Gerondal v Eurobodalla Shire Council (No 5)
[2011] NSWLEC 104
•24 June 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 Hearing dates: 6 April 2011, 7 April 2011, 1 June 2011 Decision date: 24 June 2011 Jurisdiction: Class 6 Before: Pain J Decision: The Court is satisfied beyond reasonable doubt that the Defendant has breached order 1 made by Sheahan J dated 16 July 2010 and is in contempt.
Catchwords: CONTEMPT - failure to comply with court orders - whether civil or criminal contempt of court - whether contempt established beyond reasonable doubt Legislation Cited: Evidence Act 1995 s 140, s 141
Land and Environment Rules 2007 Pt 5 r 5.2(1)
Protection of the Environment Operations Act 1997 s 245
Supreme Court Rules 1970 Pt 55
Uniform Civil Procedure Rules 2005 r 40.7Cases Cited: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
ASIC v Sigalla (No 4) [2011] NSWSC 62
Connelly v DPP [1964] AC 1254
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Fairfield City Council v Adams [2009] NSWLEC 199
Fairfield City Council v Adams (No 2) [2010] NSWLEC 45
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160
Grassby v R [1989] HCA 45; (1989) 168 CLR 1
Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525Texts Cited: Encyclopaedic Australian Legal Dictionary, LexisNexis Australia, (electronic resource) Category: Principal judgment Parties: Eurobodalla Shire Council (Plaintiff)
Paul Gerondal (Defendant)Representation: Mr P Larkin (Plaintiff)
Mr P Gerondal (Defendant - in person)
Sparke Helmore Lawyers (Plaintiff)
File Number(s): 60002 of 2009
Judgment
Eurobodalla Shire Council (the Council) filed on 17 December 2010 a statement of charge of contempt of court and a Notice of Motion seeking orders relating to the failure to comply with the order made by Sheahan J on 16 July 2010 to remove specified items from a property at Broulee owned by Mr Gerondal, the Defendant. Compliance was required by 30 August 2010. The order required the removal of the same items as the order made by me on 25 September 2009 requiring removal of the items by 25 December 2009 in these Class 6 proceedings. Compliance with that order was previously extended by Biscoe J on 12 February 2010 to 1 June 2010 and by Sheahan J on 22 April 2010 to 30 June 2010. The Defendant represented himself with his wife assisting him in his case presentation.
The original Class 6 proceedings were an appeal against conviction for the use of land at Broulee as a waste facility without lawful authority as determined at Batemans Bay Local Court on 27 November 2008. As part of my determination of that appeal I made an order pursuant to s 245 of the Protection of the Environment Operations Act 1997 (the PEO Act) requiring the removal of specified items from the Defendant's land: see Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [56].
The original Notice of Motion sought as punishment a term of imprisonment. An amended Notice of Motion filed with leave in Court seeks an order imposing a weekly fine until the order has been complied with. An order that the matter be stood over to a later date so that, if not then complied with, imprisonment should be considered is also sought. The Council accepts that some items the subject of the orders have been removed before and after 30 August 2010, for example steel girders and beams, and no orders are sought in relation to these items. The items which have yet to be removed in conformity with the order of Sheahan J are three large concrete pipes, treated timber poles, metal sheeting, sheet and corrugated iron, unused bricks and masonry, and scaffolding. The Council also seeks its costs.
By virtue of the Land and Environment Rules 2007 (the Court Rules) Pt 5 r 5.2(1), Pt 55 of the Supreme Court Rules 1970 apply to these contempt proceedings. Part 55 states in part:
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....
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....
(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration 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.
A chronology of relevant court dates in the local court and this Court follows.
31 July 2007
Date of offence alleged in Batemans Bay Local Court proceedings.
18 July 2008
Batemans Bay Local Court hearing. Photographs taken by Mr Cumming (exhibit 4 in Local Court proceedings).
18 September 2008
Batemans Bay Local Court hearing.
27 November 2008
Batemans Bay Local Court decision. Defendant convicted and fined.
2 February 2009
Notice of appeal against conviction received by Land and Environment Court.
27 February 2009
Batemans Bay Local Court ordered that "the Defendant remove all of the items specified in the attached sheets (2 pages) from his premises within three months".
1 September 2009
Hearing before me.
25 September 2009
Judgment delivered by me, s 245 order made - items required to be removed by 25 December 2009.
11 January 2010
Court Attendance Notice filed in Moruya Local Court by the Council regarding failure to comply with order by Defendant on 4 January 2010 - offence under s 251 of the PEO Act.
1 February 2010
Notice of Motion filed by the Defendant seeking extension of time for compliance with order and an order that "the Court define and /or delete the items to be removed from the premises as broadly described in 'the list' in the order".
8 February 2010
Moruya Local Court proceedings regarding offence under s 251 of the PEO Act adjourned to 5 March 2010.
12 February 2010
Notice of Motion hearing before Biscoe J. Time for compliance with the order extended to 1 June 2010.
The parties ordered to meet at the property on 22 February 2010 with the view of revising the order to remove items. The parties were to file a statement setting out the matters agreed and the matters not agreed and the reason for the disagreement by 24 February 2009. Matter adjourned to 26 February 2010.
