Environment Protection Authority v Pannowitz - [2006] NSWLEC 219

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v Pannowitz [2006] NSWLEC 219

PARTIES:
PROSECUTOR:
Environment Protection Authority
DEFENDANT:
Kenneth Warren Pannowitz

FILE NUMBER(S): 50024 of 2004

CORAM: Lloyd J

KEY ISSUES:
Contempt :- non-compliance with publication order – interference with the course of justice – scandalising the Court – aiding and abetting an offence commited by another – punishment of a non-party
Practice & Procedure: - charge of contempt against a non-party – separate proceedings should be brought against the non-party

LEGISLATION CITED: Environmental Offences and Penalties Act 1989 s 14 (repealed)
Land and Environment Court Act 1979 ss 41, 67,
Protection of the Environment Operations Act 1997 ss 143(1), 250(1)(a)

CASES CITED: Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342;
Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887;
Attorney-General v Punch Ltd [2003] 1 AC 1046;
Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98;
Bell v Stewart (1920) 28 CLR 419;
Re Colina; Ex parte Torney (1999) 200 CLR 386;
Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175;
Environment Protection Authority v Waight (2003) 125 LGERA 399;
Gallagher v Durack (1983) 152 CLR 238;
Giorgianni v The Queen (1985) 156 CLR 473;
Harkianakis v Skalkos (1997) 42 NSWLR 22;
Hoser v R; Ex parte Attorney-General (Vic) [2003] VCSA 194;
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 352;
Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245;
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1;
Prothonotary v Hirata [2000] NSWSC 106;
R v Brett [1950] VLR 226;
R v David Syme & Co Ltd [1982] VR 173;
R v Dunbabin; Ex parte Williams (1935) 53 CLR 434;
R v Hoser [2001] VSC 443;
Witham v Holloway (1995) 183 CLR 525;

DATES OF HEARING: 27/03/2006; 28/03/2006 and 29/03/2006

DATE OF JUDGMENT:
05/09/2006

LEGAL REPRESENTATIVES:
PROSECUTOR:
D A Buchahan SC
SOLICITOR:
Stephen Garrett
Environment Protection Authority
DEFENDANT:
D P M O'Dowd (barrister)
SOLICITORS:
Thomson Norrie

JUDGMENT:

Contents

Section
Paragraph number

51 - 77

The defendant's knowledge of the Court's order 57 - 63

The defendant's acts 64 - 75

(a) Size and placement of the advertisement

65 - 67

(b) Omissions from the advertisement

68 - 69

(c) Additional words

70 - 72

(d) Omission of logos

73 - 75

The commission of contempt 76- 77

- 29 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 9 May 2006

LEC No. 50024 of 2004

ENVIRONMENT PROTECTION AUTHORITY v PANNOWITZ [2006] NSWLEC 219

JUDGMENT

INTRODUCTION

1 HIS HONOUR: The defendant, Kenneth Warren Pannowitz, is charged with contempt of court. The contempt in this case is interference with the administration of justice in proceedings to which he was not a party (“third party contempt”); and/or contempt by aiding and abetting a party to proceedings to breach an order of the court; and/or interference with the administration of justice by scandalising the court; and/or aiding and abetting a party in scandalising the court. Mr Pannowitz has pleaded not guilty to the charge.

A PUBLICATION ORDER

2 The charge of contempt arises out of an order made by the Court in proceedings entitled Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175. That was a prosecution for an offence of unlawful transport of waste to a place that could not lawfully be used as a waste facility, contrary to the Protection of the Environment Operations Act 1997 (“the POEO Act”), s 143(1). The defendant corporation pleaded guilty and, by order made on 22 April 2005, was fined $40,000 and ordered to pay the prosecutor’s costs. In addition, the Court made a publication order under s 250(1)(a) of the POEO Act as follows:

Protection of the Environment Operations Act 1997

Newcastle Herald

Waste Management and Environment

3 Annexure “A” is as follows:

PUBLICATION ORDER

Protection of the Environment Operations Act 1997

[Steepleton Pty Ltd logo]

Protection of Environment Operations Act 1997

(a) no environment protection licence issued by the Environment Protection Authority of the New South Wales for the waste facility;

(b) no development consent from the local council (Maitland City Council); and

Water Management Act 2000

Newcastle Herald

Waste Management and Environment magazine

[DEC logo] The Environment Protection Authority is now part of the Department of Environment and Conservation.

4 On 28 October 2005 the Federal Court of Australia made an order that Steepleton Pty Limited (“Steepleton”) be wound up and appointed an official liquidator to that company.

THE PUBLICATION

5 Mr Pannowitz was a director of Steepleton. He caused the following advertisement to be published on the Newcastle Herald on Saturday, 14 May 2005:

On 21 April 2005 Steepleton Pty Limited and Kenneth Warren Pannowitz (a Director of Steepleton Pty Limited) were convicted and fined $40,000 and $20,000 respectively in the Land and Environment Court of New South Wales for transporting waste to a place that could not lawfully be used as a waste facility for that waste. This is an offence against section 143(1)(a) of the Protection of Environment Operations Act 1997 (NSW). The offences involved the unlawful transport of between 1310-1661 tonnes of predominantly building and demolition waste to premises at Phoenix Park. The disposal of the waste at the premises was unlawful because there was:

a) No environment protection licence issued by the Environment Protection Authority of New South Wales for the waste facility;

b) No development consent from the local council (Maitland City Council); and

c) No approval from the Minister administering the Water Management Act 2000 (NSW) for a structure adjacent to a levee bank designed to prevent flooding from a tributary of the Hunter River.

