedings until 10 March 2011, when Mr Steven Shneider, the council’s legal representative, informed him that the 2010 orders had not been complied with and that the council intended to relist the matter.

60. The matter was relisted on 28 June 2011. Prior to that, on 18 June 2011, Mr Minas had the following conversation with Mr Floyd:

8   On or about 18 June 2011, after I was notified that the matter was being relisted on 28 June 2011, I had a conference with Mr Floyd.

…

Mr Floyd said to me words to the effect:

“I have made a small screening machine because I still haven’t managed to find mine, Con Dionis has disappeared and I can’t find my machine. I am looking for him.”

I said words to the effect:

“Have you told Council about this.”

Mr Floyd said “No, but I have called Glen Apps a few times and he hasn’t bothered to return my calls.”

61. On 28 June 2011, Mr Minas attended Court on Mr Floyd’s behalf, where the following conversation took place:

9   On 28 June 2011 I attended Court with Mr Floyd and met with him just before the matter was called before her Honour Justice Pepper…

I said to Mr Floyd words to the effect of:

“You haven’t complied with the Consent Orders, and therefore you are in contempt.”

I further said words to the effect:

“To defend the charge you need a barrister, it will cost you at least $10,000 to defend this charge.”

Mr Floyd said words to the effect:

“I can’t afford that.”

I said words to the effect:

“If you can’t defend the matter your only other option is to enter a plea of guilty with an explanation”

62. Mr Minas then entered the plea of guilty on Mr Floyd’s behalf.

63. In oral evidence, Mr Minas stated that there were no file notes taken of the events of 28 June 2011 (T36:38). Further (T36:40-37:03):

Q.    When you indicated to him, "You haven't complied with the consent orders and therefore you are in contempt," did you give him any advice in respect of whether a plea of autrefois convict might be available in respect of this charge?

A.    No, I didn't.

Q.    Did you turn your mind to whether any legal defence may be available to the charge?

A.    I did turn my mind but the defendant was aware that I wanted to engage a specialist criminal barrister to provide advice to that effect and our conversation was pretty much, if you want to defend it, you want to defend it properly, you need to spend money. I can't - I don't have the expertise in this particular jurisdiction, and otherwise, I said, we'll go in and you plead guilty, but we'll provide an explanation to the Court as to the circumstances that have prevented you from complying, but I didn't mention any defences at all to him.

64. This evidence was confirmed in cross-examination. Also revealed in cross-examination was that:

1. there was no confusion on the part of Mr Floyd about his obligation under the 2010 orders to remove the waste from the site (T41:27; 43:42–49);

2. the agreement reflected in the 2010 orders did not relate only to the purchasing of a screening machine (T42:05; 47:06);

3. Mr Floyd knew he was under a continuing obligation to remove the waste prior to the 2010 orders (T42:44);

4. Mr Floyd was not confused about the obligation under the 2010 orders to keep the council informed of his progress in removing the waste (T43:30);

5. at the time the 2010 orders were agreed to, Mr Minas advised Mr Floyd that if he breached the consent orders, the matter would be “back in before court. It’s not going to go away. You need to do something about it”. That is to say, the council would prosecute him and that there was a chance he could go to jail (T43:32-44:19 and 45:34–39);

6. Mr Floyd wanted to clean up the site (T46:36);

7. Mr Minas discussed the various options available to Mr Floyd to clear and dispose of the waste. This included disposing of it in bulk without screening, however, this would be “financially non-viable” (T47:29);

8. Mr Floyd did not tell Mr Minas that there was a period of time when he could have possibly disposed of the waste free of charge through a family company called “Tipstop” (T47.39);

9. Mr Minas was an experienced solicitor who had “on many occasions” entered guilty pleas on behalf of clients and who sought instructions prior to doing so (T48:36–42);

10. Mr Minas had sought instructions from Mr Floyd prior to entering the plea. He had advised Mr Floyd that he should obtain a specialist criminal barrister’s advice on whether he could be sent to jail again, not whether or not he should plead guilty (T49:41–48);

11. prior to having a discussion with Mr Floyd about the plea of guilty, Mr Minas had received the further amended statement of claim (T69:27-70:30);

12. in terms of whether or not he thought that Mr Floyd was confused or mistaken about what he was pleading guilty to, Mr Minas stated “no” (T50:10-18; 51:50 and 54:02), and then gave the following evidence (T50:20-51:32):

Q.    You were asked some additional questions by Mr Kintominas about whether or not you turned your mind to whether or not there was any legal defence available. You said you didn't turn your mind to that topic?

A.    No, I didn't.

Q.    Did you ever tell Mr Floyd that he might have a defence?

A.    I did. I said there is - my concern was the jurisdictional issue. That's what I mostly concentrated on.

Q.    About the sentence, as to whether or not he should go to prison?

A.    Well, I didn't - yes, I didn't think the Land and Environment Court, even though it was vested with powers of the Supreme Court, I didn't think it could actually send him.

Q.    Leaving aside the question of penalty‑‑

A.    Yeah.

Q.    My question is about defence. Did you ever discuss with Mr Floyd about whether or not he had a defence to the contempt charge that he then pleaded guilty in June 2011?

A.    No.

Q.    So when you answered Mr Kintominas and said you did turn your mind to whether or not there was a defence‑‑

A.    But I didn't discuss‑‑

Q.    ‑‑   do we now understand you to mean you turned your mind to this jurisdictional issue about sentence?

A.    Yes.

Q.    Did you ever form a view, leaving aside the question of sentence, that there was any defence?

A.    In my - something had to be done, and it wasn't done.

Q.    Did you form the view that there was any defence?

A.    No.

HER HONOUR: I think that answer is a bit ambiguous. You          might want to clarify that.

