Csayni v Pittwater Council

[2002] NSWCA 81

CITATION:	Csayni & Anor v Pittwater Council [2002] NSWCA 81
FILE NUMBER(S):	CA 40270/01
HEARING DATE(S):	19 March 2002
JUDGMENT DATE:	19 March 2002
PARTIES :	Michael & Kaye Csanyi - Appellants Pittwater Council - Respondent
JUDGMENT OF:	Meagher JA at 27; Stein JA at 28; Giles JA at 1

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	40189/95
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	Michael Csanyi in person R P L Lancaster - Respondent
SOLICITORS:	Michael Csanyi in person Mallesons Stephen Jaques - Respondent
CATCHWORDS:	Contempt of court - whether evidence justified finding - whether litigant in person should have been told of entitlement to object to hearsay material raised but not decided - even if hearsay material excluded findings justified. D.
CASES CITED:	Witham v Holloway (1995) 183 CLR 525.
DECISION:	Appeal dismissed with costs.

CA 40270/01
LEC 40189/95

MEAGHER JA
STEIN JA
GILES JA

Tuesday 19 March 2002

CSAYNI & ANOR v PITTWATER COUNCIL

Judgment

1 GILES JA: Mr Michael Csanyi is the owner of the property 41 Cheryl Crescent, Newport. It is within the local government area of Pittwater Council.

2 In 1995 the Council brought proceedings in the Land and Environment Court to restrain the use of the property and another property by Mr Csanyi and his wife. On 25 July 1996 orders were made by consent. For present purposes the other property can be ignored, and the orders relevant to this appeal were -

“1. The respondents, by themselves and by their servants and agents, be restrained forthwith, from using, causing, permitting or suffering to be used the property in lot 5 in deposited plan 236797, known as 41 Cheryl Crescent, Newport (the “Newport Property”) as a boarding house or residential flat building, as defined in Pittwater Local Environmental Plan, 1993.
…
3. The respondents pay the applicant’s costs of the proceedings, agreed in the sum of $7,000, payment to be made in accordance with Schedule 1.

Schedule 1

31 July 1996	$1,500.00
30 August 1996	$1,500.00
27 September 1996	$1,500.00
25 October 1996	$1,500.00
29 November 1996	$1,500.00
Total	$7,000.00”

3 On 3 July 2000 the Council filed an application in the Land and Environment Court, in which it claimed a declaration that Mr Csanyi and his wife had not complied with orders 1 and 3 made on 25 July 1996 and an order that the orders be enforced in accordance with the provisions of Pt 42 r 6 of the Supreme Court Rules: that is, Mr Csanyi and his wife were charged with contempt in that they had failed to comply with the orders. The statement of charges pursuant to Pt 55 r 7 of the Supreme Court Rules alleged -

“The respondents/contemnors have failed to comply with the Orders in that:

(a) on and from 28 February 2000 they have, by themselves, by their servants or agents used, caused, permitted or suffered to be used the Property as a boarding house or residential flat building, as defined in the Pittwater Local Environmental Plan, 1993; and

(b) since the making of the Orders on 25 July 1996, they have failed to pay the applicant’s costs, or any part thereof, of the proceedings agreed in the sum of $7,000.”

4 The Council’s application was heard by Talbot J on 14 December 2000. Mr and Mrs Csanyi appeared unrepresented. His Honour arranged for some advice to be provided to them by counsel in the precincts of the court. As a result some evidence was led from Mrs Csanyi which caused his Honour to adjourn the application as against her, and in due course the Council did not proceed with the application as against her and it was dismissed. Mr Csanyi made plain that he wished to have the application as against him heard and determined on 14 December 2000, and continued to appear unrepresented.

5 Talbot J received affidavit evidence from the Council through the affidavits of Mark Hayward sworn 22 August 2000 and 2 November 2000, Jeffrey Lofts sworn 11 December 2000 and Esther Duenow sworn 12 December 2000. Mr Hayward and Ms Duenow were cross-examined. Some documents were tendered by the Council. Mr Csanyi did not give or call affidavit or oral evidence, but tendered some documents. Judgment was given at the conclusion of the hearing.

