Chief Executive Officer, Department of Environment and Conservation v Szulc - [2010] WASC 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION -v- SZULC [2010] WASC 195

CORAM: MARTIN CJ

HEARD: 26 JULY 2010

DELIVERED : 26 JULY 2010

PUBLISHED : 30 JULY 2010

FILE NO/S: CIV 2722 of 2009

BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Plaintiff
AND
MAXWELL JAN SZULC
Defendant

Catchwords:

Contempt of court - Where alleged deliberate breach of order of the court - Consideration of knowledge required - Turns on own facts

Legislation:

Bushfires Act 1954 (WA)
Environmental Protection Act 1986 (WA), s 51C, s 51S
Rules of the Supreme Court 1971 (WA), O 55
Sentence Administration Act 2003 (WA), s 3
Sentencing Act 1995 (WA), s 3

Result:

Convicted of contempt of court
Committed to prison for 3 months

Category: A

Representation:

Counsel:

Plaintiff: Mr R M Mitchell SC & Mr T C Russell
Defendant: In person

Solicitors:

Plaintiff: State Solicitor's Office
Defendant: In person

Case(s) referred to in judgment(s):

Australasian Meat Industries Employees Union v Mudginberri Station (1986) 161 CLR 98; [1986] HCA 46
Hinch v Attorney‑General (Vic) (1987) 164 CLR 15; [1987] HCA 56
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd (2007) 34 WAR 201; [2007] WASC 96
Witham v Holloway (1995) 183 CLR 525; [2005] HCA 3
Wood v Staunton (1996) 86 A Crim R 183

MARTIN CJ: (This judgment was delivered extemporaneously on 26 July 2010 and has been edited from the transcript.)