26 February 2010
Hearing of Defendant's Notice of Motion before Sheahan J. Notice of Motion struck out because the Defendant did not appear. (He and Mrs Gerondal arrived late at the Court).
26 February 2010
Notice of Motion filed by Defendant seeking to set aside strike out order made by Sheahan J.
5 March 2010
Moruya Local Court proceedings regarding the offence under s 251 of the PEO Act set down for hearing.
12 March 2010
Biscoe J set aside orders made by Sheahan J striking out the Notice of Motion. Order made requiring Notice of Motion filed on 1 February 2010 to be fixed for hearing.
16 April 2010
Moruya Local Court proceedings regarding the offence under s 251 of the PEO Act adjourned to 7 May 2010.
22 April 2010
Hearing before Sheahan J of the Defendant's Notice of Motion filed on 1 February 2010 and judgment handed down. Time for compliance with the order extended to 30 June 2010.
Prayer 2 regarding the items listed in par(ii) of order 3 dismissed (on the grounds that the Defendant was seeking to reopen the case)
7 May 2010
Moruya Local Court proceedings regarding the offence under s 251 of the PEO Act were dismissed. (The time for compliance with the Court order had been extended to 30 June 2010).
2 July 2010
Notice of Motion filed by Defendant seeking extension of time for compliance until 1 October 2010.
16 July 2010
Notice of Motion heard by Sheahan J. Order made extending time for compliance to 30 August 2010.
19 July 2010
Order made by Sheahan J entered.
17 December 2010
Notice of Motion alleging contempt filed by the Council. statement of charge filed. Affidavits filed.
Council's evidence
The Council tendered photographs which were local court exhibits 3 and 4, a bundle of transcripts of the hearings at the local court and this Court, two title searches for the Broulee property and a title search for the Defendant's property in Waramanga, ACT. A number of affidavits were read in relation to attempted service of the order of Sheahan J made on 16 July 2010 and to demonstrate awareness of this order by the Defendant.
The affidavit of attempted service of process server Mr Wade dated 25 November 2010 was read. Mr Wade attempted to serve Mr Gerondal on 20 July 2010 with a letter and Sheahan J's order made 16 July 2010. He was unable to serve the documents because he was unable to gain access to the front door. Mr Wade again unsuccessfully attempted to serve the documents on 24 July 2010, 26 July 2010 and 27 July 2010. On these occasions he called out and dialled the supplied telephone number for Mr Gerondal but did not receive a response.
The affidavit of attempted service of Mr Noonan, a process server dated 25 November 2010 was read. Mr Noonan attempted to serve Mr Gerondal on 21 July 2010 with a letter and the order made on 16 July 2010. He dialled the supplied telephone number and spoke to Mrs Gerondal with whom he left contact details for Mr Gerondal to contact him. On 22 July 2010, Mr Noonan received a telephone call from Mrs Gerondal notifying him that they could not meet with him that day. Mr Noonan suggested that he "will have Ray call you to arrange service if you are home tonight" to which Mrs Gerondal responded that it would be okay.
The affidavit of Mr Jayne, lawyer, dated 25 November 2010 was read. On 3 August 2010, Mr Jayne attempted to call Mr Gerondal and received a "call waiting" message. On that day he sent a letter enclosing the order made on 16 July 2010 by registered post to a street address in Canberra and by email. On 4 August 2010, Mr Jayne spoke to Mrs Gerondal who confirmed that Mr Gerondal received the email sent on 3 August 2010. Mr Jayne sent another letter enclosing the order made on 16 July 2010 by express post to a PO Box and email. A copy of that letter and email was annexed to his affidavit.
The affidavit of Ms Simmons, lawyer, dated 2 December 2010 was read. On 29 July 2010 and 30 August 2010, Ms Simmons attempted to telephone Mr Gerondal but did not receive a response. On 1 September 2010, Ms Simmons received by return mail a letter sent by registered post to Mr Gerondal's home address as the mail was "unclaimed". On 3 September 2010, Ms Simmons sent a further letter by registered post to a PO Box and this was received by return mail on 27 September 2010 because the mail was "unclaimed".
Mr Coles, an environment ranger at the Council, states in his affidavit dated 1 December 2010, read in part, that he left a copy of the order in the letterbox at the Broulee property on 31 August 2010 when he attended the property with Mr Cumming, a senior environmental health officer.
The affidavit of Ms Lenson, Environmental Manager of the Council, dated 1 December 2010 was read in part. Ms Lenson carried out an inspection of the Broulee property on 3 September 2010 in the company of Mr Cumming and Mr Coles. On 6 September 2010 Ms Lenson received an email from Mr Gerondal forwarding an email requesting more time to comply with the order. Subsequently on 10 September 2010, Ms Lenson received a facsimile from Mr Gerondal which refers to my order to remove listed items from his Broulee property and states that the order does not specify where the items are to be placed. He identifies the names of some companies contacted which could not remove the heavy items by 30 September 2010. Ms Lenson inspected the property that day with Mr Cumming.