MCGUIRE:    I will.

HER HONOUR:    Sorry, I don't mean any disrespect. It was the       way the question was asked.

MCGUIRE

Q.    Yes, it was my fault. I'll rephrase it. Is it correct that you did not consider that he had any possible defence open to him? Sorry, I'll again rephrase that. Is it the case that you considered positively that there was no possible defence to this charge?

A.    I did not consider - I asked for specialist advice because I didn't think I was fit enough to provide such advice.

Q.    Sir, you've already said that was about sentence. The question is about defence to the charge.

A.    No, I did not consider at the time a defence to the charge.

Q.    Does that mean you considered there was no defence to the charge?

A.    At the time?

Q.    Yes.

A.    Yes.

13. Mr Floyd told Mr Minas that it was impossible for him to comply with the 2010 orders because the cost and logistics of removing the waste were too great. In short, he could not do the work as agreed to (T54:05-19);

14. Mr Minas was not aware that there was a two day period after his retainer was terminated wherein Mr Floyd had removed 500 tonnes of waste from the site (T54:21–33);

15. Mr Minas was instructed in October 2011 that there was an agreement between Mr Mario Constantine, the owner of the land, and Mr Floyd, the effect of which was that Mr Constantine would share in the cost of removing the waste material and assist Mr Floyd with the work, including providing the power for any necessary equipment (T75:16-77:49); and

16. Mr Minas was aware that various options were suggested by Mr Floyd to remove the waste, with one option, albeit based on certain assumptions, costing only $92,580 (T87:16-27).

65. In re-examination, Mr Minas stated that he “understood” that the land was contaminated with building material containing asbestos, but that he “did not know that for certain” (T93:01-03).

66. Fourth, three affidavits of Mr Floyd sworn on 28 November 2011, 4 May and 10 August 2012, respectively.

67. In his first affidavit, Mr Floyd stated that Mr Minas had been representing him periodically on a pro bono basis since 29 November 2010.

68. He stated that he had been operating a waste transfer and recycling business called Tipstop Pty Ltd (“Tipstop”) from early 2007, until the business failed and was liquidated in 2009. As a consequence, his financial position “suffered” which made it difficult to comply with the court orders.

69. Initially, Mr Floyd believed that he could better represent himself. However, after attendance at court on 18 October 2011, he retained the services of Ms Katica Longin, barrister.

70. Between 18 October 2011 and 18 November 2011 Mr Floyd put his efforts into making arrangements for the removal of material from the land in an attempt to comply with the court orders.

65. Mr Floyd had a discussion with Mr Constantine on 19 October 2011, concerning the purchase of equipment for the removal of the waste material. On 24 October 2011 he and Mr Constantine purchased a quarry screen for $20,000, which was delivered to the land on 11 November 2011. On 7 November 2011 he and Mr Constantine purchased a 12 tonne Caterpillar loader.

66. Mr Floyd stated that he did not recall ever being served, personally or otherwise, with the council’s notice of motion and statement of charge dated 13 May 2010, the amended statement of charge dated 29 November 2010, or the further amended statement of charge dated 28 June 2011. Further, he stated that he had not been served with any subsequent notice of motion for any orders breached after 1 May 2010.

67. When the matter was listed for sentence on 29 November 2010, Mr Floyd appeared unrepresented. Because he was concerned about serving further time in custody, and because it was his understanding that the contempt charges would be dismissed if he signed the consent orders proposed on that day, he agreed to them.

68. Sometime in May 2011 Mr Floyd recalled contacting Mr Glen Apps of the council and informing him that his screen for separating recycling materials had been stolen and that, therefore, the deadline for completion of the removal of the material by 2014 could be delayed. Mr Floyd deposed that he reported the theft to the Parramatta police station.

69. Mr Floyd’s second affidavit primarily concerned his attempts to remove the waste from the land and contained an explanation from him as to why it was impossible for him to comply with the court orders.

70. As at 4 May 2012 (the date the affidavit was sworn), Mr Floyd estimated the cost of removing the material in five weeks, based on a “recollection” of tipping fees in 2002 for demolition waste being in the order of $69 per tonne, to be $1,933,250. This calculation was premised on an approximate quantity of 20,000 tonnes of material on the land. Mr Floyd was not aware that the volume of the material had been quantified. The estimate given by him was at 2001 prices. He stated that he did not have “anywhere near the order of those funds available … nor the ability to borrow that sum”.

71. Mr Floyd further stated that his understanding of order 5 of the 2001 orders was that he was required to move the material from the land between 7 December 2001 and 11 January 2002. If he failed to do so, he would be in breach of the orders. He did not understand that order 5 required him to continue to remove the material after 11 January 2002.

72. In the week prior to 13 March 2009, Mr Floyd removed 100 tonnes of waste from the land and transferred it to the Tipstop site at Beaconsfield. However, Tipstop went into receivership on that day, after which he was unemployed, and, despite looking for work, could not find any.

73. In early 2009, Mr Floyd’s Samsung excavator SE210LC2 that he had intended to use on the land was stolen from the Tipstop site. He communicated this to Mr Apps, who told him that there was still “plenty of time” to move the waste.

74. On 4 June 2009 Mr Floyd wrote to Mr Apps informing him that he was unemployed and that he would not be able to comply with order 5. A similar letter was written to Mr Apps on 29 June 2009. Mr Floyd stated that he never received a reply from the council.

