Camden Council v Rafailidis (No 4)
[2014] NSWLEC 22
•18 March 2014
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Camden Council v Rafailidis (No 4) [2014] NSWLEC 22 Hearing dates: 18 March 2014 Decision date: 18 March 2014 Jurisdiction: Class 4 Before: Sheahan J Decision: (1)Efrem Rafailidis is found guilty of contempt, and convicted of that charge.
(2)Koula Rafailidis is found guilty of contempt, and convicted of that charge.
(3)Council is directed to bring this judgment to the personal notice of Efrem Rafailidis, and is granted liberty to approach the Registrar not earlier than 28 days from today and on seven days' notice to Efrem Rafailidis with a view to the fixing of a date for his sentencing hearing.
(4)Koula Rafailidis is fined $10,000, payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine of $2,000 payable on the first calendar day of each month on and from 1 June 2014, until the works the subject of the charge have been completed to Council's satisfaction.
(5)Koula Rafailidis is ordered to pay Council's costs of these contempt proceedings, on and since 1 November 2013, on an indemnity basis, as agreed or assessed according to law.
(6)The Council's exhibit will remain on the Court file.
Catchwords: CONTEMPT: Disobedience of Court orders Legislation Cited: Environmental Planning and Assessment Act 1979
Fines Act 1996
Local Government Act 1993
Camden Local Environmental Plan 2010Cases Cited: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362
Attorney-General v Times Newspapers Ltd [1992] 1 AC 191
Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98
Burwood Council v Ruan [2008] NSWLEC 167
Camden Council v Rafailidis [2012] NSWLEC 51
Camden Council v Rafailidis [2012] NSWLEC 125
Camden Council v Rafailidis [2012] NSWLEC 217
Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 (CA)
Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738
Hawkesbury City Council v Foster (1997) 97 LGERA 12
Lade & Co. Pty Limited v Black [2006] 2 Qd R 531
M v Home Office [1994] 1 AC 377
Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Stancomb v Trowbridge Urban Council [1910] 2 Ch 190
Witham v Holloway (1995) 183 CLR 525
Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71Category: Principal judgment Parties: Camden Council (Applicant)
Efrem Rafailidis (1st Respondent)
Koula Rafailidis (2nd Respondent)Representation: Mr C Campbell, solicitor (Applicant)
No appearance (1st Respondent)
Second Respondent in person
Lindsay Taylor Lawyers (Applicant)
No appearance (1st Respondent)
Self represented (2nd Respondent)
File Number(s): 40855 of 2011
Judgment
The Charge of Contempt
Koula and Efrem Rafailidis were charged, on 12 November 2013, with contempt of court, in respect of three sets of orders made and varied by this Court during 2012. The charge was framed in the following terms:
The First and Second Respondent (Respondents) are guilty of contempt of court in that in breach of order of the Court in these proceedings on 18 September 2012 the Respondents did not, as required by paragraph 2 of the Order made by the Court on 5 March 2012, as varied on 18 September 2012, before 4 July 2013, demolish and remove the existing single storey dwelling on the Property, or otherwise obtain an appropriate development consent to allow it to remain in some for or another.
The Council's Notice of Motion ('NOM') of 12 November 2013 seeks to have the respondents punished for contempt "by committal to a correctional centre, or fine, or both". It also seeks an order for its costs of it, and such further or other orders as the Court considers appropriate.
The Relevant Factual History
The respondents bought the subject site (955 Camden Valley Way, Catherine Fields), in about July 2005. Quite elderly pensioners, the Kingstons, had resided, as tenants, in an old fibro dwelling on the land.
On 22 October 2008, Council granted development consent ('DC') to the respondents, for the erection of a new dwelling (DA 701/208 submitted on 5 August 2008). In the Statement of Environmental Effects ('SEE'), and in a letter which also accompanied the development application ('DA'), the respondents undertook that the old dwelling "will be removed on completion of the new home".
The applicable Camden Local Environmental Plan 2010 ('LEP') permits only on dwelling per allotment. Conditions 1.0(8) and 5.0(6) imposed on the DC required removal of the old within 28 days of the completion of the new, but required a separate DA to be lodged for its demolition, prior to the issue of any occupation certificate ('OC') for the new dwelling.
The respondents moved into the new dwelling without complying with these requirements, and the Kingstons remained in the old dwelling.
