Canterbury City Council v Ahmed
[2016] NSWLEC 68
•03 June 2016
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Canterbury City Council v Ahmed [2016] NSWLEC 68 Hearing dates: 15, 16 April, 2, 3 and 4 July 2013 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Class 4 Before: Craig J Decision: At [62] and Orders
Catchwords: CONTEMPT – contravention of court orders – court orders requiring compliance with development consent conditions – unlawful use of premises outside of permitted operating hours – whether defendants contravened court orders – whether use of premises outside of operating hours – whether court orders ambiguous – whether rational alternative hypothesis inconsistent with defendant’s guilt Legislation Cited: Local Government Act 1993 (NSW) Cases Cited: Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35Category: Principal judgment Parties: Canterbury City Council (Plaintiff)
Ali Ahmed (First Defendant)
Auto Group Australia Pty Ltd t/as BTA Motorsports (Second Defendant)Representation: Counsel:
Solicitors:
Mr T G Howard, barrister (Plaintiff)
Mr P Kintominas, barrister (Defendants)
Pikes & Verekers Lawyers (Plaintiff)
Samaan & Associates Lawyers (Defendants)
File Number(s): 165178 of 2016 Publication restriction: No
TABLE OF CONTENTS
Contempt Charges
The 1990 Consent
Consent Orders are Made
The Facts
The Land is Leased to Ali Ahmed
The Business of BTA Motorsports
Control of the BTA Motorsports Business
Business Expansion
Out of Hours Operation
Noise During the Charge Period
The “Dyno Machine”
The Council’s Complaint Record
Relevant Legal Principles
Proof Of Possession And Control
Liability of the Second Defendant
Liability of the First Defendant
Orders
Judgment
Contempt Charges
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Each of Ali Ahmed and Auto Group Australia Pty Ltd, the First and Second Defendants respectively, are charged that during the period from 19 October 2012 to the date of the Statements of Charge, being 13 December 2012, they contravened Order 2 of orders made by this Court on 19 October 2012. They are alleged to have done so by using the property known as Unit 2, 13 Harp Street, Campsie for the carrying out of motor vehicle repairs outside the hours of operation specified in condition 5 of a development consent granted by Canterbury City Council (the Council).
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Each of the Defendants has pleaded not guilty to the charge.
The 1990 Consent
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On 17 January 1990, Canterbury City Council (the Council) issued a notice of determination of the grant of development consent 4694 for the use of land comprising Lot 102 DP 629278, known as Unit 2, 13 Harp Street, Campsie (the Land) for the purpose of motor vehicle repairs and the storage and wholesaling of spare parts and accessories (the 1990 Consent). The Consent was subject to conditions, including condition 5, that, together with the words of the 1990 Consent which were introductory to the conditions, provides:
“That the application be approved subject to the following conditions:
…
(5) The hours of operation being confined to between 8.00 am and 5.00 pm Mondays to Fridays, inclusive, and between 9.00 am and 12 noon Saturdays with no work being carried out on Sundays and Public Holidays.”
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By reason of complaints received from the Council that the condition was being breached, on 25 September 2012 the Council commenced the present proceedings. By its summons, the Council sought orders, among others, to the effect that each of the Defendants be restrained from using the Land contrary to condition 5 of the 1990 Consent.
Consent Orders are Made
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On 19 October 2012, the parties’ respective solicitors prepared and signed hand-written short minutes of order that they then asked the Court to make by consent. The orders then made were:
(1) The proceedings be adjourned to 14 December 2012.
(2) The First and Second Defendants be restrained from using the property known as Unit 2, 13 Harp Street, Campsie NSW 2194 for he carrying out motor vehicle repairs outside of the permitted hours of operation contrary to Condition 5 of the development consent No 4694 of 17 January 1990.
(3) The parties be given liberty to restore on three days’ notice.
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The orders then made were sealed and entered on 25 October 2012.