75. Due in part to financial problems his marital relationship broke down and he became emotionally depressed.

76. Mr Floyd was employed by Orange Bins as a truck driver from July to October 2009, earning $600 per week after tax.

77. From October 2009 to April 2011, Mr Floyd was employed in a variety of work, earning a variable wage. Out of his wages, which were on average $1,000 gross per week, $300 per fortnight was deducted for child support.

78. In May 2011 Mr Floyd commenced his own demolition business. The tipping fees for mixed construction and demolition material as at February 2009 were $180 per tonne. On 19 April 2011 he telephoned CITA Environmental at Eastern Creek which indicated that the current price for receiving demolition waste was $224.30 per tonne.

79. In order to remove the waste material from the land it was necessary to load the material onto a truck using an excavator. This requires a licenced operator. The material had to then be transported to a licenced waste facility. From Mr Floyd’s experience in the waste industry, he was aware that the cost of an excavator was approximately $350 per day to hire. The excavator would be required on site for 50 hours, or the equivalent of seven or eight days’ hire. Mr Floyd noted that if he operated the excavator or drove the truck in order to minimise the cost of removing the waste, he would not be able to perform other paid work.

80. The waste on the land cannot, according to Mr Floyd, be separated with ease. It is heavily mixed demolition material with broken timber, plastic, glass and small items, including lumps of concrete, clay and bricks.

81. Mr Floyd noted that from 2003 to 2006, he was able to transport waste from the land to the BrandOwn tip in Kemps Creek and to dispose of the material for $45 per load (each load weighing approximately three tonnes). However, he qualified this evidence by saying that during this period because he was in the rubbish removal business he had contacts and was able to negotiate deals and discount rates for the removal of the waste.

82. Since his affidavit filed on 13 October 2011, Mr Floyd has reconsidered his options for the removal of the waste material. The cost of hiring trucks was, in his experience, approximately $1,200 to $1,500 per day. Added to the estimate of the cost of removing the waste, was the cost of a picking station for hand picking paper, timber, glass, steel and plastic from the material, and to separate clean brick and concrete. Four people on the picking station and two on the ground would be necessary to undertake this job, which would take several months.

83. In relation to the plea of guilty, Mr Floyd deposed that on 18 June 2011 he spoke to Mr Minas and told him that “Con Dionys” had stolen his screen and picking station. On 28 June 2011 when he attended court, it was Mr Floyd’s understanding that he was before the Court because he had not complied with the 2010 orders, and he was not aware that he would be asked to enter a plea on that day.

84. When Mr Minas arrived at Court Mr Floyd had the following conversation with him:

“It isn’t 2014 yet and the orders state that I had to have this finished in 2014, the only thing I haven’t done is put a screening machine on site, and I have rung Glenn Apps on several occasions and explained to him my machine had been stolen and I was in the process of making another one.”

Mr Minas said to me words to the effect:

“What do you expect, you are guilty, you have not installed a screening machine by 1 March 2011”.

I asked Mr Minas words to the effect:

“What can we do with this”

Mr Minas said words to the effect:

“Well you are going to need a barrister, in my opinion at a discounted rate you are looking at about $10,000-$12,000 for a few days hearing.”

I said words to the effect:

“I can’t afford that.”

Mr Minas said words to the effect:

“Well, the only option we have now is to plead guilty”

91. He stated that he did not recall Mr Minas showing him the statement of charge before he entered his plea or telling him that he was pleading guilty to the further amended statement of charge. He did recall Mr Minas entering a plea of guilty on his behalf.

92. Mr Floyd’s third affidavit was in response to various council affidavits. In respect of the affidavit of Mr Hartog sworn 10 May 2012, based on Mr Hartog’s calculations, Mr Floyd estimated that the cost to remove 100 tonnes of waste every two months would be $11,667 in 2009, $12,845 in 2010, and $14,136 in 2011.

93. In respect of the affidavit of Mr Michael Edwards, a geoscientist who had written a report on behalf of the council dated 22 June 2012, Mr Floyd noted that compliance with occupational health and safety obligations required to be met during the course of removing the waste would further add to the cost of removing the waste from the land. Mr Edwards estimated the total cost for removing the waste from the site to be $4,192,372. Mr Floyd noted that he did not have and never has had these sorts of funds available to him. He noted that Mr Edwards’ approximate cost was based on an estimate of 27,238 tonnes of material on the site. If Mr Edward’s cost was applied to 100 tonnes it would come to $15,391. This was similar to the amount calculated by Mr Hartog.

94. However, Mr Floyd reiterated that during the charge period he did not earn enough money to afford the costs of removing the waste calculated either by Mr Hartog or Mr Edwards. Nor did he have sufficient assets.

95. In response to Mr Apps’ affidavit affirmed 22 June 2012, Mr Floyd deposed to several conversations Mr Apps where Mr Apps made it clear to Mr Floyd that he was liable to remove 50 tonnes of waste per month because the orders remained on foot.

96. Mr Floyd denied that the variation of the orders substituting the removal of 50 tonnes per month for 100 tonnes every two months was raised by him. Rather, it was Mr Floyd’s evidence that the variation was proposed by the council.

97. Mr Floyd reiterated the fact that prior to the charge period he was able to take some of the material to various landfills and to concrete recyclers. In respect of the material he took to concrete recyclers, he was paying approximately $4 to $8 per tonne to tip it because it was only concrete. Further, prior to 2003, when he owned and had possession of an excavator and use of a bobcat, he was able to separate and remove waste from the land. However, during the charge period, material was not able to be disposed of without an excavator, which he did not have.

98. Mr Floyd’s third affidavit also was responsive to the evidence contained in Ms Linkenbagh’s affidavit sworn 19 June 2012. In particular, Mr Floyd stated that he had a conversation with Ms Linkenbagh in October 2008, during which he told her that he could not afford to pay for lawyers and could not afford to remove the material from the land.