Council issued notices and orders (under s 121B of the Environmental Planning and Assessment Act 1979 and s 124 of the Local Government Act 1993), in March - June 2010, requiring compliance with the DC conditions, and Council brought these proceedings on 20 September 2011. They came on for hearing before Lloyd AJ on 5 March 2012, to enforce them.
His Honour made the following orders ([2012] NSWLEC 51):
1. The Court declares that in breach of section 76A(1)(b) of the Environmental Planning and Assessment Act 1979 the Respondents have carried out development otherwise than in accordance with the Notice of Determination of Development Application No. 701/2008 dated 22 October 2010 for the proposed development at Lot 10, Deposited Plan 27602, 955 Camden Valley Way Catherine Field New South Wales 2750.
2. Order pursuant to section 124 of the Act that the Respondents are within ninety (90) days to demolish and remove the existing single storey dwelling on the Property, or otherwise obtain an appropriate development consent to allow it to remain in some form or another.
3. As alternative to Order No 2, an order pursuant to section 124 of the Act that the Respondents are:
(a) within fourteen (14) days to lodge a development application with the Applicant for the demolition and removal of the existing single storey dwelling on the Property; and
(b) to demolish and remove the existing single storey dwelling within ninety (90) days of the granting of consent to the Development Application in accordance with such consent.
...
(The subject land is now known as Lot 51 DP 1170535, consequent upon the acquisition of part of the land by Roads and Maritime Services - Exhibit C1)
The respondents then lodged (on 25 May 2012) a further DA seeking approval to retain the old dwelling, When it was refused by Council (on 28 May 2012), the respondents decided to commence a class 1 appeal, and applied for a stay of Lloyd AJ's orders. On 30 May 2012 ([2012] NSWLEC 125), Biscoe J stayed them in the following terms:
(1) Order 2 made on 5 March 2012 is stayed on condition that the respondents file and serve a Class 1 appeal against the Council's refusal of their development application of May 2012 on or before 31 May 2012.
...
In relation to such Class 1 proceedings, which were then filed on 31 May 2012 (12/10525), his Honour gave the following directions:
(a) The Council is to file and serve its submissions and statement of facts and contentions by Monday, 4 June 2012.
(b) The respondents are to file and serve all evidence upon which they rely by close of business on 6 June 2012.
(c) The respondents are to file and serve their submissions by 11 June 2012.
(d) The Council is to file and serve its evidence by 14 June 2012.
(e) The matter is set down for a conciliation conference under s 34 of the Land and Environment Court Act 1979 on Monday, 18 June 2012.
(f) The matter is set for hearing on Wednesday, 4 July 2012 in Court.
...
On 4 July 2012, a s 34(3) conference conducted by Hussey C resulted in the grant of a DC which included conditions requiring modifications to the older dwelling and the removal of asbestos, partial demolition of the older dwelling, and completion of some structural alterations to the remaining parts of it. Orders were made by the Court accordingly, by consent, that day. Annexed to those orders were clear plans of the current floor layout of the older house, and of what the consent orders required to be done to it by way of modification (pages 36 - 37 of Saab affidavit 7 November 2013).
On 11 September 2012, Biscoe J heard a NOM brought by Council, seeking a variation of the stay of the demolition order made by Lloyd AJ, the lifting of Biscoe J's 30 May order, and the making of new orders. In his judgment of 18 September 2012 ([2012] NSWLEC 217), his Honour made the following orders:
(1) The order for a stay made by the Court on 30 May 2012 is discharged.
(2) Order 2 made by the Court on 5 March 2012 is varied by extending the 90-day period referred to therein to 4 July 2013.
...
In all three judgments in the class 4 proceedings, costs were awarded to Council. Solicitors represented the respondents at the two hearings before Biscoe J, and at the s 34 conference before Hussey C.
It is clear from his Honour's judgment of 18 September 2012, delivered in the presence of the respondents, that his Honour required that the works proposed to be done to the older dwelling were to be completed by 4 July 2013. His Honour said (at [18]):
In the circumstances, it is appropriate to discharge the May 2012 stay order and mould an order which would permit time within which the works required by the 2012 consent must be carried out. One year from the date of the development consent seems reasonable. The evidence of Mrs Rafailidis that the respondents intend to carry out the works does not detract from this conclusion; indeed, it indicates that such an order should not prejudice the respondents.
The Evidence Filed in Support of the Charge
The Council relies on:
(a) two affidavits sworn by its solicitor, Mark Bonanno. On 12 November 2013, he deposed that the respondents and their solicitor, Michael Vassili, were present in Court at the time Biscoe J handed down his judgment on 18 September 2012. On 15 November 2013, he deposed that he personally served on Koula Rafailidis on that date the present NOM, statement of charge, and two affidavits in support.
