Director National Parks & Wildlife v Klaus Remme [1992] Nswlec 57 (23 July 1992)

[1992] NSWLEC 57

Land and Environment Court

of New South Wales

CITATION:	DIRECTOR NATIONAL PARKS & WILDLIFE v. KLAUS REMME [1992] NSWLEC 57 (23 July 1992) [1992] NSWLEC 1
PARTIES:	DIRECTOR NATIONAL PARKS & WILDLIFE v. KLAUS REMME [1992] NSWLEC 57 (23 July 1992)
FILE NUMBER(S):	40156 of 1987
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:	Drummoyne Municipal Council v. Lewis ((1974) 1 NSWLR 655) ; Isaacs v. Robertson [1985] 1 AC 97 (P.C.); AMIEU v. Mudginberri Station ((1986) 161 CLR 98) ; Marrickville Municipal Council v. Krouklidis ((1989) 67 LGRA 176); also N.S.W. Egg Corporation v. Peek ((1988) 10 NSWLR 72 at 82); McNair v. Hinch ([1985] VR 309 at 314)
DATES OF HEARING:
DATE OF JUDGMENT:	07/23/1992
LEGAL REPRESENTATIVES:	APPLICANT RESPONDENT

JUDGMENT:

HIS HONOUR: By Notice of Motion dated 15 May 1992 the Director of the National Parks and Wildlife applies for orders that Klaus Remme, the respondent, be held in contempt of orders of the Court made on 7 April 1988. He also asks that the title to the proceedings be amended to delete the name of the applicant, John Frederick Whitehouse, who is no longer the Director. There is evidence that William John Gillooly was appointed Director in January 1990 and accordingly I grant the amendment to the name of the applicant.

The Statement of Charge alleges that Mr. Remme committed 8 breaches of Orders 5 and 7 on various dates between 25 February 1992 and 29 April 1992. I annex my reasons for Judgment of 7 April 1988 which include the orders then made, see (1988) 64 LGRA 375.

A preliminary matter arises. The Director, by his counsel Mr. Buchanan, concedes that the prosecutor has not complied with the requirements of Part 42 Rule 8(1) and (3) of the Supreme Court Rules, which are applicable to the subject Motion. A minute of the Judgment has not been served on the respondent endorsed with a notice that the person served is liable to imprisonment or sequestration of property if the orders are not obeyed.

Rule 8 also contains the following sub-rules:

" (6) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment has notice of the judgment -

(a) by being present when the judgment is directed to be entered or when the order is made; or

(b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise,

the judgment may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with the rule.

(7) The Court may dispense with service under this rule."

In Drummoyne Municipal Council v. Lewis ((1974) 1 NSWLR 655) Holland J held that the dispensing power should be exercised sparingly. There need be special circumstances to justify non-compliance with the requirements of the rules.

In the subject case it is abundantly clear that the respondent was present in Court on 7 April 1988 when the Judgment was published and the orders made. It is also apparent that he received a copy of the Judgment and orders (some 17 pages) and, according to the evidence, had a copy with him at many relevant points of time. Additionally, the respondent has stated that he was informed on more than 8 occasions by officers of the National Parks and Wildlife Service and Police that if he disobeyed the orders of the Court, he could be gaoled. He referred to Mr de Govrik, a Park Ranger, telling him on 28 February 1992 that he could go to gaol for disobedience. This was before the occurrence of a number of the allegations in the charge. Furthermore, in July 1988 he wrote to the Minister for Environment telling Mr. Moore that he (Mr. Remme) might go to gaol as a result of the orders of the Court.

In the circumstances I am satisfied that the facts come within subrule (6) and/or subrule (7) of Rule 8. There are good grounds shown for dispensing with compliance with Rule 8(1) and (3). The special circumstances, mentioned above, establish proper grounds to depart from strict compliance with the Rule. It is perfectly clear that Mr. Remme was, at all relevant points of time, well aware of the content of the orders and of the possible consequences for him of non-compliance. I am also satisfied thaty the requirements of Part 55 of the Supreme Court Rules have been met.

Mr. Remme filed a Notice of Appeal to the Court of Appeal from the Judgment and orders made in April 1988. The appeal, however, has never been prosecuted. As far as I am aware an appointment was made to settle the appeal Index in late 1988 but Mr. Remme applied for this to be postponed. Nothing has occurred since. The orders of the Court have not been stayed, either by this Court or by the Court of Appeal. It seems to me that the undetermined appeal is of no consequence to the Motion for contempt, see Isaacs v. Robertson [1985] 1 AC 97 (P.C.).