The Chief Executive Officer of the Department of Environment and Conservation, who is the plaintiff in these proceedings and to whom I will refer as the CEO, moves the court for an order that Maxwell Jan Szulc, the defendant, be committed to prison for contempt of court in accordance with the procedures specified by O 55 r 4 of the Rules of the Supreme Court 1971 (WA).
I am satisfied that notice of the application for committal was personally served on Mr Szulc on 26 May 2010. Mr Szulc appeared by video‑link at the earlier hearing of this motion on 25 June 2010 and has appeared in person today.
The CEO alleges that Mr Szulc has committed a deliberate breach of an order of the court. 'Deliberate' in this context means 'wilful' in the sense of actions by the alleged contemnor which were not casual, accidental or unintentional (see Witham v Holloway (1995) 183 CLR 525; [2005] HCA 3 and Australasian Meat Industries Employees Union v Mudginberri Station (1986) 161 CLR 98; [1986] HCA 46).
All proceedings for contempt are criminal in nature (Hinch v Attorney‑General (Vic) (1987) 164 CLR 15; [1987] HCA 56, 49).
The CEO must prove the allegation of contempt beyond a reasonable doubt (see Witham at 534 and 548). The general principles of the criminal law, including the burden and standard of proof, apply to these proceedings. The general principles of criminal law relating to proof of knowledge require the CEO to prove that Mr Szulc had knowledge of the facts which render his actions a breach of the order. That is, of course, not to say that the CEO is required to prove that Mr Szulc was aware of the legal consequences of his actions, only that he was aware of the facts which gave rise to those consequences (see International Land Developments Pty Ltd v Diamo Nominees Pty Ltd (2007) 34 WAR 201; [2007] WASC 96, [66] ff).
In this case the CEO seeks to satisfy that requirement by asking me to find beyond reasonable doubt that the acts which are said to give rise to the breach were committed by Mr Szulc himself after he had been made aware of the terms and effect of the order of the court and after it had been served upon him. The CEO alleges that the contempt committed by Mr Szulc took the form of failing to comply with the injunction that was issued by causing or allowing native vegetation on the property owned and occupied by Mr Szulc to be killed or destroyed and, in particular, by clearing an additional area of approximately 42 ha of native vegetation on the western portion of the property and by burning and further clearing areas that had been cleared on the property prior to the granting of the injunction.
For the purposes of these proceedings, I find the following facts proven beyond a reasonable doubt. The substantive proceedings were commenced on 2 October 2009. On 8 October 2009 I heard an application brought by the CEO for the grant of an injunction restraining Mr Szulc from conducting clearing work on rural property owned by him and situated in Rawlinson Road, Munglinup, which is between Ravensthorpe and Esperance in the south of Western Australia.
When the matter came before me on 8 October 2009, Mr Szulc appeared by audio‑link. He indicated to me that he required time to put on evidence in opposition to the application for injunction. In those circumstances and after evaluating the evidence which had been presented on behalf of the CEO, I agreed to adjourn the substantive determination of the CEO's application for an interlocutory injunction but granted an interim injunction pending the substantive determination of the issue.
In the course of the hearing I read to Mr Szulc the terms of the order which were that he was restrained, and a clearing injunction granted restraining him from causing or allowing the killing or destruction, the removal of, the severing or ringbarking of trunks or stems of, or the doing of any substantial damage to native vegetation on the land including by ploughing, raking or burning areas cleared in 2009, except in accordance with a clearing permit and Soil Conservation Notice F728801.
Before adjourning the matter, I advised Mr Szulc that I would be signing the order for injunction immediately. I said to him:
… as of now, it would be a serious breach of the law for you, and I am sure Mr Mitchell [counsel for the CEO] will arrange for you to be given a copy of that order as soon as possible, but you should be aware that it would be a serious breach of the law for you to contravene that order, and by a serious breach of the law, what I mean, and you should be under no illusions about this, is if you contravene the terms of that order, that would be a contempt of Court.
There are a range of penalties available to the Court for contempt of the orders of the Court. Those penalties include imprisonment, so you should be under no misapprehension as to the seriousness of these matters and the preparedness of the Court to enforce its orders if we have to, so that's the position. You shouldn't do any more work of this kind until that order has been lifted or varied.
I asked Mr Szulc if he understood the effect of the order that I had made and he stated that he did.
The application for interlocutory injunction came on for substantive hearing before me on 2 November 2009. After receiving evidence and hearing argument, I gave my decision. In the course of that decision, I found on the basis of the evidence adduced and the admissions made by Mr Szulc in the course of the evidence contained in the affidavit which he had filed and through the submissions he put to the court, that clearing had taken place on the property which had not been the subject of a clearing permit issued pursuant to the provisions of the Environmental Protection Act 1986 (WA) (the EPA) and regulations made under that Act.
In the course of reasons which I delivered orally, I considered various propositions which had been advanced by Mr Szulc as and by way of defence to the CEO's claim. I rejected each of those contentions and concluded that there was a strongly arguable case for contravention of the EPA and in particular s 51C of the EPA which amounted to improper conduct within the meaning of s 51S of the EPA.
