Franco v Mazzetti (No 3)

[2024] NSWLEC 42

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Franco v Mazzetti (No 3) [2024] NSWLEC 42

Hearing dates:

11 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Class 2

Before:

Pritchard J

Decision:

The Court makes the following orders:

(1) The respondent, Ms Ozlem Mazzetti, is guilty of contempt for failing to comply with order 3 of the Court’s orders made on 24 February 2022 in proceeding 236725 of 2021.

(2) Pursuant to Part 55, Division 4, rule 13 of the Supreme Court Rules 1970 (NSW), the respondent is fined $500 for failure to comply with order 3 of the Court’s orders made on 24 February 2022 in proceeding 236725 of 2021.

Catchwords:

CONTEMPT — notice of motion seeking civil contempt conviction — charge of failure to comply with two court orders made pursuant to the Trees (Disputes Between Neighbours) Act 2006 (NSW) — ex parte hearing

SENTENCE — contempt — failure to comply with court orders — lower end of seriousness — fine imposed — ex parte hearing

COSTS — whether the applicant should be awarded costs in respect of the contempt proceedings — no order as to costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A

Evidence Act 1995 (NSW) s 78

Fines Act 1996 (NSW) s 6

Land and Environment Court Act 1979 (NSW) s 5

Trees (Disputes Between Neighbours) Act 2006 (NSW) ss 7, 12

Land and Environment Court Rules 2007 (NSW) r 6.3

Supreme Court Rules 1970 (NSW) Pt 55

Uniform Civil Procedure Rules 2005 (NSW) r 10.14

Cases Cited:

Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 233; [2019] HCA 29

Blacktown City Council v Hambly (No 2) [2023] NSWLEC 91

Blacktown City Council v Hambly (No 3) [2023] NSWLEC 141

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14

Canterbury City Council v Ali Ahmed [2016] NSWLEC 160

Council of the City of Sydney v The Owners of Strata Plan 18820 [2017] NSWLEC 81

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

Evans v Citibank Ltd [2000] NSWSC 1017

Franco v Mazzetti [2022] NSWLEC 1090

Georges River Council v Hamade [2023] NSWLEC 71

Globaltel Australia Pty Ltd v MCI Worldcom Australia Pty Ltd [2001] NSWSC 545

Jones v Stephenson [2020] NSWLEC 154

Jones v Stephenson [2022] NSWLEC 36

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Liverpool Plains Shire Council v Rumble (No 3) (2014) 205 LGERA 170; [2014] NSWLEC 139

Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495

Smith v The Queen (1991) 25 NSWLR 1; (1991) 56 A Crim R 148

Sutherland Shire Council v Perdikaris [2020] NSWLEC 111

Tri Huu Pham v Emile Papaioannou [2019] NSWLEC 180

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

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

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW (LexisNexis, 2024)

D Rolph, Contempt (Federation Press, 2023)

Category:

Principal judgment

Parties:

Joe Franco (Applicant)
Ozlem Mazzetti (Respondent)

Representation:

J Franco (Self-represented) (Applicant)
No appearance (Respondent)

File Number(s):

2021/236725

Publication restriction:

Nil

JUDGMENT

Introduction

Background and procedural history

Relevant legislation

Evidence

Applicant’s evidence

Material apparently sought to be relied on by the respondent

Consequences of the respondent’s decision not to appear personally or by a legal representative

Ex parte hearing and sentencing

Evidence apparently sought to be relied on by the respondent

Principles in relation to proceedings for contempt

Purging contempt

Costs in contempt proceedings

Proceedings for contempt in relation to orders made under the Trees Act

Tri Huu Pham v Emile Papaioannou

Jones v Stephenson Pain J

Jones v Stephenson Duggan J

Consideration

Whether the respondent is in contempt of order 2

Whether the respondent is in contempt of order 3

Sentencing

Seriousness of the contempt

Awareness of the consequences and actual consequences

Reason for the contempt

Benefit to the contemnor

Contrition

Deterrence and denunciation

Consistency in sentencing

Capacity to pay

Costs

Conclusion and orders

JUDGMENT

Introduction

1. By notice of motion filed together with a statement of charge on 10 March 2024, Mr Joe Franco (the applicant) seeks the following order against Ms Ozlem Mazzetti (the respondent):

1   That the respondent be punished for the contempt of court specified in    the Statement of Charge filed with this motion.

2. From the statement of charge, it is apparent that the applicant is alleging that the respondent has not complied with orders 2 and 3 made by Douglas AC on 24 February 2022 in Franco v Mazzetti ^[1] (Franco v MazzettiDouglas AC).

   1. [2022] NSWLEC 1090 (Douglas AC).

3. At the hearing before me on 11 April 2024, the applicant represented himself. As detailed below, the respondent did not appear personally or by a legal representative. In relation to the hearing on 11 April 2024, at which the applicant was self-represented, I refer to and repeat the remarks made by Pain J in Jones v Stephenson ^[2] (Jones v Stephenson Pain J) at [4]:

… affidavits and written submissions mix up evidence and submission. No criticism of the [applicant] is intended by these comments. In fairness to the parties I have been flexible where possible in assessing the material before me, mindful that the distinction between the two is difficult for a layperson to apply.

Background and procedural history

2. [2020] NSWLEC 154 (Pain J) at [4].

4. In Franco v Mazzetti Douglas AC, the applicant sought orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the removal of a honey locust tree (Gleditsia triacanthos) (the honey locust tree) on the respondent’s property. Douglas AC, the acting commissioner, set out the background to the application as follows:

1COMMISSIONER: Mr Franco (the Applicant) and Ms Mazzetti (the Respondent) share a side boundary between their properties in Leichhardt, in Sydney’s inner west. The Respondent’s property is one of four under a Strata title, and a 2.3m tall reinforced block wall separates her property from the Applicant’s.

2   Four Gleditsia triacanthos (Honey Locust trees) were planted at various distances from the common boundary in the Strata property in 1992. In August 2019, Mr Franco received a report from Glenyss Laws, an arborist with extensive qualifications and experience, which displayed photographs of tree roots penetrating under or through gaps in the wall’s foundations into the Applicant’s property. This report was included in Mr Franco’s Tree Dispute and Claim details (Form H) as part of his application to the Court, and Ms Laws acknowledged having read the Expert Witness Code of Conduct contained in Sch 7 of the Uniform Civil Procedure Rules 2005.

3   The site inspection which informed this report was undertaken on 20 July 2019. As at this date, the four trees were in situ and Ms Laws’ report provided information about three of the trees. Since that time, three Honey Locust trees have been removed by the Body Corporate, as a result of damage caused to surface drains and paving, associated trip hazards, and aesthetic considerations.

4 The remaining tree was classified by Ms Laws as Tree 1 (the tree), and is the subject of this application. Mr Franco seeks orders for the removal of this tree, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), as a consequence of the damage he claims it is causing to the common wall and his paved surfaces, and because of his concerns that its roots will cause further damage to both these structures, and also to his dwelling.

5   Ms Mazzetti prefers that the tree be retained for up to at least 3 years, subject to regular monitoring of the wall for damage. She claims that her position is endorsed by recommendations from engineering reports. Ms Mazzetti occupied her property in 2003 but has lived in Melbourne since about 2014. Though the property has been leased to tenants since then, she appreciates the aesthetic and environmental services which the tree provides.

5. Douglas AC concluded at [31] as follows:

(1) Excavation of concrete and soil was undertaken by the Applicant, and a structural root of approximately 130mm diameter was found emerging through or under the wall, directly below wall uplift at a vertical expansion joint. This provides a clear causal link between the tree roots and the wall damage, which satisfies s 10 of the Trees Act.

(2)    A report provided in August 2019, by Glenyss Laws, a suitably qualified and experienced arborist, recommended tree removal to prevent additional wall damage, because alternative options were not viable in this site context.