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I have earlier recorded the Statements of Charge against each defendant, alleging that they had each contravened Order 2 of the orders made on 19 October 2012. In its opening before me, the Council provided particulars of the dates and times it alleges that the Defendants breached that Court Order as follows:
a. Saturday 4 November 2012, after midday and up to 3:05pm;
b. Tuesday 6 November 2012, after 5.00pm and up to 9.30pm;
c. Wednesday 7 November 2012, after 5.00pm and up to 9.05pm.
d. Thursday 8 November 2012, before 8.00am (from 6.30am) and after 5.00pm, up to 9.25pm;
e. Thursday 15 November 2012, after 5.00pm and up to 9.45pm;
f. Saturday 17 November 2012, after midday and up to 3.45pm;
g. Saturday 24 November 2012, after midday and up to 5.38pm;
h. Tuesday 27 November 2012, after 5.00pm and up to 5.48pm;
i. Thursday 29 November 2012, after 5.00pm and up to 9.50pm;
j. Monday 3 December 2012, after 5.00pm and up to 7.26pm;
k. Thursday 6 December 2012, after 5.00pm and up to 7.48pm;
l. Saturday 8 December 2012, after midday and up to 4.55pm;
m. Wednesday 12 December 2012, after 5.00pm and up to 8.00pm;
n. Thursday 13 December 2012, after 5.00pm and up to 8.57pm;
In addition, the Council contended in its opening that the Defendants have habitually breached Order 2 on Saturdays during the charge period.
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The dates and times particularised principally derive from the evidence of William and Aila Willitts whose property adjoins the Land. Those dates and times have also been identified by reference to records of complaints received by the Council from Mr or Mrs Willitts.
The Facts
The Land is Leased to Ali Ahmed
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On 1 November 2004, the First Defendant became the lessee of the Land under a registered lease for an initial term of three years with an option to renew for a further three years, expiring on 31 October 2010. Notwithstanding the expiration of the term of the registered lease on that date, Mr Ahmed (the First Defendant) remains the lessee, as he acknowledged in his oral evidence.
The Business of BTA Motorsports
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Since commencement of the lease in November 2004, a mechanical/automotive workshop business has been carried out on the Land, first under the business name “Belmore Transmission and Automotive”, and more recently under the name of “BTA Motorsports”. The business specialises in modifications to and the tuning of high performance motor vehicles. It occupies a factory or warehouse-style unit with a concrete yard at the rear, used as part of the area in which mechanical repairs or work associated with the business takes place.
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There are roller shutter doors at the front and rear of the BTA Motorsports workshop building. The western external wall of the building is of brick construction. Immediately outside the rear roller doors there is a small covered area of the rear concrete yard but most of that yard is uncovered.
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Mr and Mrs Willitts occupy a dwelling on land known as 54 Chelmsford Avenue, Belmore. The rear eastern boundary of their land abuts part of the side western boundary towards the rear of the Land. There is a fall of about 10 m from the rear fence on the Willitts property to the rear yard of the Land. Standing on his toes at his back fence, Mr Willitts has a clear view of the rear yard of the land and “can probably see about 20 or 30 feet inside the shop, but cut off at a 45 degree angle” (T24:28-31).
Control of the BTA Motorsports Business
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During the charge period, the Second Defendant, Auto Group Australia Pty Ltd, was the owner of the business name “BTA Motorsports” (BTA). The sole officeholder and shareholder recorded on a company search of the Second Defendant was Khodr Ahmed, who is the father of Ali Ahmed. The evidence discloses that Auto Group Australia Pty Ltd became the proprietor of the business on 26 October 2011. For the period prior to 18 April 2011, the business carried on under the then business name “Belmore Transmission and Automotive”, was owned by Formula One Auto Group Pty Ltd, of which Ali Ahmed was the sold director and shareholder.
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The First Defendant described himself as the Manager of the Second Defendant. He maintained that a business card naming him as “Director” of BTA was a misprint. It is accepted that the First Defendant is not a director of Auto Group Australia Pty Ltd however the business card was tendered (Exhibit J) as probative of an assertion of control of the business on his part, consistent with other evidence in the case.