I therefore decided to continue the interim injunction which I had previously granted until trial subject only to a variation to permit the clearing of a six-metre wide firebreak on the external boundaries of the land. I announced the terms and effect of that variation in open court in the presence of Mr Szulc. I further advised him that if that variation was not sufficient to allow him to comply with notices issued under the Bushfires Act 1954 (WA), he would have liberty to apply for a further variation of the injunction but that the onus of taking that step would be upon him if he wished the injunction to be varied. I advised Mr Szulc that the injunction as varied would continue until trial.
Directions were then made to permit the matter to proceed to mediation and the matter was otherwise adjourned until a date in January 2010. In due course, the matter came back before me for further directions on 5 May 2010. Directions were then made on the basis that the matter would be programmed for trial at a time after the potential of the cleared land for regeneration had been assessed.
I am satisfied that Mr Szulc was at all times aware of the terms of the orders made by the court. As I have indicated, the order which I made on 8 October was read to Mr Szulc and at the conclusion of that hearing I explained its effect to him and the possible consequences of breach.
Further, the written order signed by me was personally served on Mr Szulc on 9 October 2009. During the hearing on 2 November 2009 at which Mr Szulc was present, I indicated that the order which had previously been made would be continued until trial except for the variation which permitted the clearing of a six-metre wide firebreak on the external boundaries of the land. That variation was announced in those terms and explained to Mr Szulc during the course of that hearing.
Further, I am satisfied that a copy of the order as varied was sent to Mr Szulc by facsimile to a facsimile number provided by him and by ordinary post on or about 6 November 2009.
On 10 May 2010 an officer of the Department of Environment and Conservation, Mr Craig Jaques, inspected the property occupied by Mr Szulc. Mr Jaques had previously inspected the property on 23 September 2009 and on 9 October 2009. Affidavits from Mr Jaques were relied upon by me for the purposes of the findings which I made at the time of granting the injunction restraining Mr Szulc from conducting further clearing work on the property.
Mr Jaques deposes that on 10 May 2010 in company with Mr Petty, another officer of the department, he attended the property. The front gate was not locked. He went to the house on the property and knocked on the door but there was no answer. Mr Jaques then travelled to the western boundary of the property and then south along the fence line past the previously cleared area that he had observed on 23 September 2009. He observed additional clearing of native vegetation in that area. He observed the clearing of an area which had not been cleared when he last inspected the property on 9 October 2009.
Annexed to Mr Jaques' affidavits are photographs which he took in September and October 2009. Photographs taken by him from the same perspective on 10 May 2010 are also annexed and depict the area in which native vegetation was cleared between those months in September and October 2009 and his most recent inspection on 10 May 2010.
Within the area freshly cleared, Mr Jaques observed that all of the trees had been pushed over and were lying on the ground. He also observed that next to that area there was a metal bar and chains of the kind customarily used for clearing native vegetation in areas like this. Mr Jaques observed that stuck within the metal bar were pieces of tree branches and green leaves. He has annexed a photograph of the bar which he observed. Mr Jaques also observed that the leaves attached to the trees lying on the ground were still green in colour, from which he concludes, reasonably in my view, the clearing had occurred quite recently.
Attached to his affidavit are photographs depicting what he saw which corroborate his observations and the conclusions which he drew. Mr Jaques' evidence and the photographic evidence showing the condition of the recently cleared vegetation, satisfy me beyond reasonable doubt that the clearing that had occurred did not occur between 23 September 2009, when Mr Jaques had previously inspected, and 8 October 2009, when the injunction was granted. Mr Jaques also gave oral evidence before me and confirmed his inspection of the property in October 2009 and confirmed that the clearing had taken place after his inspection of the property on 9 October 2009.
Returning to Mr Jaques' inspection on 10 May 2010, he travelled around the area which he observed to have been recently cleared, plotting the coordinates of that area using a global positioning system device. Using that device he returned to his office and used computer software programs to plot the area which he had observed to have been cleared. He has plotted that area onto a copy of an aerial photograph of the property and estimates, using that process, that approximately 42 ha of native vegetation had been cleared in the area which he observed. He has marked up on the aerial photograph the precise configuration of the area which he observed to be recently cleared.
Mr Jaques then travelled to the eastern side of the property and followed the fence line south to its boundary. He then followed the southern boundary of the property west and observed that additional areas of partly cleared native vegetation had been burnt and further cleared. Attached to his affidavit are photographs showing the area that had been burnt. He observed that those areas of burnt vegetation were within the area of cleared land that he had observed during his previous site inspections of the property in September and October 2009. Mr Jaques also observed that further clearing work had been carried out on the southern boundary of the property since he inspected the property in October 2009. Annexed to his affidavit are photographs taken on the property on 9 October 2009 and photographs taken from the same position on 10 May 2009 which confirm that observation.