(3)   Regardless that the Laws’ arborist report from 2019 recommended tree removal, and that two engineering reports recommended tree removal subject to monitoring the wall for additional damage, the Respondent has obfuscated, and delayed taking action to assist in the resolution of the dispute. To the contrary, she has provided documents of little relevance to the issues before the Court which primarily cast aspersions on the Applicant’s behaviour and character, and has listed a range of excuses which, individually and collectively, fail to provide reasonable justification for past delays in taking appropriate action, and particularly, do not begin to justify future delays.

(4) While the tree provides some environmental services, as discussed in consideration of s 12 of the Trees Act, they are not more important than the imperative to remove the tree in the near future, so as to prevent further wall damage, and increasing expenses for rectification. Therefore, orders will be made for removal of the tree. These orders will include severing the relevant structural root growing from the base of tree, and removing the root to a point as close to the boundary wall as practical, on the Respondent’s side, so as to enhance environmental conditions which favour decay of the root portion currently within or under the wall. …

6. Douglas AC made the following orders at [32] (emphasis added):

(1) The application is granted.

(2) Within 45 days, and at her expense, the Respondent shall remove the tree to at least 300mm below existing ground level, ensuring that all roots emerging from the stump of the tree, to this depth, are separated from the stump.

(3) The structural root growing towards and under the common boundary wall, identified in the Laws’ report as being about 130mm diameter where it emerges into the Applicant’s property, shall be removed to a point as close to the base of the wall as is practical, on the Respondent’s side of the wall.

(4) All works shall be completed by an AQF level 3 arborist, with all appropriate insurances.

(5) All works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

(6) All works are to be completed during normal work hours. Should access be required into the Applicant’s property to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice.

7. On 11 March 2024, notice of the listing on 22 March 2024 of the applicant’s motion seeking that the respondent be punished for contempt was sent to the parties. By letter to the Court dated 20 March 2024, the respondent said as follows:

For mental health reasons, I will not be participating in the hearing on 22 March 2024 or engaging in any future direct contact with the applicant (including in the presence of third parties). In taking this decision, I do not intend any disrespect towards the court.

8. On 22 March 2024, Duggan J as list judge made an order for the matter to be listed for hearing on 2 April 2024 at 10am. On 27 March 2024, my associate emailed the parties as follows:

I write in relation to the above matter listed for hearing before Justice Pritchard at 10am on Tuesday, 2 April 2024. Please advise chambers if you wish to appear remotely at the hearing via AVL and a link can be provided.  

Please note that the Land and Environment Court’s website includes information in relation to obtaining legal assistance at

The following options may be available:

Law Society of NSW pro bono scheme

Bar Association legal assistance referral scheme

Duty lawyer scheme at the Land and Environment Court

either party wishes to file any further evidence or file any written submissions please do so by close of business tomorrow, Thursday, 28 March 2024.

9. There was no response from either party to this email. On 28 March 2024, my associate emailed the parties as follows:

Her Honour has requested that the material provided by the respondent to the Court be provided to the applicant. Please find attached copies of this material ...

10. On Tuesday, 2 April 2024, the applicant represented himself at the hearing. The court officer called the matter outside Court three times. There was no appearance for the respondent.

11. At the hearing on 2 April 2024, I said to the applicant that the Land and Environment Court is a superior court of record,^[3] and that as part of its inherent jurisdiction it has power to require someone who has alleged to have committed contempt to attend court to emphasise the seriousness of contempt proceedings and to deal with any subsequent claim that the alleged contemnor was unaware of the proceedings. ^[4]

    3. Land and Environment Court Act 1979 (NSW) s 5(1).

    4. Rolph, Contempt (Federation Press, 2023) p 762.

12. In relation to the need for strict compliance with procedure when dealing with contempt, in Rolph, Contempt (Federation Press, 2023) the author says at 422-423 (citations removed):

Given the summary nature of the contempt jurisdiction, courts have repeatedly emphasised the need for strict compliance with procedure when dealing with contempt generally. … The alleged contemnor must be given an opportunity to be heard on the charge formulated against him or her. An adjournment may be necessary to allow the alleged contemnor the opportunity to prepare his or her defence against the charge properly. This may also allow the alleged contemnor the opportunity to obtain legal advice or representation. The court itself may not be obliged to ensure that an alleged contemnor in fact has access to legal advice or representation.

13. In relation to the procedure to be followed if a party is absent, Ritchie’s Uniform Civil Procedure NSW (LexisNexis, 2024) provides as follows (p 7673):

A party fails to appear, for the purpose of the present rule, if they have adequate notice of the hearing, and fail either to attend (personally or by representative) or provide the court with an apparently credible explanation for their non-attendance: Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 … at [22] … Where only some parties are absent, the primary considerations in determining whether to proceed are (i) whether the absent party has been provided with due notice of the hearing. (ii) the nature of any explanation for that party’s absence, (iii) the apparent urgency of the matter, (iv) the nature and extent of any hardship the ex parte order may cause, and (v) whether such an order can be set aside …

14. In order to ensure that the respondent (the contemnor) had due notice of the hearing of the applicant’s motion for contempt and an opportunity to be heard on the charge formulated against her, on Tuesday, 2 April 2024 I adjourned the hearing of the notice of motion until Monday, 8 April 2024 in order that the Court could be satisfied that:

1. the respondent was notified of the listing and had been personally served with the notice of motion, statement of charge and affidavit of the applicant filed 10 March 2024, as required by Pt 55, r 9 of the Supreme Court Rules 1970 (NSW) (Supreme Court Rules).

2. if the respondent intended to rely on “mental health reasons” for not participating at the hearing of the contempt charge, she could put on evidence in admissible form, that is, by way of an affidavit; and

3. if the respondent wished to put on material by way of evidence at the hearing of the contempt charge, she did so in admissible form, that is, by way of affidavit.

15. On 2 April 2024, the Court sent a notice of listing of the notice of motion on 8 April 2024 to the parties, and requested the parties acknowledge receipt of the notice by no later than 4pm on Wednesday, 3 April 2024. On 3 April 2024, the respondent acknowledged receipt of the notice of listing, and said as follows:

As requested, I’m writing to acknowledge receipt of the attached correspondence. 

I am currently overseas (in Europe) and will not be returning to Australia until the weekend. I have a long haul international flight this week and as a result will find it extremely challenging to submit a signed affidavit in order to comply with section b and c of the attached Notice of Listing prior to the hearing date of 10am on Monday 8 April 2024.  

Could I please request that the hearing date be rescheduled to a later date so I have sufficient time to prepare my evidence in the required format as outlined by Justice Pritchard? I can provide evidence of international travel to support this request (if required). 

Could you please also confirm that the form 40 affidavit is the correct template to be used? 

I would also like to inform the court that I have not received or sighted any documentation from the applicant regarding the contempt charge. 

16. On 3 April 2024, my associate sent an email to the parties as follows:

The Court received the attached email from Ms Mazzetti, the respondent at 7:12am on Wednesday, 3 April 2024.

…

The respondent’s email is attached to this communication from the Court and thereby copied to Mr Franco, the applicant.

The notice of listing sent to the parties on 2 April 2024 specified that “all communications to the Court, both to the registry and to Justice Pritchard’s chambers, are also copied to the other party”.

Would both parties please ensure that all communications to the Court are copied to the other party.

Rescheduled hearing of the applicant’s notice of motion seeking that the respondent be punished for the contempt of court specified in the statement of charge dated 10 March 2024

•   The respondent has requested that the hearing be rescheduled because the respondent is currently overseas, is not returning until this weekend, and requires more time to prepare evidence.

•   Accordingly, her Honour will vacate the hearing of the applicant’s notice of motion listed on Monday, 8 April 2024 and relist the matter at 10am on Thursday, 11 April 2024. A new notice of listing for Thursday, 11 April 2024 will be sent to the parties from registry today.

Service of documents on the respondent (Ms Mazzetti)

•   In the respondent’s email of 3 April 2024, the respondent states that she “has not received or sighted any documentation from the applicant regarding the contempt charge”.