(b) two affidavits sworn by its Development Compliance Officer, Charlie Saab, on 7 November 2013, and on 17 March 2014. Mr Saab deposes to much of the above history, and to various inspections he conducted in October 2013, and on 13 March 2014, during which he took photographs depicting the continued presence of parts of the old house agreed to be demolished. He also deposes that, since 18 September 2012, Council had received no notices of intention to carry out building works at the site.
(c) an affidavit by process serve Mark Slater, deposing to service on Efrem Rafailidis, on 29 November 2013, of the present NOM, statement of charge, and two affidavits in support.
The Documents Filed in Response to the Charge
On 4 December 2013, Koula Rafailidis filed a "Notice of Special Appearance", challenging the Court's jurisdiction, supported by an affidavit/asseveration in support of that appearance and challenge. On 6 march 2014, she filed a further "asseveration of truth", together with a "Notice - Challenge to the Jurisdiction of the Court", and a NOM "requiring" the Court to "make null and void all orders, judgments" in this matter. A further "asseveration of truth" was filed on 11 March 2014.
In her material, Koula Rafailidis has quoted some "maxims of law", and from the bible, historical legal documents, including Magna Carta, and texts such as Halsbury's Laws of England. She alleges that this Court is biased in favour of statutory authorities, including councils, and asserts that, as a statutory court, it lacks jurisdiction to deal with contempt. She also specifically alleges bias on the part of Lloyd AJ, because he made, in this matter, orders seen to be more severe than those he made in Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 (regarding Mr Richard Garton).
She asserts, in summary:
(a) that she has "no lawful binding contract" with the acquiring authority, this Court, Biscoe J, Craig J, and/or Lloyd AJ
(b) that she "was deceived by all people involved with this matter"
(c) that she "did not give expressed (sic) and unequivocal consent to [the] matter being heard summarily", and enjoys "an inalienable right to trial by jury", the denial of which constitutes treason
(d) that "any orders/judgments" were not properly made and documented, and that at least one document (a letter) was not admitted into evidence because "there was no wet ink signature" to give it "lawful standing" and "bind" her to it
(e) that this court lacks jurisdiction to proceed summarily, and that any determination it makes is the product of bias, deception, and/or fraud
(f) that Craig J, in an unrelated class 3 matter, in which the present respondents were applicants, did not demonstrate that he was properly appointed and sworn as a Judge, and that Judges of this Court "allowed the proceedings to continue fraudulently"
(g) that interference with property without consent is "terrorism".
Despite being a named respondent to the charge, being served with most of Council's documents, and being present to respond to the charge on 6 December 2013, Efrem Rafailidis has not appeared today, and Koula Rafailidis declined to be regarded as his agent.
Discussion
Questions of this Court's status, legitimacy, and power to deal with charges of contempt have been long settled. See, eg, Hawkesbury City Council v Foster (1997) 97 LGERA 12, per Sheller JA at 22. I reject Koula Rafailidis's submissions on this aspect of the matter.
Likewise, the principles governing the exercise of its contempt powers are also well settled, and consistently applied by all its judges. Obedience to the law, and to valid orders of the Court, and the protection of the environment itself, of public safety, and of the statutory regime which regulates planning and development in this state are at the forefront of the Court's concerns.
A contempt which is found proven is normally characterised as technical, wilful or contumacious, as a precursor to whether the principal focus of the court's reaction will be rectification and/or punishment. The fact that the relevant orders were made by consent, or pursuant to some undertaking, and the absence of any appeal against those which are not, are relevant considerations. General criminal sentencing principles are traditionally applied, to take account of illness, ambiguity, lack of mental capacity, and so on. Biscoe J, in Burwood Council v Ruan [2008] NSWLEC 167, summarised the characterisation as ([7]):
There are three classes of contempt: technical, wilful and contumacious. Technical contempt is where disobedience of a court order (or undertaking to the court) is casual, accidental or unintentional. Wilful contempt is where the disobedience is more than that, but is not contumacious. Contumacious contempt is where there is a specific intention to disobey a court order or undertaking to the court, which evidences a conscious defiance of the court's authority. Although a contempt may be established, in the circumstances of the case the court may decide not to make any order. The element of intention is relevant to whether any order should be made and, if so, to punishment. ...