6 The advertisement differs from that which was ordered in six respects:

(a) the notice was published on page 4 instead of on page 3 as required by the order;

(b) the notice was one-sixteenth the size of the page instead of at least a quarter page in size as required by the order.

(c) the notice did not contain the words required by the order – “The Environment Protection Authority is now part of the Department of Environment and Conservation ”;

(e) the notice was required by the order to contain the words: “ Steepleton Pty Limited and Kenneth Warren Pannowitz were prosecuted by the Environment Protection Authority and were ordered by the Land and Environment Court to place this notice in the Newcastle Herald and Waste Management and Environment magazine.” Instead, the notice contained the words: “ Steepleton Pty Limited and Kenneth Warren Panowitz were prosecuted by the Environment ”.

(f) The notice contained words which were not required by the publication order, namely, the words “ This matter has been referred by Steepleton to ICAC for further investigation ”. The prosecutor says that the additional words scandalised the Court because, in their context (namely, the rest of the content of the notice) they had a tendency to undermine the confidence of the public in the administration of justice by implying that the Court, or the proceedings in the Court, or both, were affected by corruption, lack of integrity or lack of impartiality.

7 Subsequently, Mr Pannowitz caused an advertisement to be published in the June 2005 issue of Waste Management and Environment magazine, in substantially the same form as ordered by the Court, but without any logo of Steepleton or of the Environment Protection Authority (“the EPA”) and, importantly, without the additional words which appear in the advertisement in the Newcastle Herald – “This matter has been referred by Steepleton to ICAC for further investigation”.

THE ALLEGED CONTEMPT

8 The prosecutor says that Mr Pannowitz, with knowledge of the Court’s order, committed contempt in four different ways:

(1) he interfered with the course of justice in the proceedings by doing something to undermine, frustrate or interfere with, or which had the effect of undermining, frustrating or interfering with the Court’s publication order;

(2) he aided and abetted a contempt committed by Steepleton, in that he procured the breach by Steepleton of the publication order;

(3) by causing the advertisement to be published in the Newcastle Herald in the form in which it appeared, he committed contempt by scandalising the Court; and

(4) he aided and abetted Steepleton in scandalising the Court.

JURISDICTION

9 The contempt with which Mr Pannowitz is charged is criminal contempt. The proceedings are criminal in nature (Witham v Holloway (1995) 183 CLR 525) and should be regarded as invoking the criminal jurisdiction (R v Hoser [2001] VSC 443 at [45]), which requires that the charge be proved beyond reasonable doubt.

10 The Land and Environment Court has power in its criminal jurisdiction (known as class 5 proceedings) to deal with allegations of contempt by parties in that jurisdiction. This power is found in the Land and Environment Court Act 1979 (“the Court Act”), s 67, which relevantly states:

11 Although the jurisdiction to deal with contempt is derived from statute under s 67(d) of the Court Act, in this case the contempt charged is a common law offence.

12 In Environment Protection Authority v Waight (2003) 125 LGERA 399 at 404[13], Pearlman J held that s 67(d) confers a power upon this Court to punish for contempt of any of its orders, and that power extends to punishment for contempt of orders made in its class 5 jurisdiction pursuant to a remediation order under s 14 of the Environmental Offences and Penalties Act 1989 (since repealed). There is no distinction in practical effect between such a remediation order and an order for publication made under s 250(1)(a) of the POEO Act, as was made against Steepleton.

13 The original proceedings against Steepleton were class 5 proceedings in the criminal jurisdiction of the Court. Mr Pannowitz was not a party. Because Mr Pannowitz was not a party in the original proceedings, the prosecutor attempted to commence these proceedings against Mr Pannowitz in accordance with the procedure that applies in class 5 of the Court’s jurisdiction, that is, by summons naming Mr Pannowitz as the defendant: s 41 of the Court Act. Even though the contempt charged is in connection with the principal proceedings, the proceedings seeking to punish a non-party for contempt of the type now under consideration ought to have been brought by a separate summons: Harkianakis v Skalkos (1997) 42 NSWLR 22 per Mason P at 25 and per Powell JA at 69.

14 I was informed from the bar table that the Registry refused to accept the filing of the summons and instead insisted that the prosecutor proceed by way of notice of motion for contempt in the original proceedings. Accordingly, the prosecutor filed the present notice of motion, naming Mr Pannowitz as defendant, even although he was not a party to the original proceedings.

15 In the case of an allegation of contempt against a non-party, such as this, I hold serious doubts as to whether the present proceeding is properly constituted. As already noted, Mr Pannowitz was not a party to the original proceedings against Steepleton, and was not joined as a party in those proceedings. When a non-party is alleged to have committed a contempt of court the correct procedure is that described in Harkianakis v Skalkos, noted above; that is, by the commencement of separate proceedings against that person by summons. The prosecutor cannot be blamed in this case – it attempted to adopt the correct course, but was prevented by the Registry’s staff from doing so.

16 The defendant does not, however, take issue with the form of the proceedings and has not sought to object to the Court’s jurisdiction to now deal with the charge of contempt brought against him. I am, accordingly, and with considerable diffidence, prepared to entertain the charge. Nevertheless, it is not for the registry to decline to accept an originating process for filing. If it were thought that it was the incorrect originating process, then it would be for the opposing party to move to set it aside. In the present case the opposing party, Mr Pannowitz, is legally represented and has not sought to raise the point.

FACTS LEADING TO THE PUBLICATION

17 I now set out my finding of facts which resulted in the publication, in the form which it took, in the Newcastle Herald.