•   Would the applicant please confirm that the statement of charge filed 10 March 2024, notice of motion filed 10 March 2024 and the affidavit of Mr Joe Franco filed 10 March 2024 have been served on the respondent. Attached is a document titled “Service of Documents: A guide for Self-Represented Litigants”.

•   If service has not been effected to date, the applicant should ensure that it is effected as expeditiously as possible.

• If personal service is not practicable, the applicant can make an application to the Court for substituted service pursuant to rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) that service be effected by email.

Filing of evidence

•   Could both parties please file any further evidence upon which they propose to rely at the hearing of the applicant’s notice of motion by 4pm Wednesday, 10 April 2024.

• Form 40 pursuant to rule 35.1 of the Uniform Civil Procedure Rules 2005 (NSW), which can be found on the Court’s website: makes provision in relation to the form of an affidavit.

Audio Visual Link (AVL)

•   Please advise chambers if you wish to appear remotely via AVL at the hearing on Thursday 11 April 2024, and a link can be provided.

Legal assistance

Please note that the Land and Environment Court’s website includes information in relation to obtaining legal assistance at The following options may be available:

Law Society of NSW pro bono scheme

Bar Association legal assistance referral scheme

Duty lawyer scheme at the Land and Environment Court

start="17">

On 3 April 2024, a notice of listing of the notice of motion on 11 April 2024 was sent to the parties. On 3 April 2024, the applicant responded to the notice of listing as follows:

The attached email was sent to Ms Massetti on 11th March 2024, containing the following documents:

Notice of Motion

Statement of Charge

Notice of Listing

Affidavit

These documents were emailed on 11th March 2024 to [xxx]@[xx] and [xxx]@[xx], via text to Ms Massetti mobile phone [xxxx] [xx]8 [xx]6 and also via registered post to Ms Massetti's ASIC registered business address [xx] Street, [xxxx] and to Ms Massetti's mother's address [xx] Avenue, [xxxx].

18. On 4 April 2024, my associate sent an email to the parties advising that it did not appear that the applicant had personally served the respondent with the notice of motion, statement of charge and affidavit of the applicant, all filed on 10 March 2024, as required by Pt 55, Div 3, r 9 of the Supreme Court Rules. In relation to service in contempt proceedings, in Contempt (2023), Rolph says at 527 as follows (citations removed):

Personal service as a precondition of enforcement of an order or injunction by means of contempt proceedings may not be necessary where the court has ordered substituted service. … A court may not insist upon strict compliance with the rules relating to service where it is satisfied that the person to be served is trying to evade such service.

19. At 10:06am on 4 April 2024, the applicant emailed my associate and the respondent a notice of motion seeking orders for substituted service. In his email the applicant said as follows:

As I am unsure of where the respondent resides, I have no way to serve her in person.

As with the previous hearing back in 2021, we tried serving Ms Massetti unsuccessfully in person through various avenues and applied for substituted service, which was granted.

20. On 4 April 2024, I made orders pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) granting leave to the applicant for substituted service of the notice of motion, the statement of charge and the affidavit of Mr Franco all filed 10 March 2024. On 4 April 2024, a notice of orders made was sent to the parties. On 4 April 2024, the applicant served on the respondent by email the notice of motion, statement of charge and the affidavit of Mr Franco all filed 10 March 2024.

21. On 9 April 2024, the respondent filed an affidavit of Ms Ozlem Mazzetti dated 7 April 2024, with five appendices, which were both copied to the applicant by email. The respondent did not appear at the hearing on 11 April 2024, either personally or by a legal representative. Again, the matter was called three times.

Relevant legislation

22. Section 7 of the Trees Act provides as follows:

Part 2 Court orders — trees that cause or are likely to cause damage or injury

7 Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

23. Section 10 of the Trees Act provides as follows:

10   Matters of which Court must be satisfied before making an order

(1)  The Court must not make an order under this Part unless it is satisfied:

(a)  that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b)  if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2)  The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)  has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)  is likely to cause injury to any person.

24. Procedures for the commencement and prosecution of contempt proceedings are specified in Pt 55 of the Supreme Court Rules, which are adopted in this Court by r 6.3 of the Land and Environment Court Rules 2007 (NSW) (LEC Rules).

25. Rule 6.3 of the LEC Rules provides as follows:

Part 6 Neutral evaluation of proceedings and rules regarding contempt in Class 1, 2, 3, 4 or 8 of the Court’s jurisdiction

6.3   Application of Supreme Court Rules regarding contempt

Part 55 (Contempt) of the Supreme Court Rules 1970 applies, so far as applicable, to proceedings to which this Part applies.

26. Part 55 of the Supreme Court Rules provides as follows in relation to contempt proceedings:

1 Interpretation

In this Part contemnor means a person guilty or alleged to be guilty of contempt of the Court or of any other court.

…

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.

(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, 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.

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.

…

13 Punishment

(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

…

(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

27. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act) provides as follows in relation to the purposes of sentencing:

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

28. Sections 21A(2) and (3) of the Sentencing Act provide as follows in relation to aggravating and mitigating factors:

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a)  the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,

(b)  the offence involved the actual or threatened use of violence,

(c)  the offence involved the actual or threatened use of a weapon,

(ca)  the offence involved the actual or threatened use of explosives or a chemical or biological agent,

(cb)  the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance,

(d)  the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),

(e)  the offence was committed in company,

(ea)  the offence was committed in the presence of a child under 18 years of age,

(eb)  the offence was committed in the home of the victim or any other person,

(f)  the offence involved gratuitous cruelty,

(g)  the injury, emotional harm, loss or damage caused by the offence was substantial,

(h)  the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),

(i)  the offence was committed without regard for public safety,

(ia)  the actions of the offender were a risk to national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 of the Commonwealth),

(ib)  the offence involved a grave risk of death to another person or persons,

(j)  the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(k)  the offender abused a position of trust or authority in relation to the victim,

(l)  the victim was vulnerable, for example, because the victim was very young or very old or had a disability, because of the geographical isolation of the victim or because of the victim’s occupation (such as a person working at a hospital (other than a health worker), taxi driver, bus driver or other public transport worker, bank teller or service station attendant),

(m)  the offence involved multiple victims or a series of criminal acts,

(n)  the offence was part of a planned or organised criminal activity,

(o)  the offence was committed for financial gain,

(p)  without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(a)  the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b)  the offence was not part of a planned or organised criminal activity,

(c)  the offender was provoked by the victim,

(d)  the offender was acting under duress,

(e)  the offender does not have any record (or any significant record) of previous convictions,

(f)  the offender was a person of good character,

(g)  the offender is unlikely to re-offend,

(h)  the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i)  the remorse shown by the offender for the offence, but only if—

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j)  the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k)  a plea of guilty by the offender (as provided by section 22 or Division 1A),

(l)  the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m)  assistance by the offender to law enforcement authorities (as provided by section 23),

(n)  an offer to plead guilty to a different offence where the offer is not accepted, the offender did not plead guilty to the offence and the offender is subsequently found guilty of that offence or a reasonably equivalent offence (this circumstance, among others, is provided for by section 25E (1)).

29. Section 6 of the Fines Act 1996 (NSW) (Fines Act) provides as follows:

6   Consideration of accused’s means to pay

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—

(a)  such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b)  such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

Evidence

Applicant’s evidence

30. On 10 March 2024, the applicant filed an affidavit dated 10 March 2024 which included the following annexures:

1. a letter from the applicant to the respondent dated 5 December 2023 in which the applicant stated that the court orders “don’t appear to have been carried out”; that the tree “has now grown above the wall height and I am constantly removing shoots from your tree in my backyard”; and that the “the roots that should have been killed off are very much alive”;

2. an ASIC search of Mazzetti and Associates dated 8 March 2024;

3. two registered post receipts to the addresses of Mazzetti and Associates and the respondent’s mother;

4. a copy of the Franco v Mazzetti Douglas AC judgment; and

5. 12 images of the honey locust tree, Mr Franco deposing that images 1-3 were taken on 27 November 2023, images 4-7 on 19 December 2023, and images 10-12 on 9 March 2024.