The Council relied on the following affidavits to establish failure to comply with the court order. The affidavit of Mr Cumming, a senior environmental health officer of the Council, dated 1 December 2010 was read in part concerning site inspections of the Broulee property on 22 February 2010, 31 August 2010, 3 September 2010, 10 September 2010, and 16 September 2010. The affidavit identifies the items which Mr Cumming considers were the subject of the Court's order which remained on the property in non-compliance with Sheahan J's order. Some of the material the subject of the Court order were removed before 30 August 2010 and some were removed after that date.
Mr Cumming inspected the Broulee property on 31 August 2010 with Mr Coles. He observed many items in the front yard including three large concrete pipes, metal and plastic sheeting and assorted waste. He also saw a toilet on a trailer, which did not appear to have a registration plate or label, located on the street outside the property. On 3 September 2010, Mr Cumming inspected the property accompanied by Ms Lenson and Mr Coles. Mr Cumming observed that the items he saw on the inspection on 31 August 2010 remained on the property in the same locations. Similarly, when Mr Cumming and Ms Lenson inspected the property on 10 September 2010, most of the items he saw on the inspection on 31 August 2010 remained on the property in the same locations. Mr Cumming also inspected the property on 16 September 2010, 24 September 2010, 11 October 2010 and 26 October 2010. On each occasion, Mr Cumming prepared a site plan of the property showing the approximate position of each of the items or groups of items referred to in the 25 September 2009 order and took a number of photographs of the items on the property. Copies of these were annexed to his affidavit.
The affidavit of Mr Cumming dated 6 April 2011 was read in part in chief concerning site inspections on 15 March 2011, 4 April 2011 and 5 April 2011 (par 1 - 7 and 18 - 19). In reply par 8 - 17 of that affidavit were read. On 15 March 2011 Mr Cumming drove past the Broulee property and did not see any obvious changes to the state of the property or the location of particular items in the front of the property since his inspection on 26 October 2010, except that the toilet on the trailer and the window screens and frames which had been attached to the Ford Courier vehicle were no longer at the property.
When he drove past the property on 4 April 2011 at approximately 10:15am, Mr Cumming observed the following items: the large concrete pipes near the front gate and a number of treated timber poles with ends painted pink near the front boundary behind the driveway gates, inter alia. On his previous inspections the treated timber poles were located to the rear of the property and he had not previously observed the paint. Later that day Mr Cumming received from the Council's lawyers a copy of a letter to Mr Gerondal dated 1 April 2011 containing a revised open settlement offer and attachments referred to therein. He placed them in the letterbox. Copies of the letter and attachments were annexed to his affidavit.
Mr Cumming carried out a further inspection of the Broulee property at approximately 8:30am on 5 April 2011 and observed the following: ten treated timber poles with ends painted pink in the front of the property behind the driveway gates, nine long treated timber poles and one shorter timber pole at the rear of the property close to the western boundary, various items in the rear yard which he had seen on previous inspections, various items underneath the house on the western side which he had seen on previous inspections, including some cement bricks and a circular piece of fabricated metal, three concrete pipes in the front yard near the front gate and various pieces of bricks and masonry in the front yard near the concrete pipes. The steel girders and beams which he had seen on previous inspections did not appear to be present on the property. Copies of the photographs Mr Cumming took during this inspection were annexed to his affidavit.
Mr Gerondal cross-examined Mr Coles, Mr Cumming and Ms Lenson. Mr Coles was asked, in reference to a file note dated 3 September 2010 (annexure C to his affidavit), how he travelled from Broulee to Bingie in ten minutes. Mr Coles responded he had possibly erroneously recorded the time.
In cross-examination Mr Cumming was shown a photograph of the house and asked whether there was sufficient quantity of material to build a house extension. Mr Cumming replied that it could be for a component of a structure and whether it was sufficient depended on the size of the structure. Mr Gerondal questioned Mr Cumming about his observation between September and October that the vehicle was missing number plates and whether he reported this to the Police, the Council, the Roads and Traffic Authority or the Defendant. Mr Cumming responded that he did not. Mr Cumming rejected the suggestion that his not informing the Defendant about the missing number plates hindered the removal of objects from the property as required by the order. Mr Gerondal asked Mr Cumming why he only looked at the property from the outside. Mr Cumming replied that he considered it appropriate to conduct a drive-by inspection. He was also questioned about the difference between concrete pipes and water pipes and whether concrete pipes with doorways cut out of them were capable of carrying water. Mr Cumming replied that concrete pipes and water pipes can be the same thing and that whether the concrete pipes could carry water depended on how they were situated. Mr Gerondal questioned Mr Cumming about his role in the Moruya Local Court proceedings and whether he was present when the matter was discontinued on 7 May 2010. Mr Cumming could not recall whether he was present in Court on 7 May 2011. When asked why he did not attend Court, Mr Cumming replied that he would not have been advised to attend.