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None of the evidence suggests that the change of ownership from Formula One Auto Group Pty Ltd to Auto Group Australia Pty Ltd in October 2011 effected any change in the control of the business conducted on the Land. There is no evidence of any arm’s length transaction, or any transaction, between Ali Ahmed and Khodr Ahmed when ownership of the business changed. Ali Ahmed remained the lessee, with the exclusive right to occupy the Land. The evidence of Ali Ahmed that he had “to answer to” his father, does not displace the clear evidence of control of the business by Ali Ahmed.
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Apart from the fact that the First Defendant was at all times the lessee of the Land, he was the applicant in two applications made to the Council to modify the 1990 Consent. It was the First Defendant who instructed the solicitor acting for the Defendants after the civil enforcement proceedings were instituted and it is he who has given instructions to his legal representatives to act for each Defendant in these contempt proceedings. He dealt with Council officers when issues as to the operation of the business arose, including responding to them when complaints were being investigated. His dealings with Council officers engendered a belief on the part of George Kalivitis, an Environmental Health Officer employed by the Council, that he was the proprietor of the business. Mr Kalivitis investigated a number of complaints directed to the Council concerning the operation of BTA and, in so doing, was in contact with the First Defendant.
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In his oral evidence given before me, the First Defendant agreed that he was the boss of the staff members employed by the business and that staff members used the BTA workshop only with his permission. Not only did he exercise the power of controlling those present on the Land, he asserted the power to exclude persons from the Land, including a licenced process server.
Business Expansion
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The First Defendant agreed in evidence that he was running a “good business” that had expanded in the period since the business commenced on the Land in 2004. From sometime in 2011 he recognised the need to expand the hours and days of operation of the business beyond those permitted by the 1990 Consent. Not only did the First Defendant acknowledge this, it is a circumstance evident from the modification applications that he made to the Council.
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On 12 July 2011 he applied to the Council to modify condition 5 of the 1990 Consent to extend the hours of operation to seven days a week from 5.30am to 10.00pm. Explaining the reason for making the modification application, he stated in that application:
“The business has grown rapidly and we require longer hours and day too [sic] complete the workload. The existing DA is restricting our capacity of operation.”
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That modification application was accompanied by a statement of environmental effects, handwritten by the First Defendant. In that statement he said:
“…The business has tripled the capacity and we require more days and hours.”
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A second application to modify the 1990 Consent was lodged with the Council on 19 October 2012. As it happened, that was the same day that the consent orders that are the subject of this contempt motion were made. The explanation given for the second modification application was:
“The hours of extension we require for operation of the workshop are from 7am to 6pm Monday to Saturday. In addition, the opening hours that we require are 5.30am to 8.30pm. Please note that the opening hours are only for the convenience of our customers that work full time and need to drop off or pick up their vehicles outside the operating hours. Also 10am to 5pm on Sunday which would be strictly office work.”
That application had not been determined at the time of the present hearing.
Out of Hours Operation
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The principal evidence directed to the after-hours operation of the BTA business is that given by Mr and Mrs Willitts. They moved into their property in July 2009. Shortly after they moved, Mr and Mrs Willitts and their son were disturbed by loud car-revving noises and mechanical noises coming from the Land. This prompted them to enquire of the Council as to the approved hours of operation of the business.
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Each of Mr and Mrs Willitts gave evidence that by 21 December 2012 they had lost count of the number of times they had complained to the Council concerning noise from the Land outside the permitted hours of operation, noise that disturbed their family. They had understood the hours of operation to be those identified in condition 5 of the 1990 Consent.
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Support for the complaints that they had made emerges from action taken by the Council to address the complaints. In April 2011, the Council issued a Penalty Infringement Notice to Formula One Auto Group Pty Ltd (being the company then trading as Belmore Transmission and Automotive), for working outside the hours permitted under the 1990 Consent. In response to the Notice, the company elected to have the breach alleged in the Infringement Notice determined by the Local Court. When those proceedings came before Burwood Local Court in late 2011, the First Defendant appeared and successfully sought to have the proceedings adjourned to April 2012. When the charge came for hearing before Burwood Local Court, it was not contested.