6 His Honour said -

“5. The evidence before the Court is in the form of affidavit evidence which has not been met by any evidence in reply, although Mr Csanyi has addressed the Court and made assertions to the contrary in some respects, although not in all respects.
6. Mr Hayward, the environmental compliance inspector, gave evidence of attending the premises and making observations and having conversations with persons present at the premises other than Mr Csanyi. None of that evidence has been challenged by way of objection. Bearing in mind that the respondent, Michael Csanyi, is unrepresented, it is clear he has very little understanding of legal procedures.
7. It is nevertheless open for the Court to find beyond reasonable doubt that the premises are being used by multiple occupiers and that those occupations are in some important respects separate occupations whereby facilities are provided at different levels of the building. Several parts of the building are occupied distinctly from the others, even though there is suggestion of some communal occupation.
8. It is not possible for the Court to find specifically on the evidence that the premises are being used as a boarding house. The boarding house is a prohibited use in the zone, as is a residential flat building. Both of these uses were the subject of the orders made in 1996.
9. The premises, however, in their present form clearly answer the definition of a residential flat building. I am able to reach the conclusion that there are at least two domiciles or dwellings within the building.
10. As I said, it is not possible to go further and to accept that the house is let in lodging or is occupied as a hostel. There is some evidence that might suggest that is so but that evidence is contained in, to a large extent, uncorroborated material which is not sufficient for the purposes of these quasi-criminal proceedings. However, it is sufficient that the Court find that there is a use as a residential flat building for present purposes.
11. The orders made on 23 July 1996 restrained Mr Csanyi from permitting or using the premises as a boarding house or residential flat building as defined in the Pittwater Local Environmental Plan 1993 ("the LEP").
12. I find that during the period referred to in the Notice of Motion and in particular when the premises were inspected by the council officer during that period, that the premises at 41 Cheryl Crescent, Newport were being used as a residential flat building.
13. Mr Csanyi has produced a photocopy of what he claims to be a lease of the premises. Accepting for the moment that it may be a copy of a document which is extant, it is nevertheless dated some time in 1998 and refers to tenants, Zoltan Bongo and Liawia Koka [sic], and to the subject premises. The term of the agreement is 12 months from 5 August 1998. At best the tenant is holding over pursuant to the terms of that residential tenancy agreement.
14. Neither of the tenants appear to be recorded in material produced on subpoena by ATL or Telstra which leads to the inference at least that the premises have been sublet to other persons who variously from time to time appear in the records of those authorities.
15. The Court is not able to find on the material before it which parts of the premises are occupied by various individuals, but it is clear that starting with the lease, authorising the occupation by no more than 10 persons, there have been from time to time up to at least six occupancies which have called for separate accounts or services being connected by the utility authorities.
16. I am therefore in a position to find that the premises have since 28 February 2000 been used as a residential flat building as defined in the LEP and that Mr Csanyi as the owner and landlord has and always has had it within his power to cause that use to cease.”

7 His Honour then turned to the payment of the $7,000. That sum had been paid on 13 December 2000. His Honour said -

“18. Mr Csanyi seems to be under a misunderstanding. I do not stay to determine whether that is deliberate or contrived but he tells the Court that according to his understanding the payment of the costs, which he refers to as a fine, ultimately settled the matters between him and the council.
19. Technically there has been a breach of the order by the failure of Mr Csanyi to meet the payments indicated in Schedule 1 to the consent orders made on 25 July 1996 on the due dates. I make that finding.”

8 His Honour said that he did not propose on 14 December 2000 to go beyond making his findings, and he set out the specific findings once more. He adjourned the proceedings until 30 March 2001 so that Mr Csanyi might take steps to cease the use of the property contrary to the orders of the Court and otherwise so that his Honour could address the appropriate penalty in the light of the situation as at that date. The specific findings were -

“21. Firstly, that since 28 February 2000 Michael Csanyi has permitted or suffered the property, 41 Cheryl Crescent, Newport to be used as a residential flat building as defined in the LEP contrary to and in breach of order 1 made by consent by this Court on 25 July 1996.
22. Secondly, I find it proved beyond reasonable doubt that the same respondent has not complied with order 3.”

9 On 30 March 2001 his Honour received further evidence, and for the reasons which he gave on that day ordered that Mr Csanyi pay a penalty of $10,000 and pay the Council’s costs of the proceedings.

10 Mr Csanyi appealed. The appeal was in form brought by both himself and Mrs Csanyi, but Mrs Csanyi should not have been a party to the appeal. Mr Csanyi continued to appear unrepresented. The appeal was not concerned with the penalty, but with the findings of contempt. The grounds of appeal and the written submissions in support were not particularly easy to understand, and in his oral submissions it was apparent that Mr Csanyi either could not or would not appreciate that what was before this Court was whether Talbot J had erred in an appealable way in arriving at his conclusion that Mr Csanyi was guilty of contempt of court.