99. The affidavit also replied to the written evidence of Mr Timothy O’Connor, sworn 21 June 2012. According to Mr Floyd, on 18 February 2009 Mr O’Connor suggested to him that he plead guilty. In addition, it was Mr O’Connor’s suggestion that the orders be varied to 100 tonnes every two calendar months instead of 50 tonnes a month. Mr Floyd said to Mr O’Connor, in the presence of Mr Apps and another council officer, that varying the orders would not be of assistance because he could not afford to pay for the removal of the material in any event.

100. Finally, Mr Floyd said in response to the affidavit of the council solicitor, Mr Steven Shneider, sworn 19 June 2012, that he was never handed a copy of the further amended statement of charge by either Mr Shneider, the Court, or Mr Minas. Nor was the further amended statement of charge read out to him before Mr Minas entered a plea of guilty on his behalf. At all times on 28 June 2011 it was his understanding that he was entering a plea of guilt for contempt of the 2010 orders, and in particular, of order 2 concerning the necessity to install a screening machine.

101. Mr Floyd’s oral evidence, particularly his cross-examination, was extensive. It revealed:

1. that he had only received legal advice from Ms Longin that he might be able to defend the contempt charge on legal grounds after the plea of guilty had been entered. He had never considered that he was not obliged to agree to the consent orders entered into by him (T111:12-112:04);

2. that he had never sought advice as to whether or not the council had the legal right to continue to regard the consent orders enforceable on pain of contempt until all the waste was removed, irrespective of all future circumstances (T112:09);

3. that this was not the first time that Mr Floyd had been prosecuted by a local council for illegally dumping waste (T113:20-114:43). Mr Floyd had been earlier charged, convicted and fined for such an offence [Penrith City Council v 24/7 Waste Bins Pty Ltd [2002] NSWLEC 186]. On that occasion, Mr Floyd had obtained legal advice and was legally represented. During the course of the proceedings he changed his plea from not guilty to guilty (T115:36-116:40). Thus, as a result of these earlier proceedings, he was familiar with pleading guilty and its consequences (T117:10);

4. that he had received approximately $50,000 or $60,000 for disposing of the waste on the land from clients. He agreed that this money had been paid in order to dispose of the waste properly (T120:10-14);

5. that he had operated a business called “Tipstop” which was a waste transfer station. The company owned some machinery including a truck and a bobcat (the bobcat was acquired in mid 2008). The business went into liquidation in 2009 (T112:01-113:37);

6. that over a 12 month period, he had used a family bobcat and truck to clean up the land when it was available to him. Apart from petrol, that he paid for himself, he was not charged during this period for hiring or using this earthmoving equipment (T124:02-37);

7. that he had not stated in any of his affidavits that he had free access to earthmoving equipment when it was not being used by Tipstop (T137:43);

8. that there was no reason why he did not refer in his affidavit sworn 28 November 2011, to the oral agreement reached between himself and Mr Constantine in October 2011 (T125:03-12 and T138:39). The terms of the agreement were that Mr Constantine would supply a loader and a screen and Mr Floyd would supply the excavator and his labour. Although Mr Floyd instructed Mr Minas to prepare a document setting out the terms of the agreement, it was never signed and the agreement remained an oral one (T125:14-45);

9. that during the period the waste was deposited on the land, he was the sole director of a company operating at the site, namely, Graveyard. There were approximately five or six people employed by the company, costing approximately $3,000 or $4,000 a week in wages. Mr Floyd denied receiving substantially more than the $50,000 or $60,000 net profit that he had stated that he had received. He claimed that, in any event, all of the profits went back into expenses for the business (T134:16-135:20);

10. that he and Mr Constantine purchased a quarry screen and a 12 tonne Caterpillar loader in conformity with the agreement between them (T154:19-45). Mr Constantine paid the purchase price for the Caterpillar loader of approximately $20,000. Mr Floyd did not contribute money towards the purchase price or reimburse Mr Constantine this money (T155:29);

11. that the Caterpillar loader was delivered to the land but was not used to remove any of the material from it because it was too wet and the loader got bogged (T156:03-08). In addition, the loader was faulty because it had no brakes (T156:30);

12. that it was his understanding of the various court orders that had been made that he was required to remove the material from the land (T144:47). Mr Floyd knew that the obligation to remove the material continued until all of the material was removed (T145:29);

13. that as at 14 October 2011, upon receipt of an email from Mr Minas, he knew that the obligation to clean up the land was continuing (T147:48);

14. that he knew that removing some, but not all, of the waste would not fully comply with the orders (T145:31-40);

15. that one of the reasons why he had sacked Mr Minas on 16 October 2011 was because of the agreement that he had reached with Mr Constantine (T151:06). However, this agreement, and the reason for dismissing Mr Minas, were not referred to in his affidavit sworn 28 November 2011. Rather, in that affidavit he deposed that Mr Minas had been sacked because Mr Floyd had lost confidence in him and that he could not afford him;

16. that he knew that each time there was a new court order for him to remove the waste it cast upon him a continuing obligation into the future to remove the material (T157:02);

17. that by signing the consent orders on 29 November 2010, he knew that he was agreeing to a continuing obligation to remove the waste into the future (T158:40-48);

18. that he conceded that when he stated in his affidavit sworn 28 November 2011 that he did not recall ever being served with the council’s notice of motion or the amended charge (or any other documentation), that in fact he might have been served. He did not have a recollection one way or the other (T157:04-43);

19. that he agreed that it was possible that on 29 November 2010, Mr Shneider had not told Mr Floyd that the contempt charges would be “dismissed” if he signed the consent orders on that day (T164:34);