18 Mr Pannowitz was the sole director of Steepleton and is also a director of an unrelated business known as Husky Holdings Pty Ltd which has an office in Raymond Terrace. The Court’s judgment was delivered and the orders were made on 22 April 2005 and published on the Court’s website on the same day. On that day Mr Pannowitz was at the Raymond Terrace office and asked Mr Scott Ronald Single, who was then an accounts clerk and bookkeeper employed in the office, to “pull up the Land and Environment Court website and take off the judgment” and “print it out”. Mr Pannowitz does not have any computer skills. Mr Single printed from the Court’s website a copy of the judgment, which included the orders, and gave it to Mr Pannowitz.

19 Mr Damon Anderson is a solicitor employed by the prosecutor and was involved in the prosecution against Steepleton. After taking the judgment on 22 April he returned to his office. At about 10:15 am he received a telephone call from Mr Pannowitz, during which, according to Mr Anderson, the following words were said:

He [Pannowitz] said: “Ken Pannowitz here. I’d just like to say thanks for everything.”

I said: “It’s not appropriate that I talk to you.”

20 Mr Pannowitz agrees that he made a telephone call to Mr Anderson that day. He denies that he used the words attributed to him. He states that the words he did use were:

I am still going to have you investigated by ICAC. I am not forgetting this and I still intend to take it further. In any event I am going to appeal to the Supreme Court. I have already spoken to the courthouse for the Land and Environment Court and they are going to send me out some papers to appeal.

21 Mr Anderson is clearly a careful and thorough solicitor. He made a very full contemporaneous note of the conversation. I thus have no hesitation in accepting his version of the conversation in preference to that of Mr Pannowitz whose recollection is set out in an affidavit sworn some 11 months after the conversation took place.

22 On 11 May 2005, whilst at the Raymond terrace office, Mr Pannowitz asked Mr Single to place the advertisement in the Newcastle Herald. According to both Mr Pannowitz and Mr Single, Mr Pannowitz handed to Mr Single page 14 of the 15-page judgment, which contains the orders of the Court and all but the last few lines of the form of notice that Steepleton was ordered to publish – that is, the form of notice down to the words “…prosecuted by Environment” were contained on page 14. The balance of the form of the notice appears on page 15, which was not given to Mr Single. Mr Pannowitz asked Mr Single to type out the advertisement and fax a copy to the Newcastle Herald to be published in the Saturday paper on page 3, and to make sure that it covered a quarter of a page.

23 According to Mr Single, when he started to type, Mr Pannowitz said: “Put a heading “Steepleton Pty Limited” in the middle of the page at the top”. Both Mr Pannowitz and Mr Single say that Mr Pannowitz also told Mr Single to put at the bottom: “This matter has been referred by Steepleton to ICAC for further investigation”; and Mr Pannowitz also said to Mr Single: “Make sure it is this size”. Mr Single prepared the advertisement as instructed and added in handwriting the words, “Must be this size”.

24 On 12 May 2005, Ms Nicole Gibson, a client account manager for Newcastle Newspapers Pty Ltd received a facsimile from Steepleton together with an advertisement and a request that it be published on page 3 of the Saturday edition of the Newcastle Herald. She telephoned Mr Pannowitz and said to him:

The booking deadline for Saturday was 1 pm yesterday. I can’t run it on page 3 because of other bookings and the size. All we can do is page 4 and 10 cm by 2 columns, not 4. It’s the best we can do. What do you want to do?

25 Mr Pannowitz said: “We’ve got to get it in. Print it on page 4 at that size”.

26 On the same day Ms Gemma Moylan, a trainee copy assistant employed by Newcastle Newspapers Pty Ltd, prepared a proof for the advertisement and sent a copy of it to Mr Pannowitz by facsimile. On 13 May 2005 she contacted the office of Husky Holdings Pty Ltd and spoke to a person at that office asking whether the proof had been received and could she have approval for publication. The person she spoke to replied: “Yes, go ahead.”

SUBSEQUENT EVENTS

27 On Saturday 14 May 2005 the notice was published in the Newcastle Herald. On 16 May 2005 Mr Anderson read a facsimile of the notice as published. He then drafted a letter to Lambton Law, the firm of solicitors who acted for Steepleton during the hearing, drawing attention to the form of the notice and reminding them that the advertisement to be published in the Waste Management and Environment magazine must be published in accordance with the publication order.

28 According to Mr Anderson, on 25 May 2005, he received a telephone call from Mr Pannowitz, during which the following conversation took place:

He [Pannowitz] said: “It’s Ken Pannowitz here. Can you fax me a copy of the letter that you sent (to Lambton Law) about the advertisement? Andrew Bright has not told me what to do.”

He said: “[Number]. We got the advertisement off the Court website – we copied it. Then we faxed the advertisement over to the Newcastle Herald and they said that page 3 was permanently booked out, so it went on the next page…”

I said: “Why does the advertisement have a reference to ICAC in it?”

He said: “Because I was off my rocker.”

I said: “Why did you put the advertisement in with a reference to ICAC?”

He said: “I have been in the paper and on the radio. Why am I being singled out?”

I said: “Why did you put the advertisement in the paper with a reference to ICAC in it?”

He said: “Why single me out?”

I said: “It’s a serious thing that you have done.”

