Fairfield City Council v Camilleri

[2024] NSWLEC 56

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fairfield City Council v Camilleri [2024] NSWLEC 56

Hearing dates:

29 May 2024

Date of orders:

30 May 2024

Decision date:

30 May 2024

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [64]

Catchwords:

CONTEMPT — Civil contempt — Breach of orders — Guilty plea — Wilful contempt — Fine imposed — Costs ordered

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fairfield Local Environmental Plan 2013

Fines Act 1996 (NSW), s 6

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; [1986] HCA 46

Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279

Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390

Director ofPublic Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194

Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340

Fairfield City Council v Camilleri [2019] NSWLEC 95

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Mirus Australia Pty Ltd v Gage [2018] NSWSC 35

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Re. Group Pty Ltd v Kazal (No 4) [2017] FCA 1084

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Wood v Staunton(No 5) (1996) 86 A Crim R 183

Category:

Sentence

Parties:

Fairfield City Council (Applicant)
Saviour Camilleri (Respondent)

Representation:

Counsel:
R White (Applicant)
M Harker (Respondent)

Solicitors:
Houston Dearn O’Connor Lawyers (Applicant)
TTP Legal & Co (Respondent)

File Number(s):

2022/00149918

Publication restriction:

Nil

JUDGMENT

Introduction

1. By notice of motion filed 11 August 2023, Fairfield City Council (‘Council’) seeks orders that Saviour Camilleri be found guilty of contempt of this Court for disobeying or otherwise failing to comply with orders made on 3 November 2022 and that he be punished by way of conviction, fine, or imprisonment. Mr Camilleri pleaded guilty to the charge on 10 November 2023 and a hearing on penalty proceeded on 29 May 2024.

2. For the reasons that follow, I find that Mr Camilleri has committed wilful contempt of this Court as charged and that this contempt is objectively serious. I consider it appropriate to impose a fine in relation to the charge.

Background

3. An understanding of the salient background facts provides context for the detailed submissions and evidence received. Further facts will be detailed in my consideration of the evidence and the parties’ submissions.

4. At all material times, Mr Camilleri has owned land at 223 to 235 Burley Road, Horsley Park being Lot 230A in DP 17288 (the ‘land’). For some time, he used the land for the purpose of a waste or resource management facility – a use which was and is prohibited under the Fairfield Local Environmental Plan 2013 (‘FLEP’).

5. On 24 May 2022, Council commenced Class 4 civil enforcement proceedings against the Mr Camilleri seeking the following relief:

“1.   The Respondent, his servants, agents, contractors and assigns within seven days of the date of Orders being made by the Court must:

(a)   Cease to use land at 223 to 235 Burley Road Horsley Park New South Wales 2175 (“the land”) for the purposes of a waste or resource management facility as defined by the Fairfield Local Environmental Plan 2013 (“the FLEP”)

(b)   Remove from land [at 223 to 235 Burley Road Horsley Park] all waste materials, including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks and unregistered trailers.

2.   The Respondent, his servants, agents, contractors and assigns are hereby restrained from introducing, stockpiling, keeping, storing or the like any waste materials onto the land, including but not limited to the items referred to at 1(b) herein.

…”

6. On 1 November 2022, the Court received signed consent orders disposing of the Class 4 proceedings and, in accordance with those consent orders, the Court made the following orders on 3 November 2022:

“By consent:

1.   Before the expiry of three months after the date of these Orders being made by the Court the Respondent, his servants, agents, contractors and assigns must:

(a)   Cease to use 223 to 235 Burley Road Horsley Park New South Wales 2175 (“the land”) for the purposes of a waste or resource management facility as defined by the Fairfield Local Environmental Plan 2013 (“the FLEP”); and,

(b)   Remove from the land all waste materials including but not limited to building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, metal roofing, metal fencing, metal piping, tyres, baths, sinks, metal drums, scrap metal, metal roofing, plastic pipes, refrigerators, hot water systems, timber, plastic, plastic containers, unregistered trucks and unregistered trailers.

2.   After the expiry of three months from the date of these Orders being made by the Court and thereafter continuing as an obligation the Respondent, his servants, agents, contractors and assigns must not introduce, stockpile, keep, or store any waste materials onto the land, including but not limited to the items referred to at 1(b) herein.