Noise During the Charge Period
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By 19 October 2012, Mr Willitts had become reasonably systematic in identifying noise from the Land outside the hours stipulated in condition 5 of the 1990 Consent and in making his complaints to the Council. In his affidavit of 20 December 2012 he stated that he kept a record on a calendar at his home of the time and date when he was disturbed by noise emanating from the Land outside the permitted hours of operation. He listed the dates on which these events had occurred during the charge period, namely on 4, 6, 7, 8, 15, 17, 24 and 29 November 2012 and again on 5, 6 and 12 December 2012. When the noise was heard he said in his affidavit of 20 December 2012:
“For each of the above incidents, I heard a noise first and went to the rear of my property and had a look towards Unit 2 over the rear fence. I observed the rear shutter door to Unit 2 was open and there were lights on, and noise consisting either of the Dynomachine operating or men clanking tools and the radio in operation. I was satisfied on each of these occasions that works were being carried out within Unit 2.”
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Mr Willitts was cross-examined on that evidence. The transcript records the relevant cross-examination at (T20:1-31; T21:4-20):
Q. Sir on the occasions when you’ve heard the noise that has upset you, what did you generally do, did you have a particular method of noting down what it was that you heard?
A. If it was outside of operating hours yes.
Q. So you’re saying that you made contemporaneous notes?
A. I circled the calendar yes.
Q. And did you upon each occasion that you made it, did you go around to the front of the automotive shop to see whether the noise was coming from there?
A. I did not go to the front of the shop no.
Q. The situation is that you assumed that it was coming from the shop didn’t you sir?
A. No I did not assume.
Q. Well are you saying that you were able to observe?
A. Yes.
Q. From your premises?
A. Yes the back of the shop, the front of the rollers were down and the back doors were open and they were operating at the back of the shop.
Q. How were you able to observe it?
A. I looked over my back fence.
Q. Sorry?
A. I looked over my back fence.
Q. Sir, how tall are you?
A. 178, five foot ten.
…
Q. There is a very tall brick wall isn’t there at the side of the workshop?
A. The back of my property there’s a brick wall but it’s not very tall.
Q. You’ve got a Colorbond fence?
A. Not on that side of the property no.
Q. How high is the fence – sorry how high is the wall from your side?
A. About my height, maybe 180.
Q. The situation is that in order to be able to see you’ve got to do something more than just walk up to the wall?
A. I go up to the wall and stand on my tippy toes and look over or I have this chair there I can stand on a chair and get a better view.
Q. Are you saying that you did that on each and every occasion there was a noise?
A. That we’ve recorded since last October yes that I rang into council yes.
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In response to a suggestion that Mr Willitts might not be able to see over his rear fence into the workshop on the Land he said (T24:3-16):
Q. Mr Willitts you recall being asked some questions about or it being suggested to you that perhaps you couldn’t see over the wall from the rear of your premises into the BTA Motorsports workshop?
A. Mm-hmm.
Q. And I think you said you could see it standing on tip toes or on a chair?
A. Mm-hmm.
Q. Could you tell his Honour firstly what you could see when you stood on tip toes at the rear of your property at 54 Chelmsford Avenue, Campsie?
A. When I’d hear the noise outside of operating hours I’d sort of stand up on my toes over the side fence or on the chair at the back fence, look down, I would see workmen gathered in the back of the shop either moving back and forth operating, fixing cars.
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Mrs Willitts was not as systematic in making complaints to the Council as was her husband. She did make complaints from time to time, saying that she only complained on some of the occasions when she heard noise from the Land. On each occasion, she went into her rear yard, climbed on a chair near to the rear fence, looked into the rear yard of the Land and saw people that she described as “working” in the back of the workshop. Cross-examined on what she saw, her evidence was (T49:13-49):
Q. Ma’am you say that you’ve seen people working, what did you actually see them do, just describe what they were doing?
A. I don’t think I can describe that they’re doing, I’m not a mechanic, I have no idea. There is sometimes click click click click sound and there’s this air pump or something that – like I have done furniture and you need a pump to, to stable the furniture the sounds but this is much larger machine.