29 Again, Mr Anderson made a full contemporaneous note of this conversation. For the same reasons explained in par [21] above, I accept Mr Anderson’s evidence of this conversation. The prosecutor makes no complaint about the form of the notice that was ultimately placed in the Waste Management and Environment magazine. It seems that the magazine is published monthly. According to the affidavit of Mr Dane Millerd, who was employed as an advertising sales representative by the publisher of the magazine, he received a telephone call on 18 May 2005 from a man who identified himself as Ken Pannowitz from Steepleton and the following conversation ensued:

He [Pannowitz] said: “We have been ordered by the Land and Environment Court to place an advertisement in Waste Management and Environment magazine. It needs to go in your next issue.”

I said: “The next issue is in June. You need to fax us the content and form of the advertisement that you need published.”

30 Later that day Mr Millerd received from Steepleton a facsimile of the notice to be published in the magazine. This version of the notice contained the additional material which appears on page 15 of the judgment which Mr Pannowitz asked Mr Single to print from the Court’s website. It also contained the words: “This matter has been referred by Steepleton to ICAC for further investigation.”

31 Mr Millerd then sent a document titled “Advertising confirmation” to Steepleton by facsimile and shortly thereafter received the signed advertising confirmation from Steepleton which bears the signature of Mr Pannowitz.

32 A week or so after 18 May 2005, Mr Millerd received a telephone call from Mr Pannowitz during which the following conversation took place:

He [Pannowitz] said: “Ken Pannowitz here. Listen, we need to change the advertisement. We’ve run an advertisement with the same added line in the Newcastle Herald already and the EPA has been kicking up a stink about it. We need to be on the safe side, so we need to change the ad.”

I said: “OK, can you forward me a copy of what you need published?”

33 Mr Millerd subsequently received an amended form of advertisement from Steepleton. The amended advertisement no longer contained the words: “This matter has been referred by Steepleton to ICAC for further investigation.” This was the form in which the notice was published in the June 2005 issue of the magazine.

THE DEFENDANT’S EXPLANATION

34 Mr Pannowitz gives the following explanation for these events. He says that he gave to Mr Single page 14 of the judgment because he thought it contained the complete wording of the advertisement required by the Court’s publication order. (I note that this is despite the fact that it bears the notification “Page 14 of 15”.) He says that at that time the staple holding the documents together had failed to attach the last few pages, pages 14 and 15 at least were loose, and he omitted to hand page 15 to Mr Single as an oversight. He states, in his affidavit:

At the time I believed the advertisement was being published as including all the material required by the Court’s order.

35 Mr Pannowitz further states, in his affidavit:

In placing the advertisement in the Newcastle Herald without the complete words required by the Court order and with the inclusion of additional words I did not in any way, wish to fail to comply with that order. I had no intention to subvert the orders of the Court or to interfere with the administration of justice. Further I had no intention whatsoever of scandalising the Court.

36 Mr Pannowitz gives the following explanation for the inclusion of the additional words in the notice.

37 On 15 January 2003 the Environment Protection Authority had sent a letter to Mr Pannowitz which reads as follows:

[ Date]

Dear Mr Pannowitz

ALLEGATIONS OF A CORRUPT RELATIONSHIP BETWEEN YOURSELF AND AN EPA OFFICER

The EPA regards very seriously any accusation that any one of its officers has been engaged in corrupt conduct. If you have any information that any EPA officer has been involved in corrupt conduct then should immediately provide the EPA and/or the Independent Commission Against Corruption (ICAC) with this information.

Crimes Act 1900

Independent Commission Against Corruption Act 1988

If you wish to discuss this matter, please contact [name] on [telephone number].

Yours sincerely

Executive Director Legal Services

38 Mr Pannowitz says that, at about the time of the investigation by the EPA of the original charge against Steepleton, he became aware of allegations made by Mr Mitchell Bennett, an officer of the EPA based in Newcastle, that there were elements of corruption in the investigation of the offences. Mr Terry Muir was the investigating officer of the EPA into those offences.

39 Shortly after receiving the letter dated 15 January 2003, Mr Pannowitz made a telephone call to Mr Gordon Plath, a solicitor employed by the EPA, during which the following conversation took place:

Pannowitz: “You have got to be joking accusing me of bribery. I have read the letter.”

Plath: “If you deny it, OK, we’ll accept that. If you’ve got any more complaints you should go to ICAC.”

Pannowitz: “OK. I’ll do just that.”

40 Shortly after this conversation, Mr Pannowitz made a telephone call to the Independent Commission Against Corruption. He says that the person to whom he spoke said: “Wait until the matter is fully investigated. ICAC cannot make any investigations whilst there are proceedings pending.”

41 In his oral evidence, Mr Pannowitz said that he (and Steepleton) had been unfairly prosecuted; he put the additional words in the notice because he wanted to clear his name; he did not believe at the time that it was a mistake to include the additional words; and although he did not think at the time that it was wrong to do so, he now realises it was wrong.

42 I find, however, that this explanation is difficult to accept and is not consistent with the conversation recorded by Mr Anderson shortly before the publication of the notice noted in par [19] above. In that conversation Mr Pannowitz states his intention (i) that “everything is going to ICAC” – as he subsequently stated in the notice; (ii) that the fines would not be paid – and they have not, despite his evidence that he intends to pay; and (iii) that “I’ll go bankrupt” – and Steepleton has since gone into liquidation and an order has been made that it be wound up.

43 This conversation demonstrates, in my opinion, Mr Pannowitz’s state of mind shortly before he caused the publication of the notice and is in contrast with his state of mind now expressed to the Court, well after the event.

44 That is to say, I am satisfied beyond a reasonable doubt that Mr Pannowitz expressed the clear intention to deliberately undermine, frustrate or interfere with the administration of justice.