3.   The Respondent must pay the Applicant's costs as agreed in the sum of $10,000.00 before the expiry of three months of the date of these Orders being made by the Court.

4.   These proceedings are otherwise dismissed.”

(‘Court Orders’)

7. On 8 February 2023, shortly after the time for compliance with the Court Orders had expired, Frank Bono, the Investigations Officer (building and compliance) employed by Fairfield City Council, attended the land and observed that waste materials, including of the type referred to in Court Order 1(b), continued to be kept and stockpiled on the land. He took photographs of what he saw on the land on that occasion.

8. On 1 March 2023, Mr Bono again attended the land and observed that waste materials had not been removed from the land and continued to be stockpiled, kept, or stored on the land. The materials included abandoned vehicles, metal piping, metal roofing, bricks, and other waste materials.

9. On 6 June 2023, Mr Bono again attended the land and observed that items and materials that he had observed previously on the land had not been removed and further materials including a trailer full of waste material, four trucks, an excavator, and one truck containing six full skip bins.

10. On 13 July 2023, Mr Bono again attended the land and observed that metal roofing, metal piping, bricks, pallets, abandoned trucks, excavators, skips containing waste materials and other waste items falling within the description in Court Order 1(b) remained on the land.

11. Council commenced these contempt proceedings on 11 August 2023 and an amended statement of charge was filed 13 September 2023. Mr Camilleri entered his plea of guilty on 10 November 2023.

12. On 5 March 2024, Mr Bono again attended the land and observed that the items and waste materials previously noted had not been removed.

13. On 24 May 2024, Mr Bono again attended the land and observed that a “small amount of [previously present waste] material had been removed from the land”, however noted that, “there remained on the land an old truck, an old car, building and construction rubbish, blue netting, barrels, timber, metal, corrugated iron, piping and pipes, wire, concrete, fencing and piled up debris”.

14. It is agreed that Court Orders 1(a) and 1(b) were required to be complied with by Mr Camilleri by no later than 3 February 2023, and provided that after this date no waste materials were permitted to be introduced, stockpiled, kept, or stored on the land.

15. At all material times Mr Camilleri has been aware of the Court Orders and the later contempt motion filed on 11 August 2023 having been personally served with the Court Orders on 21 December 2022 and copies of the motion and statement of charge on 6 September 2023.

Evidence

16. Council’s evidence comprised five affidavits of Frank Bono sworn 2 June 2022, 21 December 2022, 9 August 2023, 11 March 2024 and 27 May 2024 as well as a bundle of background documents including photographs.

17. Mr Bono’s evidence is briefly summarised in the background facts noted above and further considered in more detail later in this judgment where I consider the factors relevant to fashioning a penalty for contempt.

18. Mr Camilleri relied upon the affidavits of Theresa Ngo, his solicitor, dated 8 April 2024 and Paul Camilleri, his brother, dated 8 April 2024; and a report of Susan Homeh Hawil, psychologist, filed 21 March 2024 (which attached a “Treatment Plan” dated 15 March 2024) and two earlier reports dated 16 October 2018 and 21 May 2019 of Michelle Fisher, another psychologist, which were prepared by Ms Fisher for use in earlier contempt proceedings where Mr Camilleri had pleaded guilty to two charges of contempt for failing to comply with earlier Court orders.

19. Apart from the evidence marshalled on his behalf, Mr Camilleri, although present in Court, provided no personal evidence.

20. Ms Ngo’s evidence related to two inspections she undertook of the land. On 24 September 2023, she attended the land with Mr Camilleri and his brother, Paul Camilleri, where she observed extensive material scattered throughout the property including motor vehicles, a wall of various cardboard boxes, six or seven skip bins full of miscellaneous material and other various items. She also saw eight trucks and two farming vehicles as well as bags of broken wood, metal sheets, metal frames, fence-like material, plastic containers, and other material which she photographed.