20. that from Sheahan J’s remarks on 29 November 2010, he knew that if he did not comply with the orders that he had signed, the council could charge him with contempt of those orders (T166:21). Mr Floyd also knew as at that date that the contempt charges had not been dismissed and that his Honour was warning him that if he did not comply with the 2010 orders that he could find himself back in Court (T166:33). Mr Floyd knew further that the effect of the orders signed on that date was to require him to remove the material over a period of time and to complete the removal in 2014 (T167:21);

21. that he agreed that because he had not installed a screening machine on the land to screen the material prior to its removal, the waste was not removed and that he was therefore in breach of the 2010 orders (T171:15-40). He also knew that he had not submitted any quarterly reports as required by those orders (T172:47). However, Mr Floyd stated that he thought that he was being charged for failing to install the screening machine and it was only this breach of the consent orders that he was pleading guilty to (T171:05; 172:25-30, 173:41; 175:22-42 and 208:10);

22. that when the matter was before the Court on 29 November 2011, he understood that the judge was warning him of the seriousness of failing to clean up the land and not the failure to buy a screening machine (T179:01-37);

23. that he did not know that, when he pleaded guilty on 28 June 2011, he was pleading guilty to failing to remove all the waste from the land (T180:41);

24. that a screening machine had been purchased by Mr Constantine pursuant to the agreement between himself and Mr Constantine (T187:10-19);

25. that he did not know why he had not disclosed the oral agreement between himself and Mr Constantine in his affidavit dated 4 May 2011, or that Mr Constantine would, pursuant to that agreement, pay half of the clean-up costs estimated by him to be $1.9 million (T189:39);

26. that he agreed that in his affidavit dated 4 May 2011, he had deposed to the fact that he knew that the obligation to remove the waste as ordered by Pearlman J continued into the future until it had all been removed (T192:14-32);

27. () that from the earlier illegal dumping case that he was involved in (where he was fined $95,000: Penrith City Council), he was aware, at least as at October 2002, that the Court took illegal dumping very seriously (T193:32);

28. () that even with Mr Constantine and himself sharing the work equally from October 2011 onwards, he still believed that it was impossible to clean up the site due to financial constraints and because it would take 20 to 30 years to carry out the work (T194:07-28);

29. () that he conceded that there was a period of time in which he was able to remove 500 tonnes of material from the site, (T196:25) and that at this rate the site could be cleaned up in six months (T196:34);

30. () that in 2002 he had removed 400 tonnes of rubbish by himself (T201:06-11);

31. () that he could not remember if he had requested amending the orders from 50 tonnes per calendar month to 100 tonnes every two months (T202:13);

32. () that as at 18 April 2011, upon the receipt of a letter from Mr Shneider, he knew that the 2010 orders were about removing the stockpile of waste and not merely about the installation of a screening machine (T204:38);

207. It is somewhat trite law that the party who brings a proceedings for contempt bears the onus of proof and must satisfy the elements of the charge of contempt beyond reasonable doubt (Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 534).

208. In order to prove contempt of court involving a breach of an order of the court the plaintiff must, at a minimum, prove the following beyond reasonable doubt:

1. that an order was made by the court;

2. that the terms of the order are clear and unambiguous;

3. that the order was served on the alleged contemnor;

4. that the alleged contemnor had knowledge of the terms of the orders;

5. that the orders are capable of compliance; and

6. that the alleged contemnor has voluntarily and deliberately breached the terms of the order.

213. In respect of the proposition at subparagraph (e) above, the learned authors of Borrie & Lowe: The Law of Contempt (4th ed) have opined as follows (at [6.10], p 140, footnotes omitted):

So far as disobedience to a positive order is concerned it has been held that it is the duty of the defendants to enquire and discover the proper means of obeying the order and although it may be a defence to show that compliance with the order was impossible, the burden of proving such impossibility is upon the defendants. In Lewis v Pontypridd, Caerphilly, and Newport Rly Co [(1895) 11 TLR 203], a railway company had been ordered to construct a junction joining their line with the plaintiff’s works. The defendants argued that since they never had any funds to build the junction they could not have complied with the order and therefore the breach could not be said to be ‘wilful’. The court rejected this contention. The defendants had failed to discharge their burden of proving that compliance was impossible, because they had not shown that they could not have obeyed the judgment.

214. In Australia, the concept that a person the subject of a court order must have the capacity to comply with it is not novel (Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2003] FCA 159; (2003) 127 FCR 542 at [31] at [51], Pattison (Trustee), in the matter of Bell (Bankruptcy) v Bell [2007] FCA 137 at [33]-[34], Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612 at [15]-[17] and Davies v Beyond Building Systems Pty Ltd [2009] NSWSC 1282 at [3]).

215. Rather, the debate appears to have centred on who bears the onus of proving impossibility of compliance. While earlier English authority suggested that the onus rested on the contemnor asserting impossibility, more recent Australian authority is to the effect that it is for the applicant or plaintiff to prove that the alleged contemnor could have performed the acts ordered to be carried out by the court in question (Pattison v Bell at [33]-[35] per Gray J and Davies at [25]-[26] and [30] per Brereton J).

216. A further difficulty exists, namely, establishing at least from an evidentiary perspective, what constitutes impossibility. There is, as Brereton J observed in Davies (at [19]), no bright factual line:

19    Impossibility is not always a clearcut matter. Often, mandatory orders in particular, and sometimes even prohibatory [sic] injunctions, require certain acts to be done by a particular time. Sometimes it may eventuate that doing the best they can, the party bound by the order is unable to have the works completed or the state of affairs reached within the time limited by the order. In such a case, the court would not commit for contempt a party that had used its best endeavours to achieve the required result. But it is not permissible in such a case for a party at the outset to make a judgment that it will not be able to comply within the time limited by the order, assert that it is impossible to comply within time, and throw up its hands and make no effort to comply. In such a case, impossibility can be a matter of degree and not a question that is clearcut as it might be where, for example, a relevant document is not in the possession, custody or power of a party bound.