45 Mr Pannowitz says that he still has a desire to refer the EPA’s handling of the investigation against Steepleton to the ICAC, but is awaiting the conclusion of these proceedings before doing so.

46 I note, however, that the statement which was added to the form of notice which was published in the Newcastle Herald asserts that this matter “has been” referred to ICAC, which is plainly incorrect.

47 As to the absence from the published notice of the logos of Steepleton and the prosecutor, Mr Pannowitz says that Steepleton did not have a logo and he did not know what a logo is. I accept this explanation.

48 On 17 June 2005 Mr Anderson sent a letter on behalf of the prosecutor to Messrs Thompson Norrie, solicitors, who were by now acting for Mr Pannowitz. The letter draws attention to the form of the notice that was published in the Newcastle Herald, states that proceedings for contempt have been authorised, but prior to commencing such proceedings, the publication of a correction in the form suggested in the letter is invited, in which event the EPA may determine not to commence proceedings for contempt.

49 By letter dated 23 June 2005, Messrs Thompson Norrie replied that their client was not prepared to take the suggested steps to publish a notice of correction and that they had instructions to approach the Court and have the matter re-listed for further directions in relation to the publication order. However, no such approach to the Court was made.

50 I have referred (in par [8] above) to the four ways in which it is said that the contempt was committed, namely: (1) interference with the due course of justice; (b) aiding and abetting a contempt committed by Steepleton; (2) scandalising the court; and (3) aiding and abetting Steepleton in scandalising the court. I now turn to consider the elements of each kind of contempt, and whether those elements have been satisfied in the present case.

(1) INTERFERING WITH THE COURSE OF JUSTICE

51 What the prosecutor has to establish beyond reasonable doubt is that the defendant, with knowledge of the Court’s order, did something that, as a matter of practical reality, had a tendency to undermine, frustrate, or interfere with the Court’s order: Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 per Mahoney JA at 350 and per McHugh JA at 355, Prothonotary v Hirata [2000] NSWSC 106 at [88] per James J, both being cases of third party contempt. The test is an objective test and the prosecutor need not show that the defendant had an intention to interfere with the course of justice. In Mayas, Mahoney JA said (at 350):

It is settled that the purpose or intention to interfere with the administration of justice in the particular case is not essential to contempt:

52 McHugh JA (at 355) described the rule that applies when a person, who is not bound by an order of the court, says or does something which has the effect of frustrating or interfering with an order:

In that class of case, the person will be guilty of contempt only if he is aware of the order and it is apparent to anyone that the effect of the order would be frustrated by his act:…

53 In Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245, another case involving third party contempt, the High Court in a joint judgment said (at 258):

54 That case was noted by James J in Prothonotary v Hirata, as was the statement by Mason P in Harkianakis v Skalkos (at 28):

Intention to interfere with the due administration of justice is not necessary to constitute a contempt: …

55 I can do no better than to repeat what James J went on to say:

Borrie & Lowe

“Mens rea is required only to the extent that the alleged contemnor must be proved to have intended to do an act which, objectively construed, is calculated to interfere with the course of justice”.

[95] In my opinion, the only intention on the part of the defendant which the plaintiff has to prove in the present proceedings is that the defendant intended to engage in the conduct alleged to constitute a contempt. Nor is it necessary for the plaintiff to prove that the defendant had in some way a morally blameworthy attitude of mind.

Attorney General v John Fairfax & Sons Ltd

“Without purporting to state the test exhaustively, it can be said that contempt can be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively, by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual effect of the publication upon the proceedings has been, or what it probably will be”.

56 In the present case, the purpose of the order for publication is to be gleaned from the terms of the order, which speaks for itself: Mayas at 355 per McHugh JA, Attorney-General v Punch Ltd [2003] 1 AC 1046 at 1056 [40], [48]; 1061 [64]; 1063 [76] and 1072 [126]. Moreover, in the present case the purpose of the order is clearly in the reasons for judgment (at par [69]); and Mr Pannowitz had a copy of the reasons for judgment, although he was not personally bound by the order. Mr Pannowitz was the sole director of Steepleton and was thus the responsible officer for Steepleton’s action. Where a person who is a director of a corporation causes the corporation to breach an order of the court which binds it, then, along with the corporation, the director is liable to be convicted of contempt. In the present case the prosecutor has not proceeded against Steepleton for the reason that a liquidator was appointed on 28 October 2005 and a winding up order has been made.

The defendant’s knowledge of the Court’s publication order

57 In order to establish contempt by interfering with the course of justice, the prosecutor must prove that the person so accused had knowledge of the Court’s order. The prosecutor contends that the evidence in support of the fact that Mr Pannowitz caused the advertisement to be published in the knowledge of the Court’s publication order is overwhelming.

58 There is no evidence that Mr Pannowitz or Steepleton were served with a sealed copy of the orders made by the Court on 22 April 2005, before the four week time limit for compliance with the publication order expired. In absence of such evidence I infer that no such service occurred.

59 In the prosecutor’s contention this is not an obstacle to the conviction of Mr Pannowitz for contempt of court in this case, as it is sufficient to prove that he had knowledge of the order.

60 The solicitor having the conduct of the original proceedings on behalf of the prosecutor, Mr Anderson, states in his affidavit that on the date the Court’s judgment was delivered and the publication order made, Steepleton was represented by counsel. A copy of the judgment and the orders were taken by the counsel. Through the presence of its counsel, Steepleton is taken to have been present in court when the publication order was made and can thereby be taken to have had knowledge of the order.