21. During Ms Ngo’s second inspection of the land on 2 April 2024, she saw one registered truck and one unregistered truck, four skip bins, three of which were “mostly empty”. She noted that a number of piles of miscellaneous items previously viewed were no longer present. Although she saw “piles of building materials”, she was informed by Mr Camilleri that these were there for fixing the property fence. Based upon her observations, Ms Ngo estimated that the amount of material on the property to be “…about 40% less than the amount of materials I originally saw on my visit of 24 September 2023” however, she stated that “there was still a considerable amount of materials on the property”.

22. In his affidavit, Paul Camilleri deposed as follows:

1. That he had observed Mr Camilleri as a child and as an adult being constantly fidgeting, easily distracted, and having difficulty concentrating. More recently, Mr Camilleri has been unable to maintain relationships, has had outbursts of anger, and exhibited poor hygiene. He noted that his brother was “always losing items and blames it on others” and stated that “Saviour’s head is not synchronised with everyone else and it has been like this since childhood…”.

2. That Mr Camilleri gets “really attached to items that he places a value on or expects will be of use in the future”, and that his “condition” has worsened over the last few years.

3. That a nephew (Jason Camilleri) and another friend (John Cauci) have been able to assist with identifying which items on the land needed to be disposed of.

4. That for many years Mr Camilleri had a long-term partner (Diane Borg) who assisted him with his day-to-day living such as repairing his tools, registering his vehicles, negotiating work opportunities and making medical appointments, however, she has been unable to provide assistance over the last few years.

5. That in relation to Mr Camilleri’s financial position, Paul Camilleri deposed that he had been unable to work consistently since August 2023 and one of the reasons is that Mr Camilleri has “stopped using his property for work because he is unable to bring new materials onto the property” and that Mr Camilleri’s income had therefore dropped in the last six months in circumstances where between 25 March 2023 to 24 September 2023, Mr Camilleri’s income was “about $159,000”, and later between 25 September 2023 and 23 March 2024, his income fell to “about $38,000”.

6. That Mr Camilleri’s assets include the land, which is subject to a large mortgage, a Skid Steer loader (which is also subject to a loan), two trucks and two trailers, and that as at 23 March 2024, Mr Camilleri has a balance of “about $2,000” in his savings account.

23. Ms Hawil, a consultant psychologist, provided a report dated 21 March 2024 based upon one attendance upon Mr Camilleri (in company with Paul Camilleri) conducted via audio visual link (‘AVL’) on 22 January 2024. She noted that in preparing her report, she considered certain background documentation including an earlier judgment of the Court, a discharge summary from Blacktown Hospital dated 17 July 2019, earlier reports dated 16 October 2018 and 21 May 2019 prepared by Michelle Fisher, clinical psychologist, and a “Mental Health Care Plan” dated 21 June 2019 prepared by Dr Eva Morris.

24. Ms Hawil, who was not cross-examined, opined that “in terms of formal diagnoses Mr Camilleri is suffering from the following disorders – …Major Depressive Disorder with Anxious Distress … Alcohol Use Disorder … and Hoarding Disorder”. I note that it is unclear whether these “diagnoses” are in fact those of Ms Hawil or significantly based upon the earlier reports of Ms Fisher. Despite this, Ms Hawil recorded the personal background details of Mr Camilleri including his early childhood relationships with his parents and others, his education, his employment, and the fact that he had been involved in a number of “serious motor and work-related accidents”. She noted that Mr Camilleri “reported” a problematic pattern of alcohol use since primary school, and has had “multiple hospital admissions” due to alcohol-related issues. In her “assessment”, and without the benefit of any psychometric, clinical and/or personality assessment tests (which apparently were provided to, but not completed by, Mr Camilleri), Ms Hawil concluded she was unable to provide any psychometric testing response/opinion. Despite this, she undertook a “medical document review”, and based upon her (AVL) interview and “collateral information contained in the documentation provided [to her]”, she concluded that “it is reasonable to posit [that Mr Camilleri] struggles with parting with possessions, regardless of their value, which is driven by a perceived need to save the items, as well as the distress associated with discarding them”.

25. In her “Diagnosis” section of her report, she repeated that Mr Camilleri had Major Depressive Disorder with Anxious Distress, Alcohol Use Disorder, and Hoarding Disorder (referencing entries and definitions in the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition). She noted that her diagnoses relied upon his “recorded history of mental health conditions” in the material provided to her and “information attained during assessment”. She concluded that she would “recommend that [Mr Camilleri] undergo therapy” and annexed a “Treatment Plan” to her report.