The Statement of Charge represents a continuation of the saga disclosed by my reasons for Judgment of 7 April 1988. On 16 January 1987 extensions to the Blue Mountains National Park were made adding some 17,350ha, including the subject land. Public roads were excluded from the Park. The Parliament Creek road - sometimes referred to as the four wheel drive track or fire trail - is one such public road. Another is an unmade surveyed public road known as MS339.OeR. In July 1987 the respondent bulldozed a new road through the National Park which deviated from the Parliament Creek Road and ran in a south-easterly direction. He continued to extend this new trail, with consequent destruction of large numbers of trees and severe erosion problems, notwithstanding an interlocutory injunction issued by the Court. This continued until February 1988 when the respondent had completed some 3.5km of new road within the Park. Mr. Remme's defence was that he followed the Parliament Creek Road. I found, based on the evidence of a surveyor, that he did not, except for one small section.

On 7 April 1988 I made a number of declarations and orders. Material to the present contempt charges are the following:-

"1. A declaration that the respondent's construction of trails and associated earthworks in the area adjacent to the Parliament Creek Road approximately fifty two (52 kilometres) southeast of Oberon in the State of New South Wales and as more particularly described by pink shading in the copy of the Map annexed to the further amended application with the exclusion of those areas described as "four wheel drive" track and "Gazetted Public Road circa 1900" (hereinafter referred to as the "said area") is a trespass to the lands within the Blue Mountains National Park.

.....

5. An order that the respondent by himself, his servants and agents be restrained from:-

(i) establishing or assisting in the establishment of any road, trail or track;

(ii) moving, damaging or otherwise interfering with any rocks, soil, plants, trees or other ground cover of any kind;

(iii) operating or using any bulldozer or earthmoving equipment;

within the Blue Mountains National Park without the written consent first had and obtained from the applicant.

.....

7. An order that the respondent his servants and agents be restrained from driving any vehicle within the said area without the written consent first had and obtained from the applicant."

The map annexed to the orders indicated the "said area" referred to in declaration 1 by pink shading. The map also included the gazetted public road MS 339.0eR and the Parliament Creek four wheel drive public road. Additionally, the map indicated the route of the diversion road cut by Mr. Remme generally between the Parliament Creek Road and the unformed gazetted public road.

In summary the charges against Mr. Remme are as follows:-

(a) That on or about 25 February 1992 he breached Order 5(iii) in that he operated and used earth moving equipment on a track east of Parliament Creek Road and west of the MS339 about 52km southeast of Oberon and within the National Park, without the consent of the Director of the National Parks and Wildlife.

(b) That on or about 3 March 1992 he breached Order 5(iii) in the same fashion as (a) above.

(c) On 3 March 1992 he breached Order 7 by driving a vehicle within the "said area", namely on the track east of the Parliament Creek Road and west of the MS339, without the consent of the Director.

(d) That on or about 10 March 1992 he breached Order 5(ii) in that he moved, damaged or otherwise interfered with rocks, soil, plants, trees and other ground cover within the National Park, without the consent of the Director.

(e) That on or about 17 March 1992 he breached Order 5(ii) in the same respect as (d) above.

(f) That on 17 March 1992 he breached Order 7 by driving a vehicle in the same fashion as (c) above.

(g) That between 16 and 24 April 1992 he breached Order 5(i) in that he established a road or track within the National Park, without the consent of the Director.

(h) That by letter dated 23 April 1992 to the National Parks and Wildlife Service and by words spoken on 29 April 1992 to officers of the Service, he threatened to further establish a road within the National Park and to otherwise breach Order 5(i), (ii) and (iii).

Since AMIEU v. Mudginberri Station ((1986) 161 CLR 98) it has been accepted that contempt of Court orders should be treated as if they are quasi-criminal in character. This Court has applied Mudginberri on numerous occasions and insisted on the application of the criminal standard of proof - beyond reasonable doubt - to proceedings for contempt of orders of the Court, see for example Marrickville Municipal Council v. Krouklidis ((1989) 67 LGRA 176) and the authorities cited by Hemmings J at p179.

To constitute contempt there must be a wilful disobedience of a Court order. A deliberate commission or omission which is in breach of an injunctive order will constitute such wilful disobedience unless it be casual, accidental or unintentional ( Mudginberri p113). Contumaciousness is no longer required, see also N.S.W. Egg Corporation v. Peek ((1988) 10 NSWLR 72 at 82). It is patent that the defence of honest and reasonable belief is not available to a charge of contempt, see McNair v. Hinch ([1985] VR 309 at 314).