31. The applicant read his affidavit at the hearing on 11 April 2024. In his affidavit, the applicant deposed that:

1. “I wrote to [the respondent] on the 7^th of December 2023, regarding her non compliance of court orders against her by Commissioner Douglas … This correspondence was sent to 2 addresses, the first to her business address at [xx] Street [xxxx] … The second correspondence was sent to her mother … at [x] Avenue [xxxx]. Both letters were sent by registered post. Tracking numbers attached. I did not receive any correspondence from [the respondent]”.

2. images 1-3 (taken on 27 November 2023) “show healthy regrowth of the honey locust tree to the point where the regrowth has reached the top of the brick wall. The height of the brick wall is approximately 2 metres. This measurement gives an accurate indication of the regrowth of the honey locust tree”;

3. images 4-7 (taken on 19 December 2023) “show the honey locust tree has been trimmed below the brick wall line”;

4. images 8-9 “show the growth of the honey locust tree in my garden … I note the images show the honey locust tree has been trimmed below the brick wall line and the severed branches placed by the red, yellow and green waste bins”; and

5. images 10-12 (taken on 9 March 2024) “show the continued healthy growth of the honey locust tree, which is now growing well past the top of the dividing brick wall”.

32. Images 1 to 12 are extracted below:

Image 1

Image 2

Image 3

Image 4

Image 5

Image 6

Image 7

Image 8

Image 9

Image 10

Image 11

Image 12

33. At the hearing on 11 April 2024, the applicant also tendered an email with a photograph he had sent to the Court on Thursday, 28 March 2024 in which he said:

Please see photo taken today, 28^th March 2024, as I stand on the roof of my shed on my property, showing roots of the tree circled in yellow.

34. The photograph taken by the applicant on 28 March 2024 is reproduced below:

Material apparently sought to be relied on by the respondent

35. On 21 March 2024, the respondent’s letter of 20 March 2024 was sent to the Court in response to the Court’s email of 11 March 2024 advising of the listing of the applicant’s notice of motion before the list judge on 22 March 2024. On 21 March 2024, the respondent sent a further email to the Court.

36. On 9 April 2024, the respondent filed an affidavit of Ms Ozlem Mazzetti. The respondent’s affidavit was witnessed by a justice of the peace. Some of the material in the respondent’s letter of 20 March 2024 was repeated in the affidavit.

Consequences of the respondent’s decision not to appear personally or by a legal representative

Ex parte hearing and sentencing

37. In contempt proceedings, before a person can be found liable for contempt of court, they must be given an opportunity to be heard on the charge they are facing. ^[5] In Contempt (2023), Rolph says at 762 that “[i]t should only be in an extraordinary case that contempt proceedings are heard ex parte”.

    5. Contempt (2023) p 761; citing R v Poplar Borough Council (No 2) [1922] 1 KB 95, 112 (Warrington LJ).

38. On 11 March 2024, the notice of listing on 22 March 2024 was sent to the respondent. The respondent received this notice and responded to it, saying that she “will not be participating in the hearing on 22 March 2024 or engaging in any future direct contact with the applicant (including in the presence of third parties)”. On 3 April 2024, I rescheduled the hearing to 11 April 2024 as the respondent had sent an email to my chambers saying she was overseas, and requesting further time to prepare her evidence.

39. I am satisfied that on 4 April 2024, the respondent was served the notice of motion, statement of charge and affidavit of Mr Franco all filed 10 March 2024.

40. On 27 March 2024 and 3 April 2024, my associate sent emails to the respondent (and the applicant) asking the parties to advise whether they wished to appear remotely by audio-visual link. My associate also sent the respondent (and the applicant) emails providing information in relation to pro bono legal assistance which might be available to them.

41. I am satisfied that the respondent was provided adequate opportunity to be heard in relation to the charge of contempt brought against her. The respondent was informed of the possibility of appearing remotely, and of avenues to seek pro bono legal assistance. She decided not to participate at the contempt proceedings.

42. In Blacktown City Council v Hambly (No 2),^[6] at [30]-[32], the Court identified the following cases in which the Supreme Court and this Court have proceeded to hear and determine contempt proceedings, including imposing a sentence, in the absence of a respondent as follows (footnotes removed):

30. In Sydney City Council v Li (No 2), Preston CJ determined proceedings for contempt in the absence of two respondents. His Honour was satisfied that both respondents had been duly notified of the proceedings and the listing.

31. In Blacktown City Council v Saker (No 2), Molesworth AJ determined proceedings for contempt in the absence of the respondent. His Honour was satisfied that the respondent had been duly notified of the proceedings and the listing.

32. In Council of the City of Sydney v Mae (No 2) at [33],  Sheahan J records that he had determined due to the serious nature of the contempt proceedings to decline to determine the application in the absence of the respondent, and issued a general arrest warrant. Ultimately, the arrest warrant was not executed as the respondent could not be located by the Sheriff. However, the respondent ultimately appeared and participated in the sentencing hearing.

6. [2023] NSWLEC 91 at [30]-[32] (Pritchard J).

43. I am satisfied that the respondent was duly notified of the proceedings and listings, and that it is within power and otherwise appropriate for me to consider whether the respondent is guilty of contempt, notwithstanding her absence.

Evidence apparently sought to be relied on by the respondent

44. As previously recorded, the respondent did not appear before the list judge on 22 March 2024, at the hearing on 2 April 2024 or at the hearing on 11 April 2024. Accordingly, the respondent’s affidavit filed 9 April 2024 was not read, the materials sent by her to the Court were not sought to be tendered, and the Court had no opportunity to assess her credibility or reliability.

45. The Court will proceed to determine the contempt charge brought against the respondent without any evidence sought to be read or tendered by or on her behalf, and without any submissions made by the respondent or on her behalf.

Principles in relation to proceedings for contempt

46. In relation to liability for non-compliance with court orders, in Contempt (2023), Rolph says at 680 (citations removed):

The Land and Environment Court of New South Wales is constituted as a superior court of record. … The Land and Environment Court has and may exercise the same functions as the Supreme Court of New South Wales in relation to the apprehension, detention and punishment of persons guilty of contempt or of disobedience of court orders or process.

47. In relation to liability for non-compliance with orders, in Contempt (2023), Rolph says at 535 (citations removed):

It is always open to the legislature or rules of court to deem non-compliance with court orders or direction to be contempt or to provide that the person not complying is liable to punishment for contempt.

48. In contempt proceedings, the moving party bears the onus of establishing the contempt charge beyond reasonable doubt, irrespective of whether the alleged contempt is civil or criminal. ^[7] Here, the applicant has the onus of proving beyond reasonable doubt that the respondent has not complied with orders 2 and 3 made by Douglas AC on 24 February 2022.

    7. Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 (Witham v Holloway) (McHugh J) at [29], cited in Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [43] (Preston CJ of LEC) and Jones v Stephenson Pain J at [5].

49. In Blacktown City Council v Hambly (No 3) ^[8] at [21], the Court said as follows in relation to the distinction between civil and criminal contempt, citing Witham v Holloway at 530:

The distinction between civil and criminal contempt is “that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.” However, disobedience of a court order amounts to a criminal contempt if it involves deliberate defiance or if it is contumacious.

8. [2023] NSWLEC 141 (Pritchard J).

50. In Georges River Council v Hamade ^[9] at [37]-[41], Pepper J identified the following principles in relation to the characterisation of contempt:

37. As alluded to above, distinction between civil and criminal contempt is largely illusory because both require the charge to be proved beyond reasonable doubt, and unless the contempt is technical, the usual outcome is the imposition of a penalty (Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23]).

38. The difference between technical and non-technical contempt is that the former, although constituting contempt, does not warrant any punitive sanction (Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at [16]).