217. Accordingly, his Honour proposed a shifting onus, which he described in the following manner (at [30]):

30    While I accept, following Gray J's decision, that the onus of proving that the contemnor could have performed the act involved falls on the applicant, I also accept that to the extent that that requires modification of what Sir John Donaldson said in Heatons Transport – so that it might now be enough for the respondent to say that he "did his best" – an order such as this at least imposes on a party bound by it an obligation to use their best endeavours to comply with it, and not simply to make no endeavour because of a view that they could not be assured of success in making that endeavour. While I accept that the onus of showing that the respondent could comply with the order falls on the applicant, that does not mean that the respondent bears no evidentiary onus on the issue. To the contrary, in cases of impossibility, there will ordinarily be some evidentiary onus on the respondent, at least to raise the issue and adduce some evidence on it…

218. I propose to respectfully adopt his Honour’s articulation of the evidential burden where impossibility of compliance with the court’s orders is raised as an issue.

219. In Davies, the alleged contemnor was ordered to reinstate the plaintiff’s capacity to access financial records by providing the plaintiff’s solicitor with all access codes, passwords or other information necessary for this to be effected. The defendant refused to do so, claiming that he did not know, or have in his possession, the passwords and information. In other words, that he could not comply with the order. Strictly speaking, the assertion was factually correct. However, as Brereton J appositely observed, accepting the defendant’s claim did not necessarily demonstrate that he could not perform the act that he was curially compelled to perform (at [28]).

220. In particular, the defendant knew a person who possessed the passwords and relevant information, but he had not asked that person to provide him with the necessary details. In short, he had not made a bona fide attempt at complying with the orders insofar as he had not made any inquiries of the third person. Had he made the inquiries and been rebuffed, a different conclusion might have ensued (at [31]-[32]). Therefore, “by failing to make any genuine endeavour to comply with the order” the defendant had committed a contempt of court (at [32]).

221. In Siminton (No 8) the applicant obtained ex parte interim orders restraining Mr Siminton from, amongst other things, dealing with, distributing, transferring or withdrawing money from certain bank accounts that he had unlawfully set up in contravention of the Banking Act 1959 (Cth). Mr Siminton was charged with contempt in respect of nine alleged breaches of the orders. He was convicted and sentenced to 10 weeks imprisonment. Mr Siminton appealed and was successful in setting aside the punishment, but not the conviction, the Full Federal Court imposing instead a fine of $50,000. The fine was not paid and further contempt proceedings were instituted. In his defence, Mr Siminton raised the question of whether he had the capacity to pay all or any of the fine, and in the absence of a capacity to pay whether he had deliberately and voluntarily failed to comply with the Full Court’s orders.

222. There was evidence before the Court that Mr Siminton was in a position to draw upon and satisfy his financial needs during the charge period and that he could have paid some or all of the fine imposed. The issue, therefore, was whether it was necessary for the applicant to establish whether or not Mr Siminton had the capacity to pay the full fine or whether it was enough to demonstrate that he had the capacity to pay part of the fine (which he had stated that he did). Justice Tracey stated the following (at [29]-[30], emphasis added):

29    In dealing with the disputed issue both parties sought to rely on a passage from the judgment of Spender J in World Netsafe. His Honour said, at [51], that:

"The ACCC is not seeking to imprison Mr Butler because he has not paid a debt to it; it is seeking his committal for disobedience of a court order. Further, and regardless of any possible application of the Debtors Act in the present application, I am of the opinion that to establish contempt of an order to pay within 28 days of the making of the order, it has to be shown that a failure to comply with that order was wilful. That requirement will not be made out unless it is shown that the person the subject of the order has the capacity to comply with it, in whole or in part. A truly impecunious person who does not make a payment which a court has ordered him to pay is not guilty of contempt, in my opinion."

The money had been paid to a company as part of pyramid selling scheme promoted by it. The alleged contemnor was the sole shareholder and director of the company. He was found not to have committed contempt by failing to comply with an order requiring him to refund certain moneys which had been paid to the company. This was because it had not been established that he had the means of making the payment.

30    In my view a person who is ordered by the Court to make a payment within a certain time and, within the prescribed period, has the capacity to pay part, but not all, of the amount needed to satisfy the order, is bound to make that part of the payment which he or she has the capacity to make. Failure to make such part payment as the person has the capacity to make will constitute a contempt of Court. I understand Spender J’s dictum in World Netsafe to admit this possibility. Where the Court order is made in favour of another person such an approach ensures that that person obtains at least some of the money to which the Court has adjudged him or her to be entitled. Where, as here, the Court has imposed a fine for contempt, a requirement of part payment to the limit of the contemnor’s capacity at least partially serves "the very substantial purpose of disciplining the [contemnor] and vindicating the authority of the court": see Mudginberri at 112. It would offend common sense and a sense of justice if a person could avoid complying with a Court order to pay a particular sum when he or she had the capacity to pay most but not all of it.

223. Mr Siminton was consequently found guilty of contempt (at [34]). While the trial judge’s decision was subsequently overturned in Siminton v Australia Prudential Regulation Authority (No 3) [2008] FCAFC 89; (2008) 168 FCR 140, on the factual basis that Spender J had erred in finding that the defendant had capacity to pay the fine in whole or in part (this is because in order to pay the fine he would have had to access the very funds that he had earlier been prohibited from dealing with), his Honour’s reasoning and pronouncements on the law were not disturbed.