On 15 February 1992 National Park Ranger Kim de Govrik went to the Parliament Hill area of the National Park and noted roadworks and disturbance of the Parliament Creek fire trail. He saw steel posts and chains on the ground and an unattended 155A Komatsu bulldozer (belonging to the respondent) at a point on the fire trail 200m south of its junction with the Little River fire trail. He made similar observations on the following day.

On 24 February 1992 Mr. de Govrik returned and located the dozer along the Parliament Creek fire trail, about 2.5km south of the Little River fire trail, alongside two cabins. The fire trail had apparently recently been diverted around the cabins. He had a conversation with Mr. Remme's son Dion Remme.

The next day (25 February 1992) the Ranger returned to the same area and took photographs. No one was present. Mr. de Govrik then drove down the Parliament Creek fire trail until he came to the deviation from the road. This was the same bulldozed track established by Mr. Remme in 1987. The Ranger noted recent clear bulldozer track marks along the deviation.

On 28 February 1992 he returned to the scene. He noted that clearing work had been carried out to the Parliament Creek fire trail to a distance of 4m on either side for some 8kms. Also noted were some 6 signs along the Parliament Creek fire trail. One such sign read "Shire Road MS339 O.E.R to portions 12, 13, 15,32, 33, 36". These signs were within the Park.

Later that day Mr. de Govrik interviewed Mr. Remme in the presence of his wife and Chief Ranger John Giles. Mr. Remme agreed that he had been operating his bulldozer along the Parliament Creek fire trail. He stated however that he was working on public road MS339 and not in the National Park. He agreed that the cabins were his and that he had erected steel chains across the fire trail in order to close it once his work on the new road was finished. He also readily agreed that he had erected the signs observed by the Ranger along the road. Mr. Remme indicated his intention to continue operating earthmoving equipment until the road was up to rural road standard. The Ranger directed him to remove his cabins and bulldozer from the Park. At the time of the interview the respondent had with him a copy of the Judgment and orders of April 1988 and to which he made frequent reference.

On 3 March 1992 the Ranger returned to the Parliament Creek fire trail and located Mr. Remme's bulldozer at the junction of the fire trail and the diversion track. He saw fresh dozer tracks on the trail and freshly turned earth on the eastern side of the diversion track. Fresh earth was present on the dozer blade. A four wheel drive green ex-army vehicle then drove along the diversion track towards the junction of the Parliament Creek fire trail. It was being driven by the respondent. Mr. Remme told Mr. de Govrik that he was entitled to drive on the track since it was public road 339. He agreed that the dozer had been operated on the road that day by his son Dion. The Ranger and the respondent then moved to one of the cabins along the Parliament Creek trail. Mr. Remme produced a copy of the Judgment of the Court and indicated to the Ranger that the orders of the Court were incorrect, had "14 faults" and accordingly were "not valid". As Mr. de Govrik was driving away he noted and removed a number of illegal signs along the fire trail and within the Park.

On 4 March 1992 the Ranger again returned to the Parliament Creek fire trail. He found his movement along the trail was blocked by a barrier constructed of timber logs and cement besser blocks. He then had a conversation with the respondent who intimated that the trail had been blocked because of the wet weather. Mr. Remme further stated that he was entitled to destroy trees in a 40m strip along the road. Mr. de Govrik served a letter on Mr. Remme directing him to cease work on the Parliament Creek trail.

On 10 March 1992 the Ranger returned to the area of the cabins where the respondent's bulldozer was parked. He had another conversation with the respondent who agreed that he had been operating in the area covered by the Court's orders. He indicated that he would be moving out. Mr. de Govrik continued along the diversion road established by the respondent. He came across a sizeable area on the northern side of the road where a large number of trees, shrubs and grasses had been destroyed and the earth dug up and disturbed. This was in the form of a roundabout. The respondent told him that he had constructed a turning circle in case there was a need to turn around.

On 13 March 1992 the Ranger returned to the area and found one of the cabins had been removed. The other cabin remained with the respondent's dozer parked alongside. There was extensive soil and vegetation disturbed adjacent to the site of the cabins.