Q. But have you actually seen people creating that noise at the time that it’s created or any noise?
A. Of course.
Q. And what did you see?
A. I heard and saw people working, I’m not an expert on cars.
Q. You say that you saw people working?
A. Sure, after hours.
Q. What did you see that made – what did you actually see them do that caused you to come to the conclusion they were working as opposed being there for some other reason?
A. Can you repeat your question.
Q. What did you see them do that made you come to the conclusion that they were working other than the – sorry other than the fact that they were there?
A. The sound.
Q. Did you see them creating the sound –
A. Of course.
Q. Well how did you see them creating the sound, what did you see?
A. I saw them in that area where all the sound comes from and working.
Q. They were standing around?
A. I don’t know.
Q. Did they have anything in their hand?
A. I don’t know.
The “Dyno Machine”
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Mr Willitts described the “Dyno Machine” (dynamometer) as “the one that makes all the noise”. He described the sound as “like a jet engine preparing to take off” (T28:30). Although the noise from that machine was the loudest, it was not the only noise that he heard coming from the Land.
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In her evidence, Mrs Willitts said that during the charge period and outside the permitted hours of operation under the 1990 Consent, one of the noises that she detected was from a machine that she understood to be called the “Dyno Machine”. She said “it sounds like a helicopter takes off, it sounds that strong” and “I heard like a racing car before they start they put the machines on full blast and that’s how it sounded every time” (T37:5-9 and 17-20).
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On Saturday 8 December 2012 at about 4.55pm, Mrs Willitts recorded the sound of the Dyno Machine on the video/audio setting of her iPod. The sound recording but not the spoken commentary became Exhibit B in the proceedings.
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Also tendered in evidence was a promotional video prepared for BTA. It was played in Court to the First Defendant and showed the use of the Dyno Machine to tune the performance of a Ford Coyote utility. Following upon the showing of that video, the sound recording made by Mrs Willitts on her iPod was also played to the First Defendant. He agreed that the sound that Mrs Willitts had recorded was consistent with the sound of the Dyno Machine operating on the Land and that the sound had a different quality than that of a car operating normally.
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Having heard the sound from the promotional video and the sound recorded by Mrs Willitts on her iPod, I am satisfied beyond reasonable doubt the Dyno Machine was being operated on the Land after midday on Saturday 8 December 2012 and at 4.55pm when Mrs Willitts recorded the sound on her iPod.
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Mrs Willitts accepted that when looking over her rear fence, she could only see a corner of the Dyno Machine but knew roughly where it was by reference to the apparent source of the sound emitted from cars that could be seen attached to it and men gathered around the area. Mr Willitts stated that he could see the “guys grouped around and they’re all sort of pumped and jumping around sometimes when it’s really making a lot of noise” (T28:37-39).
The Council’s Complaint Record
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The Council’s records of complaints received from Mr and Mrs Willitts during the charge period were in evidence as Annexure G to the affidavit of George Kalivitis sworn 19 December 2012. Those records record the date and time of complaint, the person from whom the complaint is received and the nature of the complaint. Those records corroborate the evidence of Mr and Mrs Willitts. Although some of the entries in that record do not record the type of noise identified by the complainant, all entries are clear in referring to work undertaken on the Land and identify the time as being outside the hours permitted by condition 5 of the 1990 Consent. Some of the entries describe the complaint as relating to “revving motors” while others referred to “loud engine noise” as being the subject of complaint.
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Raymond Duggan is a Ranger employed by the Council. As a result of complaint from Mr and Mrs Willitts, he attended their property on Saturday 17 November 2012 at about 3.30pm. The complaint was directed to noise emanating from the Land. Mr Duggan was familiar with the activities of BTA on the Land because he had visited the premises on prior occasions in response to complaints made to the Council. He did not go onto the Land on that occasion because on a prior occasion in which he had done so he said that he had been threatened by the First Defendant. At the time of his visit on 17 November, Mr Duggan looked over the fence from the Willitts’ property into the rear yard of the Land. He saw two men in overalls working on a car inside the workshop and using tools. He also heard a machine operating that he identified as a compressor.