224. In the present case, the council submitted that there was no “issuable” question as to whether or not Mr Floyd could comply with the orders underlying the statement of charge because the evidence did not establish that to do so was impossible. This evidence included the fact that:

1. between June 2003 and August 2006 Mr Floyd removed waste material at a rate of 50 tonnes per month, or in other words, 100 tonnes every two months;

2. Mr Floyd had, in one instance, removed 500 tonnes from the site within a period of only a few days;

3. there was no evidence that Mr Floyd’s financial circumstances changed between 2003 and 2006, or thereafter;

4. Mr Floyd had earthmoving equipment available for use at various points in time to assist with the removal of the waste from the land; and

5. the agreement between Mr Floyd and Mr Constantine was that they would work together to remove the waste from the land. This included sharing the cost of removal. Mr Constantine would have borrowed money to pay part of the costs of removal. In Mr Constantine’s opinion, it was “not that expensive” to move it, and Mr Constantine purchased machinery in furtherance of this agreement for use on the land.

225. The council submitted that while the evidence adduced by Mr Floyd might establish that is was improbable that the order would be complied with, this could not be equated to factual impossibility.

226. The council relied upon, and quoted from, the decision of this Court in Environment Protection Authority v Ableway Waste Management Pty Ltd [2005] NSWLEC 469 per Lloyd J, where his Honour opined that (at [32]-[33] and [55]-[56]):

32.    Both Ableway and Mr Tsaur are insolvent. They have no means to carry out the Court’s orders, let alone pay any monetary penalty. But as Kirby J said in Pelechowski (at par [149] quoted above) the focus of attention must not be solely on the contemnor, but also be addressed to the community at large and to deter others who might consider acting in a similar way. The contemnors in the present case must be punished in an emphatic way.

33.    In Smith v The Queen (1991) 25 NSWLR 1 the question was the appropriateness of a fine of $60,000 imposed on a contemnor who was already imprisoned for another offence, who had no assets and whose sole source of income was $12 a week for work in goal. The alternative penalty of an additional gaol sentence would have served no purpose, since the contemnor was already serving a life sentence. In holding that a fine of $60,000 was appropriate, Mahoney JA said (at 23):

A punishment must be both appropriate to the offence and be seen publicly to be such. Given Mr Smith's conviction for murder and his life sentence, a further sentence will have no great effect on him: that, no doubt, is why he did what he did. It is the significance to others of the present punishment which has a particular importance.

…

But it remains important that what is done to him should both mark, clearly and emphatically the community’s view of his offence and (if it may) deter other possible offenders.

…

55    Mr Tsaur advances a reason for the contempt. It is said that the financial difficulties experienced by the respondents, together with the repossession of the forklift, limited the ability of Mr Tsaur to move tyres around the premises. I do not, however, accept this as an excuse. When the tyres were brought into the premises they should have then been stored in the manner required by the conditions of the licence. For example, once it became apparent that the maximum permissible tonnage of tyres had been reached, then no more deliveries to the premises should have been allowed. Similarly, once a pile of tyres had reached a coverage of 60 square metres or a height of 3.7 metres, then no more tyres should have been added to the pile. And in no circumstances should tyres have been deposited within 18 metres of the boundaries. Mr Tsaur must have known that he was operating the business in breach of the conditions of the licence and continued to knowingly do so.

56    General deterrence and denunciation of the conduct concerned are major considerations in the imposition of penalties for contempt: Maniam (No. 2) at 314, Palechowski at 435; Smith v The Queen at 23, 24; Wood v Staunton at 138. In determining the punishment in the present case it is proper to bear in mind the potentially serious environmental consequences of the contempt: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 359; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701; Capral Aluminium Ltd v WorkCover Authority (NSW) (Inspector Mayo-Ramsay) (2000) 49 NSWLR 61. In particular, in Axer Mahoney JA said (at 359) that the quantum of a fine is not only to indicate the seriousness of such offences but also to deter those engaged in similar activities and to procure that they will take the precautions necessary to ensure that it does not occur. The penalty to be imposed must thus be sufficient to draw attention to the seriousness of the offence and to ensure that others are encouraged to comply with the law. In particular, it is critical that other operators in the tyre collection and recycling industry be given the message that they cannot take the “front end” income without escaping the consequences of proper and lawful disposal.

227. But these remarks, orthodox as they are, were made in the context of a sentencing hearing where the defendant was raising matters in mitigation. This is far removed from the present application. The case offers, in my view, little by way of assistance to the council.

228. The council complained in its written submissions of Mr Floyd not being clear whether his defence of impossibility was directed to the 2001 or the 2009 orders. But to be fair to Mr Floyd, the confusion arose because of the manner in which the statement of charge was framed, referring, as it does, to both sets of orders. For example, if, as the council asserts, the orders the subject of the contempt charge are only the 2009 orders, it is difficult to conceive of how Mr Floyd can be guilty of contempt for omissions occurring prior to May 2009.