Mr. de Govrik again visited the area on 17 March 1992. Near the remaining cabin he saw Mr. Remme who told him that that cabin would be removed when the road was finished. Mr. Remme intimated that he had taken the dozer back to his own block. This turned out to be an untruth. The Ranger then left and drove down the Parliament Creek fire trail to the deviation constructed by the respondent. Mr. Remme then drove down the road deviation in a white table-top jeep. Mr. de Govrik also drove down the diversion track and noted fresh dozer marks and recently constructed drainage ditches. He also saw that a number of trees and shrubs had been destroyed by what appeared to be recent dozer works. At a point about 500m south of Parliament Creek he saw the respondent's dozer being driven by Mr. Remme's son (Dion) in a southerly direction away from the Park boundary.

Later that day Mr. de Govrik proceeded to block the road, which he regarded as having been illegally constructed within the Park, with fallen timber and logs. In doing so he removed another 2 signs similar to the ones he had earlier seen and removed.

On 18 March 1992 the Ranger returned with other National Park officers and took a video of the length of the deviation from the Parliament Creek fire trail. This video has been received in evidence.

The next day the Ranger erected a "Road Closed" sign at the junction of the fire trail and the Remme deviation. He then drove down to Parliament Creek and erected another such sign just south of the southern bank of the Creek, which forms the Park boundary. Later that day Park officers erected a substantial steel and cable barrier adjacent to the southern bank and a similar barrier at the other end of the diversion created by the respondent, at a position some 20m south of the junction with the Parliament Creek fire trail.

Park Officers commenced rehabilitation of the illegally bulldozed track on 23 March 1992. The original slope of the dozed area was restored. The remains of the previously cleared vegetation was placed on the restored slope. Seeds were collected from surrounding vegetation and spread. On 25 March 1992 a sign was placed by officers near the southern barrier bearing the words "Revegetation area. Vehicles prohibited". A similar sign was placed near the northern barrier on 14 April 1992.

On 31 March 1992 Mr. de Govrik inspected the rehabilitation work of the bulldozed track. He then located a damaged cabin within the Park. He telephoned the respondent who agreed that the cabin was his. The Ranger told the respondent that the "illegal road" had been closed to access. Mr. Remme replied "Whatever you have done to that road we will take the bulldozer and undo it". The next day they had another telephone conversation wherein the orders of the Court were discussed. Mr. Remme said "....the orders were based on a map which had many errors".

On 23 April 1992 Michael English, the foreman of the rehabilitation crew, went to the junction of the Parliament Creek fire trail and the bulldozed track. He saw that the revegetation sign had been unbolted from its posts and the "Road Closed" sign removed. The rehabilitated track had been reconstructed. This reconstruction had involved the removal of vegetation placed on the slope and the cutting and filling of the slope to provide a track suitable for vehicles. Mr. English proceeded down the track for 300m. He then returned to his vehicle and drove south along the Parliament Creek fire trail where he saw fresh bulldozer tracks. At the junction of the rehabilitated track and Parliament Creek he saw that the revegetation sign had been removed and the rehabilitated area reconstructed into a track. Fresh dozer tracks lead from the area to the respondent's dozer on Portion 32 south of Parliament Creek.

On 24 April 1992 Mr. English returned and completed the inspection of the previously restored area. He found that the track had been reconstructed over its entire length. The apparent cut and fill operation included cuts of over 1m and fill of over 1m. At one point the reconstruction had diverged from the rehabilitated area and destroyed trees. The crossing of Parliament Creek had been reconstructed using logs.

On 29 April 1992 Kevin Hillier, an investigator with the National Parks and Wildlife, went to the respondent's home at Glenbrook and interviewed him. He produced a letter dated 23 April 1992 received from the respondent. In the letter Mr. Remme claimed that the closing of the road by the Park Officers had been illegal. Mr. Remme indicated that the road was once again open. An invoice was enclosed for $7,485.80 representing the cost of the re-opening. The use of the dozer was included at $178 per hour over three days of the Easter weekend (total $4,859). Mr. Remme also charged for the removal of the park signs ($2,626). Mr. Remme agreed that he had driven his Komatsu dozer to reinstate the road. A further lengthy conversation ensued wherein the respondent argued that he was entitled to have done what he did and intimated that further work on the road would be necessary and a further account would be forwarded.

On 30 April 1992 Rangers returned to the Parliament Creek fire trail and took photographs and another video of the re-established illegal road. This video has also been received into evidence.

Evidence is before the Court that the cost of the original rehabilitation by National Parks and Wildlife was $23,700, and the further rehabilitation necessary because of the removal of the restored works and recutting of the road by Mr. Remme would cost at least that sum.