26. Other aspects of the evidence are recorded in my further consideration of the evidence and the submissions received.

Legal principles

Principles regarding the nature of contempt

27. This is a case of civil contempt and while there is a distinction between civil contempt and criminal contempt, the distinction is largely illusory. Simply stated, civil contempt involves disobedience of a court order in civil proceedings and criminal contempt involves contempt in the face of the court or interference with the course of justice: Witham v Holloway (1995) 183 CLR 525 at 530, 538, 539; [1995] HCA 3 (‘Witham’). The purpose of the law in civil contempt is to compel obedience rather than punish disobedience which, by contrast, is the domain of criminal contempt: Re.Group Pty Ltd v Kazal (No 4) [2017] FCA 1084 at [73].

28. There is also a distinction between technical and non-technical contempt, and between wilful and contumacious contempt, which differentiates between conduct that does not justify any punitive sanction and conduct that does: Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367. Wilful contempt is where the disobedience is more than casual, accidental, or unintentional, but is not contumacious.

29. While both wilful and contumacious contempt involve intentional non-compliance with a court order, contumacious contempt is of larger gravity and renders what would otherwise be civil contempt as criminal contempt because it involves conscious defiance of a court’s order and its authority: Witham at 538-539.

30. The Court’s power to punish a contemnor is inherent in its function as a superior court of record and, to the extent that there may previously have been some doubt, it is now clear that this power is not subject to criminal law sentencing statutes including the Crimes (Sentencing Procedure) Act 1999 (NSW); Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46]; Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390 at [60] (‘Rollinson’).

Principles of punishment for contempt

31. The underlying rationale of the exercise of a court’s power to punish for contempt is to protect the effective administration of justice by demonstrating that a court’s orders will be enforced: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [97]; Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [7].

32. Where the contempt arises from a breach of a court’s orders, an important purpose of punishment is to demonstrate that those orders will be restored and to reiterate that they must be obeyed. However, ensuring obedience is not the overriding objective of punishment because the proper objective is always the protection of the due administration of justice: Rollinson at [63], [65].

33. The primary factors relevant when considering the appropriate penalty for contempt (which I respectfully adopt) are noted by Payne JA in Rollinson at [66], [67] referring to a list of factors identified by Barrett J in Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [26]-[27] (and which generally reflect the earlier analysis of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. In my summary, the factors, which are overlapping, comprise:

1. the seriousness of the contempt proved;

2. the contemnor’s culpability;

3. the reason or motive for the contempt;

4. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

5. whether there has been any expression of genuine contrition by the contemnor;

6. the character and antecedents of the contemnor;

7. the contemnor’s personal circumstances;

8. the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct; and

9. the likely effect that punishment will have on the contemnor, including any hardship it might cause.

34. An effective penalty is one that takes careful account of interrelated considerations of the factors set out above. If the penalty imposed is harsher than those considerations (as a whole) seem to demand then an unintended consequence may be that confidence in the fairness of court processes and respect for the Court’s authority may be impaired, with the result that the administration of justice is harmed rather than protected: Rollinson at [68].

34. What order or penalty will be effective in any given case of contempt depends on the nature of the contempt charged. If the contempt arises from a breach of orders, as it does here, then an important purpose of punishment is to demonstrate that those orders will be enforced and to reiterate that they must be obeyed: Rollinson at [63], [64]; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 (Kirby J) (‘Pelechowski’) at [149].

Consideration

36. I now consider the parties’ submissions, and where necessary the further evidence, seriatim with the factors noted above. In doing so, although I express concerns as to the strength of the evidence regarding Mr Camilleri’s mental health, I remain conscious that the principles applicable to sentencing mentally ill offenders are applicable to the punishment for contempt: Rollinson at [91].