229. In my opinion, having regard to the evidence, especially the agreed expert evidence, a real issue arises as to whether the orders can be complied with by Mr Floyd. This is because:

1. the waste stockpile is estimated to be somewhere between 20,000 to 33,000 tonnes;

2. the stockpile contains a high proportion of foreign material which means it cannot be classified as Excavated Natural Materials, thereby making it more expensive to remove;

3. the waste is “significantly” contaminated with asbestos (the council conceded that it was likely that the asbestos was present throughout 2001 to 2009, and thereafter. I agree) and is likely to be classified as Special Waste, again making its removal more expensive, even assuming screening or some other method of on-site processing;

4. the agreed expert evidence of Mr Michael Edwards (for the council) was that, assuming a removal and disposal time of 44 days, if the stockpile of waste was disposed of as Special Waste, the cost would be approximately $4.2 million;

5. according to the agreed expert evidence of Mr Hartog (Mr Floyd’s expert), assuming there is 33,000 tonnes of material present on the land, at a rate of removal of 100 tonnes every two months, it would take 55 years (at a cost of approximately $93,000 to $1,362,400 per annum), with an estimated total cost of over $26 million to remove. Alternatively, if the waste was disposed of all at once, the cost would be almost $4.87 million. If the material was sorted and the reusable material (such as concrete and brick) was disposed of separately, the single removal of the remainder of the stockpile would cost over $3.75 million;

6. at the adjourned contempt hearing before Biscoe J on 27 November 2008, the cost of removing the waste was estimated to be $3.85 million (according to the notes of Ms Linkenbagh). Mr Floyd told the council on that occasion that he could not afford to carry out the work, although he did not offer any proof of this claim;

7. Mr Floyd’s financial evidence, although porous in some aspects (for example, the $3,000 transfer), unequivocally demonstrated that he is an individual of limited financial means. It is highly doubtful that he will ever be able to afford the complete removal of the waste accumulated on the land as ordered. Further, there was no evidence that he had any assets of any substance upon which he could call to supplement his income;

8. Mr Constantine, while possibly agreeing to pay as much as 50% of the costs of removing the waste (his evidence was equivocal in this regard), conceded that he would not be able to contribute $1.5 million or even $500,000 to remove the waste. Moreover, he was not aware at the time he made the oral agreement with Mr Floyd how much soil would have to be removed or that the land was contaminated with asbestos;

1. Mr Floyd had made some attempts to remove material from the land between 2003 and 2008; and

2. Mr Floyd had an excavator and screening machine which he intended to use to sort and remove the waste, but these items had been stolen.

230. While ultimately a matter for the trial judge, on the evidence before me on this application, assuming that the material could be removed in one continuous exercise, the cost of doing so would be at least $3.75 million. Mr Floyd does not, as his financial evidence discloses, have the pecuniary ability or any other means to remove the waste in order to comply with the orders. The situation is analogous to a person who is ordered to pay money within a certain time but who lacks the financial means to do so. In these circumstances, it has been held that “a truly impecunious person who does not make a payment which a court has ordered him to pay is not guilty of contempt” (World Netsafe at [51] per Spender J).

231. But, as Siminton (No 8) and Davies establish, Mr Floyd will need to demonstrate that during the relevant period he used his best endeavours to at least partially comply with the orders. Mr Constantine’s evidence discloses that from 2009 onwards, such endeavours were scant. This will be a matter for the trial judge to resolve.

232. It follows that, for the reasons given above, I am of the opinion that there are “issuable” questions as to Mr Floyd’s guilt.

The Possibility of a Miscarriage of Justice Trumps the Finality of Litigation

233. As counsel for Mr Floyd aptly observed, “the history of these proceedings has undoubtedly been exceptionally protracted having regard to the fact that the orders were originally made in 2001”. But, as the Court of Appeal observed in Brown Brothers, however desirable it is to bring these proceedings to a final conclusion, this cannot be at the expense of avoiding a miscarriage of justice (at [208]):

208   Further, both the principle of finality of litigation and that of avoidance of conflicting decisions are invoked to “maintain public confidence in the administration of justice”; in other words to ensure the administration of justice is not brought into disrepute. However, neither principle should be invoked in circumstances where their application could have the effect of perpetuating a miscarriage of justice.

Conclusion

234. Having determined that the plea was not attributable to a genuine consciousness of guilt and that there are “issuable” questions as to his guilt, Mr Floyd must be permitted to withdraw his guilty plea.

Costs

235. Ordinarily the Court would, in Class 4 proceedings where costs follow the event, have no hesitation in awarding Mr Floyd the costs of his application.

236. However, as the procedural chronology at the commencement of this judgment makes tolerably clear, much of the blame for the delay in finalising this application lies at the feet of Mr Floyd. On each occasion that the proceedings were adjourned by him, or orders were made by the Court (often with Mr Floyd’s consent) that were not complied with by Mr Floyd, a correlative cost was incurred by the council. In such circumstances it would be grossly unfair to make the council liable for the entirety of Mr Floyd’s costs of his application. Likewise, the cost of each iteration of Mr Floyd’s withdrawal application ought not be visited upon the council.

237. In my opinion, therefore, a more appropriate costs order is that each party ought to bear their own costs up to the commencement of the oral hearing on 18 March 2013, and that thereafter the council should pay Mr Floyd’s costs of the hearing.

238. Having said this, the question of costs was not discussed with the parties and they should be given the opportunity of seeking an alternative costs order if they so desire.

Orders

239. The formal orders of the Court are as follows:

1. leave is granted to the second respondent to withdraw his plea of guilty entered on 28 June 2011;

2. each party is to bear their own costs of the proceedings up to the commencement of the oral hearing on 18 March 2013, thereafter the applicant is to pay the second respondent’s costs of the hearing. Any application by either party for an alternative costs order is to be made to the Court within 21 days of the date of the publication of this judgment;

3. the exhibits are to be returned; and

4. the matter is stood over to 19 August 2016 before the List Judge for further directions.

**********

Amendments

11 August 2016 - Typing errors amended:

[16] and [54] - formatting

[229(e)] - typographical error 33 changed to 33,000

Decision last updated: 11 August 2016