11 One matter can be first put aside. As I understand him Mr Csanyi repeated before this Court what he had put to Talbot J and is reflected in paragraph 18 of the reasons set out above, that because of something which happened when he paid the $7,000 on 13 December 2000 he could not be found to have been in contempt. The documents he tendered included a handwritten note on the letterhead of the Council, which after a heading referring to the Land and Environment Court proceedings said, “Please deposit the amount of $7,000 into account 280003 (Pittwater Council) at the Westpac Bank in Mona Vale. Once deposit of this $7,000 is made, the above matter is finalised.” Mr Csanyi’s contention appears to have been, both before Talbot J and in this Court, that because of the words “the above matter is finalised” there was a bar to the Council further proceeding against him. The provenance of the document was not explored. It is profoundly obvious that it did not have the effect necessary for Mr Csanyi’s contention. I cannot see that in any way it precluded the Council from maintaining its application on 14 December 2000.

12 The next matter which Mr Csanyi urged upon us appeared to be that he had granted a lease of the premises with a stipulation that no more than ten persons may ordinarily live in the premises at any one time, and that because of that lease it was not open to him to control what the tenants did and in particular to preclude any use of the property as a residential flat building which there might be. The lease was to tenants named Bongo and Koller. It was a lease for twelve months from 8 May 1998. There was no evidence from Mr Csanyi before Talbot J to the effect that the lease was still on foot. There was evidence from Mr Hayward of numerous statements made to him by Mr Csanyi inconsistent with the lease still being on foot, statements indicating Mr Csanyi’s direct involvement with occupants of the premises and his control over giving rights of occupancy which he could not have exercised had the lease been on foot. It was entirely open to his Honour in the circumstances to find as he did notwithstanding the lease, which counted for nothing against his findings.

13 Then Mr Csanyi submitted, and I think that this was at the heart of what he put to this Court, that the finding that the property was being used as a residential flat building was in error because, contrary to the evidence of Mr Hayward, there was a bar area not a kitchen in the middle of the three levels of the property and there was an internal staircase giving access between the three levels.

14 A residential flat building as defined in the Pittwater Local Environmental Plan 1993 was “a building containing two or more dwellings”. The definition of a dwelling in that Plan was “a room or number of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.” Thus the essential issue was whether the property, which as I have indicated had three levels, was being used as two or more separate domiciles: I have truncated the definitions into that concept.

15 Mr Hayward gave evidence from his inspections that the middle level contained a communal area with lounges and a kitchen with a dining table and chairs, sink refrigerator and stove, which Mr Csanyi as I understand him maintained was in truth only a bar area. Mr Hayward also gave evidence to the effect that there were three separate entrances at the levels from a staircase which Mr Csanyi as I understand him maintained was really an internal staircase giving access between the three levels as one domicile.

16 It is here that a particular matter needs mention.

17 As well as Mr Hayward’s evidence of his inspections of the property, he gave evidence of conversations with a Mr Mark Bosci and a Mr Charles McDougal in September and November 2000 respectively. He gave evidence that Mr Bosci told him at an attempted inspection of the property that he, Mr Bosci, rented the top level and had a lease for that part of the house, that there were four or five other people whom Mr Bosci thought were backpackers currently on the middle level, and that on the bottom level was the brother of Mrs Csanyi. In the conversation with Mr McDougal, Mr Hayward was told that Mr McDougal, had been living with two other persons for about twelve months in the middle level, that they used “the communal living area and share[d] the kitchen”, and that the bottom level was “was much the same set up with a community area and they share a kitchen, there’s about four people that live down there”.

18 What Mr Bosci and Mr McDougal told Mr Hayward was relevant to the physical nature of the property and to the use to which it was being put, and Talbot J must have had it in mind when he referred in paragraph 6 of his reasons set out above to Mr Hayward’s evidence of having conversations with persons present at the premises other than Mr Csanyi. However, as proof of the physical nature of the property and the use to which it was being put, it was hearsay.

19 When the first affidavit of Mr Hayward was to be read Talbot J asked Mr Csanyi whether he raised any objection to it. Mr Csanyi said that he did, and although the transcript is unclear it seems that the objection was that Mr Hayward should not have been at the property. His Honour then said that he would deal with the objection according to law when he had had the opportunity to read the affidavit, and “if there is material that shouldn’t be there then I’ll deal with that”. The second affidavit of Mr Hayward was read, and although not so expressly was subject to the same objection and to be subject to the same course as his Honour had indicated.