Ms Lenson was shown the second page of the Moruya Local Court records (exhibit A) by Mr Gerondal in cross-examination and asked whether she had seen it. Ms Lenson responded that she had not. She was then asked whether she recalls any further records in relation to the Council's solicitor with regard to the local court prosecution. Ms Lenson replied there was correspondence between Mr Warren, the Council's then solicitor, and the Council on the matter. Ms Lenson was shown a letter of offer from the Council to Mr Gerondal dated 25 January 2011 and attached work schedule (exhibit B) and asked whether she has considered compliance with the Roads and Traffic Authority rules for carrying loads of 11m on a float, referred to in the work schedule. Ms Lenson responded that the float may not be the Council's float and that the quote was based on advice from the maintenance manager from the Council who provided the estimate based on machinery they had or on contracting that work out to remove the materials subject of the order on the Broulee premises.
Defendant's evidence
Mr Gerondal tendered a copy of a Court Attendance Notice issued 11 January 2010 alleging failure to comply with an order made in September 2009 and a letter of offer from the Council's solicitors to Mr Gerondal attaching a work schedule for the removal of waste.
Mr Gerondal gave oral evidence. The items considered waste by the Council are marketable, serviceable building materials designed for a number of plans in Bingie and Broulee. Since 1994 Mr Gerondal has proceeded with the plans and development applications for the use of the timber poles and concrete pipes in Broulee. The building project was delayed due to illness, lack of finance and actions by the ACT government on another legal matter. Mr Gerondal says he has taken a number of trips to remove items the subject of the order. He also stated that he has financial problems and could not pay a fine. Mr Gerondal has a taxable income of less than $20,000 per year. He is a joint tenant with Mrs Gerondal of a property in Waramanga, ACT and is the owner of the property at Broulee. He has loans and mortgages on the properties which he has to pay off regularly. He recalls filing an application for fee waiver at Court. Mr Gerondal also gave oral evidence that he and his wife are unwell. He has been in a Canberra hospital for five weeks and has constant monitoring of the problem.
In cross-examination, Council's counsel asked Mr Gerondal whether he understood that this Court upheld the local court decision that the concrete pipes were waste. Mr Gerondal replied that the concrete pipes were waste according to the PEO Act dictionary definition. Mr Gerondal was shown the photographs taken on 5 April 2011 in Mr Cumming's second affidavit depicting three large concrete pipes. Mr Gerondal admitted that they were on his property at the time the local court made its order on 27 February 2009, when I made an order on 25 September 2009 and when Sheahan J made an order on 16 July 2010. When it was put to him that the concrete pipes were still on the property, Mr Gerondal disagreed saying that they had commissioned a person to move them so the pipes were in the process of being moved. Counsel asked whether the concrete pipes were still on the property when Mr Gerondal visited it on Monday 4 April 2011. Mr Gerondal replied that they were until about 1pm but anything could have happened to them by the end of that day. Counsel suggested that there was no real doubt in Mr Gerondal's mind that the three pipes were covered by the order made first by Sheahan J and that Mr Gerondal was under no illusion after 22 April 2010 that he was required to remove each of the concrete pipes. Mr Gerondal stated that because the order said four pipes he had to find a fourth pipe to remove. When asked whether this meant that Mr Gerondal was entitled to leave three pipes on the property, he replied that he did not think so and that his job was to find four pipes first and remove them. Counsel asked whether Mr Gerondal wanted to build a bathroom with the pipes. Mr Gerondal answered that in "strict terminology", they are not pipes but concrete pods. Counsel directed Mr Gerondal to the first photograph in exhibit 2 dated 18 July 2008 (exhibit 4 in the local court) and asked whether it depicted the same three pipes. Mr Gerondal agreed it did. Counsel suggested that Mr Gerondal was in no doubt that the order required the removal of these pipes. Mr Gerondal answered that the order required the removal of four concrete pipes, large or small.
Mr Gerondal also confirmed that the treated timber poles shown in photograph 18 dated 22 February 2010 (exhibited to Mr Cumming's affidavit dated 1 December 2010) behind tab C were on the property on the days orders were made by the local court, me and Sheahan J. He said that the timber poles were no longer on the property because they were removed to an "unspecified" area. He could not indicate exactly where because there was no survey of the property and the fence line boundary was not a legal boundary. When asked whether, at the least, the timber poles substantially remained on the property, Mr Gerondal said "Well they're very long poles, I suppose they must be - remain on the property otherwise the council will complain". He understood that the timber poles were the subject of my and Sheahan J's orders.
Counsel also questioned Mr Gerondal about photographs 34 and 35 dated 22 February 2010 (exhibited to Mr Cumming's affidavit dated 1 December 2010) behind tab E, which showed corrugated iron leaning against a gate. Mr Gerondal said he did not know that the object was corrugated iron and that it was Colorbond. When asked whether it was a metal he said it was aluminium, which he understood to be a metal at normal temperature. He agreed it was metal sheeting and confirmed that it was on his property at the date of the local court order until two weeks before 7 April 2011.