39. Contempt is classified as technical where it is casual, accidental or unintentional (Pelechowski at [147]).

40. Contempt is wilful if there is evidence of “deliberate conduct but without specific intent to defy judicial authority” (Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79 at [20]). Wilful contempt amounts to disobedience that is more than casual, accidental or unintentional, but falls short of a specific attempt to defy the authority of the court so as to be contumacious (Pelechowski at [147]-[148] and Arxidia Pty Ltd at [66]).

41. Contumacious contempt is serious and renders criminal what would otherwise be civil contempt because it involves a conscious and deliberate defiance of the Court’s orders and its authority (Witham v Holloway at 538-539, Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [2], [24], [130] and [141], Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [58] and Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 at [33]).

9. [2023] NSWLEC 71 (Pepper J).

51. In Council of the City of Sydney v The Owners of Strata Plan 18820^[10] (City of Sydney v Owners of Strata Plan 18820) at [41], Robson J said as follows:

The underlying purpose of the Court’s power to punish for contempt is to protect the effective administration of justice by demonstrating that the Court’s order will be enforced; see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 106 (Gibbs CJ, Mason, Wilson and Deane JJ, with Brennan J agreeing on this point).

10. [2017] NSWLEC 81 (Robson J).

Purging contempt

52. It is clear that contempt in the form of breach of orders may be purged by apology, payment of compensation/reparation and payments of costs. ^[11] In some cases, a contemnor may be given an opportunity to purge such a contempt by being given further time to comply. ^[12] The same opportunity should generally be given to a contemnor who refuses to give evidence. ^[13]

    11. Evans v Citibank Ltd [2000] NSWSC 1017 at [5] (Hamilton J).

    12. Globaltel Australia Pty Ltd v MCI Worldcom Australia Pty Ltd [2001] NSWSC 545 (Santow J).

    13. Smith v The Queen (1991) 25 NSWLR 1; (1991) 56 A Crim R 148 (Mahoney and Meagher JJA).

53. In relation to continuing breaches of court orders, it is open to a court to suspend a fine for a certain period, or to impose a fine for a continuing breach after a specified date, in order to effectively allow a contemnor to purge the contempt. ^[14] Contempt by refusal to give evidence may be purged by later doing so. A contempt will still be made out, but purgation will be relevant to penalty. ^[15]

    14. Liverpool Plains Shire Council v Rumble (No 3) (2014) 205 LGERA 170; [2014] NSWLEC 139 at [24] (Pain J).

    15. Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495 at [48] (Bellew J).

54. In circumstances where the respondent has chosen not to appear in the proceedings, there is no evidence before me as to steps taken by her to purge any contempt.

Costs in contempt proceedings

55. In Contempt (2023), Rolph says at 818 as follows in relation to costs in contempt proceedings (citations removed):

A contemnor will frequently be ordered to pay costs of the contempt proceedings on an indemnity basis. The rationale for ordering indemnity costs … is that a person who is obliged to have to resort to contempt of court to enforce his or her rights should not be left out of pocket. …

Given that contempt proceedings should be a last resort, costs may not be awarded where there is an unnecessary or premature invocation of the contempt jurisdiction.

Proceedings for contempt in relation to orders made under the Trees Act

Tri Huu Pham v Emile Papaioannou ^[16]

16. [2019] NSWLEC 180 (Moore J).

56. In Tri Huu Pham v Emile Papaioannou (Tri Huu Pham), a judgment delivered on 15 November 2019, Moore J at [7] found Mr Papaioannou guilty of contempt for not following an order (order 5) made by commissioners of the Court (Commissioners Brown and Galwey) to maintain “trees T4 to T7 at a height of no more than 500 millimetres above the height of the Colorbond fence, or 1.6 metres above the level of the path adjoining the fence on the adjoining property”. The applicant’s affidavit established that trees T4 to T7 were above the height specified in the order.

57. At [16]-[19], Moore J said as follows in relation to sentencing for contempt in Class 2 proceedings in this Court:

[16] It is clear from the decision in Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 that, as explained by Basten JA in those proceedings, the conventional provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) do not apply. However, the Sentencing Procedure Act, although not applying as a matter of law, can provide some guidance as to how I should approach the sentencing of Mr Papaioannou for contempt.

[17] Ten factors were also identified as relevant to sentencing for contempt charges by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183. Only a number of those are relevant for consideration in these proceedings.

[18] However, it is appropriate that the seriousness of the contempt is a factor to which I have to have regard. Others are:

(1)   the reason for that contempt;

(2)   whether there is any expression of contrition or remorse;

(3)   the question of the character and antecedents of Mr Papaioannou;

(4)   questions of general and personal deterrence; and

(5)   the necessity to denounce the contempt and uphold the reasoning of, and basis for, the terms of orders of the Court.

[19] In these regards, the guidance that is given by s 21A(3) of the Sentencing Procedure Act provides some utility in assisting me.

58. At [27], Moore J found that the contempt was “wilful” because Mr Papaioannou was “aware of the nature of the orders”, but his Honour was “not satisfied that [the contempt] rises to the status of being regarded as contumacious”. The respondent was fined $500 in punishment for contempt because he was satisfied that the “contempt has been occasioned in a significant part by a misunderstanding of the nature of the obligations” (at [35]).

59. In relation to the question of costs, Dr Pham made an application that Mr Papaioannou pay his costs on an indemnity basis. At [30], Moore J accepted that the total costs, including expert witness fees, of Dr Pham were in the amount of $47,126. At [31]-[33], Moore J said as follows:

There is no hard-and-fast rule that mandates that costs be awarded on an indemnity basis in contempt matters. That would be the consequence that would necessarily follow from me ordering costs in the gross sum of $47,126.

However, for the reasons set out by O'Callaghan J in AGL Energy Limited v Hardy (No 3) (2017) FCA 952 at [8] and [9], it is reasonable that someone who is seeking to enforce the orders of a Court, whether they are doing it for reasons of public enforcement of public rights or private enforcement of private rights, would have the expectation that they would not be left out-of-pocket for that enforcement action being taken as a consequence of the breach of the orders of the Court.

I am satisfied, under those circumstances, that it is not only appropriate that I make an indemnity costs order, but that I make an indemnity costs order in a nominated gross sum, being that which I have recently outlined.

Jones v Stephenson Pain J

60. In Jones v Stephenson Pain J, both parties were self-represented. Mr and Mrs Jones sought that Mr Stephenson be found guilty of contempt of the following order made by a commissioner of the Court on 30 January 2017 (emphasis added):

The respondent is to engage and pay for an arborist with a minimum qualification of AQF level 3 in arboriculture to prune the Leyland Cypress indicated as trees 2, 3 and 4 on the diagram in the application claim form, being the three conifers closest to Window 2 on the upper floor of the applicants’ dwelling, to a height level with the bottom of that window. The work is to be carried out in the month of April 2017 and maintained annually (each April) to that height until such time as the trees are removed.

61. In her judgment delivered on 13 November 2020, Pain J noted that the statement of charge identified “two aspects of the contempt alleged”^[17] : firstly, “that the trees ha[d] not been pruned in the timeframe required”^[18] ; and secondly, whether trees 2, 3 and 4 had been pruned “to a height sufficient to comply with [the order]”. ^[19] At [33]-[34], Pain J found that the first aspect of the charge of contempt, that is, failing to prune trees 2, 3 and 4 in April 2020 as required by order 3, was established beyond reasonable doubt. Her Honour accepted that it was most likely that the respondent undertook pruning “sometime in July”. ^[20] At [36]-[39], in relation to the second aspect of the charge of contempt, that is, failing to maintain trees 2, 3 and 4 at a height specified in order 3, Pain J found that Mr and Mrs Jones had not established that Mr Stephenson had not pruned the three trees to the height required by the order.