20 Neither then nor thereafter was there any mention of the hearsay nature of parts of Mr Hayward’s affidavits. It is perhaps unfortunate that the Council did not at least flag for consideration whether some particular attention should have been given to the admissibility of those parts of the affidavits, when Mr Csanyi was unrepresented and it was unlikely that he would have been aware of the available objection. The objection would not necessarily have been fatal, since under the Evidence Act 1995 it would have been possible for the hearsay (which was first hand hearsay) to be admitted if the judge were satisfied within s 63 of the Act that it would cause undue expense or undue delay or would not be reasonably practicable to call Mr Bosci or Mr McDougal and if, in the exercise of his discretion, the apparent absence of the notice required by s 67 of the Act were put aside. But there is nothing to indicate that his Honour’s attention was drawn to the need to consider those matters, or that he did consider them.

21 This raised the vexed question of the extent to which a trial judge should assist a litigant in person without compromising the Court’s position of neutrality. Given the nature of the proceedings, with their potential to bring imprisonment to a contemnor, it may well be that something should have been done at least to apprise Mr Csanyi of the fact that an objection on the ground of hearsay was available to him. However, I do not think it necessary to go further into the question, because I am satisfied that even if the hearsay material were incorrectly received by his Honour the findings beyond reasonable doubt were proper to be made.

22 That is so for these reasons, and this involves return to Mr Csanyi’s submission about a bar area and an internal staircase.

23 Despite what Mr Csanyi said about a bar area and an internal staircase, the evidence of Mr Hayward’s observations was compelling. Mr Hayward was firm about what he saw, which clearly included a kitchen area in the middle level. He was cross-examined on what he saw, but maintained his evidence of what he saw and his description of the kitchen, as he saw it, as more than a bar area. Although in a confusing way, he was cross-examined apparently to have him agree that what he described as a staircase serving the three separate entrances was really an internal staircase, but he maintained his evidence on that also. There was no evidence from Mr Csanyi to the effect that what Mr Hayward described as a kitchen area and said had usual contents of a kitchen was in truth only a bar area, or of the architectural matters which Mr Csanyi described to us orally today apparently with a view to demonstrating that the stairway was an internal staircase.

24 The evidence of contact with Mr Bosci and Mr McDougal showed separate use of the two top levels, and to that extent was not haersay. To this there was added evidence, to which I have not so far referred, from the records of suppliers of services which strongly indicated that the three levels were separately occupied. Mr Csanyi acknowledged separate meters for electricity supplies, which supported the records of the electricity supplier. There was also evidence of advertisements which in the circumstances I have mentioned could only have been placed by Mr Csanyi, offering to let out the bottom level. Excluding what I have called the hearsay material, in my opinion, the findings made by Talbot J were amply justified on the appropriate standard of proof. In my opinion Talbot J would have made them if he had excluded the hearsay material from his consideration, and I would make them myself.

25 Although criminal in nature and thus with the criminal standard of proof, see Witham v Holloway (1995) 183 CLR 525, the proceedings in the Land and Environment Court were and the appeal in this Court is a civil proceeding. By Pt 51 r 23 of the Supreme Court Rules the Court of Appeal shall not order a new trial on the ground of improper admission of evidence unless it appears that some substantial wrong or miscarriage has been thereby occasioned. In the criminal law the wrongful admission of evidence does not bring a new trial unless there has been a miscarriage of justice. Where, in the manner I have indicated, the findings were open and (as I conclude) were proper to be made even without the hearsay material, I do not think it can be said that there has been a substantial wrong or miscarriage or a miscarriage of justice.

26 Accordingly, there being no other ground made out for overturning the findings made by Talbot J, an assumed wrongful reception of the hearsay material should not lead to a new trial. The appeal should be dismissed with costs.

27 MEAGHER JA: I agree.

28 STEIN JA: In my opinion there was ample admissible evidence before Talbot J to enable him to find the charge of contempt of the Court’s orders by the appellant established beyond reasonable doubt, that is when one excepts the evidence of the conversations between Mr Hayward and Mr Bosci and Mr McDougal at the premises. If his Honour was in error in not ruling those conversations to be inadmissible, it is plain that this did not cause a miscarriage of justice to the appellant because there existed other admissible evidence which established the breach of the orders in question on the requisite standard of proof and with his reasons therefore. I therefore agree with the orders proposed by Giles JA and with his reasons therefore.

29 MEAGHER JA: The orders of the Court therefore are appeal dismissed with costs.

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