Fairfield City Council v Adams

[2009] NSWLEC 199

Land and Environment Court

of New South Wales

CITATION:	Fairfield City Council v Adams [2009] NSWLEC 199
PARTIES:	PLAINTIFF Fairfield City Council DEFENDANT Yalda Adams
FILE NUMBER(S):	40883 of 2006
CORAM:	Pain J
KEY ISSUES:	CONTEMPT :- failure to comply with court orders made by consent of parties - finding of civil contempt sought by Council - whether orders ambiguous for purposes of a contempt charge - whether deliberate non-compliance with court orders relevant to finding of contempt - whether failure to comply with orders deliberate
LEGISLATION CITED:	Civil Procedure Act 2005 Fairfield Local Environmental Plan 1994 Land and Environment Court Rules 2007 Supreme Court Rules 1970 Pt 55 Uniform Civil Procedure Rules 2005 Pt 40
CASES CITED:	Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Australian Consolidated Press v Morgan (1965) 112 CLR 422 Hearne v Street (2008) 235 CLR 125 Iberian Trust Limited v Founders Trust & Investment Co Ltd [1932] 2 KB 87 Kirkpatrick v Kotis (2004) 62 NSWLR 567 Markisic v Commonwealth of Australia (2007) 69 NSWLR 737 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 Witham v Holloway (1995) 183 CLR 525
TEXTS CITED:	Ritchie’s Uniform Civil Procedure NSW, Volume 2 (LexisNexis, 2005)
DATES OF HEARING:	20 October 2008 21 October 2008 19 March 2009 6 August 2009
DATE OF JUDGMENT:	20 November 2009
LEGAL REPRESENTATIVES:	PLAINTIFF Mr A Thompson (solicitor) SOLICITORS Ritchie and Castellan DEFENDANT Mr S Flanigan (barrister)

JUDGMENT:

LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 November 2009

40883 of 2006 Fairfield City Council v Adams, Yalda

JUDGMENT

1 Her Honour: These contempt proceedings relate to consent orders made by this Court on 12 February 2007 for the removal of landfill at Lot 50 DP1035646 5 Washington Way, Cecil Park (the land). The orders were made during the course of Class 4 civil enforcement proceedings in which the Plaintiff, Fairfield City Council (the Council), sought an order that the Defendant remove fill placed on the site without development consent. In the course of the hearing on 12 February 2007 the Council and the Defendant (who appeared in person on that day) agreed to the following consent orders being made:

The Court orders by consent:

The Court notes:

1. That the Respondent undertakes to the Court to lodge a development application with Fairfield City Council to seek approval for retention of the unauthorised fill on Lot 50 DP1035646 5 Washington Way, Cecil Park, on or before 25 May 2007.

2 The Council’s Notice of Motion for Contempt dated 3 September 2008 and Statement of Charge seeks an order that the Defendant be punished for contempt of order 1 of the Court’s orders made on 12 February 2007. That order came into effect on 15 October 2007 following suspension of order 1 by virtue of prayer 2 of the consent orders. In these proceedings I am making a finding as to whether contempt has occurred. Sentencing for any contempt, if found, will take place on another occasion.

3 Section 103 of the Civil Procedure Act 2005 (the CP Act), headed “Enforcement of an order of the court”, provides that the procedure for enforcing a judgment or order is to be prescribed by the rules of the court. Pursuant to r 6.3 of the Land and Environment Court Rules 2007, Pt 55 of the Supreme Court Rules 1970 (the SCR) applies to proceedings for contempt in Class 4 proceedings in this Court. Rules 5-11 of Pt 55 of the SCR set out the procedure for filing a Notice of Motion and Statement of Charge alleging contempt. The Court’s powers of punishment are set out in r 13. Under s 131 of the CP Act there is no limit on the power of the Court to attach or commit a person for contempt. The relevant rules in Pt 55 applicable to the commencement of contempt of Class 4 proceedings are as follows:

6 Procedure generally
(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.
…

7 Statement of charge
A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.
cf HCR, O 56, r 3 (a).

8 Evidence
(1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit.
(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.