    17. Jones v Stephenson Pain J at [33].

    18. Jones v Stephenson Pain J at [33].

    19. Jones v Stephenson Pain J at [36].

    20. Jones v Stephenson Pain J at [34].

62. At [39], Pain J said as follows in relation to whether the contempt had been purged:

39.   An important consideration in sentencing for contempt is asking whether the contempt has been purged. I consider that Mr Stephenson has purged the contempt established in relation to April 2020, the trees having been pruned to the necessary height sometime in July and August 2020.

63. At [40]-[42], her Honour identified the following principles in relation to sentencing for civil contempt in matters brought under the Trees Act:

40. In Georges River Council v Misfud [2017] NSWLEC 113 I set out 10 factors relevant to sentencing for contempt as identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 per Dunford J at 185:

1.   the seriousness of the contempt proved;

2.   whether the contemnor was aware of the consequences to himself or herself of what he or she did;

3.   the actual consequences of the contempt on the relevant trial or inquiry;

4.   whether the contempt was committed in the context of serious crime;

5.   the reason for the contempt;

6.   whether the contemnor has received any benefit by indicating an intention to give evidence;

7.   whether there has been any apology or public expression of contrition;

8.   the character and antecedents of the contemnor;

9.   general and personal deterrence; and

10.   denunciation of the contempt.

41. As to whether the sentencing considerations in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) apply in these proceedings, I note the following comments of Robson J in Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 (Ahmed) at [19]:

Whilst there is fertile ground for debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) applies to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [15] (Meagher JA)), it has been applied generally (see Hutley at [32] (Pain J); Re Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (see Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J) (“Queanbeyan”)). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.

42. There is overlap between some of the factors identified in Wood v Staunton (No 5), the sentencing objectives in s 3A of the CSP Act and sentencing considerations in s 21A. I will consider these where relevant as a useful guideline. Factors 1, 2, 5, 7, 8 and 9 in Wood v Staunton will be considered.

64. At [50], Pain J said as follows in relation to the Court’s discretion to decide whether to convict and impose a fine, and also whether the contempt has been purged (emphasis added):

As identified in Pt 55 r13(1) of the SC Rules, contempt of court can be punishable by fine or imprisonment or both. I have discretion to decide whether I should convict Mr Stephenson for the proven contempt and impose punishment of a fine. While not able to apply s 10 of the CSP Act directly, the factors to be considered in deciding whether to dismiss a charge in subs (3) can helpfully inform my approach. These are the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, and any other matter that the court thinks it is proper to consider. The parties are neighbours in dispute over three trees on Mr Stephenson’s boundary. Mr Stephenson is 60 years old and has no regular employment. The contempt is not serious and has been purged. Mr Stephenson has otherwise complied with the substantial work required by the Court’s 2017 orders. I consider it inappropriate to convict or fine Mr Stephenson as the commencement of these proceedings alone is likely to have a salutary effect upon him.

65. However, in relation to the question of costs, Pain J awarded costs to Mr and Mrs Jones because the proceedings were “reasonably commenced in the circumstances”. ^[21] Her Honour referred to Latoudis v Casey ^[22] as authority for the principle that costs are compensatory and not punitive. Pain J awarded costs for the filing fee, copy of judgment and travel costs,^[23] but not for the time taken to research and prepare documents for the proceeding. ^[24]

Jones v Stephenson Duggan J ^[25]

21. Jones v Stephenson Pain J at [51].

22. [1990] 170 CLR 534; [1990] HCA 59 at [3] (McHugh J) and at [13] (Mason CJ).

23. Jones v Stephenson Pain J at [52].

24. Jones v Stephenson Pain J at [52].

25. [2022] NSWLEC 36 (Duggan J).

66. In Jones v Stephenson (Jones v Stephenson Duggan J), Mr and Mrs Jones alleged that the order the subject of Jones v Stephenson Pain J was not being complied with. In her judgment delivered 4 April 2022, Duggan J at [4] found Mr Stephenson to be in breach of the order, but made “no finding of contempt” because he had purged the contempt by removing the three trees “which was more than [what] was required by the Tree Order”. ^[26]

    26. Jones v Stephenson Duggan J at [13].

67. In relation to costs, Duggan J ordered that the respondent pay the applicant’s costs in the amount of $311.65 incurred for filing because “due to Mr Stephenson’s conduct, it was necessary that the Applicants commence these proceedings”. ^[27]

Consideration

27. Jones v Stephenson Duggan J at [15].

Whether the respondent is in contempt of order 2

68. Order 2 required as follows:

Within 45 days, and at her expense, the Respondent shall remove the tree to at least 300mm below existing ground level, ensuring that all roots emerging from the stump of the tree, to this depth, are separated from the stump.

69. In the applicant’s letter to the respondent of 5 December 2023, annexed to the applicant’s affidavit dated 10 March 2024 (which was in evidence), the applicant said as follows (emphasis added):

The court orders made against you … don't appear to have been carried out as directed by the court. I note the honey locust tree on our adjoining boundary you removed has now grown above the wall height and I am constantly removing shoots from your tree in my backyard. I also note the roots that should have been killed off are very much alive and are still affecting the movement of the wall.

70. The applicant’s words “the honey locust tree … you removed” are evidence that the respondent did take some steps to remove the honey locust tree.

71. At the hearing, the applicant at times gave evidence from the bar table. I said that it was important that there be some attention to the distinction between evidence and submissions. The applicant chose to go into the witness box, and give sworn evidence. After the applicant withdrew, he made submissions from the bar table which at times were of the nature of evidence. As in Jones v Stephenson Pain J (at [4]), I have been mindful that the distinction between evidence and submission is difficult for a lay person to apply.

72. At the hearing, the applicant gave sworn evidence that the honey locust tree was removed in March 2022:

With her appenditures(as said), appenditure(as said) 2 is post tree removal, 16 of the 3rd, 22.  So Mr Abbott did the work - or he invoiced her on 15 March, and on the 16th she took photos.

73. The applicant said that he did not believe that Mr Abbott, the arborist who he accepted was engaged by the respondent to remove the honey locust tree, removed the honey locust tree to 300 millimetres below existing ground level:

APPLICANT: So the tree I don't believe was removed to 300 millimetres below existing ground level, ensuring that all roots emerging from the stump of the tree to this depth are separated from the stump.  So, your Honour, this means once [Mr Abbott’s] cut the tree down, he was required to grind the stump 300 millimetres, and all the roots coming out of the stump had to be cut away from the stump.  If that happened, there would be no tree regrowth whatsoever.  To make certain that there was no more growth - or to make - so just [order] 2 there, if that was complied with, there would be no more regrowth from the tree at all. 

74. The applicant also said that there was “no evidence of any pavers being lifted and there’s no evidence of the shed being lifted” when the tree was removed by Mr Abbott in March 2022. The applicant provided the following sworn evidence in relation to the actions taken by Mr Abbott to remove the honey locust tree:

I know for 100% sure - because I watched the whole job.  I happened to be there that day and I thought, "I'm going to watch this and see what they do."  And he was in and out within about five or six hours.  In and out.  But there's no evidence of any paver removal.  … the shed hasn't been moved. 

75. On the basis of the documentary evidence and the sworn oral evidence of the applicant, I find that the respondent took some steps to have the honey locust tree removed around March 2022.

76. The applicant’s sworn evidence was that the honey locust tree “has grown to 2 metres in height”, and that:

A. … Now, if Commissioner Douglas' ruling 2 and 3 were carried out as per the court orders, there wouldn't be any regrowth.  The tree would be dead.  I've got evidence in my affidavit the tree has grown to 2 metres in height.

Q.  How high is the fence again?

A.  Two metres.  The tree was actually over the fence, so it's two and a bit metres. 

77. The applicant said that images 1, 2 and 3 annexed to his affidavit of 10 March 2024 were taken by him on 27 November 2023 from “on top of the wall”. The applicant submitted in relation to images 1, 2 and 3:

APPLICANT: … Just to put this in perspective, the wall is 200mm wide.  I walked on top of the wall to take these photos from on top of the wall.  Just in the bottom left-hand corner, you can clearly see the roof of the garden shed, which is higher than the fence, and next to it you can see the Honey Locust tree growing.