Counsel directed Mr Gerondal to photograph 48 behind tab F which was comprised of four photographs dated 22 February 2010 (exhibited to Mr Cumming's affidavit dated 1 December 2010). The bottom right hand photograph depicted unused masonry which Mr Gerondal confirmed was on the property at the dates of the orders made by the local court, me and Sheahan J. He said they were no longer on the property because they were removed between a month and two weeks before 7 April. Mr Gerondal disputed that the bricks were unused because they had previously been used for paving. As they had mortar on them Mr Gerondal did not believe they corresponded to what was specified in the order as unused bricks. Mr Gerondal was shown the local court transcript of 18 September 2008 at TS98.20 which records his evidence about the slates being "still unused, not new, new in the sense of unused" and that "It's never had cement on it". Mr Gerondal attempted to clarify what he meant in this evidence and continued to challenge the proposition that the masonry was unused. Counsel suggested this resistance to agree was owing to the fact that Mr Gerondal knew that the Court order applied to this masonry. Mr Gerondal replied that the Court order applied to unused masonry. He was asked whether this masonry was on the property at the time orders were made by the local court, me and Sheahan J and Mr Gerondal replied "yes". He said it was no longer on the property, having been removed between one to three months ago. He confirmed that the bricks below the slate in the exhibit 2 photographs (local court exhibit 4) were on the property at the time orders were made by the local court, me and Sheahan J. Mr Gerondal said they remained on the property but were in a different position.
Counsel asked whether Mr Gerondal has considered cutting up the poles in order to make them easier to transport. He replied that that was not appropriate according to the order even though he did not think he would be breaching the order by taking that action. Mr Gerondal said he has considered cutting up the pipes to make them easier to transport but did not take any action in this regard.
Mr Gerondal was also asked whether the scaffolding was there at the time orders were made by the local court, me and Sheahan J and Mr Gerondal replied in the affirmative. He was not sure if it remained on the property after 30 August 2010.
Counsel questioned Mr Gerondal about his finances. Mr Gerondal was not sure whether he owned the subject property but said he was the only one who paid the rates. He did not know whether his wife owned any properties. He said he did not own the Canberra property but was a leaseholder of a Crown lease and suggested that in addition to him and his wife there were other lessees.
With regard to Sheahan J's order to remove steel girders and beams, Mr Gerondal said he could not find any such items and that his understanding of a girder is not what is depicted in the photograph. Mr Gerondal was directed to a photograph in exhibit 2 which showed steel girders or beams and was asked what they were made of. He replied that they were made of sheet steel not cast steel and agreed that it was a type of metal. Mr Gerondal disagreed with the classification of the objects as girders or beams. He confirmed that those objects were on the property on 27 February 2009, 25 September 2009 and 16 July 2010. When asked whether they remained on the property after 30 August 2010, Mr Gerondal said that they had been removed within the last two weeks because of the Court order.
Counsel asked Mr Gerondal about the window frames, which Mr Gerondal called fly screens and showed him photographs behind tab G (exhibited to Mr Cumming's affidavit dated 1 December 2010) which depicted these. Mr Gerondal confirmed that these were on the property at the time orders were made by the local court, me and Sheahan J. Counsel suggested that large numbers of them remained on the property after 30 August 2010. Mr Gerondal replied that at least six remained on the property.
Mrs Gerondal's evidence
Mrs Gerondal gave oral evidence about the steps taken to comply with Sheahan J's order. She responded that she called contractors who specialised in moving heavy weights. None had been able to come for reasons such as mechanical failure. A letter from Mr Gerondal to Ms Lenson faxed 9 September 2010 specifying the steps taken to comply with the order is annexure H to Ms Lenson's affidavit. The Council did not have equipment to remove the heavy objects. Mrs Gerondal said some contractors were continuing to remove objects. There was no resolution between the parties at the meeting ordered by Biscoe J in February 2010. Mrs Gerondal was asked what she wanted to use the poles for to which she replied that she wanted to use them at Broulee and Bingie. In cross-examination counsel asked Mrs Gerondal where she wanted to take the poles and she responded that she wanted to take them to Bingie.
Civil or criminal contempt?
Contempt is often considered in terms of whether it is technical, wilful or contumacious. Technical contempt is where the contempt is "casual, accidental or unintentional". Wilful contempt occurs when there is deliberate disobedience but without the intention of defying the court's authority. Contempt is contumacious if there is an element of deliberate defiance of a court's orders; see Fairfield City Council v Adams (No 2) [2010] NSWLEC 45 at [13]. The Council is not submitting the Defendant's contempt is contumacious. A further consideration is whether the contempt is civil or criminal in nature, see for example Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106 where the High Court (Gibbs CJ, Mason, Wilson and Deane JJ) stated:
Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as "civil contempt"; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as "criminal contempt" ...
The Council's counsel submits that these are civil contempt proceedings adopting the analysis of White J in ASIC v Sigalla (No 4) [2011] NSWSC 62 . That case held that contempt proceedings are separate proceedings, not to be characterised by reference to the original proceedings. The definitions of civil and criminal proceedings in the Evidence Act 1995 were applied in White J's analysis. The Evidence Act defines criminal proceedings as "a prosecution for an offence and includes:
(a) a proceeding for the committal of a person for trial or sentence for an offence, and
(b) a proceeding relating to bail..."
and civil proceedings as "a proceeding other than a criminal proceeding". The Council submitted that while Class 6 proceedings are criminal in nature these contempt proceedings should not be so characterised. Nor do they fit the description of criminal proceedings under the Evidence Act, which means that they are defined as civil proceedings for the purposes of that Act.