No later cases have derogated from his Honour's analysis in any way. His Honour's analysis continued (at [8] - [14]), and it is appropriate to quote it here, as I respectfully adopt it, and will apply it to the present case:
8 The phrase "casual, accidental or unintentional" was used by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 at 107 (in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ) and in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 484 [147] fn [156] (by Kirby J). The phrase was originally coined in the slightly different conjunctive form "casual or accidental and unintentional" in Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 (CA), which was quoted in Witham v Holloway (1995) 183 CLR 525 at 541 by McHugh J. The meaning of the word "casual" is unclear.
9 The three classes of contempt were recognised in the High Court by Kirby J in Pelechowski at 484-485 [147], by the NSW Court of Appeal in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 314-315 by Kirby P (Hope A-JA agreeing), and in Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 at [30] by me. In Pelechowski at 484-485 [147] Kirby J noted that technical contempts are sometimes called "casual, accidental or unintentional" contempts and said:
The underlying purpose of the law on this form of contempt is to vindicate the due administration of justice. Contempts of the kind illustrated in this case may be technical, wilful but without a specific intent to defy the authority of the Court and contumacious. In the last category a serious act of deliberate defiance of judicial authority is evidenced. Conceding that such categories of contempt may sometimes overlap, in a case of a technical contempt, where the contemnor has offered an apology which the Court accepts, it will sometimes be sufficient to make a finding of contempt coupled with an order for the payment of costs. Where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority, a finding of contempt and an order for the payment of costs may not be sufficient. In such a case, a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court's orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.
(footnotes omitted)
10 Earlier, in Maniam (above) at 314-315, Kirby P (Hope A-JA agreeing) made similar observations, noting that for technical contempts the court will usually accept an apology from the contemnor but may order the contemnor to pay costs. In Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367 the Court (Street CJ, Hope and Reynolds JJA) stated:
...[T]he development of a distinction between what Lord Diplock in Attorney-General v Times Newspapers Ltd called conduct which is within the general concept of 'contempt of court' (often called technical contempt) and conduct included within that general concept, which a court regards as deserving of punishment in the particular circumstances of the case. This distinction was also referred to by Lord Reid:...there must be two questions; first, was there any contempt at all, and, secondly, was it sufficiently serious to require, or justify the court in making, an order against the respondent? ...It would be wrong to assume that it follows that there are two forms of contempt, one being technical contempt and the other being actual contempt. Technical contempt is contempt. For a variety of reasons, although contempt is established, the court may decide not to exercise its summary jurisdiction. These words simply mean that in the circumstances of the case, the court may decide to take no action in the matter. In a long history of reported judgments, courts have expressed the reasons why they have decided to take action, or not to take action. Sometimes these reasons have tended to obscure whether the question being dealt with is what constitutes contempt, or what the court should do in the particular case. As Lord Reid pointed out in Times Newspapers Ltd case, it is confusing to import into the question whether there is any contempt at all, or into the definition of contempt, matters which are related to the course which the courts will take, contempt having been established. In considering the reported decisions, it is important to appreciate this possible source of confusion.
They continued at 370:
If contempt has been established, the question arises whether the court should exercise its summary jurisdiction to punish. ...Once contempt is established, the court has to decide what action it should take, in the light of all the circumstances of the particular case. It should not punish simply because contempt has been established; and it must be careful to satisfy itself that the circumstances require that it exercise its jurisdiction.
(footnotes omitted)
11 The relevance of intention to punishment was emphasised in Ainsworth v Hanrahan (1991) 25 NSWLR 155. The opponent was found to have committed a technical contempt, and to have acted without intention to interfere with the administration of justice. Kirby P (Samuels and Handley JJA agreeing) said at 168: "Intention is always relevant to punishment for contempt. Clearly, this is not a case where any punishment is called for". A declaration was made that a contempt had occurred but the claimant was deprived of any costs. Similarly, in M v Home Office [1994] 1 AC 377 at 426-427 Lord Woolf approved the dictum of Lord Oliver in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217-218:
The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited.
12 In Mudginberri (above) the High Court (in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ) appeared to suggest that no punishment should be imposed (at least by way of fine) where the contempt is merely technical. They held:
More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional (at 106-107).
In more recent times a strong stream of English and Australian authority has emerged to support the imposition of fines for disobedience to orders in circumstances where the disobedience is wilful (at 109).
...[T]he reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional (at 113).