HER HONOUR: How much higher is--

APPLICANT: Probably about 300mm, your Honour.  Image 3 - taken also from above - shows the width the tree has expanded.  And as you can see - again, this is a view from above - the brick wall that you can see, that is the dividing wall of the property behind [the respondent’s] property.  And as you can see, the tree has grown over that wall as well.

HER HONOUR: Is there a garden bed in that area?

APPLICANT: That is a garden bed, yes.

HER HONOUR: That is a garden bed, so it's not growing through the pavers?

APPLICANT: No, no.  That's growing through the garden bed, yes your Honour.

HER HONOUR: But your submission is, that in order for the Honey Locust tree to be properly removed, the pavers would have to be lifted in order for the roots--

APPLICANT: They would have to be lifted because the root has grown away from the garden bed.  The wall behind the shed - so the shed leans up against the wall. 

78. The applicant said that images 4 and 5 were taken by him on 19 December 2023 (before the applicant filed the notice of motion and statement of charge on 10 March 2024), and show “healthy growth of the [h]oney [l]ocust [t]ree” and that “the branches have begun to be cut on the [honey locust] tree”. The applicant submitted that this occurred after the respondent “received my letter”.

79. The applicant said that images 6 and 7 were also taken by him on 19 December 2023, and show as follows:

APPLICANT: …. the green recycling bin is full, so they've piled them up next to the green bin.

HER HONOUR: These are the branches that the … cut after--

…

APPLICANT: The photos show the evidence that--

HER HONOUR: That it was cut, yes.

APPLICANT: --it has been cut.  By somebody.

HER HONOUR: By someone, yes, and piled up beside the green recycling bin.

80. The applicant said that images 8 and 9 annexed to his affidavit were taken by him on 19 December 2023, and show the “growth of the honey locust tree in my garden”. The applicant said as follows in relation to the regrowth of the tree on the applicant’s property:

HER HONOUR: Just confining yourself to what I can see here, you say they show the growth of saplings on your side of the fence, and your evidence is that you have been pulling out saplings--

APPLICANT: At least once a week.

HER HONOUR: --at least once a week since the Acting Commissioner made his decision?

APPLICANT: Yeah …

81. The applicant said that images 10, 11 and 12 were taken by him on 9 March 2024 (before he filed the notice of motion and statement of charge on 10 March 2024), and show “the continued healthy grow of the honey locust tree which is now growing well past the top of the dividing brick wall”.

82. The applicant said as follows in relation to the photograph taken by him on 28 March 2024 after he had filed the notice of motion and statement of charge on 10 March 2024:

APPLICANT: … this photograph doesn’t show the roots.  It shows from the stump of the tree where he cut the tree.  It shows the regrowth.  So, this is what's left of the two metre growth which I've shown in my other photos.

…

APPLICANT: … That just shows that they've done a hatchet job on it to try to hide the fact that it's growing.

83. The applicant gave evidence that he is a plumber. Accordingly, he is not a qualified arborist. However, I admit his evidence in relation to what he saw or perceived about the matters or events as an exception to the opinion rule pursuant to s 78 of the Evidence Act 1995 (NSW).

84. I also find that the respondent took some steps to have the honey locust tree removed after receiving the applicant’s letter of 5 December 2023.

85. The respondent chose not to appear personally or by a legal representative, and chose not to put before the Court any evidence in the form of a medical report or the like in relation to her mental health reasons for not participating at the hearing. I am mindful of the need to be flexible, and to make adjustments in order for people to be able to give evidence effectively. Here, however, the respondent declined to avail herself of the opportunity to appear remotely or to seek any adjustments she wished for the Court to consider.

86. There is, on the evidence before me, plainly animus between the applicant and respondent. However, I accept the applicant as a truthful witness. Whilst he was plainly agitated about the regrowth of the honey locust tree, I find his evidence to have been credible and reliable.

87. I am unable to find that the applicant has proven beyond reasonable doubt that the respondent has failed to comply with order 2. The evidence is that following the imposition of order 2 requiring that within 45 days, at the respondent’s expense, she remove the tree to at least 300 millimetres below existing ground level, ensuring that all roots emerging from the stump of the tree, to this depth, are separated from the stump, the respondent took some steps in March 2022 and in March 2024 to remove the honey locust tree. I find that the tree has twice regrown: once to a height of over 2 metres resulting in the applicant “constantly removing shoots” from the tree in his backyard; and more recently there being regrowth of saplings evident.

88. However, on the evidence before me, I am unable to be satisfied beyond reasonable doubt that the respondent has failed to comply with order 2.

Whether the respondent is in contempt of order 3

89. Order 3 required as follows:

The structural root growing towards and under the common boundary wall, identified in the Laws’ report as being about 130mm diameter where it emerges into the Applicant’s property, shall be removed to a point as close to the base of the wall as is practical, on the Respondent’s side of the wall.

90. In his letter to the respondent dated 5 December 2023, the applicant said (emphasis added):

… I am constantly removing shoots from your tree in my backyard. I also note the roots that should have been killed off are very much alive and are still affecting the movement of the wall.

91. The applicant did not dispute that efforts were made by Mr Abbott in March 2022 to remove the honey locust tree. However, the applicant’s evidence, which I accept, is that the tree grew back to over 2 metres.

92. In relation to order 3, the applicant submitted orally as follows in relation to the purpose of the order:

… the structural root growing … towards and under the common boundary wall identified in the [Laws] report as being about 130 millimetres in diameter where it emerges into the applicant's property shall remove to a point as close to the base of the wall as is practical on the respondent's side.  This here, your Honour, was like a bit of a security clause because it was coming up through the construction joint of the brick wall, and that particular root lifted the wall, put the structural integrity of the wall in question.  So if that one was removed, then the wall would've been structurally sound.  That was five years ago, your Honour.  The - sorry, it was four years and nine months ago that this all began. 

93. The applicant submitted that the respondent had not complied with order 3:

APPLICANT: … in my opinion, she hasn't complied - that root, the 130 millimetre root is still growing, and I know that for a fact because the wall has widened - the gap has widened.

HER HONOUR: Can you explain that to me? I want to understand what you mean when you say "the gap has widened."

APPLICANT: Okay, so, your Honour, when they built the wall, they built a section of the wall - say, about 3 metres wide and 200 millimetres - sorry, 300 - 3 metres long-

HER HONOUR: In length?

APPLICANT: Yeah, in length, and 200 millimetres wide, the length of a common house brick. Then there's - the method they use to build the wall is a method used called controlled joints. The brick wall doesn't tie into - the next section of wall doesn't tie into the existing section. There's about a 10 millimetre gap. That gap allows the wall to move, expand and contract, without the brickwork cracking, having - without the - it's called compression cracking when you see a crack in a brick wall. So there's probably about five or six sections of brick wall, and in between every section there's a controlled joint about 20 - about 10 millimetres - the controlled joint is a gap of about 10 millimetres. The controlled joint at the time--

HER HONOUR: When you say "at the time", yes, at the--

APPLICANT: At that time--

HER HONOUR: Of the proceedings before the Acting Commissioner?

APPLICANT: Yeah. I think, from memory, is about 20 millimetres. The structural engineers said - her structural engineer said it needs to be monitored, because if it falls, it'll kill someone. My structural engineer said basically the same thing. What I'm saying today is it's been nearly five years since I started action and that tree root is still growing.

94. At the hearing, the applicant also gave the following evidence in relation to the saplings from the honey locust tree:

All the saplings that are coming out on my side of the wall, your Honour, are from that 130 mill tree root that has grown through and under the controlled joint.

95. I find that the applicant has proved beyond reasonable doubt that the respondent has failed to comply with order 3. The evidence is that following the imposition of order 3 requiring the removal of the structural root growing towards and under the common boundary wall about 130 millimetres in diameter to a point as close to the base of the wall as is practical, and despite steps taken by the respondent in March 2022 and in March 2024 to remove the honey locust tree, the tree has twice regrown: once to a height of over 2 metres and requiring the applicant “constantly removing shoots” which come from the structural root as about 130 millimetre in diameter identified in order 3, and more recently there being regrowth of saplings evident.