61 As noted in pars [19] to [21] above, Mr Pannowitz spoke to Mr Anderson on the day the judgment was delivered. Mr Anderson’s record of the conversation demonstrates that Mr Pannowitz had knowledge of the orders generally.

62 The discussion of the facts leading to the publication in the Newcastle Herald, described in pars [17] to [26] above, shows Mr Pannowitz’s involvement in the process of publication of the notice in the Newcastle Herald. As pointed out by the prosecutor, this involvement indicates that the defendant was aware of the order of the court.

63 I therefore find beyond reasonable doubt that Mr Pannowitz was aware of the order of the Court.

The defendant’s acts

64 The next question is whether the facts prove beyond reasonable doubt that the defendant intended to commit acts which are alleged to constitute the contempt. There are six differences between the advertisement placed in the Newcastle Herald on 14 May 2005 and that which was ordered by this Court on 22 April 2005, as noted in par [6] above. The facts in relation to each difference will be considered in turn to determine the relevant intention behind the act.

(a) Size and placement of the advertisement

65 Firstly, the notice was published on page 4 instead of page 3 of the newspaper and was one-sixteenth the size of the page instead of at least a quarter page in size. The changes of size and placement can be considered together.

66 The facts described in pars [24] to [26] above clearly show that Mr Pannowitz asked that the notice be published on page 4 of the newspaper and that it be the size of 10cm by 2 columns (being approximately one-sixteenth of a page in size), not 4 columns. This conclusion is based upon the evidence of Ms Nicole Gibson and Ms Gemma Moylan, both employees of Newcastle Newspapers Pty Ltd, neither of whom were cross-examined. Mr Pannowitz’s evidence differs from that of Ms Gibson and Ms Moylan. In his affidavit of 23 March 2006 he claims he did not speak directly to Ms Gibson, rather it was his employee, Mr Single. In oral evidence Mr Pannowitz said he may have spoken with Ms Gibson, but that she indicated there was a possibility the advertisement could be placed on page 3. Mr Pannowitz’s evidence is clearly contradictory in itself. Moreover, the affidavit of Mr Kieron O’Toole, also an employee of Newcastle Newspapers, corroborates the evidence of Ms Gibson and Ms Moylan and makes it clear that there was no chance that the advertisement could appear on page 3, and that Mr Pannowitz’s consent on behalf of Steepleton was required for the advertisement to appear on page 4 and at a size of 10cm by 2 columns. None of the employees of Newcastle Newspapers were cross-examined. Thus, their evidence is unchallenged and taken to be accepted by the defendant. I prefer their evidence to that of Mr Pannowitz where differences occur, and accept their evidence beyond reasonable doubt. This evidence, combined with the tangible evidence of the advertisement as it appeared in the Newcastle Herald on 14 May 2005 proves beyond reasonable doubt that Mr Pannowitz asked that the notice be published on page 4 instead of page 3 of the newspaper and at one-sixteenth the size of the page instead of at least a quarter page in size.

67 Mr D P M O’Dowd, appearing for Mr Pannowitz, argues that it was impossible for him to comply the Court’s publication order because, as stated by Ms Gibson, by the time he sought to place the advertisement page 3 was booked and only one-sixteenth of a page was available on page 4. I accept, however, the prosecutor’s contention that the situation in which Mr Pannowitz found himself in was caused by his own delay in placing the advertisement. Mr Pannowitz had four weeks within which to comply with the Court’s publication order, yet he left it until the last moment to take any steps to place the advertisement as required. There has been no evidence that, if sufficient time been allowed, the advertisement could have not been published in the Newcastle Herald in compliance with the court’s order. Further, there is no evidence that the defendant made any attempt to approach the Court to modify the size and placement requirements imposed by the Court’s publication order. Thus the “impossibility” of compliance with the court’s order can be attributed to the defendant’s inaction and cannot be held up as a defence.

(b) Omissions from the advertisement

68 The advertisement in the Newcastle Herald omitted the words:

Ø “Steepleton Pty Limited and Kenneth Warren Pannowitz were prosecuted by the Environment Protection Authority and were ordered by the Land and Environment Court to place this notice in the Newcastle Herald and Waste Management and Environment Magazine” which were replaced by the words “Steepleton Pty Limited and Kenneth Warren Pannowitz were prosecuted by the Environment”; and

Ø “The Environment Protection Authority is now part of the Department of Environment and Conservation”.

69 The omitted words appeared on the second page of Annexure “A” to the Court’s judgment of 22 April 2005, being page 15 of that judgment. The prosecutor contends that the reason these words were omitted is due to a deliberate omission on the part of Mr Pannowitz, and that Mr Pannowitz deliberately gave Mr Single only the first page of Annexure “A”, being page 14 of the judgment, from which to prepare the copy for the advertisement, knowing there was more material in Annexure “A” than that. Mr Pannowitz’s evidence in relation to these omissions is somewhat confused. However, whether or not Mr Pannowitz in fact had the last page of the judgment in his possession, Mr O’Dowd argues that his failure in giving it to Mr Single to prepare the advertisement copy was merely a mistake. I accept this logical explanation and find that Mr Pannowitz did not have the intention to omit the words from the advertisement; rather they were omitted inadvertently and by mistake.

(c) Additional words

70 The advertisement in the Newcastle Herald contained words that were not required by the publication order, namely: “This matter has been referred by Steepleton to ICAC for further investigation.”