A breach of what are in effect injunctive orders is civil contempt unless the contemnor is deliberately defying the authority of the court, which is not pressed in relation to this Defendant. Further, the form of punishment sought is not definitive of whether the matter is civil or criminal. Where imprisonment is sought for coercive not punitive purposes is also consistent with civil contempt ( Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, per Brennan, Deane, Toohey and Gaudron JJ at 532, " The same distinction is maintained in the United States where the notion of 'coercive or remedial' proceedings is often expressed in the metaphor that those in breach of an order or undertaking 'carry the keys of their prison in their own pockets'" ). Here orders imposing a fine and costs are sought as sufficient to punish contempt.
The Council also submitted, consistent with the analysis of White J in ASIC v Sigalla at [94], that s 140 of the Evidence Act identifies the relevant standard of proof required for civil proceedings and in s 141 the requisite standard of proof in criminal proceedings. The civil onus of proof under the Evidence Act for civil matters should apply to these civil contempt proceedings.
The Defendant did not address this question in his submissions.
I consider that there is little difficulty in concluding that these are civil contempt proceedings whether the distinction identified in Mudginberri is applied or the definitions in the Evidence Act ( ASIC v Sigalla ). While the decision of a single judge of the Supreme Court is not directly binding on me, in the absence of any identifiable error I consider the reasoning in ASIC v Sigalla can be applied to identify whether these are civil or criminal contempt proceedings. Of potentially more moment, consequent on finding these are civil contempt proceedings, is whether the civil standard of proof should apply rather than the criminal standard of proof.
A recent decision of the Court of Appeal concerning contempt of court, Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 considered whether the contempt in question (the breach of an undertaking to a court) was civil or criminal. It was held to be civil contempt. Witham v Holloway was cited for the statement that regardless of whether the contempt was civil or criminal the criminal standard of proof was required. There is no reference in Pang to ASIC v Sigalla and the reasoning of White J based on the Evidence Act that the civil standard of proof applies to civil contempt proceedings, suggesting that was not raised before the Court of Appeal in Pang . There does not appear to be Court of Appeal consideration of the application of the Evidence Act in relation to the classification of contempt proceedings as civil or criminal and therefore to whether the civil onus of proof applies in civil contempt proceedings.
White J in ASIC v Sigalla held that the civil standard of proof applies in civil contempt proceedings and distinguished a number of Court of Appeal cases including Witham v Holloway in light of the changed statutory framework, particularly the Evidence Act, in his reasoning. If I find that the contempt charged is established beyond reasonable doubt it is not necessary to resolve the issue of whether the civil standard of proof applies in civil contempt proceedings.
Does double jeopardy principle apply?
Mr Gerondal submits that the principle of double jeopardy applies to bar these contempt proceedings because enforcement proceedings commenced by the Council in Moruya Local Court in relation to a failure to comply with the Court order made by me in September 2009 were dismissed. A finding that these are civil contempt proceedings means that the principle of double jeopardy which the Defendant seeks to raise cannot apply as it has no application in civil proceedings.
The Council submitted that even if these were criminal proceedings for contempt, no double jeopardy principle applies as there was no resolution of any matter by the local court when the proceedings were dismissed on 7 May 2010. As the Council submitted, the proceedings lacked utility as the period for compliance had been extended by the Court on 22 April 2010. Further, contempt proceedings are different to and completely separate from what was before the local court. Contempt proceedings give rise to different considerations and procedures specific to proceedings of that nature.
The principle of double jeopardy is that of placing an accused person in peril of being convicted of the same crime in respect of the same conduct more than once. At common law there is a rule against a person being placed in double jeopardy: Connelly v DPP [1964] AC 1254; Davern v Messel [1984] HCA 34; (1984) 155 CLR 21. The principle applies only where there has been a hearing on the merits of the case: Grassby v R [1989] HCA 45; (1989) 168 CLR 1, extracted from Encyclopaedic Australian Legal Dictionary , LexisNexis Australia, (electronic resource) .
I consider the principle of double jeopardy does not operate regardless of whether these are civil or criminal contempt proceedings for the reasons given by the Council. There has been no hearing on the merits of the case and these are civil contempt proceedings. Accordingly, the Council can press this charge of contempt against the Defendant.
Personal service of original order not required
The Council submitted that personal service of the order in relation to which the contempt proceedings are brought is not required under Pt 55 for contempt proceedings in Class 6. Part 55 r 9 states that service of the statement of the contempt charge is to be personal (and does not refer to court order the subject of a contempt charge). While many attempts at service of the order of Sheahan J were made, as detailed in the affidavits at par 7 - 12 above, personal service was not effected. The requirement in certain proceedings for personal service of injunctions before enforcement may take place is derived from Uniform Civil Procedure Rules 2005 r 40.7. That rule is not applicable in Class 5 and Class 6 proceedings, where personal service is not required; r 5.2 of the Court Rules, and see Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [23] and [90] - [91].
The Council submitted that it repeatedly attempted to serve Mr Gerondal with the order made by Sheahan J on 16 July 2010, as identified in the affidavits of Ms Simmons dated 2 December 2010, Mr Jayne dated 1 December 2010 (especially par 3 and annexure A), Mr Coles dated 1 December 2010, Mr Noonan dated 25 November 2010 and Mr Wade dated 25 November 2010. Mr Gerondal made no submissions on this topic.