96. On the evidence before me, I am satisfied beyond reasonable doubt that the respondent has failed to remove the structural root growing towards and under the common boundary wall, and hence is in contempt of order 3.

Sentencing

97. Having found the respondent guilty of contempt, I consider it is appropriate to impose a penalty. The failure to comply with order 3 warrants a punitive sanction. Without any evidence from the respondent I cannot be satisfied that the contempt is casual, accidental or unintentional, or that it has been purged. Nor is there any evidence capable of satisfying me beyond reasonable doubt that the contempt was with specific intent to defy judicial authority so as to be contumacious.

98. I now proceed to sentence. Although it appears from authority that the Sentencing Act, in particular s 21A, does not apply in Class 2 proceedings in this Court, I consider that its provisions provide guidance as to how I should approach the sentence of the respondent for contempt.

99. As Basten JA (Meagher JA agreeing) at [33], [46] and [49] said in Dowling v Prothonotary of the Supreme Court of New South Wales (footnotes omitted):^[28]

    28. (2018) 99 NSWLR 229; [2018] NSWCA 340 (Basten JA).

33. The primary judge approached the determination of an appropriate punishment as a form of sentencing governed by the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). Although there is authority to support that approach, it may be doubted that the Sentencing Procedure Act applies where proceedings are commenced in the civil jurisdiction of the Supreme Court.

…

46. Neither the subject-matter, scope and purpose of the Sentencing Procedure Act, nor the procedures, processes and purposes of the law of contempt suggests that the Sentencing Procedure Act should apply with respect to proceedings in the civil jurisdiction of the court for contempt. However, there is authority in this Court which supports the contrary conclusion. In Attorney General (NSW) v Whiley the Court held that the Sentencing Act 1989 (NSW), the predecessor to the Sentencing Procedure Act, applied “where a person is imprisoned for contempt.” It is clear from the commencement of the discussion that the Court was considering a conviction for criminal contempt, noting:

“Both counsel pressed upon the Court the view that [the Sentencing Act] did apply and it is difficult at first sight to see why that view is not correct. Contempt is an indictable offence which can be dealt with summarily. A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular.”

The phrase “an offence which is criminal in nature” appeared to echo the words of Deane J in Hinch v Attorney-General (Vic), that all proceedings for the imposition of a fine, committal to prison, or sequestration of property, are “essentially criminal in nature”. Nevertheless, some three months after Whiley Handley JA (who had been a member of the bench in Whiley), noted in Young v Registrar, Court of Appeal (No 3) that Whiley was dealing only with a criminal contempt. Handley JA doubted the correctness of another decision holding “that the Sentencing Act 1989 applies to committals to prison for civil contempts.”

…

49. The distinction being illusory, it would be anomalous to have different statutory regimes applicable to punishment for a civil contempt as opposed to a criminal contempt. Particularly is that so where, as in the present case, punishment may be imposed for a number of contempts, one of which may be criminal and another civil. The better view is that a single regime should apply and, for the reasons noted below, the Sentencing Procedure Act is not engaged.

100. It follows that s 21A of the Sentencing Act provides assistance to me in sentencing the respondent. As Robson J said in Canterbury City Council v Ali Ahmed ^[29] (Canterbury City Council v Ali Ahmed) at [19]:

Whilst there is fertile ground for debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) applies to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [15] (Meagher JA)), it has been applied generally (see Hutley at [32] (Pain J); Re Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (see Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14;[2013] NSWLEC 64 at [17] (Biscoe J) (‘Queanbeyan’)). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.

29. [2016] NSWLEC 160 at [19] (Robson J).

101. I adopt the approach to sentencing taken by Pain J in Jones v Stephenson Pain J, extracted above at [63].

Seriousness of the contempt

102. The regrowth of the honey locust tree is undoubtedly a matter of deep concern and distress to the applicant. However, given the applicant’s acceptance that two attempts were made by the respondent to have the tree removed, once in March 2022 and again in March 2024, I find the contempt to be at the lower end of seriousness.

Awareness of the consequences and actual consequences

103. There was no evidence before me capable of supporting a finding that the respondent was aware of the consequences of the contempt.

Reason for the contempt

104. Nor was there any evidence before me, nor can I make any finding in relation to the reasons for the respondent’s contempt.

Benefit to the contemnor

105. Again, there was no evidence before me capable of sustaining a finding in relation to any benefit to the contemnor by reason of the contempt.

Contrition

106. The respondent did not appear. I am satisfied that she has not demonstrated any contrition for the contempt which I have found, beyond reasonable doubt, to have been committed by her.

Deterrence and denunciation

107. There was no evidence before me capable of sustaining any finding in relation to the need for personal deterrence. In relation to general deterrence, that is a factor weighing upon the sentence I will impose.

Consistency in sentencing

108. In relation to consistency in sentencing, I have regard to Tri Huu Pham where Moore J fined the contemnor $500, and Jones v Stephenson Pain J, where Pain J did not sentence the contemnor. However, the penalty I will impose is plainly a matter for myself in the exercise of the Court’s discretion in the circumstances here.

Capacity to pay

109. Pursuant to s 6 of the Fines Act, the Court is required to consider the means of the contemnor to pay the fine. ^[30] There is no evidence before the Court in relation to the respondent’s capacity to pay.

     30. Canterbury City Council v Ali Ahmed at [45] (Robson J); City of Sydney v Owners Strata Plan No 18820 at [65] (Robson J).

Costs

110. In relation to the question of costs, as in Jones v Stephenson Pain J, there is no basis for finding that the proceedings were not reasonably commenced (at [51]). ^[31]

     31. See also the finding of Duggan J in Jones v Stephenson Duggan J at [15] that it was “necessary that the proceedings commenced”.

111. At the hearing, the applicant made submissions on the question of costs as follows:

APPLICANT: … I run a one man band plumbing business, and everyday I'm here I have to write the whole day off.

HER HONOUR: Do you have any estimate of how much?

APPLICANT: My schedule of fees are for myself when I'm out onsite.  I charge myself out at $125 an hour plus GST.  When I'm in the office at night, I charge myself out at $75 an hour plus GST.  That’s when I do the paperwork.  …

HER HONOUR: How many days do you say you have been here as a result of what you allege is the contempt of the respondent?

APPLICANT: Three days, your Honour.

112. It is undoubtedly correct that the applicant, Mr Franco, appeared three times in Court: on 22 March 2024 in the list and on 2 April 2024 and 11 April 2024 at the hearing before me. However, Mr Franco adduced no evidence in relation to his standard working hours, or the number of contracts, if any, he had to forego as a result of his appearances in Court. Moreover, the general principle is that self-represented litigants cannot be recompensed for their time spent in litigation. ^[32] Accordingly, I will make no order as to costs.

     32. Cachia v Hanes (1994) 179 CLR 403 at 410-411; [1994] HCA 14 (Mason CJ, Brennan, Deane, Dawson and McHugh JJ), cited in Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 233; [2019] HCA 29 at [1] (Kiefel CJ, Bell, Keane and Gordon JJ) and Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 at [191] (Kirk JA).

Conclusion and orders

113. The Court makes the following orders:

1. The respondent, Ms Ozlem Mazzetti, is guilty of contempt for failing to comply with order 3 of the Court’s orders made on 24 February 2022 in proceeding 236725 of 2021.

2. Pursuant to Part 55, Division 4, rule 13 of the Supreme Court Rules 1970 (NSW), the respondent is fined $500 for failure to comply with order 3 of the Court’s orders made on 24 February 2022 in proceeding 236725 of 2021.

**********

Endnotes

Amendments

29 April 2024 - Typographical error corrected at [36].

Decision last updated: 29 April 2024