71 Mr Pannowitz admits that he asked that these words be placed in the advertisement, as noted in par [23] above. Mr Pannowitz and Mr Single both admit that the defendant instructed Mr Single to include the extra words in the advertisement. These admissions demonstrate beyond a reasonable doubt that Mr Pannowitz intended the publication of the words.

72 Notably, it is possible to infer from Mr Anderson’s evidence of his conversation with Mr Pannowitz on 22 April 2005, as noted in par [19] above, that Mr Pannowitz in fact had an intention, not merely to perform the act that breached the Court’s publication order, but to commit the breach deliberately. Moreover, as explained in pars [51] to [56] above, intention to perform the act is sufficient; it is not necessary for the prosecutor to go on and show that the defendant had an intention to interfere with the course of justice. That is to be determined objectively. I find beyond a reasonable doubt, therefore, that by causing the publication of the notice with the additional words which were not in the form of notice ordered to be published by the Court, Mr Pannowitz interfered with the course of justice.

(d) Omission of logos

73 The advertisement in the Newcastle Herald did not contain the logos of either Steepleton or the Department of Environment and Conservation.

74 As noted in par [47] above, Mr Pannowitz stated in evidence that Steepleton does not and did not have a logo. There was thus no intention to omit it from the notice that was published.

75 The omission of the Department of Environment and Conservation logo is explained by the same reasoning as that in par [69] above: it was on page 15 of the judgment, the page Mr Pannowitz unintentionally failed to give to Mr Single.

The commission of contempt

76 I find beyond a reasonable doubt, therefore, that Mr Pannowitz intended to commit the following acts:

a) the publication of the notice on page 4 rather than page 3 as required by the order;

b) the publication of the notice at one-sixteenth of the size of the page instead of at least a quarter page in size as required by the order; and

c) the inclusion in the notice of words which were not part of the publication order, namely the words “This matter has been referred by Steepleton to ICAC for further investigation.”

77 Viewed objectively, those acts amount to an interference with the course of justice as they undermined, frustrated and interfered with the Court’s publication order. Through these acts the defendant has committed contempt of court by interfering in the course of justice.

(2)` AIDING AND ABETTING A CONTEMPT COMMITTED BY STEEPLETON

78 It is contempt to aid and abet a contempt committed by another: Attorney –General v Punch Ltd [2003] 1 AC 1046. The contempt is committed not because the third party – Mr Pannowitz – is in breach of the order. The order does not bind the third party. The contempt is committed because the purpose of the court in making the order is intentionally frustrated: Attorney-General v Punch at 1050.

79 It is also settled law that a secondary participant who abets, counsels or procures the commission of an offence, is regarded a principal offender: Giorgianni v The Queen (1985) 156 CLR 473 at 490-491. There is no requirement that the commission of the offence result in the conviction of another person: Giorgianni at 491. The terms “aid, abet, counsel or procure” are declaratory of the common law concept of secondary participation: Giorgianni at 492.

80 To aid, abet, counsel or procure the commission of an offence by another involves a deliberate act. I set aside, for the purpose of the present discussion, the concept of wilful blindness which, in some circumstances is equivalent to a deliberate act. A deliberate commission or omission which is in breach of an order will constitute wilful disobedience unless it is casual, accidental or unintentional: Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113.

81 There can be no doubt that Steepleton committed the principal offence. It committed a breach of the Court’s publication order in the six respects described in par [6] above. Mr Pannowitz was the director of Steepleton. He caused Steppleton to publish the advertisement. There is no doubt that he aided, abetted, counselled and procured Steepleton to disobey the order of the Court.

82 I have accepted, however, Mr Pannowitz’ explanation for the omission of the logo of Steepleton – it did not have one. I have also accepted his explanation for the omission from the notice of those words which follow word “Environment”. I am not satisfied that this omission, including the “strap” (“the Environment Protection Authority is now part of the Department of Environment and Conservation”) and the logo of the Department, was deliberate. Mr Pannowitz has satisfied me that these omissions were casual, accidental and unintentional in the sense described in Mudginberri.

83 The other departures from the form of the notice ordered by the Court, noted in par [76] above, were, I find, deliberate. Mr Pannowitz agreed to the insertion of the notice on page 4 of the Newcastle Herald, rather than page 3; and he agreed to the notice being two columns in width rather than a quarter page in size. As I have observed, it seems that Mr Pannowitz left it to the last moment to place the advertisement and this would appear to have at least resulted in the size of the notice being what it was, and possibly also the position of the notice in the Newcastle Herald. It is incontestable that Mr Pannowitz deliberately caused the additional words to be inserted. In other words, I find beyond a reasonable doubt that Mr Pannowitz aided and abetted a contempt of court committed by Steepleton in the three respects described in par [76] above.

(3) SCANDALISING THE COURT

84 The offence of scandalising the court is a recognised form of criminal contempt: R V Hoserand Kotabi Pty Ltd [2001] VSC 443 at [45]; Hoser v R; Ex parte Attorney-General (Vic) [2003] VCSA 194 at [16]. The jurisdiction of the courts to punish such contempt exists for the purpose of preventing interferences with the course of justice: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442 - 443. In that case, Rich J said (at 442):

But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. … The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained.

85 The above stated views of Rich J have been adopted and reaffirmed in Re Colina; Ex parte Torney (1999) 200 CLR 386, by Gleeson CJ and Gummow J at 390 [2].

86 In Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887, Hope JA held (at 910 - 911) that:

…it may and generally will constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted mala fide, or has failed to act with the impartiality required of the judicial office.

87 In Gallagher v Durack (1983) 152 CLR 238, the High Court (Gibbs CJ, Mason, Wilson and Brennan JJ) said (at 243) that the authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.