The Council submitted that Mr Gerondal knew of the terms of the order, as revealed in the transcripts of the hearings in which he applied to vary the terms of the order: see particularly transcript of 12 February 2010 at TS2.36 - 50 (before Biscoe J) and 22 April 2010 (before Sheahan J) TS2.41 - 50, TS3.24 - 27, TS5.16 - 30, TS6.1 - 25, TS7.29 - 40 (before Sheahan J). The terms of the order, apart from the date by which it had to be complied with, remained the same at all times since 25 September 2009. Mr Gerondal was present when Sheahan J pronounced the final order on 16 July 2010 (TS13 last paragraph). Mr Gerondal was specifically warned by Sheahan J of the potential consequences of non-compliance, including fine and imprisonment: transcript 16 July 2010 see especially TS8.12 - 18, TS10.1 - 3, TS10.21 - 22, TS10.45 - 48, and TS12.41 - 43. Mr Gerondal's knowledge of the order is also confirmed by the unchallenged evidence of the Council's witnesses, for example the affidavit of Mr Cumming dated 1 December 2010 at par 17. The position in this case is the same as in Kelly (No 3) ; see [18] and [19].
Mr Gerondal did not make any submissions on this matter. I accept the Council's submissions that personal service of the original order the subject of the charge of contempt is not required in the circumstances identified by the Council in this case, an approach in conformity with the finding in Kelly (No 3) at [23], [90] - [91].
It is relevant in the absence of personal service of the original order that awareness of the order the subject of the contempt charge be demonstrated. Mr Gerondal was present when the order was made by Sheahan J on 16 July 2010. Mr Gerondal did not dispute that he was aware of the order made by Sheahan J. The evidence relied on by the Council to establish his awareness as identified in the affidavits of Ms Lenson and Mr Cumming and the transcript references referred to in the Council's submissions confirm that Mr Gerondal was aware of the order of Sheahan J. Additionally, the affidavit of Mr Jayne indicates that Mr Gerondal received a copy of the order by 4 August 2010.
Compliance with Pt 55 r 9 Supreme Court Rules
After the April 2011 hearing the Court asked the Council what evidence is relied on in relation to personal service of the statement of charge, Notice of Motion and affidavits as required by Pt 55 r 9 of the Supreme Court Rules. The Council relies on the affidavit of Mr Wade, process server, dated 24 January 2011 and filed in Court today, 24 June 2011, which identifies a list of documents served personally on Mr Gerondal on 15 January 2011 including the statement of charge. Mr Gerondal submitted that he had not then received the statement of charge. He submitted that he received the statement of charge for the first time by email a day before 6 April 2011. The affidavit evidence of Mr Wade establishes that Mr Gerondal was personally served. To the extent that he was then unaware of receipt of that document he was nevertheless served with the Notice of Motion which is in virtually identical terms to the statement of charge. The statement of charge was clearly identified in the hearing in April 2011 and was considered by all the parties. I consider that Pt 55 r 9 was satisfied by the Council and that Mr Gerondal was not disadvantaged in the lead up to the April hearing and at that hearing in relation to the consideration of the statement of charge.
Contempt established beyond reasonable doubt
As noted above in par 40, if contempt is established on the criminal standard of proof of beyond reasonable doubt it does not need to be finally determined if the civil or criminal onus of proof applies. The Council must prove that as at 30 August 2010 the items the subject of the charge were on the Defendant's property contrary to the Court order. Whether the failure to comply is deliberate is not material to a finding of contempt, Fairfield City Council v Adams [ 2009] NSWLEC 199 at [39] - [40].
The evidence relied on by the Council to establish non-compliance with the Court's order is that of Mr Cumming, Council officer, who attests to the presence of items covered by the terms of the local court orders and the original order made by me and consequently by Sheahan J's order in his affidavits, summarised above at par 13 - 17. The affidavits confirm that the items the subject of the charge of contempt, namely three concrete pipes, treated timber poles, metal sheeting, sheet and corrugated iron, unused bricks and masonry and scaffolding remained on the property on 30 August 2010 and continued to be there on 5 April 2011 when the site inspection occurred referred to in the affidavit of 6 April 2011 of Mr Cumming.
The cross-examination of Mr Gerondal by the Council's counsel, summarised above in par 23 - 31, is also relevant to the Council establishing contempt. Mr Gerondal agreed that the various items the subject of the charge on the property at the date of Mr Cumming's affidavits in December 2010 and April 2011 were the subject of the orders made by the local court, by me and therefore by Sheahan J. These items remained on the property as at early April 2011.
Order not ambiguous
Mr Gerondal submitted that the order was ambiguous and the items covered by it were not clear. I considered a similar submission in Fairfield City Council v Adams and referred to relevant authorities at [22] - [31]. In particular, in Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 Campbell J considered that surrounding circumstances can be considered when construing an order. Two passages from Campbell J's judgment set out in Fairfield City Council v Adams at [29] also have application here and I therefore repeat them. Campbell J considered ambiguous orders generally at [55] as follows:
...the court approaches the question of whether the order is ambiguous with the caution appropriate to a type of litigation which could result in the defendant being punished - if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail. This means that there will sometimes be orders which a grammatical analysis would show to contain a syntactic ambiguity, but which are none the less enforceable if it is the type of ambiguity that has no real risk of misleading. There will sometimes be orders which contain a term which has multiple meanings, but where that semantic ambiguity has no real risk of misleading. If there were to be an order addressed to a promoter of musical groups not in any way to be involved in the advertising or promotion of a band under some particular name, the order would be enforceable notwithstanding that a "band" can sometimes be a rubber band, or a headband.