Mr Jaques further deposes that when travelling back towards the front gate of the property he approached Mr Szulc, who was at the property. Mr Jaques introduced himself and explained that he was inspecting the vegetation on the property. He said to Mr Szulc that he had noticed that there was a further area of cleared land and pointed in the direction of the western part of the property. He also said to Mr Szulc that there seemed to have been some further burning of vegetation. Mr Szulc replied with words to the effect of, 'You are very observant'. Mr Jaques deposes that Mr Szulc was reluctant to speak with him further and suggested that the matter should be resolved in court. Mr Jaques then left the property.
As I have mentioned, Mr Jaques also gave oral evidence before me. He gave evidence as to the systems used by the Department of Environment and Conservation to record applications for clearing permits and of his resort to those systems earlier this morning. He gave evidence to the effect that the Department of Environment and Conservation has no record of any application having been made by Mr Szulc or in respect of the property occupied by Mr Szulc, nor of any clearing permit having been granted in favour of Mr Szulc or in respect of the property occupied by Mr Szulc. Based on that evidence, I find, beyond reasonable doubt, that no clearing permit has been issued which would authorise the clearing work which the evidence satisfies me has been undertaken.
Mr Szulc went into evidence himself, after having been advised of his rights, and in particular his right to remain silent. His evidence was to the effect that the area of 42 ha of land had been cleared in 1983 and that the vegetation that existed on that area was regrowth. He did, however, confirm that he caused that area of 42 ha of regrowth to be cleared earlier this year. His evidence also was to the effect that he had conducted the work that was observed by Mr Jaques in the south‑western area of the property and, in particular, that that work had been carried out in February of this year for the purpose of installing firebreaks, which he considered ought to be 20 m in width. Those firebreaks, however, on his evidence, were not limited to areas on the external boundaries of the property which he occupies but, rather, were on the perimeter of a number of cleared areas. So Mr Szulc has admitted in evidence that he caused the 42‑ha area identified by Mr Jaques to be cleared and that he himself carried out other clearing work pursuant to what he states to be his endeavour to place 20‑metre firebreaks around areas of the property that had been cleared. Those are the matters upon which Mr Szulc relies for the purpose of providing him with a defence to the charge that has been brought against him.
I will deal firstly with the area of 42 ha which had been cleared. The proposition that the land was regrowth, as a result of having been cleared in 1983, does not appear to me to provide any defence to Mr Szulc. It is clear from the terms of the injunction that it extends to the killing of all native vegetation, whether or not it is regrowth or original growth. That much was abundantly clear to Mr Szulc in the course of previous hearings before me and, in particular, in the course of the hearing that was conducted on 8 October 2009. Statements made by Mr Szulc in the course of that hearing, and which are recorded on the transcript of that hearing, make it abundantly clear that he was aware that the area in respect of which the Department of Environment and Conservation was seeking an injunction included areas that were regrowth as a consequence of earlier clearing.
The affidavit of Mr Jaques that was relied upon by the CEO for the purposes of the hearing on 8 October 2009 and the hearing on 2 November 2009 identifies by red lines on an aerial photograph the areas which the CEO asserted were areas of vegetation which required protection. Included among those areas is the area of 42 ha which Mr Szulc has admitted now clearing. It is also abundantly clear from the transcript that Mr Szulc was well aware that injunctive relief was sought not only in respect of area that had been previously cleared and constituted regrowth but in respect of the area which had been very recently cleared during 2009 and that the injunction was sought to prevent any further work on that area that had been recently cleared.
I conclude that neither the terms of the injunction are restricted to land that had not been previously cleared, nor do I accept that Mr Szulc had any belief, reasonable or otherwise, that the injunction was so restricted. Of course, Mr Szulc's belief as to the extent of the terms of the injunction would not provide him with a defence, although it is relevant to his culpability, as I have suggested earlier. The relevant principle of law is that the knowledge that is required to be established is the knowledge of the acts which constitute breach of the order, not an awareness of the legal consequences of those acts. However, in any event, I do not accept that Mr Szulc had any reasonable belief, or indeed in fact had a belief, that the clearing of 42 ha of land fell outside the scope of the order because the land had been previously cleared.
I turn now to the area which Mr Szulc cleared, purportedly in order to satisfy firebreak obligations. Again, I do not accept that Mr Szulc either had a belief, or was justified in believing, that those areas were exempted from the operation of the order. As I have noted, the work was carried out in February, whereas of course firebreaks are required to be carried out much earlier than that. The extent of the obligation to clear as a consequence of the Bushfires Act was the express subject of debate in the course of the proceedings before me on 2 November 2009. In the course of those proceedings Mr Szulc advanced precisely the proposition that he was obliged to clear a wider area of land and that obligation extended to land that was not at the external boundaries of the property but covered internally cleared areas.