The evidence of 2 Surveyors has been placed before the Court - Mr. John Filacomo and Mr. Gregory Fox. Mr. Filacomo, who had given evidence in the injunction proceedings, indicated that the unformed public road MS339-OeR and the four wheel drive track known as Parliament Creek Road do not coincide within the Park. According to him the two "roads" coincide about 100m north of the northern boundary of Portion 32. His affidavit also deposes that Mr. Remme's bulldozed track is only coincident with a small section of Parliament Creek Road. At the intersection of that track with the Creek, the track was 450m north-east of Parliament Creek Road. He deposed that the Remme road is within the National Park for almost its entire length.

Mr. Fox also swore an affidavit of his investigation and gave oral evidence. He says that at least 2km of Mr. Remme's track are within the Park and that the track deviates up to 300m from the two exclusions for road. On his inspection he noted a circular track or roundabout adjacent to the bulldozed track 1.7kms north of Parliament Creek. Also, he saw 2 swathes of gravel excavation cut laterally to the road formation up to 70m in length. These were respectively 2.9 and 3.6kms north of the Creek. A section of the track 200m north of the Creek was more than 15m wide and severely eroded. The eroded material had washed into an adjacent dry creek bed.

Mr. Fox's evidence establishes without a shadow of doubt that Mr. Remme's bulldozed track is between the Parliament Creek Road and the MS339. The track does not correspond with either the excluded unformed MS339 traverse or the Parliament Creek four wheel drive fire trail. It is, according to Mr. Fox, wholly within the National Park and up to 300m from both "roads". I accept the evidence of both Surveyors concerning the location of the bulldozed track, the MS339 and the Parliament Creek fire trail. I also accept the evidence of the National Park Officers in their entirety. Indeed, Mr. Remme's cross-examination of the Officers hardly seemed to contradict any of their material evidence.

It is also obvious that Mr. Remme never sought or obtained any permission from the Director to undertake any of the activities referred to in Order 5 or drive any vehicle within the "said area" referred to in Order 7.

Contrary to Mr. Remme's assertion in the 1988 proceeding that "his road" followed the Parliament Creek Road for most of its route and was therefore excluded from the Park, he now asserts that his track followed the MS339. However, this assertion was never translated into evidence, because Mr. Remme gave no oral evidence, and the documents he placed before the Court failed to add a glimmer of proof to the assertion. His repeated assertion - "We followed the MS339" - was also contradicted by Mr. Remme himself in closing remarks at the end of the hearing. He indicated then that if he had followed the MS339 he would have badly damaged a forest, so he kept away from it to cause the smallest amount of damage possible. He says that he used the most practical line and straightened out the road.

For most of the hearing Mr. Remme, who suffered from the disadvantage of having to represent himself, sought to convince the Court that the findings of the April 1988 Judgment were erroneous. While such an allegation might be seen as irrelevant to a charge of contempt of the orders of the Court, I have to say that nothing said by the respondent, nor material placed before the Court, leads me to have any doubt as to the correctness of the Judgment and orders.

Mr. Remme seems to have totally convinced himself that he had and continues to have a lawful entitlement to bulldoze the road and nothing may ever be able to convince him to the contrary. As I said before, his belief is quite unreasonable and indeed may not be honestly held. I say this notwithstanding that such a defence is not available to a charge of contempt of the Court's orders.

The evidence is overwhelming that Mr. Remme is guilty of breaching Orders 5 and 7 of the Court in the manner alleged in paragraphs (a) to (h) inclusive of the Statement of Charge. I am satisfied beyond reasonable doubt in relation to each such breach. Indeed, I think they have been proven beyond any doubt. Each breach of the Court's orders has been wilful and deliberate. Where a breach has been committed by his son Dion driving the dozer, I am satisfied beyond reasonable doubt that he did so at the express direction of his father. Mr. Remme does not dispute this. The breaches by Mr. Remme cannot by any stretch of the imagination be categorised as casual, accidental or unintentional. In fact the breaches have been quite deliberate, calculated and contumacious in the extreme. The breaches of the orders have been obstinate and manifest. Mr. Remme's arrogance to authority almost beggars belief. His conduct in dozing the rehabilitated area and re-establishing and re-opening his road reveals a high handedness and defiance of the law which is almost impossible to comprehend.

I am satisfied beyond reasonable doubt that Mr. Remme has been proven guilty of breaches of the Court's orders with respect to each of the allegations contained in the Statement of Charge. It will now be necessary to hear any evidence and submissions on the appropriate punishment to impose in respect of the breaches of the Court's orders.