37. The relevant principles were summarised by McClellan CJ at CL in Director ofPublic Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28; [2010] NSWCCA 194 (‘De La Rosa’) at [177] and can be briefly noted. First, where the state of a person's mental health contributes to the commission of an offence in a material way, the offender’s moral culpability may be reduced with the consequence that the need to denounce the crime may be reduced with a reduction of the sentence; second, in some circumstances, the offender may be an inappropriate vehicle for either general deterrence or specific deterrence which may result in a reduction in the sentence which would otherwise have been imposed; and third, conversely, it may be that because of a person's mental health, considerations of specific deterrence may result in an increased sentence. I stress that the mental health concerns of an offender need not amount to serious psychiatric illness before they will be relevant to sentencing: De La Rosa at [178].

Seriousness

38. I find that Mr Camilleri’s failure to comply with the Court Orders and considering the length of time which has passed since the orders were required to be complied with renders the contempt serious. Apart from Council’s evidence, the evidence relied upon by Mr Camilleri, being Ms Ngo’s affidavit of 8 April 2024, indicates that a not insignificant amount of waste material has not been removed and that Mr Camilleri therefore has not purged his contempt despite having what I consider to be ample time to do so. As such, I accept the submission of Council that this disobedience is more than “casual, actual or unintentional”, and that the contempt is appropriately characterised as wilful as it was not technical nor contumacious. While I accept that it is not at the most serious end of the scale, it is still serious.

39. In forming my view and although I repeat that I have some concerns in relation to the strength of the evidence before me in relation to Mr Camilleri’s mental health, conscious of the principles noted above, and accepting that Mr Camilleri has a disorder related to hoarding, I do take into account that his conduct, to some extent, has been contributed by his mental health. Despite this, I am not satisfied that the evidence regarding his mental health concerns provides a full response. This is because the earlier (significantly more detailed) material and analysis prepared by Ms Fisher (relating to separate but not unrelated Court proceedings) contained observations and diagnoses in relation to his mental health which apparently did not affect, at least at and after that time, his ability to attend to compliance with earlier orders of the Court in not dissimilar circumstances. Further, conscious that the present contempt is not an environmental offence, I find that the ongoing breach of the Court Orders does cause harm because of the remaining highly visible waste material which I accept adversely impacts upon the amenity of the area. Despite this, it is not a case where there is a threat to public safety or health.

40. In summary, I consider that the failure to comply with the Court Orders while undoubtedly serious, does not fall in the most serious category of contumacious and that there is some relationship between the present situation and Mr Camilleri’s mental health.

Culpability

41. Secondly, I find that Mr Camilleri’s mental health is relevant to his moral culpability and, as noted above, the seriousness of the offending, however it is clear that he has been aware, or ought to have been aware of the consequence of his ongoing failure to comply with the Court Orders in circumstances where he was personally served with the Court Orders (including the accompanying penalty notice) and has been at all relevant times legally represented.

Reason/motive

42. Thirdly, there is no evidence before the Court which establishes any reason for the contempt although, as submitted by his counsel, the reason for Mr Camilleri’s failure to comply is to some extent tied to his mental health which, as I have noted, is a mitigating factor which I take into account.

Benefit

43. Fourthly, while I accept that Mr Camilleri may be seen to have continued to utilise the land for what may otherwise be unlawful prohibited development, there is no evidence as to whether the failure to remove the waste material has led to any financial gain and there is evidence of some (albeit limited) attempt to comply with the Court Orders.

Contrition

44. Fifthly, as noted above, Mr Camilleri has not personally given any evidence expressing any contrition or remorse nor has there been any evidence directly or indirectly to that effect. Further, no apology has been proffered directly or indirectly and I take this into account.

Character/antecedents

45. Sixthly, in relation to Mr Camilleri’s character and antecedents, he has been previously charged and punished for contempt in relation to breaches of earlier orders of the Court: Fairfield City Council v Camilleri [2019] NSWLEC 95. The contempt charges on the previous occasion also arose out of unlawful storage of waste material by Mr Camilleri on the same land, being 223 to 235 Burley Road, Horsley Park (as well as a separate charge in relation to land being 224 to 234 Delaware Road, Horsley Park). In each circumstance those areas of land were zoned RU4 Primary Production Small Lots in the FLEP.