9 Service
The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.

4 The interaction between the provisions of the CP Act and the Uniform Civil Procedure Rules 2005 (UCPR) and the SCR Pt 55 was considered by Biscoe J in Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92. His Honour notes at [36] that the relationship between SCR Pt 55 and UCPR Pt 40 is unclear, as noted by McHugh J in Witham v Holloway (1995) 183 CLR 525 at 544. McHugh J considered in obiter that the predecessor to Pt 40 of the UCPR, Pt 42 of the SCR, may have been intended to qualify the general powers in Pt 55 for contempt involving enforcement of orders. Biscoe J considered at [38] that SCR Pt 55 is qualified by UCPR Pt 40 to a limited extent in relation to a contempt motion seeking orders for committal or sequestration for disobeying an order unless a sealed copy of the order has been served as required by UCPR 40.7. Where punishment is by way of a fine Pt 40 of the UCPR will not apply.

5 The Council’s solicitor advised the Court in an email dated 20 October 2008 that it was not seeking imprisonment of the Defendant. Assuming that only a fine is sought as punishment in due course then only SCR Pt 55 applies to these proceedings.

Evidence

6 A chronology of events is set out below based on the affidavits read in these proceedings and the Court’s file record with which I am familiar as the presiding judge on each occasion.

Date
29/9/2006	Service of affidavit of James Pelosa sworn 18/9/2006 on Defendant (statutory declaration of Christopher Nolan dated 26/10/2006)
12/2/2007	Partial hearing before Pain J. Consent orders made without final determination.
25/5/2007	Last day for Defendant to comply with undertaking to lodge development application (DA).
14/6/2007	Letter from solicitors for the Council to Defendant concerning requirement to lodge DA pursuant to consent orders.
15/10/2007	Mention before Pain J, informed no DA lodged. Order 1 in orders made 12/2/2007 operational in absence of development consent.
1/11/2007	Copy of orders made 12/2/2007 served on Defendant pursuant to UCPR Part 40.7 (affidavit of service Daniel Bradley sworn 7/11/2007).
6/9/2008	Notice of motion for contempt, statement of charge and 4 affidavits served personally on Defendant (affidavit of service Darrell Willenberg sworn 8/9/2008).
19/9/2008	Motion for contempt returnable before Pain J, no appearance by Defendant, listed for hearing 20/10/2008.
2/10/2008	Letter from solicitors for the Council to Defendant re hearing 20/10/2008.
3/10/2008	Copy of letter dated 2/10/2008 served personally on Defendant (statutory declaration of Darell Willenberg declared 7/10/2008).
20/10/2008	Hearing of contempt motion before Pain J, no appearance of Defendant, affidavits read for Council.
21/10/2008	Hearing of contempt motion continued, Defendant appears unrepresented, matter stood over to allow Defendant to file DA. The Court noted that the Defendant was to immediately lodge a DA including a plan of the area of fill to be retained and a report of A.D. Envirotech Pty Ltd, the Defendant’s consultant, dated 18 July 2007 (tendered by the Defendant at the October 2008 hearing as part of exhibit 3). The Defendant was also to lodge a comprehensive assessment and design by A.D. Envirotech of testing of fill for asbestos depth and core testing and a statement of environmental effects by a qualified town planner.
28/1/2009	Mention before Pain J, no DA lodged, matter set down for hearing 19/3/2009.
19/3/2009	Hearing before Pain J, matter stood over for mention 29/4/2009, pro bono barrister retained to assist Defendant in lodging DA.
29/4/2009	Mention before Pain J, matter stood over for mention 27/5/2009 in anticipation of DA, planner’s report and asbestos testing report being lodged.
27/5/2009	Mention before Pain J, no DA lodged, matter set down for hearing 6/8/2009.
5/8/2009	Defendant’s development application refused by Council.
6/8/2009	Further hearing on motion for contempt.