13 McHugh J took the same view in Witham v Holloway (1995) 183 CLR 525 at 541:
But this Court has now authoritatively determined that in some circumstances courts do have power to fine for civil contempt (Mudginberri...). That power exists where the breach has not been the result of casual, or accidental and unintentional disobedience (Fairclough v Manchester Ship Canal Co (1897) 41 Sol Jo 225). If, therefore, the breach has been wilful, it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order (Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). Thus, if the act or omission that constitutes the breach was done wilfully, the contemnor is now liable to be fined even if the breach was not contumacious.
(some footnotes omitted)
14 In Lade & Co. Pty Limited v Black [2006] 2 Qd R 531 at 548 [57], Keane J A held:
Under the general law, apart from statute, it was established that contempt lies in disobedience of a court's order. References in the authorities to the requirement that conduct be contumacious were concerned with the power to fine a contemnor by way of punishment for a contempt; they were not concerned with establishing whether a contempt had occurred.
(footnotes omitted)
Consideration
It troubles me that this Court's decisions in respect of the development of the respondents' property have been favourable to their interests and desires, and yet they have shown total disregard for the orders they achieved. They were give twelve months to comply (by 4 July 2013), and did not. They still had not complied four months later, when this charge was laid.
Had they done something about the old house following the laying of the charge of contempt, I would have been inclined to treat the disobedience to that time as "technical" contempt, but it has continued, and their contempt is, at least, "wilful". In fact, it is not that far short of "contumacious", when one takes into account the approach taken to the charge - one defendant did not appear, and the other refused to participate properly, in her own interests.
After continued disruptions, I very reluctantly asked the sheriff's officers to remove Koula Rafailidis from the court room. She stayed in or near the precincts, and I arranged for those officers to deliver to her, at 1pm, copies of all Council's later materials (two affidavits plus written submissions), and to inform her, and later to remind her, that the hearing would continue at 2pm sharp. When she did not attend within a reasonable time after 2pm, I adjourned to prepare this judgment.
I should add here that Council's solicitor took no unfair advantage of her absence, and made very fair and balanced submissions. Although strenuously challenging the relevance of all Koula Rafailidis's filed documents, Mr Campbell accepted that I would have regard to them. In reality, they shed no light on the position with regard to the continuing state of the subject building, and they advance no arguments as to why this Court should be lenient in dealing with Koula Rafailidis and her husband, in respect of their non-performance of the Court's orders.
I am satisfied beyond reasonable doubt that both these defendants are guilty of contempt of court, and should be convicted. Theirs is a serious breach; they have made no attempts to purge their contempt; they have challenged the Court, but put nothing in mitigation; they did not plead to the charge, nor show any remorse or contrition.
The circumstances call for general and specific deterrence.
Conclusion
In the unexplained absence of Efrem Rafailidis, I will defer imposing any sentence on him. Council is directed to bring this judgment to his notice, and I grant Council liberty to approach the Registrar on further notice to Efrem Rafailidis, to fix a hearing date for him to be sentenced.
In respect of Koula Rafailidis, I find her guilty of contempt as charged, and I convict her. I will impose a fine of $10,000, plus a monthly fine of $2,000, until the works are completed to Council's satisfaction, in order to give her one last chance to purge her contempt.
Koula Rafailidis will also be ordered to pay Council's costs of these contempt proceedings, on and since 1 November 2013, on an indemnity basis, as agreed or assessed according to law.
The exhibit will remain on the Court file.
Orders
The formal orders of the Court are:
(1) Efrem Rafailidis is found guilty of contempt, and convicted of that charge.
(2) Koula Rafailidis is found guilty of contempt, and convicted of that charge.
(3) Council is directed to bring this judgment to the personal notice of Efrem Rafailidis, and is granted liberty to approach the Registrar not earlier than 28 days from today and on seven days' notice to Efrem Rafailidis with a view to the fixing of a date for his sentencing hearing.
(4) Koula Rafailidis is fined $10,000, payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine of $2,000 payable on the first calendar day of each month, on and from 1 June 2014, until the works the subject of the charge have been completed to Council's satisfaction.
(5) Koula Rafailidis is ordered to pay Council's costs of these contempt proceedings, on and since 1 November 2013, on an indemnity basis, as agreed or assessed according to law.
(6) The Council's exhibit will remain on the Court file.
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Amendments
25 March 2014 - Paragraph [7] correction of legislation cited, paragraph [24] 'then' corrected to 'they' "... and yet they have shown ..."
Amended paragraphs: [7] and [24]
Decision last updated: 25 March 2014
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