88 In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Mason CJ said (at 31-32) that scandalising the court is a well-recognised form of criminal contempt and that it consists of acts done or writing published which is calculated to bring a court or a judge of that court into contempt or to lower his or her authority.

89 The prosecutor is not required to show that the comments actually did undermine the standing of the court or a judge of the court. It is sufficient if the advertisement had the tendency to do so, viewed objectively. In determining whether the advertisement had that tendency, it is to be judged by reference to its impact upon the ordinary reader, or a reasonable person: R v Brett [1950] VLR 226 at 232; Bell v Stewart (1920) 28 CLR 419 at 425 - 426; R v Hoser and Kotabi Pty Ltd at [52], Hoser v R; Ex parte Attorney-General (Vic) at [16].

90 In John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, the High Court (Dixon CJ, Fullager, Kitto and Taylor JJ) said (at 371):

The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances.

91 The tendency is to be judged at the time of publication and is not determined by the fact that for some reason no harm has resulted: R v David Syme & Co Ltd [1982] VR 173, Hoser v R; Ex parte Attorney-General (Vic) at [27].

92 Viewed objectively, the use of the words “This matter” in the phrase “This matter has been referred by Steepleton to ICAC for further investigation” clearly suggests that the Court and its determination in the original proceedings is or has been referred by Mr Pannowitz to the ICAC. That is to say, there is an allegation by Mr Pannowitz of corrupt conduct by the Court in arriving at its judgment. Viewed objectively, the words had an inherent tendency to scandalise the Court. I am satisfied beyond a reasonable doubt that by causing the additional words to be published Mr Pannowitz committed contempt by scandalising the Court.

(4) AIDING AND ABETTING STEEPLETON IN SCANDALISING THE COURT

93 For the same reasons explained in pars [78] to [81] above, I find beyond a reasonable doubt that Mr Pannowitz aided and abetted Steepleton in scandalising the Court.

CONCLUSION

94 I have found proved beyond a reasonable doubt that Mr Pannowitz has committed contempt of court in the following respects:

Environment Protection Authority v Steepleton Pty Ltd

Newcastle Herald

(ii) causing the notice to be one-sixteenth the size of a page, instead of at least a quarter-page in size as required by the order; and

This matter has been referred by Steepleton to ICAC for further investigation

(b) He added and abetted a contempt of court committed by Steepleton in that he procured a breach by Steepleton of the publication order by the same acts.

(c) He scandalised the Court by causing the notice to be published in the Newcastle Herald with the additional words: “This matter has been referred by Steepleton to ICAC for further investigation” .

Newcastle Herald

95 Having found the offence proved, it is appropriate that I now hear counsel on the question of the appropriate penalty. For this purpose I grant leave to the parties to approach the Registrar to obtain a further hearing date.

I hereby certify that the preceding 95 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

**********

Citations

Environment Protection Authority v Pannowitz [2006] NSWLEC 219

Most Recent Citation

Cases Citing This Decision

4

Liverpool City Council v Palerma Pty Ltd and Parilo [2008] NSWLEC 311

Owners Strata Plan 37762 v Pham and Ors [2007] NSWLEC 252

Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797

Cases Cited

18

Statutory Material Cited

3

Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175

R v Hoser and Kotabi Pty Ltd [2001] VSC 443

Witham v Holloway [1995] HCA 3

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CITATION:	Environment Protection Authority v Pannowitz [2006] NSWLEC 219
PARTIES:	PROSECUTOR: Environment Protection Authority DEFENDANT: Kenneth Warren Pannowitz
FILE NUMBER(S):	50024 of 2004
CORAM:	Lloyd J
KEY ISSUES:	Contempt :- non-compliance with publication order – interference with the course of justice – scandalising the Court – aiding and abetting an offence commited by another – punishment of a non-party Practice & Procedure: - charge of contempt against a non-party – separate proceedings should be brought against the non-party
LEGISLATION CITED:	Environmental Offences and Penalties Act 1989 s 14 (repealed) Land and Environment Court Act 1979 ss 41, 67, Protection of the Environment Operations Act 1997 ss 143(1), 250(1)(a)
CASES CITED:	Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342; Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887; Attorney-General v Punch Ltd [2003] 1 AC 1046; Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Bell v Stewart (1920) 28 CLR 419; Re Colina; Ex parte Torney (1999) 200 CLR 386; Environment Protection Authority v Steepleton Pty Ltd [2005] NSWLEC 175; Environment Protection Authority v Waight (2003) 125 LGERA 399; Gallagher v Durack (1983) 152 CLR 238; Giorgianni v The Queen (1985) 156 CLR 473; Harkianakis v Skalkos (1997) 42 NSWLR 22; Hoser v R; Ex parte Attorney-General (Vic) [2003] VCSA 194; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 352; Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Prothonotary v Hirata [2000] NSWSC 106; R v Brett [1950] VLR 226; R v David Syme & Co Ltd [1982] VR 173; R v Dunbabin; Ex parte Williams (1935) 53 CLR 434; R v Hoser [2001] VSC 443; Witham v Holloway (1995) 183 CLR 525;
DATES OF HEARING:	27/03/2006; 28/03/2006 and 29/03/2006
DATE OF JUDGMENT:	05/09/2006
LEGAL REPRESENTATIVES:	PROSECUTOR: D A Buchahan SC SOLICITOR: Stephen Garrett Environment Protection Authority DEFENDANT: D P M O'Dowd (barrister) SOLICITORS: Thomson Norrie