7 An affidavit of James Pelosa sworn 19 September 2006 was read in the contempt proceedings and at the hearing on 12 February 2007. In his affidavit Mr Pelosa, a surveyor for the Council, attests that on 15 December 2005 he was provided with copies of two drawings for the purpose of calculating landfill at the site, both of which were annexed to his affidavit. One drawing was prepared prior to the landfill (dated May 2000) and the other prepared subsequent to the landfill (dated 28 February 2005). Mr Pelosa calculated 2100 cubic metres of landfill had been placed at the site and prepared a plan dated 8 August 2005 identified as JP3. This became exhibit B in the proceedings on 12 February 2007 and is referred to in order 1 of the consent orders made 12 February 2007.

8 Mr Pelosa’s affidavit of 19 September 2006 was served on the Defendant on 29 September 2006 as evidenced by the statutory declaration of Christopher Nolan, licensed commercial agent, dated 26 October 2006.

9 In another affidavit sworn 21 August 2008, which was read in the contempt proceedings, Mr Pelosa states that he was asked to carry out a survey of the site in June 2008 to ascertain whether the 2100 cubic metres of landfill as calculated in his earlier affidavit still remained. He referred to two plans, one annexed to the affidavit of Mr Kerfoot dated 21 August 2008 which was prepared in June 2008 (see par 10), the other prepared in February 2005 and annexed to Mr Pelosa’s affidavit. Apart from minor variations in levels between the two plans there was, in Mr Pelosa’s opinion, no apparent or substantial increase or decrease in ground levels that would indicate any fill had been removed since the earlier survey in February 2005. He stated that there was still approximately 2100 cubic metres of landfill at the site.

10 An affidavit of Robert Kerfoot sworn 21 August 2008 was read for the Council. Mr Kerfoot is a surveyor with Fairfield City Council and was asked by Mr Pelosa to carry out a survey of the site in June 2008. Annexed to his affidavit is the plan dated June 2008 prepared pursuant to the survey showing the levels at the site and other detail.

11 An affidavit of Roger Kwan sworn 29 August 2008 was read for the Council. Mr Kwan referred to the affidavit of Mr Pelosa sworn 19 September 2006 including annexure JP3 (exhibit B). Mr Kwan attested to visiting the site on 11 October 2007 with another council officer. They walked to the rear of the land and Mr Kwan observed that the area of fill which had been plotted in exhibit B was the same as when Mr Kwan had previously inspected the area on 8 March 2006 and 4 July 2006 other than that it had since become covered with vegetation and grassed. Mr Kwan annexed photographs to his affidavit that he took at the time. Mr Kwan also had a conversation with the Defendant who stated that he would lodge a DA on 12 October 2007. The Defendant asked for the time and place of the court hearing on 15 October 2007. Mr Kwan confirmed that it would be at the Land and Environment Court but said he could not specify the time. At the Defendant’s request Mr Kwan gave the Defendant the name and phone number of the Council’s solicitors.

12 Mr Kwan visited the site again on 10 April 2008. He attests the site was in the same state as on 11 October 2007. The Defendant told Mr Kwan that he had twice tried to lodge a DA for the landfill but that the Council had refused to accept it because of insufficient information. Mr Kwan asked the Defendant if he had removed any of the landfill since February 2007. The Defendant said he had not. The Defendant stated that he had removed several trucks of fill after being approached by the Council but he could not recall when. The Defendant stated that his DA to build a machine shed in the south eastern corner of the land had been refused because vehicular access to the shed went over the illegal landfill. The Defendant stated that the Council continued to refuse lodgement of a DA for approval of the landfill. Mr Kwan told the Defendant that he was required to engage a professional consultant and engineers in order to lodge the DA and that a private certifier may be qualified to provide all the required documentation. The Defendant stated that he would approach a friend who was a private certifier. Mr Kwan took photographs, three of which are annexed to his affidavit. Mr Kwan states that as at the date of his affidavit no fill had been removed since the consent orders were made on 12 February 2007.

13 An affidavit of John Ritchie, solicitor for the Council, sworn on 2 September 2008 was read for the Council. Mr Ritchie attests to being in Court on 12 February 2007 when the consent orders were made. Mr Ritchie also attended the Court on 15 October 2007 when the Court was informed that the Defendant had not yet lodged a DA and attests that the Defendant did not appear in Court that day. Annexed to Mr Ritchie’s affidavit were the following documents:

· Consent orders dated 12 February 2007.