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On 1 November 2012, Mr Kalivitis visited the Land and there spoke to the First Defendant concerning the modification application that had been made on 19 October. He then had a conversation with the First Defendant to the following effect:
GEORGE KALIVITIS: “I would like to familiarise myself with your machinery that you operate here in the workshop. I am concerned that your Dyno machine has not been listed as part of the equipment in the consultant’s acoustic report.”
ALI AHMED: “The acoustic engineer has described it in the report as an exhaust analyser.”
GEORGE KALIVITIS: “My concern with the report is that there are no details as to what vehicle was being tested at the time, therefore it is unclear as to what levels of noise were being produced by the vehicle that was being tested at that time by the consultant.
GEORGE KALIVITIS: “What car was on the machine when it was being tested?”
ALI AHMED: “It was one of the louder ones.”
GEORGE KALIVITIS: The use of the dyno log machine is a contentious issue and whilst it may not be used for long periods of time it is the level of noise that is causing the offence to the neighbours especially when it is operated outside the hours of approval.
ALI AHMED: “We have been trying to comply with the approved hours.”
GEORGE KALIVITIS: You are aware of the court orders requiring you to comply with the hours of operation?
ALI AHMED: “Yes.”
GEORGE KALIVITIS: “Do you have a copy of them?”
ALI AHMED: “Yes”
GEORGE KALIVITIS: “Just so you are aware, Council Rangers will be monitoring the site and if they observe any further breaches we will be referring this matter back to the Court.”
I then turned my attention to the Dyno machine.
GEORGE KALIVITIS: “Would you consider providing a barrier between the Dyno machine and the rear roller shutter as it currently projects the noise towards the neighbours’ premises.”
ALI AHMED: “It would make my work difficult as I get claustrophobic in enclosed spaces.”
As I left the site I said the following to Mr Ahmed.
GEORGE KALIVITIS: “Please ensure you and your employees only work within the hours of operation under the consent.”
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Some attempt was made in the course of cross-examining both Mr and Mrs Willitts and Mr Duggan to suggest uncertainty as to the origin of the noise about which they complained. No specific alternate source of noise was suggested to them. Each robustly maintained that the Land was the source of noise. I accept, beyond reasonable doubt, that to be the case. Not only did they rely upon their aural sense, they used the sense of sight to connect the sound they heard with activity they observed.
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Equally I am satisfied beyond reasonable doubt that the activities observed during the charge period and at the times stated, being times outside the hours permitted by condition 5 of the 1990 Consent, did not comprise “cleaning”, “office work” or “staff meetings”. The evidence is overwhelming in establishing that the work observed was of men in overalls working on motor vehicles and using tools to do so, coupled with the sound of machinery of some kind within the premises.
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An argument advanced on behalf of the Defendants was that the activities observed during the charge period might be attributed to members of staff working on their own cars, that is, their work was of a personal nature and not related to the conduct of the BTA business. The Council submits that the evidence does not support any such contention. It identifies three matters that militate against acceptance of the submission.
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First, the First Defendant’s evidence was to the effect that it was only once every couple of months that a few members of staff worked on their own vehicles outside permitted business hours. Further, he accepted that staff members were only present on the Land with his permission. There is a disconnect between his evidence and the evidence I have accepted. During the charge period there were too many occasions upon which activities were carried out outside permitted hours to support a submission that only a few staff members worked on their own vehicles “every couple of months”.
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Secondly, the First Defendant said that the only work carried out by staff members after hours involving work on their own cars was work or activities that did not generate noise, such as diagnostic work with a computer or carrying out a grease-and-oil change. Again, that description of work is inconsistent with the activities not only heard but also seen by Mr and Mrs Willitts and, on one occasion, by Mr Duggan, outside the permitted hours of work.
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Thirdly, the First Defendant said that he was the only person who used the Dyno Machine and that he did not operate after hours (Day 3, T66:1-2). That evidence as to the emission of noise from the Dyno Machine cannot be attributed to anything other than the First Defendant being present on the premises and carrying out an activity associated with his business, unless another staff member did so without his authority.
