Fairfield City Council v Nguyen

[2020] NSWLEC 2

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fairfield City Council v Nguyen [2020] NSWLEC 2
Hearing dates:	16 January 2020
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See [18]
Catchwords:	CONTEMPT - failure to obey orders of the Court to cease the use of two unauthorised secondary dwellings - failure to obey orders of the Court to demolish two unauthorised secondary dwellings - the alleged contemnor has taken no part in the proceedings - the alleged contemnor did not attend contempt hearing - Council demonstrates all relevant procedural steps have been drawn to the attention of the alleged contemnor - appropriate to order arrest of the alleged contemnor to have her brought before the Court - arrest ordered
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 40.7
Cases Cited:	Fairfield City Council v Thuy Thanh Truc Nguyen [2018] NSWLEC 113
Category:	Procedural and other rulings
Parties:	Fairfield City Council (Applicant) Thuy Thanh Truc Nguyen (Respondent)
Representation:	Counsel: Mr A J J Thompson, solicitor (Applicant)   Solicitors: Ritchie & Castellan (Applicant)
File Number(s):	381570 of 2017
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: In these contempt proceedings brought by Fairfield City Council (the Council) against Thuy Thanh Truc Nguyen (the Respondent) for failure to obey orders made by Robson J (see Fairfield City Council v Thuy Thanh Truc Nguyen [2018] NSWLEC 113) on 2 August 2018, I have been provided with a chronology (by Mr Thompson, solicitor for the Council) that sets out events over a period commencing in 2017 and culminating, most recently, with the service of documents attested to in an affidavit of service dated 15 January 2020 - the chronology encompassing events up to 20 November 2019.

2. The chronology became Exhibit B on the Council’s motion for contempt. It is, in effect, in two parts. First, matters commencing on 31 August 2017 relating to the premises that were the subject of the orders made by Robson J on 2 August 2018; and the second part being matters arising from his Honour’s judgment, with those matters commencing on 25 September 2018.

3. I have also been provided with the Council’s Statement of Facts in these proceedings, a Statement of Facts which became Exhibit D in the proceedings. The first element of that sets out, in retyped recital form, the terms of the orders made by his Honour on 2 August 2018. They concern premises at 57 Longfield Street, Cabramatta, where his Honour made orders in Class 4 civil enforcement proceedings concerning two secondary dwellings that had been constructed on that site.

4. Each of the secondary dwellings was unauthorised and lacked any consent from the Council to its construction or occupation. The orders that his Honour made on that occasion were in two separate elements with respect to each of those unauthorised secondary dwellings. The first was that the Respondent cease the use of the unauthorised secondary dwelling that is attached to the rear of the existing dwelling at 57 Longfield Street, Cabramatta and to demolish that unauthorised secondary dwelling and reinstate the rear of the existing dwelling.

5. With respect to the second unauthorised secondary dwelling, a freestanding structure to the rear northern boundary of the site, his Honour’s orders were that the Respondent cease the use of that unauthorised secondary dwelling as a residence and that the Respondent demolish that unauthorised secondary dwelling.

6. In the Council’s chronology, commencing with 25 September 2018, there are a variety of affidavits that have been read before me in these proceedings. Those affidavits are set out in chronological order, from [3] through to [11], in the Applicant’s Statement of Facts. They relate to two separate and unrelated tasks and, in my assessment, comprehensively satisfy the fulfilment of each of them.

7. The first of those tasks is to demonstrate that each of the necessary relevant steps in these proceedings have been brought to the attention of the Respondent, both by service by post and by physical service by affixing to the doors of premises that have been identified as premises associated with the Respondent.

8. I am satisfied for each of the necessary steps to fulfil what would be regarded as the appropriate chain of provenance to give me a basis to deal with this matter today, each of those steps has been taken on behalf of the Council and that there is a proper evidentiary basis before me establishing that each of those steps has been taken.

9. For critical purposes, one of those steps comprised the service on the Respondent of the orders made by his Honour on 2 August 2018, with those orders being a sealed copy of those orders to which the necessary penal notice pursuant to r 40.7 of the Uniform Civil Procedure Rules 2005 has been attached. That penal notice puts the Respondent on notice that failure to comply with the orders made by his Honour on 2 August 2018 renders the Respondent potentially liable to sequestration of property and, importantly, in the present context with which I need to deal, the risk of a prison sentence.