· Letter dated 5 March 2007 from the solicitors for the Council to Shadow Commercial Services requesting personal service on the Defendant of the orders dated 12 February 2007.

· Letter dated 4 June 2007 from the solicitors for the Council to the Defendant noting that no DA had been lodged contrary to the orders of 12 February 2007 and seeking that the Defendant advise of his intentions.

· Letter dated 16 October 2007 from the solicitors for the Council to the General Manager of the Council noting the mention of the matter before Pain J on 15 October 2007. The letter stated that a solicitor (Mr Thompson) informed the Court that nothing had occurred at the site since the orders were made on 12 February 2007. Mr Thompson referred to the inspection of the site on 12 October 2007 by Mr Kwan and photos taken by Mr Kwan were tendered (exhibit E). Mr Thompson also tendered the Council’s solicitors’ letter to the Defendant dated 4 June 2007 (exhibit C) and the affidavit of service of the orders (exhibit D).

· Letter dated 16 October 2007 from the solicitors for the Council to Shadow Commercial Services requesting personal service of an attached letter on the Defendant. The attached letter dated 16 October 2007 referred to the mention of the matter before the Court on 15 October 2007. The letter stated that the orders were operative and that the Defendant would be in breach of order 1 and in contempt of court until the fill is removed. The letter dated 4 June 2007 from the Council’s solicitors to the Defendant and a copy of the orders made 12 February 2007 were purportedly attached.

14 The Council tendered a Notice of Determination dated 5 August 2009 (exhibit G) to refuse the Defendant’s DA, described as being for the retention of fill, driveway and associated landscaping. The reasons for the refusal given are insufficient information being provided to the Council to assess the impacts of the proposed development, inconsistency with the Fairfield Local Environmental Plan 1994, inconsistency with the Fairfield Stormwater Drainage Policy, that the site is not suitable for the proposed development and that the development is not in the public interest.

Council’s submissions

15 The requirements of Pt 55 of the SCR have been complied with. The evidence speaks for itself in demonstrating that there has been contempt of court by the Defendant in failing to remove the fill as required by order 1. Distinctions between technical contempt and wilful contempt are relevant to penalty only.

16 In response to the Defendant’s submissions (see par 19), the Council submits that order 1 made on 12 February 2007 were not uncertain. It was not necessary for exhibit B to be annexed to the order when the plan labelled exhibit B had already been served on the Defendant as an annexure to the affidavit of Mr Pelosa. Exhibit B does satisfactorily specify the fill to be removed. The orders were made by consent of both parties and the Defendant could not have been uncertain as to what order 1 required him to do.

17 An order that the Court is satisfied beyond reasonable doubt that the Defendant breached the order and is in contempt should be made, per Biscoe J in Kelly (No 3) at [101].

18 The Defendant submits that there are three issues relevant to these contempt proceedings. First, that the order was uncertain in its operation by referring to exhibit B. Second, that the Defendant did not deliberately fail to comply with the order and third, that the Defendant has actively but unsuccessfully sought to comply with the order.

(i) order is uncertain on its face

19 The Defendant submits that the order is uncertain on the face of the document and the Court should not punish a person for not carrying out an order which is in ambiguous terms, per Luxmoore J in Iberian Trust Limited v Founders Trust & Investment Co Ltd [1932] 2 KB 87. The plan in exhibit B does not make clear what is required of the Defendant. Exhibit B did not specify the amount of fill which needed to be removed in order to comply with the order 1. It only provided an indication of what needed to be removed. It is irrelevant to certainty that the orders were made by the consent of both parties. Further, exhibit B was not annexed to the orders made by the Court and the only copy of exhibit B was not readily accessible to the Defendant as it was held on the court file.

(ii) no deliberate non compliance

20 A finding that there has been contempt of court by a party to proceedings requires proof of deliberate non-compliance, per Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 370, Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109 and Markisic v Commonwealth of Australia (2007) 69 NSWLR 737 at [64]. No evidence of deliberate non-compliance has been presented by the Council.

(iii) compliance has been attempted

21 Exhibit G, tendered by the Council, demonstrates that the Defendant has taken steps to regularise the work by lodging a DA but this has been unsuccessful because the Council has refused the application. Any breach of order 1 was not deliberate.