Relevant Legal Principles
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The Council submitted that the statement of relevant principles applicable to a charge of contempt for breach of a court order was summarised by Garling J in Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 at [126]-[130]. Relevantly, those principles involved:
the charge must be proved beyond reasonable doubt, whether the contempt be categorised as criminal or, as it is in this case, civil contempt;
a person cannot be found guilty of contempt of court for breach of an order or an undertaking where the terms of the order are ambiguous, that ambiguity being such that it cannot be said what it was that required compliance (Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57]);
it is not necessary for the applicant to prove that the contemptor intended to breach an order of the court;
it is not necessary to prove the contemptor was aware that his or her conduct constituted a breach of the court orders;
it would not be a casual, accidental or intentional default where the party bound by an order misconstrued the terms of that order.
Proof of Possession and Control
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In seeking to establish the offences against the Defendants, the Council was not required to prove, in its case, that each Defendant was the occupier of the Land and was in possession, control and charge of the items of plant operated on the Land and the cars situated on that Land. So much follows from the operation of s 697 of the Local Government Act 1993. There being no evidence given to the contrary, those facts may be taken as established.
Liability of the Second Defendant
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I am satisfied beyond reasonable doubt, based upon the evidence to which I have directed attention, that on each of the dates occurring during the charge period, being those dates that I have earlier identified, mechanical work or other work involving repairs or tuning of motor vehicles was being carried out outside the hours of work stipulated in condition 5 of the 1990 development consent.
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As Biscoe J observed in Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [160], a corporation is an abstraction that can only act through living persons. His Honour continued:
In doing particular things, depending on the circumstances of the case, a manager may represent the directing mind and will of the corporation, or may be regarded as the corporation’s servant or agent for whose conduct the corporation is vicariously liable.
[161] A rule of attribution counts as a corporation’s actions, the actions of its agents or servants, of whatever level, whose work involves compliance with court orders on the corporation’s behalf. A corporation disobeys a court order and is in contempt by the deliberate act of its agents or servants whilst acting in the course of their employment, regardless of whether the act was authorised or even expressly forbidden by the corporation, or was done through carelessness, neglect or dereliction of duty, or even was done reasonably on legal advice. (citations omitted)
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It is true to observe that on each of the occasions upon which after-hours work was observed to be taking place, no one went to the Land to interview those present, nor to enquire whether they were employees of the Second Defendant. However, the fact that the after-hours work was observed with such frequency and that the conduct of the activities observed very obviously related to the conduct of motor vehicle repairs, satisfies me beyond reasonable doubt that those present and undertaking that work were there with the authority of the Second Defendant. No other reasonable hypothesis consistent with innocence is available on the facts that I have recorded and found to exist.
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In determining whether a breach of the Court’s order had occurred, the Second Defendant submitted that the terms of the Court’s order were ambiguous and should not be construed so as to impose the obligation upon the Second Defendant which the Council contended. Quite where the ambiguity existed was not explained. At one point, the submission contended that because the orders were made by consent, they ought to be construed more liberally. That more liberal interpretation, so it was submitted, would allow some operations relating to the business to be carried out after hours.
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I do not accept that submission. The restraint imposed by Order 2 made on 19 October 2012 was unambiguous in its requirement, restraining use of the Land from the conduct of motor vehicle repairs outside the hours authorised by condition 5 of the 1990 Consent.
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I am therefore satisfied beyond reasonable doubt that the conduct of persons for whom the Second Defendant is responsible did carry out motor vehicle repair work outside the permitted hours for that work contrary to condition 5 of the 1990 Consent and, as a consequence, the Second Defendant has acted in breach of Order 2 made in these proceedings on 19 October 2012. It is therefore guilty of contempt as charged.
Liability of the First Defendant
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The Council submits that the First Defendant is liable for contempt because he personally carried out work on the Land outside reasonable hours, contrary to the Court Order.
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While the facts that I have found clearly establish that motor vehicle repair and tuning were being undertaken on the premises in breach of the Court’s order, no evidence has been adduced that on any of the occasions upon which work or activities said to constitute the offence were carried out that the First Defendant personally did so. Indeed, there is no evidence that on any of the relevant occasions he was seen to be present on the Land.