10. The second element that has been dealt with in the affidavit material before me is based on two affidavits of Ms Sophia Le, an officer in the Council’s employ. Ms Le is an Investigations Officer employed by the Council. Her first affidavit is dated 18 September 2019 and establishes, by both her description of her activities and her inspection of the two unauthorised secondary dwellings on the property, that those two unauthorised dwellings, as at the date of her inspection, had not been demolished as ordered by his Honour in August 2018 and, also, that each of them was being occupied as a residence on the occasion of that inspection.

11. The second affidavit of Ms Le, dated 12 November 2019, deposes as to an inspection undertaken by her on Thursday 7 November 2019 where she conducted a similar inspection of both unauthorised secondary dwellings on the property. On that occasion, on both her descriptive material and the photographic evidence attached to that affidavit, I am satisfied that, as with what was the position discovered on the earlier occasion, the two unauthorised secondary dwellings had not been demolished.

12. On the occasion of the November 2019 inspection, despite the assertion of a person with whom Ms Le had a conversation in the Vietnamese language, where that person asserted that the second of the unauthorised dwellings was merely being used as a workshop or storage area, the photograph in the evidence attached to her affidavit clearly establishes, I am satisfied without doubt, that both unauthorised secondary dwellings were being occupied for residential purposes.

13. Ms Le gave brief oral evidence at my request and confirmed that the woman with whom she had had a conversation in the Vietnamese language on the first occasion of her inspection was not the person with whom she had the subsequent conversation in the Vietnamese language on the occasion of her second inspection. It is unnecessary for me to detail the terms of those conversations.

14. It is sufficient to note that there is no proof for the present purposes that either of those interlocutors was the person who is the Respondent in these proceedings.

15. It is also appropriate to note that, throughout the processes that are involved in these civil enforcement proceedings, both initially before Robson J in the earlier substantive proceedings and in all interlocutory steps that have been taken since his Honour made orders on 2 August 2018, there has been no appearance by, or active participation by, the Respondent in these proceedings.

16. The position is that there is an obligation to comply with the planning law and the orders of the Court. The primary role of contempt proceedings of the nature currently sought by the Notice of Motion brought by the Council is protective not only of the planning system but also of the intent and effect of the orders made by his Honour in August 2018. In light of the subsequent conduct, or lack thereof, by the Respondent to be protective of the system of the Court, itself, it is appropriate that Ms Nguyen be brought before the Court to answer the charge and to explain why steps might not be taken, including custodial steps, to ensure that the orders of the Court made by Robson J in August 2018 are obeyed.

17. As a consequence, I am satisfied that there is a proper evidentiary basis upon which I should issue a warrant for the arrest of Ms Nguyen in order to have her brought before the Court to be dealt with for her breach of the orders made by Robson J.

18. I, therefore, have signed an arrest warrant that directs the Sheriff of New South Wales, and all Sheriff’s officers, to arrest Thuy Thanh Truc Nguyen and bring her before the Land and Environment Court of New South Wales sitting at 225 Macquarie Street Sydney, detaining that person, if necessary, in custody in the meantime. The arrest warrant is issued for disobedience of an order to attend Court to answer a charge of contempt of Court. The arrest warrant provides sufficient authority for the Sheriff, with the assistance of such police officers as may be necessary to arrest the person named in the warrant, to bring that person before the Court specified.

19. I should observe that when Ms Nguyen is brought before the Court, on a contingent basis, I have asked the Court’s Registry to make arrangements for an interpreter from the Vietnamese language to be available at that time.

20. I have also had the Court’s Registry advise the Sheriff’s Office, on a contingent basis, that it may be necessary to have information brought to Ms Nguyen’s attention in the Vietnamese language as there is no evidence before me that establishes that she is able to understand material conveyed to her in the English language.

21. I now adjourn the matter until Ms Nguyen is brought before the Court.

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Decision last updated: 08 April 2020