Finding

22 I should firstly determine whether the procedural requirements of SCR Pt 55 r 6, r 7, r 8 and r 9 have been complied with. The Council’s Notice of Motion for Contempt dated 3 September 2008, the Statement of Charge dated 3 September 2008 and four supporting affidavits which were referred to earlier at par 9-13 were filed on 4 September 2008, as required by r 6 and r 8. Mr Darrell Willenberg attested to serving the Notice of Motion for Contempt, the Statement of Charge and the four supporting affidavits on the Defendant on 6 September 2008, as required by r 9.

23 The Statement of Charge recounts the consent orders made by the Court on 12 February 2007 being to remove from Lot 50 DP 1035646, 5 Washington Way, Cecil Park, the amount of fill indicated by exhibit B, annexure JP3, being plan dated 8 August 2005 prepared by James Pelosa. The Statement of Charge stated that the Defendant had failed to comply with the order and satisfies r 7. The procedural steps taken by the Council are also identified in the affidavit of Mr Ritchie, the Council’s solicitor, identified in par 13. The procedural steps required prior to the hearing of the Notice of Motion for Contempt have been complied with in this matter.

24 Contempt of a court order is civil contempt rather than criminal contempt if not contumacious, per Witham v Holloway at 530 which is discussed further at par 39. There is no reference in the Council’s pleadings or argument that the motion is pressed on the basis of criminal contempt. I will deal with the matter on the basis of civil contempt. It is necessary that the Council establish proof of the contempt beyond reasonable doubt. That requires proof that order 1 was made, could be complied with and was not complied with.

(i) whether order 1 made by the Court

25 Order 1 was made by the Court on 12 February 2007 and confirmed on 15 October 2007, as is clear from the Court’s record. The Defendant was advised of this by the Council’s solicitor in November 2007.

(ii) whether order 1 ambiguous for purposes of a contempt charge

26 Considering whether order 1 could be complied with, the Defendant’s counsel has submitted that order 1 is ambiguous and does not make clear on its face what is required in order to comply with it. Firstly, he submitted that the plan referred to as exhibit B in the order was not attached to the order. I do not agree that exhibit B had to be attached to the order to render the order clear on its face. The identification of exhibit B would be clear from an inspection of the court file. I do not agree that the court file was inaccessible to the Defendant. He is a party to the proceedings and entitled to inspect the court file and make copies of any documents that he needed to. Further, the Defendant received a copy of exhibit B tendered in the proceedings in February 2007 as it was attached to the affidavit of Mr Pelosa sworn 19 September 2006 and marked JP3. This affidavit was served upon the Defendant on 29 September 2006 as identified in the statutory declaration of Christopher Nolan, licensed commercial agent, dated 26 October 2006.

27 A further argument raised is that the plan which is exhibit B is not clear on its face about what has to be done. The plan includes a number of contour lines on which depths of fill are marked. One contour line on the outer edge is marked “limit of fill”. The contour lines of the land before the fill was placed are also identified. The extent of fill is identified on the plan by the contour lines. The copy of the plan that is exhibit B is a black and white photocopy of the original plan. It does require careful reading as a highlighter pen has been used to identify additional contour lines and figures identifying the depth of fill placed on it by Mr Pelosa, some of which are hard to read on the photocopy. They can all be read with a careful reading. To completely understand the plan in exhibit B consideration of the surrounding circumstances is necessary.

28 Order 1 made on 12 February 2007 requires the Defendant to remove the amount of fill indicated in exhibit B. The fill is identified in exhibit B. The plan exhibit B and order 1 do not state the amount of fill that has to be removed. To the extent that there is uncertainty about the amount of fill and the location of the fill that has to be removed, the issue arises of whether surrounding circumstances should be taken into account in determining if the order is clear. The Defendant’s counsel relied on Iberian Trust Limited v Founders Trust & Investment Co Ltd to argue that failure to comply with an ambiguous order should not be punished. In Iberian the plaintiff company obtained an order against the defendant company for the return of shares. The defendant failed to comply with the orders and the plaintiff sought enforcement of writs of attachment against the defendant company’s directors. Luxmoore J considered that the order did not define the steps which were to be taken by the defendant in order to comply with it. His Honour held at 95 that “if the Court is to punish any one for not carrying out its order the order must in unambiguous terms state what is to be done”. His Honour recognised at 95 that a duty to “find out the proper means of obeying the order” rested upon a defendant where an order required the defendant to do something. However in this case his Honour stated at 96 that the terms of the order could not be construed as requiring the defendant to do something.