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The only evidence upon which the Council relies to implicate him by direct action is his evidence that only he operated the Dyno Machine and that he had not done so outside those hours by which he was restricted under condition 5 of the 1990 Consent. That fact, so it seems to me, does not exclude an alternate reasonable hypothesis inconsistent with his guilt. Given that on each of the occasions upon which observations were made of motor vehicle repair work being carried out, there were a number of people present, I cannot reasonably exclude the possibility that someone else on the Land operated the Dyno Machine, even if the First Defendant believed that he was the only person authorised to use it.
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The alternate basis upon which the Council seeks to attribute liability to the First Defendant is that he was liable for the actions of his staff members pursuant to principles of vicarious liability, having regard to the control exercised by the First Defendant over the staff. The First Defendant accepted that if he had instructed his employees to carry out automotive works outside the permitted hours, he would be guilty of contempt. However, he submitted that the evidence had not established that such direction was given.
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No employee or other person working on the Land when work beyond the permitted hours of operation was taking place, there is no evidence of any instruction that would implicate the First Defendant in this context. While it might be thought that employees would usually act in accordance with the instructions of a manager, I accept the submission on behalf of the First Defendant that such a principle was not capable of reversing the onus of proof and rendering the manager of a business automatically vicariously liable for the actions of employees. The evidence does not persuade me, beyond reasonable doubt, that the First Defendant did instruct the employees of BTA to carry out car repair activities in breach of the Court order.
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The First Defendant’s counsel accepted that if, as manager of the business on the Land, the First Defendant had known and permitted activities to occur in contravention of the Court orders, he would be criminally liable. He also conceded that the First Defendant had demonstrated a willingness to permit employees to work on their own cars outside the permitted operating hours, which had the potential to contravene the Court orders. However, it was said, that even if this did constitute a contravention it still had to be shown that this permission did, in fact, lead to that which was occurring.
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There can be no doubt on the evidence that the First Defendant was well aware of complaints being made concerning the conduct of his business outside the permitted hours of operation. Given the frequency of complaint, it is incomprehensible that he was unaware of the extent to which the Land was being used for motor repair work outside the permitted hours of operation.
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The First Defendant accepted in evidence that he had agreed to employees carrying out work on their own vehicles outside the permitted hours of operation. The fact that this was so, seems to me to involve a contravention of the order. Those persons working on the cars outside permitted hours were persons who were working on vehicles because that was the nature of the business of BTA. In a sense, it matters not the equipment that was used or who used it; the only relevant fact was that work in the nature of motor vehicle repairs was being undertaken outside the permitted hours of operation.
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It is readily apparent that the First Defendant did fail to prevent employees from so doing. The use of the Land after hours occurred with such frequency over a period of months and is wholly consistent with the contention that he made no attempt to prevent his employees from doing so, knowing that their actions constituted a breach of the Court’s order. The evidence earlier recorded of the conversation between the First Defendant and Mr Kalivitis on 1 November 2012 establishes that the First Defendant was aware of the terms of that order.
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While it has not been established that the persons undertaking the work were employees, it is also inconceivable that on all of the occasions upon which observations were made, those carrying out the work were trespassers. Not only were those persons present on the premises, but the premises were open and equipment associated with motor vehicle repair was being used by them. On this basis, there is no reasonable hypothesis consistent with innocence that would exculpate the First Defendant from the offence with which he is charged.
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Accordingly, I find the Defendant guilty of contempt as charged.
Orders
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I find the First Defendant guilty of the offence as charged in the Statement of Charge dated 13 December 2012;
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I find the Second Defendant guilty of the offence as charged in the Statement of Charge dated 13 December 2012;
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Stand over the proceeding to Friday 24 June 2016 for the purpose of making directions and fixing a date for hearing on sentence.
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Amendments
09 June 2016 - A typographical error in the hearing date year has been amended from 2012 to 2013.
Decision last updated: 09 June 2016
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