At [56] - [57] Campbell J considered ambiguity in the context of consent orders the subject of contempt proceedings:
In deciding whether an order is certain enough to be enforceable by contempt proceedings, the task of construction of an order can go far enough to enable ambiguities which have no real risk of misleading someone who is trying to understand and obey the orders to be discarded.
...In the case of consent orders, where surrounding circumstances can be used as an aid to construction, those surrounding circumstances can have the effect that an order which is ambiguous, considered in isolation, is found to be not ambiguous when read in light of the surrounding circumstances. As the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account. Hence it is appropriate that any question of whether the order is ambiguous should be answered only after such facts have been taken into account.
The affidavit evidence of Mr Cumming which identifies the items the subject of the charge about which Mr Gerondal was asked questions suggests the items the subject of the order are clearly identified and their identification is not ambiguous. As noted in par 53, Mr Gerondal agreed with the questions put to him by the Council's counsel in cross-examination that photographs taken by Mr Cumming of the items the subject of the charge showed items that were present on his property at the time of the local court and this Court's orders.
One area of possible ambiguity raised by Mr Gerondal concerns the concrete pipes. The order made by me and by Sheahan J refers to four concrete pipes when the evidence of Mr Cumming suggests that there are three such pipes on the property. While accepting that these three pipes are the subject of the Court order, Mr Gerondal appeared to suggest in his oral evidence that he had to find four pipes before he could remove the three pipes the subject of the order. That is not a proper basis for delay in the removal of the three pipes the subject of the Court's order. Mr Gerondal was told that by Sheahan J on 22 April 2010 at TS6.
In relation to the descriptions of unused masonry (consisting of bricks and slate) Mr Gerondal submitted that as the bricks had cement on them they were not unused having been used previously. A commonsense approach to the description of unused masonry means that they are presently unused as masonry. The photographs in evidence identify the unused bricks and slate on Mr Gerondal's property which must be removed in order to comply with the Court order.
Mr Gerondal also appeared in cross-examination, initially at least, to query whether sheeting in photographs taken by Mr Cumming and shown to him was metal. He ultimately agreed that such sheeting was metal and was covered by the Court's order.
There does not appear to be any ambiguity in the identification of the items required to be removed by the Court's order the subject of the charge. Adopting Campbell J, I do not consider there is any real doubt about the items the subject of the order and Mr Gerondal is expected to try to understand and obey it, including by applying a commonsense approach to the meaning of the words in the order.
Description of items in order final
Mr Gerondal also sought to question the description of items to be removed as purchased for house extensions in the original order in September 2009 on the basis he did not purchase some or all of the items for house extensions. It is far too late to be raising that argument now. I determined what could remain and what had to be removed on the basis of the evidence before me at the hearing in September 2009. The description of the items to be removed as those purchased for house extensions is a means of identifying the relevant items, to distinguish these items from the other items for personal use located on the Broulee property which I did not require to be removed. This is clear from [54] in Gerondal . Whether Mr Gerondal considers he bought the items for house extensions or not is now irrelevant and not a proper basis for suggesting he cannot comply with the Court's order when the identification of the items is otherwise clear.
In the cross-examination by Mr Gerondal of Mr Cumming he asked his view of whether the items could be used to build a house extension, the submission being put that they were too small in quantity to do so. I infer that Mr Gerondal by implication makes that submission. For the reason given in the previous paragraph that is also an irrelevant consideration in relation to the identification of the items the subject of the contempt charge.
Conclusion
The Council officer Mr Cumming's evidence and the evidence before the local court establishes beyond reasonable doubt that the items the subject of the order were on the Broulee property when the order was made and the items identified in the charge continued to be there as at 5 April 2011. The Council has established the charge of contempt against Mr Gerondal. It will now be necessary to sentence Mr Gerondal for that contempt.
There was a suggestion in Mr Gerondal's oral evidence at the hearing on 6 and 7 April 2011 that steps were being taken by him to remove additional items, in particular the concrete pipes, scaffolding and metal sheeting. The extent to which this had occurred or may occur was unclear from his oral evidence. I will allow Mr Gerondal the opportunity to clarify what steps, if any, have been taken by him since the hearing on 6 and 7 April 2011 to remove additional items the subject of this charge as such a matter is relevant to sentencing. A timetable for the conduct of the sentencing hearing is also necessary.
The Court is satisfied beyond reasonable doubt that the Defendant has breached order 1 made by Sheahan J dated 16 July 2010 and is in contempt of court. The Court concludes that charges 1, 3, 4, 5, 6 and 9 in the statement of charge have been established beyond reasonable doubt.
Decision last updated: 28 June 2011
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