29 Each case must depend on its own circumstances. In Kirkpatrick v Kotis (2004) 62 NSWLR 567 (referred to in Ritchie’s Uniform Civil Procedure NSW, Volume 2 (LexisNexis, 2005) at [SCR Pt 55.8.4B]) the defendant had, according to the plaintiff, acted in breach of consent orders made in the Supreme Court which required the defendant to cease excavation on his land until underpinning work had been undertaken. In terms of the underpinning work, the consent orders referred to an expert report annexed to an affidavit of a structural engineer. The charge of contempt was for excavation works which were carried out before the requisite underpinning. In rejecting the defendant’s submission that the consent orders “should be looked at as a freestanding piece of prose, unaffected by any surrounding circumstances, for the purpose of deciding their construction” (at [39]), Campbell J held at [45] that “authority and principle both favour the view that surrounding circumstances can be used to construe a consent order.” Referring to, inter alia, Iberian and Australian Consolidated Press v Morgan (1965) 112 CLR 422, Campbell J considered ambiguous orders generally at [55]:

…the court approaches the question of whether the order is ambiguous with the caution appropriate to a type of litigation which could result in the defendant being punished — if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail. This means that there will sometimes be orders which a grammatical analysis would show to contain a syntactic ambiguity, but which are none the less enforceable if it is the type of ambiguity that has no real risk of misleading. There will sometimes be orders which contain a term which has multiple meanings, but where that semantic ambiguity has no real risk of misleading. If there were to be an order addressed to a promoter of musical groups not in any way to be involved in the advertising or promotion of a band under some particular name, the order would be enforceable notwithstanding that a "band" can sometimes be a rubber band, or a headband

At [56]-[57] Campbell J considered ambiguity in the context of consent orders the subject of contempt proceedings:
In deciding whether an order is certain enough to be enforceable by contempt proceedings, the task of construction of an order can go far enough to enable ambiguities which have no real risk of misleading someone who is trying to understand and obey the orders to be discarded.
…In the case of consent orders, where surrounding circumstances can be used as an aid to construction, those surrounding circumstances can have the effect that an order which is ambiguous, considered in isolation, is found to be not ambiguous when read in light of the surrounding circumstances. As the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account. Hence it is appropriate that any question of whether the order is ambiguous should be answered only after such facts have been taken into account.

30 His Honour held that, with the exception of one order specifying how excavation could be carried out, the orders did not contain any ambiguity of a type which could result in there being no finding of contempt.

31 Kirkpatrick identifies that the circumstances at the time the consent orders were made can be considered in order to assess whether an order is ambiguous or its requirements are clear. As to the amount of fill required to be removed, the issue is whether order 1 is ambiguous or lacks important information which is necessary to make the order clear. I consider the surrounding circumstances of the making of the order can be considered in this regard as matters known to the parties which would be taken into account by a person trying to understand and obey the order. The Defendant caused the fill to be placed on the land. He was present at the hearing and gave oral evidence before the parties agreed on consent orders. He was present in Court when the consent orders, signed by himself and the Council’s solicitor, were handed up.

32 The plan which is exhibit B was attached as JP3 to the affidavit of Mr Pelosa sworn 19 September 2006. This was read in the part-heard proceedings in February 2007 and was served on the Defendant before the proceedings commenced. Also attached to that affidavit were two plans identified as JP1 and JP 2. JP1 shows the original contours of the land before the fill was placed on the land. JP2 shows the contours of the land subsequent to the fill being placed. The affidavit identified that 2100 cubic metres of fill had been placed on the land based on these two plans. That information was known to the Defendant at the time that the consent orders were made and informs his understanding of order 1 and the reference to the amount of fill.