46. The earlier contempt proceedings related to orders made (by consent) on 7 October 2016 by Moore J, requiring that Mr Camilleri cease the use of the land for the purpose of a waste or resource management facility (as defined in the FLEP) and that he remove from the premises waste material which included building materials, wooden crates, concrete slabs, bricks, shopping trolleys, cardboard boxes, and trucks and trailers and the like. The orders made on 7 October 2016 were not complied with and two contempt charges were brought on 4 October 2017 to which Mr Camilleri pleaded guilty. Mr Camilleri was fined $12,500 in each case, and the Court appointed sequestrators to his estate. Relevantly, most of the waste material that had been present on the land was subsequently removed by Mr Camilleri however, in 2019, Council became aware that Mr Camilleri was again introducing waste material onto the land necessitating the further Class 4 civil enforcement proceedings which have culminated in the present contempt proceedings.

47. As submitted by Council, I find that the above circumstances manifest a continuing attitude of disobedience and that the present contempt is not an uncharacteristic aberration: Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 at [92].

48. While I take into account the fact that waste material has again been brought onto the property and left on the land may be a feature of Mr Camilleri’s mental health concerns (and noting the evidence of Paul Camilleri that Mr Camilleri’s condition “has deteriorated”), Mr Camilleri’s antecedents and the evidence in relation to his mental health does not indicate that he lacks awareness either of the Court Orders or of his disobedience thereto.

49. Further, to the extent that the report of Ms Hawil is relied upon, I repeat my concerns noted above that her report was based upon one attendance, and it is clear that she was not provided with the earlier affidavits of Mr Bono or, apparently, shown photographs of the nature and extent of the waste material on the land in order for Ms Hawil, as Council submits, to gain a “full understanding of the scale and nature of the material brought onto the land”. Further, and as I have also noted above, even accepting (as I do) the diagnoses (presumably of Ms Hawil, based upon the material before her, and the earlier reports of Ms Fisher), Ms Hawil does not indicate that Mr Camilleri is unable to comply with the Court Orders. Indeed, the evidence would appear to be otherwise. Additionally, her recommended “Treatment Plan” does not deal with (or indeed consider) the removal of waste material from the land, nor is there any explanation of how Mr Camilleri in undertaking the suggested treatment would reduce the risk of reoffending. Additionally, there is no evidence to the effect that any treatment or therapy whatsoever has been commenced or attempted.

Personal circumstances

50. Seventhly, in relation to Mr Camilleri’s personal circumstances, I have considered the detailed material in relation to his background contained in the affidavit of Paul Camilleri, and the history he has given to each of Ms Fisher and Ms Hawil. In particular, I again note the evidence of Paul Camilleri that Mr Camilleri’s condition appears to have deteriorated.

Deterrence and denunciation

51. Eighthly, it is submitted for Mr Camilleri that he is an inappropriate vehicle for general or specific deterrence as his conduct is not that of a person deliberately flouting the Court for his own financial gain and, as such, punishment for something that the person’s ‘condition’ compels them to do does not serve specific deterrence. Conversely, Council submits that significant weight should be given to general deterrence because Mr Camilleri consented to the making of the Court Orders.

52. I consider that general deterrence is an important part of any sentencing calculation, and this is particularly so where the Court Orders were made in circumstances where Mr Camilleri agreed to undertake conduct that addressed Council's original concerns. Further, as stated by Kirby J in Pelechowski at [149]:

“Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. …”

53. I am also concerned that the contempt relates to a prohibition in planning law in circumstances where the overall operation of the planning system depends upon a high level of compliance. In these circumstances, other similar businesses must be deterred from flouting both orders of the Court and the planning regulation.

54. Despite this, I remain conscious of the factors above and, in particular, the evidence in relation to Mr Camilleri’s mental health and personal circumstances. As such, I find that some consideration of specific deterrence is appropriate given the antecedent conduct noted above and the fact that Mr Camilleri's contempt has not been purged despite there being ample time and notice to do so.