In response to that proposition, I notified Mr Szulc in clear and unequivocal terms that I was not prepared to modify the injunction to permit him to undertake the wider area of clearing work that he asserted was necessary in order to comply with the Bushfires Act. I made it abundantly clear to him that the only variation of the injunction that I would grant was to permit an area within six metres of the external boundaries to be cleared and that if he wished to seek any further variation in order to enable a wider area of clearing, the onus would be upon him to reapply to the court for a variation to occur. Plainly, that has not happened, from which I conclude not only that the clearing work that was undertaken in the other areas of the property other than the 42 ha was undertaken in breach of the injunction but also that Mr Szulc was aware that work would constitute a breach of the injunction.
I am therefore satisfied on the evidence and find beyond reasonable doubt that the clearing work to which I have referred was carried out by or on behalf of Mr Szulc. He has admitted that in evidence. It is also clear that the clearing work that has been undertaken constitutes the killing and destroying of native vegetation, in contravention of the orders that I had previously granted. I find that contempt of court has been established and, in particular, I am satisfied beyond reasonable doubt that Mr Szulc has, by his wilful and deliberate actions, contravened the terms of the orders of the court and I therefore convict him of contempt of court.
The powers of the court to punish for contempt are unlimited. There is no maximum penalty applicable and the court can either impose a sentence of imprisonment or a fine (RSC, O 55 r 7). If a sentence of imprisonment is imposed then the provisions of the Sentencing Act 1995 (WA) and the Sentence Administration Act 2003 (WA) including those provisions relating to parole are excluded from application as a consequence of s 3 of the Sentencing Act and s 3 of the Sentence Administration Act. This means that a person sentenced to imprisonment for contempt will serve the term imposed by the court without prospect of early release on parole. In the case of terms of imprisonment of less than 12 months, most prisoners must be released on parole after service of half the term pursuant to s 23 of the Sentence Administration Act, but as I have mentioned, that provision does not apply to persons imprisoned for contempt. The result is that persons imprisoned for less than 12 months for contempt will generally serve double the period in custody which would be served by a prisoner sentenced to the same term and who is subject to the Sentencing Act and the Sentence Administration Act.
Although the Sentencing Act is not applicable to the passing of this sentence it seems to me that the factors identified in s 6 of that Act nevertheless provide a sound guide to the circumstances which I should take into account for the purpose of passing sentence.
Authority such as the decision in Wood v Staunton (1996) 86 A Crim R 183 also suggests to me that the matters properly taken into account include: the seriousness of the contempt proved; the reason for the contempt; whether there has been any apology or public expression of contrition; the character and antecedents of the contemnor; and general and personal deterrence in denunciation of the contempt.
I accept the submission on behalf of the CEO that this contempt is serious in nature. Notices have been issued by the CEO under the provisions of the EPA endeavouring to restrain Mr Szulc from carrying out clearing work on his property and those notices prohibited clearing work on the property.
As a consequence of Mr Szulc's apparent refusal to accept the consequences of those notices the CEO brought proceedings in this court and sought an injunction restraining Mr Szulc from carrying out clearing work. That course was undertaken because it appeared that contravention of the EPA and exposure to the risk of imposition of heavy fines up to $250,000 had not proved to discourage or provide Mr Szulc with the disincentive from carrying out the clearing work which was the subject of the order of this court.
The provisions of the EPA which were invoked in these proceedings and which provided the basis for the injunction which I granted are very important provisions that protect the public interest in the preservation of native vegetation. The evidence that was adduced in support of the application establishes that the further clearing of native vegetation on this property might impact upon rare flora, affect the quality of the water courses and destroy propagating material in the soil and prevent native vegetation from regenerating, in addition to creating a risk of soil erosion.
As I have mentioned in the course of the reasons that I have given for my finding as to liability, the possible consequences of breach of the orders were explained to Mr Szulc on a number of occasions and his attention was particularly drawn to the proposition that imprisonment was one of the prospective outcomes in the event of his breach of the order.
Mr Szulc has advanced in evidence before me reasons that he asserts justified him in breaching the order. I have rejected those reasons and I have rejected the proposition that he reasonably or actually believed at the time he carried out the clearing work that they provided him with a defence.
I am satisfied that in the circumstances of the previous hearings Mr Szulc must have been aware that the clearing work that he admits he carried out or caused to be carried out would constitute a breach of the order and that therefore he has quite wilfully and deliberately breached an order of this court.
Not all deliberate or wilful breaches of a court order will attract a custodial sentence. However, the administration of justice requires that a very serious view be taken of deliberate contravention of the orders of the court. This contempt is serious and it has been undertaken wilfully and deliberately it seems as part of an ongoing campaign by Mr Szulc directed against the work of the Department of Environment and Conservation and its efforts to protect the native vegetation on his property.
The clearing work which Mr Szulc undertook was substantial. An area of 42 ha was cleared and, in addition, another substantial area of land was cleared in the course of the firebreak work that was undertaken. Mr Szulc was aware of the injunction and of its terms and the consequences of breach.
It seems to me that although there is nothing in the prior history of Mr Szulc that would suggest that there is any reason for a particular form of punishment in this case, personal deterrence and general deterrence necessitate and leave me with no alternative other than to impose a custodial sentence.
It seems to me that Mr Szulc has had many opportunities to desist from his contravening conduct and, despite being given those opportunities, has shown a propensity to continue to breach. Personal deterrence therefore requires it to be made abundantly clear to Mr Szulc that continued contravention of this legislation simply will not be tolerated.
In relation to general deterrence, again I think it needs to be made clear to the community in general that these provisions of the EPA are important provisions in the public interest and that contravention of those provisions, particularly wilful and deliberate contravention of those provisions in breach of a court order, simply will not be tolerated by the court.
There is also the aspect of general deterrence necessitated by the requirement to maintain the integrity of the systems for the administration of justice that I think is important, and I also take account of the need to firmly and strongly denounce the contempt that has been deliberately committed by Mr Szulc in this case.
There does not appear to have been any form of expression of contrition. Although Mr Szulc did say to me that he did not intend to deliberately breach the order, for the reasons I have given I do not accept that contention.
Taking into account all the circumstances of this case, it seems to me that the only course left open to me is to impose an immediate sentence of imprisonment.
Mr Szulc, for the offence of contempt of court I sentence you to 3 months imprisonment. That will be served immediately.