33 Further, JP3 was prepared to show the fill placed on the land and does so although, as noted above in par 27, the use of a highlighter pen on what became a black and white photocopy of the plan (being exhibit B) requires some effort to read. Its interpretation is assisted, in my view, by reference to JP1 which shows the contours of the land before fill was placed and JP2 which shows the contours after fill was placed in my view. Both of these plans were also provided to the Defendant. In light of all the information available to the Defendant at the time order 1 was made I consider the requirements of the order are clear.

34 In light of all these circumstances, I do not consider order 1 is ambiguous and is clear for the purpose of founding this charge of contempt.

(iii) whether court order complied with

35 The Court must make a finding whether order 1 has been complied with. The evidence of Mr Kwan and Mr Pelosa summarised above in par 9 and 11-12 proves beyond reasonable doubt that order 1 has not been complied with. The fill the subject of order 1 has not been removed by the Defendant.

(iv) whether deliberate non-compliance with court orders relevant to finding of contempt

36 The Defendant’s counsel also submitted that the Council had to establish that the non-compliance was deliberate in order to establish contempt, relying on Attorney-General (NSW) v John Fairfax & Sons Ltd (1980). In that case the defendant was charged with contempt of court for publishing incriminating statements made by a person charged with murder. The unanimous judgment of the Court of Appeal considered when a penalty for contempt ought be imposed in the context of publications about pending proceedings. At [16] the Court stated:

It would be wrong to assume that it follows that there are two forms of contempt, one being “technical” contempt and the other being “actual” contempt. “Technical” contempt is contempt.

The circumstances of the contempt are relevant to whether there should be punishment for contempt as stated at [29]:
Once contempt is established, the court has to decide what action it should take, in the light of all the circumstances of the particular case. It should not punish simply because contempt has been established.

37 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) concerned a dispute between an employer and a union. An injunction was obtained by the employer restraining the union from establishing a picket line. The union did not comply with the injunction. In the Federal Court the defendants were fined $10,000 plus a further $2,000 per day as long as the breach of the court order continued. The union refused to pay the fine and in response a writ of sequestration was issued to recover the fines. The union appealed to the High Court after an appeal to the Federal Court on the penalty for contempt and the issuing of the writ was unsuccessful. On the issue of the penalty for contempt, the majority judgment of Gibbs CJ, Mason, Wilson and Deane JJ (Brennan J dissenting only on whether the additional daily penalty should be imposed) held that the distinctions between wilful disobedience of a court order and casual, accidental or unintentional contempt were relevant to penalty in that a penalty should be imposed in the case of “disobedience of orders in circumstances where the disobedience is wilful”. The imposition of a penalty for contempt was upheld by the majority on the basis that the contempt was wilful.

38 These two cases do not support the submission of the Defendant’s counsel that in order for contempt to be proved it must be shown to be deliberate. Rather they deal with the appropriate punishment for contempt, which I am not dealing with in this judgment. Contempt can be found even where it is not deliberate. That view is supported by Marksic per Campbell J at [62] – [64] where his Honour considered it was the High Court’s view in Australasian Meat Industry Employees’ Union v Mudginberri Station that the imposition of punishment for breach of a court order is only justified if there is wilful disobedience.

39 A finding of contempt does not require a finding that disobedience was deliberate. That is confirmed in this Court, most recently in Kelly (No 3). In that case the defendant was charged with contempt for breaching a court order requiring a garage structure to be demolished. The defendant’s counsel submitted that he was not guilty of contempt on several grounds including that the Statement of Charge was deficient in not alleging that the contempt was contumacious. Biscoe J considered the distinction between criminal and civil contempt and stated at [48] that “Disobedience of a court order in a civil proceeding is a civil contempt but amounts to criminal contempt if it involves deliberate defiance; that is, as is sometimes said, if it is contumacious”. His Honour referred to Hearne v Street (2008) 235 CLR 125 in stating that determining whether a contempt charge is for criminal or civil contempt turns on whether the purpose of the charge is remedial or coercive (civil contempt) or punitive (criminal contempt). His Honour concluded at [58]:

Disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if: (a) the disobedience was contumacious: Witham v Holloway ; or (b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street .