Hardship

55. Ninthly, as will be seen, I consider that the imposition of a fine is appropriate. In determining the appropriate sentence by way of fine, I have taken into account all the above (sometimes overlapping) matters and, in particular, considered the likely effect that a fine in the amount that I have determined will have upon Mr Camilleri. While I remain conscious of his financial circumstances and his present income, I am also aware that he has not been deterred by earlier sentences. Again, although I have some concerns in relation to the evidence in relation to his financial position and conscious of Paul Camilleri’s evidence of Mr Camilleri’s inability to work “consistently” since August 2023, I repeat that the evidence is that from 25 March 2023 through to 24 September 2023, Mr Camilleri’s income was $159,000. Although there has been a not insignificant reduction between September 2023 through to March 2024 (to an amount of approximately $38,000), I will impose a fine conscious of these matters and s 6 of the Fines Act 1996 (NSW).

Appropriate sentence

56. Council submits that an appropriate sentence is the imposition of both a monetary penalty and in respect of the ongoing contempt, a periodic monetary penalty until such time as the contempt is purged. Council submits that a penalty amount of $20,000 and a periodic monthly fine of $1,000 until the contempt is purged is appropriate.

57. It is submitted on behalf Mr Camilleri that given his limited circumstances and the fact that he will be ordered to pay Council’s costs, the monetary penalty suggested by Council will “dwarf [Mr Camilleri's] savings and exceed his recent earnings” and have a disproportionate impact on him bearing in mind the mitigating circumstances of his offending.

58. In summary, in imposing sentence, I have had regard to the objective seriousness of the contempt, the conduct of Mr Camilleri which I consider demonstrates a disregard for the obligation to comply with the Court Orders, being of high seriousness, and that the conduct is both intentional, and that the contempt is ongoing. I have also taken into account Mr Camilleri’s previous convictions for contempt of this Court's orders and the fact that there has been no demonstration of contrition or remorse and in circumstances where I consider that there is some need for both general and specific deterrence. I have also taken into account of the evidence regarding Mr Camilleri’s mental health and the fact that he has entered a plea of guilty, both of which provide mitigating circumstances entitling some discount. I have also taken into account of his present limited financial means and the fact that there had been some attempt to remove the material. In the circumstances, given Mr Camilleri's past conduct, my concern that he has shown no contrition or remorse, and while there remains a failure to purge the contempt, I do not consider that the imposition of an ongoing monthly fine to encourage adherence to the Court Orders (in addition to a primary penalty) would have the benefit that such a course would otherwise have. As such, I determine that the appropriate penalty is the imposition of a fine in the sum of $20,000.

Costs

59. Council contends that Mr Camilleri should pay its costs on an indemnity basis as it was the “ordinary practice”.

60. It is clear that there are many circumstances where courts have awarded indemnity costs in relation to matters involving contempt (for example, Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 (Sheppard J) at 233-234). Although it is true that indemnity costs are commonly awarded in civil contempt cases – primarily as an important sanction to mark the Court's condemnation of the breach of its orders, the question is always whether the particular facts or circumstances of a case warrant the making of an order for the payment of costs other than on a party and party basis.

61. While I am also conscious that contempt proceedings serve a public interest with the effect that a person who successfully brings proceedings should not be left out of pocket, there is no rule or principle that successful contempt proceedings necessarily attract indemnity costs orders as this would be inconsistent with the exercise of the curial costs discretion.

62. In the present circumstances, although I have taken into account the various factors in relation to the determination of any appropriate monetary penalty, I consider it appropriate to award Council its costs on an indemnity basis as it remains an important sanction to mark the Court's condemnation of Mr Camilleri's conduct. I note this is especially so where I am not satisfied that there will be full compliance with the Court Orders, and I am conscious that Council has previously brought a number of proceedings in relation to Mr Camilleri’s conduct particularly in relation to his failure to comply with earlier orders of the Court.

63. In the above circumstances, I find that it is appropriate that indemnity costs be awarded. I have taken into account my finding in favour of indemnity costs in my determination of Mr Camilleri's overall punishment.

Orders

64. The orders of the Court are:

1. Saviour Camilleri is fined the sum of $20,000 for his contempt in failing to comply with Court orders 1(a) and 1(b) made 3 November 2022.

2. Saviour Camilleri is to pay the costs of Fairfield City Council for the notice of motion for contempt filed 11 August 2023 on an indemnity basis.

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Decision last updated: 30 May 2024