40 Holding that the charge was one of civil contempt, his Honour stated that the Statement of Charge was not deficient in failing to allege contumacious disobedience. Biscoe J also stated that whether the contempt was contumacious, wilful or technical, which his Honour recognised as three classes of contempt, was relevant only to penalty. A finding of contempt can be made in all three cases. In cases of technical contempt, also described as casual, accidental or unintentional, his Honour stated that the authorities have generally held that it is rarely “deserving of punishment by fine or committal” [82], considering Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd, inter alia. I consider that I can make a finding of contempt where I make no finding that the failure to comply was deliberate.

(v) Was failure to comply deliberate?

41 It follows from my finding in par 40 that I do not need to make a finding now concerning whether the failure to comply with order 1 was deliberate. Given the arguments made I will however consider this matter. The Defendant’s counsel argued that the Defendant had been taking steps to comply with the order as demonstrated by the fact that he has now lodged a DA, which the Council has refused. Any failure to comply with the order was not deliberate.

42 The lengthy history of the proceedings leading up to and since the filing of the Notice of Motion for Contempt is set out above in par 6. The consent orders were made on 12 February 2007 and confirmed on 15 October 2007 when the Council advised the Court that no DA had been lodged. There was no appearance by the Defendant on that occasion. The orders were served on the Defendant in November 2007. The motion for contempt was issued in September 2008 and set down for hearing on 20 October 2008 when the Defendant did not appear. The hearing continued on 21 October 2008 when the Defendant did appear without legal representation. He told the Court he had attempted to lodge a DA with the Council but had not been able to as the Council officer told him it would not be approved. This is also confirmed in the affidavit of Mr Kwan summarised at par 11-12. It was apparent the nature of the documents the Defendant was trying to lodge in support of the DA were inadequate. The Court noted on 21 October 2008 that the Defendant was to immediately lodge a DA including a plan of the area of fill to be retained and a report of A D Envirotech Pty Ltd, the Defendant’s consultant, dated 18 July 2007 (tendered by the Defendant at the October 2008 hearing as part of exhibit 3). The Defendant was also to lodge a comprehensive assessment and design by A D Envirotech of testing of fill for asbestos, depth and core testing, and a statement of environmental effects by a qualified town planner.

43 The Notice of Motion for Contempt was relisted for hearing on 19 March 2009. The matter was stood over again on this date to enable a DA to be lodged with the Council and the Council’s solicitor assisted in finding a barrister to represent the Defendant pro bono. Counsel appeared for the Defendant on 29 April 2009 and the matter was stood over for one month in anticipation that a DA, planner’s report and an asbestos testing report would be lodged with the Council. At the mention on 27 May 2009 no DA had been lodged. The matter was set down for further hearing on 6 August 2009. A DA was subsequently lodged and was refused by the Council on 5 August 2009. The reasons given for refusal are set out in the Council’s Notice of Determination (see par 14) and include insufficient information being provided to enable an assessment of the impacts. The contempt motion was finally heard on 6 August 2009. I am informed that the Defendant has lodged a Class 1 appeal against refusal of his development application. The hearing of that appeal is pending.

44 The Council (and the Court) have provided ample opportunity to the Defendant to lodge an adequate DA in relation to the fill the subject of order 1. As already indicated, whether the failure to comply with order 1 was deliberate is ultimately a matter relevant to sentence and will be considered in that context at a later hearing. The Defendant may wish to provide further evidence to explain why lodging a DA has taken so much time.

Conclusion

45 The Council has established beyond reasonable doubt that order 1 made by consent on 12 February 2007 being that referred to in the Statement of Charge has not been complied with by the Defendant. The fill the subject of order 1 has not been removed by him. I will make the order sought in the Council’s submissions (par 17).

Costs

46 The Council seeks the costs of its Notice of Motion and I will give the parties opportunity to address this issue before finalising an order.

Order

47 The Court is satisfied beyond reasonable doubt that the Defendant has breached order 1 of the Court dated 12 February 2007 and is in contempt.